J-S52013-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA,                   IN THE SUPERIOR COURT
                                                              OF
                                                         PENNSYLVANIA
                             Appellee

                        v.

    BRYAN ALLEN CRABB,

                             Appellant                  No. 530 MDA 2018


               Appeal from the PCRA Order Entered March 6, 2018
                In the Court of Common Pleas of Dauphin County
                           Criminal Division at No(s):
                            CP-22-CR-0003292-2001
                            CP-22-CR-0005172-2008


BEFORE: BENDER, P.J.E., MCLAUGHLIN, J., and STRASSBURGER, J.*

MEMORANDUM BY BENDER, P.J.E.:                       FILED OCTOBER 12, 2018

        Appellant, Bryan Allen Crabb, appeals pro se from the post-conviction

court’s March 6, 2018 order denying, as untimely, his petition filed under the

Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. We affirm.

        Briefly, on February 7, 2002, Appellant pled guilty in two separate cases

to various sexual offenses, including statutory sexual assault and indecent

assault of a person less than 16 years old. He was sentenced that same day

to a period of incarceration, after which he did not file a direct appeal. Instead,

Appellant filed several PCRA petitions over the ensuing years.           At issue

presently is a pro se PCRA petition that Appellant filed on December 5, 2017.


____________________________________________


*   Retired Senior Judge assigned to the Superior Court.
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In that petition, he alleged claims of ineffective assistance of counsel, and he

also seemingly challenged the legality of his designation as a Sexually Violent

Predator (SVP) under Megan’s Law.

      On February 21, 2018, the PCRA court issued a Pa.R.Crim.P. 907 notice

of its intent to dismiss Appellant’s petition, on the grounds that, inter alia, it

was untimely-filed.    On March 6, 2018, the court entered a final order

dismissing Appellant’s petition. Appellant filed a timely notice of appeal, and

he also timely complied with the court’s order to file a Pa.R.A.P. 1925(b)

concise statement of errors complained of on appeal. On April 23, 2018, the

PCRA court filed a Rule 1925(a) opinion. Herein, Appellant raises eight claims

for our review. See Appellant’s Brief at ii-iii.

      Before we may address any of those claims, however, we must examine

the timeliness of Appellant’s petition, because the PCRA time limitations

implicate our jurisdiction and may not be altered or disregarded in order to

address the merits of a petition.     Commonwealth v. Bennett, 930 A.2d

1264, 1267 (Pa. 2007).      Under the PCRA, any petition for post-conviction

relief, including a second or subsequent one, must be filed within one year of

the date the judgment of sentence becomes final, unless one of the following

exceptions set forth in 42 Pa.C.S. § 9545(b)(1)(i)-(iii) applies:
      (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 becomes final, unless the petition alleges
         and the petitioner proves that:



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            (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. § 9545(b)(1)(i)-(iii).    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. § 9545(b)(2).

      Here, Appellant’s judgment of sentence became final in 2002 and, thus,

his present petition filed in 2017 is patently untimely. Consequently, for this

Court to have jurisdiction to review the merits thereof, Appellant must prove

that he meets one of the exceptions to the timeliness requirements set forth

in 42 Pa.C.S. § 9545(b).

      Instantly, Appellant does not clearly argue the applicability of any

timeliness exception. The only claim that could be construed as implicating a

timeliness exception is Appellant’s assertion that his SVP designation is illegal

under our Supreme Court’s decision in Commonwealth v. Muniz, 164 A.3d

1189 (Pa. 2017) (holding that certain registration provisions of Pennsylvania’s

Sex Offender Registration and Notification Act (SORNA) are punitive, and

retroactive application thereof violates the ex post facto clauses of the federal


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and Pennsylvania constitutions), and this Court’s subsequent decision in

Commonwealth v. Butler, 173 A.3d 1212 (Pa. Super. 2017) (holding that,

in light of Muniz and the United States Supreme Court’s decision in Alleyne

v. United States, 570 U.S. 99 (2013), the process for designating an

individual as an SVP under SORNA is unconstitutional).

     However, this Court has held that

     Muniz cannot satisfy the ‘new retroactive right’ exception of
     section 9545(b)(1)(iii). In Commonwealth v. Abdul–Salaam,
     571 Pa. 219, 812 A.2d 497 (2002), our Supreme Court held that,

        [s]ubsection (iii) of Section 9545 has two requirements.
        First, it provides that the right asserted is a constitutional
        right that was recognized by the Supreme Court of the
        United States or this court after the time provided in this
        section. Second, it provides that the right “has been held”
        by “that court” to apply retroactively. Thus, a petitioner
        must prove that there is a “new” constitutional right and
        that the right “has been held” by that court to apply
        retroactively. The language “has been held” is in the past
        tense. These words mean that the action has already
        occurred, i.e., “that court” has already held the new
        constitutional right to be retroactive to cases on collateral
        review. By employing the past tense in writing this
        provision, the legislature clearly intended that the right was
        already recognized at the time the petition was filed.

     Id. at 501.

     [W]e 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 [the] [a]ppellant’s PCRA petition is untimely
     (unlike the petition at issue in Rivera–Figueroa), he must
     demonstrate that the Pennsylvania Supreme 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,

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      [the] [a]ppellant cannot rely on Muniz to meet that timeliness
      exception.

Commonwealth v. Murphy, 180 A.3d 402, 405–06 (Pa. Super. 2018)

(emphasis in original). Additionally, our Supreme Court has not held that our

decision in Butler applies retroactively, even if Butler could be construed as

creating a new constitutional right.

      In sum, because Appellant’s petition is untimely, and our Supreme Court

has not held that either Muniz or Butler applies retroactively, Appellant

cannot satisfy the timeliness exception of section 9545(b)(1)(iii). As Appellant

makes no attempt to plead and prove the applicability of any other timeliness

exception, we discern no error in the court’s decision to deny his untimely

petition.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/12/2018




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