J-S23045-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    JORDAN ANDREW GEBHARD                      :
                                               :
                       Appellant               :   No. 119 EDA 2018

                Appeal from the PCRA Order November 15, 2017
     In the Court of Common Pleas of Northampton County Criminal Division
                       at No(s): CP-48-CR-0004143-2009


BEFORE:      SHOGAN, J., NICHOLS, J., and STEVENS*, P.J.E.
MEMORANDUM BY STEVENS, P.J.E.:                     FILED SEPTEMBER 24, 2018
        Appellant Jordan Andrew Gebhard appeals from the Order entered in the

Court of Common Pleas of Northampton County on November 15, 2017,

denying as untimely his first petition filed under the Post Conviction Relief Act

(PCRA).1 For the following reasons, we affirm.

        On January 14, 2010, Appellant entered a negotiated guilty plea to

attempted rape of a child (F1), indecent assault of a person less than thirteen

years of age (M1), and indecent exposure (M1).2            Pursuant to the plea,

numerous other serious charges were withdrawn. N.T. Guilty Plea, 1/14/10,

at 12. Appellant’s plea arose following his contact with his eleven (11) year

old stepsister between September and November of 2009, at which time


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1   42 Pa.C.S.A. §§ 9541-9546.
2   18 Pa.C.S.A. §§ 901, 3121(c); 3126(a)(7); 3127(a), respectively.
____________________________________
* Former Justice specially assigned to the Superior Court.
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Appellant exposed himself to the child, touched her vagina, and attempted to

engage in sexual intercourse with her. Id. at 9-12.

       On April 15, 2010, Appellant was sentenced to an aggregate term of

seven and one-half (7 ½) years to forty (40) years in prison. Following a

Megan’s Law Assessment, he was not found to be a sexually violent predator.

At the time Appellant pled guilty, as well as at the time of sentencing, the

third iteration of Megan's Law (Megan's Law lll) was in effect, which required

a ten–year registration period for a conviction under 18 Pa.C.S.A. § 3126

(relating to indecent assault) and a lifetime registration for convictions under

18 Pa.C.S.A. § 3121 (relating to rape). See 42 Pa.C.S.A. § 9795.1 (expired).3

These registration requirements are marked as Applicable to Appellant’s case

on the signed, “Written Addendum to the Sentencing Colloquy Registration of

Sexual Offenders” form.         See Written Addendum to Sentencing Colloquy,

dated 1/14/10, at 2.



____________________________________________


3 In November 2004, the General Assembly enacted Megan's Law lll. On
December 20, 2011, the General Assembly enacted the Sexual Offender
Registration and Notification Act (“SORNA”), which is the fourth iteration of
Megan's Law. SORNA took effect one year later on December 20, 2012. Under
SORNA, the General Assembly required lifetime registration for individuals
convicted of two or more offenses requiring 10–year registration. 42 Pa. C.S.
§ 9799.15(a)(3). SORNA is the sexual offender registration law currently in
effect; its purpose was to strengthen registration requirements for sex
offenders and to bring Pennsylvania into compliance with the Adam Walsh
Child Protection and Safety Act, 42 U.S.C.A. § 16901 et seq.




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       Appellant did not file a post sentence motion or a direct appeal following

the imposition of his sentence. Accordingly, his sentence became final on May

17, 2010. See 42 Pa.C.S.A. § 9545(b)(3) (stating a judgment of sentence

becomes final at the conclusion of direct review or the expiration of the time

for seeking review).4

       On August 21, 2017, Appellant filed pro se a document titled “Motion to

Modify Sentence Pursuant to 557 U.S.             2016 & 774 A.2d 1280.”   Therein,

Appellant maintained his lifetime registration requirement under SORNA had

been rendered illegal by the Pennsylvania Supreme Court’s decision in

Commonweath v. Muniz, ___ Pa. ____, 164 A.3d 1189 (2017)(Opinion

Announcing the Judgment of the Court), cert. denied, 138 S.Ct. 925 (Jan. 22,

2018).5

The PCRA court treated the Motion as Appellant’s first PCRA petition and

appointed counsel to represent him. On September 29, 2017, the PCRA court

held a conference on the matter, and it heard argument from the parties on

October 26, 2017, at which Appellant participated via video conferencing.



____________________________________________


4  The thirtieth day following the entry of the judgment of sentence, May 15,
2010, was a Saturday; therefore, Appellant had until the following Monday to
file a timely notice of appeal. See 1 Pa.C.S.A. § 1908.
5 On July 19, 2017, our Supreme Court filed its decision in Muniz holding that

the enhanced registration requirements of SORNA are punitive and, therefore,
applying SORNA retroactively is a violation of the ex post facto clauses of the
U.S. Constitution and Pennsylvania Constitutions. Muniz at ____, 164 A.3d
at 1223.


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Thereafter, on November 15, 2017, the PCRA court entered its Order and

Opinion denying Appellant’s PCRA petition.

      Appellant filed a timely appeal with this Court on December 8, 2017. On

December 11, 2017, the PCRA court directed Appellant to file a concise

statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).

Appellant complied and filed his “Statement of Matters Complained of” on

December 12, 2017.

      In his brief, Appellant presents the following Statement of the Question

Involved:

             Whether the PCRA [c]ourt erred and abused its discretion in
      denying Appellant’s Motion to Modify Sentence, treated as a PCRA
      petition, for failing to address the merits of Appellant’s claim since
      it had the jurisdiction to vacate the SORNA lifetime registration
      and to resentence him to a 10 year registration upon his release
      from prison since it never relinquishes its jurisdiction to correct an
      illegal sentence?

Brief for Appellant at 3.

      “Initially, we note that when a defendant enters a guilty plea, he or she

waives all defects and defenses except those concerning the validity of the

plea, the jurisdiction of the trial court, and the legality of the sentence

imposed.” Commonwealth v. Stradley, 50 A.3d 769, 771 (Pa.Super. 2012)

(citation omitted). In addition, it is well-established that the PCRA subsumes

all common law remedies for collateral relief, and challenges to the legality of

one’s sentence are cognizable under the PCRA. See 42 Pa.C.S.A. § 9542;

Commonwealth v. Infante, 63 A.3d 358, 365 (Pa.Super. 1997); therefore,


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we find that the PCRA court properly treated Appellant’s Motion to Modify

Sentence as a PCRA petition.

      When reviewing the propriety of an order denying PCRA relief, this Court

is limited to a determination of whether the evidence of record supports the

PCRA court’s conclusions and whether its ruling is free of legal error.

Commonwealth v. Robinson, 635 Pa. 592, 603, 139 A.3d 178, 185 (2016).

This Court will not disturb the PCRA court’s findings unless there is no support

for them in the certified record. Commonwealth v. Lippert, 85 A.3d 1095,

1100 (Pa.Super. 2014).

      At the outset, we consider whether this appeal is properly before us.

The question of whether a petition is timely raises a question of law, and where

a petitioner raises questions of law, our standard of review is de novo and our

scope of review is plenary. Commonwealth v. Callahan, 101 A.3d 118, 121

(Pa.Super. 2014).

      All PCRA petitions must be filed within one year of the date upon which

the judgment of sentence became final, unless one of the statutory exceptions

set forth in 42 Pa.C.S.A. § 9545(b)(1)(i)-(iii) applies. The petitioner bears the

burden of pleading and proving an applicable statutory exception.          If the

petition is untimely and the petitioner has not pled and proven an exception,

the petition must be dismissed without a hearing because Pennsylvania courts

are   without   jurisdiction   to   consider   the   merits   of   the   petition.

Commonwealth v. Taylor, 65 A.3d 462, 468 (Pa.Super. 2013). This is true


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even where, as herein, the appellant challenges the legality of his sentence.

42 Pa.C.S.A. § 9545(b); Commonwealth v. Fahy, 558 Pa. 313, 331, 737

A.2d 214, 223 (1999) (holding “Although legality of sentence is always subject

to review within the PCRA, claims must still first satisfy the PCRA’s time limits

or one of the exceptions thereto.”); thus, this Court is without jurisdiction to

consider the legality of sentence claim Appellant raises herein unless he can

satisfy one of the timeliness exceptions to the PCRA time-bar.

      42 Pa.C.S.A. § 9545(b)(1)(i)-(iii) states:

      (b) Time for filing petition.--

      (1)   Any petition under this subchapter, including a second or
            subsequent petition, shall be filed within one year of the
            date the judgment of sentence becomes final, unless the
            petition alleges and the petitioner proves that:

             (i) the failure to raise the claim previously was the result of
      interference by government officials with the presentation of the
      claim in violation of the Constitution or laws of this Commonwealth
      or the Constitution or laws of the United States:

            (ii) the facts upon which the claim is predicated were
      unknown to the petitioner and could not have been ascertained by
      the exercise of due diligence; or

             (iii) the right asserted is a constitutional right that was
      recognized by the Supreme court of the United States or the
      Supreme Court of Pennsylvania after the time period provided in
      this section and has been held by that court to apply retroactively.

42 Pa.C.S.A. § 9545(b)(1). In addition, any petition attempting to invoke one

of these exceptions “shall be filed within 60 days of the date the claim could

have been presented.” 42 Pa.C.S.A. § 9545(b)(2).




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      Herein, as stated previously Appellant’s judgment of sentence became

final on May 17, 2010.    As such, a timely PCRA petition had to be filed by

May 17, 2011; therefore, the instant PCRA petition filed over six years later

on August 21, 2017, is patently untimely, and the burden fell upon Appellant

to plead and prove that one of the enumerated exceptions to the one-year

time-bar   applied   to   his   case.    See   42   Pa.C.S.A.   §   9545(b)(1);

Commonwealth v. Perrin, 947 A.2d 1284, 1286 (Pa.Super. 2008) (to invoke

a statutory exception to the PCRA time-bar, a petitioner must properly plead

and prove all required elements of the exception).

      Appellant concedes his Motion to Modify sentence was filed untimely and

properly treated as a PCRA petition. See Brief of Appellant at 8. Nevertheless,

he does not allege specifically that he satisfies any exception to the PCRA

time-bar. Rather, Appellant simply posits that “the PCRA [c]ourt erred and

abused its discretion in denying his Motion to Modify Sentence treated as a

PCRA petition for failing to address the merits of Appellant’s claim since it had

jurisdiction to vacate the SORNA lifetime registration and to resentence him

to a 10 year registration upon his release from prison since it never

relinquishes jurisdiction to correct an illegal sentence.”      Id. at 7 (citing

Commonweallth v. Vasquez, 744 A.2d 1280, 1284 (Pa. 2000)). This is

incorrect, for as we have already explained, although the legality of one’s

sentence is always subject to review within the PCRA, claims still must first




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satisfy the PCRA’s time limits or one of the exceptions thereto.”             See 42

Pa.C.S.A. § 9545(b); Fahy, supra, 558 Pa. at 330-31, 737 A.2d at 223.

       To the extent that in setting forth his claim Appellant attempts to satisfy

the timeliness exception of Section 9545(b)(1)(iii), by arguing that a lifetime

registration    requirement      imposed       upon   him   pursuant   to   SORNA   is

unconstitutional under Muniz,6 because Appellant’s PCRA petition is untimely,

see infra, he was required to demonstrate that Muniz applies retroactively in

order to satisfy the exception to the PCRA one-year time bar at section

9545(b)(1)(iii). See Commonwealth v. Abdul-Salaam, 812 A.2d 497, 501

(Pa. 2002); Commonwealth v. Olson, 2018 WL 847859, at *4 (Pa.Super.

Feb. 14, 2018) (stating that new rule of law does not automatically render

illegal a final pre-existing sentence).

       However, in light of this Court’s recent holding in Commonwealth v.

Murphy, 2018 WL 947156 (Pa.Super. Feb. 20, 2018) Appellant’s reliance on

Muniz cannot satisfy the “new retroactive right” exception of Section

9545(b)(1)(ii). As we stated in Murphy:

       we acknowledge that this Court has declared that, “Muniz created
       a substantive rule that retroactively applies in the collateral
       context.” Commonwealth v. Rivera–Figueroa, 174 A.3d 674,
       678 (Pa.Super. 2017). However, because Appellant's PCRA
       petition is untimely (unlike the petition at issue in Rivera–
       Figueroa), he must demonstrate that the Pennsylvania Supreme
____________________________________________


6 The Muniz decision was filed on July 19, 2017, and Appellant filed the instant
PCRA petition on August 21, 2017, thereby satisfying the requirement that his
petition invoking the exception must be filed within sixty days of the date the
claim first could have been presented. 42 Pa.C.S.A. § 9545(b)(2).

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      Court has held that Muniz applies retroactively in order to satisfy
      section 9545(b)(1)(iii). See Abdul–Salaam, supra. Because at
      this time, no such holding has been issued by our Supreme Court,
      Appellant cannot rely on Muniz to meet that timeliness exception.

Id. at *3. Once again, our Supreme Court has not issued such a holding at

this time.

      Moreover, instructive herein is Commonwealth v. Hilliard, 2018 WL

1062414 at *4 (Pa.Super. Feb. 27, 2018) (unpublished memorandum), appeal

denied, 189 A.3d 989 (Pa. July 29, 2018). There, this Court held Muniz was

inapplicable where the appellant had failed to challenge a specific portion of

his sentence imposed under the then-extant Megan’s Law, had not been

designated as an SVP at sentencing, his sentence predated SORNA, and

SORNA did not affect his lifetime registration requirement under Megan’s Law.

Similarly, Appellant herein does not challenge specifically any portion of his

sentence imposed under the then-extant Megan’s Law. Indeed, Appellant was

not designated as an SVP at sentencing. See Sentence Sheet, 4/15/10, at 1

“General Remarks.”      In addition, his sentence predated SORNA, and

Appellant’s argument to the contrary, it appears that SORNA did not affect his

lifetime registration requirement under then-extant Megan’s Law. Thus,

Muniz does not apply here.

      In light of the foregoing, Appellant has filed a facially untimely PCRA

petition and has failed to plead and prove the applicability of any exception to

the PCRA time-bar. We, therefore, affirm the PCRA court’s Order.

      Order affirmed.

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    Judge Nichols joins the memorandum.

    Judge Shogan concurs in the result.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/24/18




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