J-S34023-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT
                                                       OF PENNSYLVANIA
                             Appellee

                        v.

    ALLEN W. VELA

                             Appellant                No. 1709 WDA 2017


             Appeal from the PCRA Order Entered October 12, 2017
               In the Court of Common Pleas of Jefferson County
               Criminal Division at No.: CP-33-CR-0000021-2004


BEFORE: BOWES, STABILE, and STRASSBURGER,* JJ.

MEMORANDUM BY STABILE, J.:                           FILED AUGUST 23, 2018

        Appellant Allen W. Vela pro se appeals from the October 12, 2017 order

of the Court of Common Pleas of Jefferson County, which dismissed as

untimely his fourth request for collateral relief under the Post Conviction Relief

Act, 42 Pa.C.S.A. §§ 9541-46. Upon review, we affirm.

        The facts and procedural history of this case are undisputed.          As

summarized by a prior panel of this Court:

              [Appellant] was convicted of six counts of involuntary
        deviate sexual intercourse [(18 Pa.C.S.A. § 3123(a)(6))], four
        counts of statutory sexual assault [(18 Pa.C.S.A. § 3122.1)], four
        counts of sexual assault [(18 Pa.C.S.A. § 3124.1)], six counts of
        aggravated indecent assault [(18 Pa.C.S.A. § 3125)], and six
        counts of endangering the welfare of children [(18 Pa.C.S.A. §
        4304(a))]. The convictions arose from [Appellant’s] sexual acts
        with his girlfriend’s daughter from the time the child was four
        years old until she was six years old. The trial court sentenced
____________________________________________


*   Retired Senior Judge assigned to the Superior Court.
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       [Appellant] to an aggregate sentence of thirty-four to eighty years
       in prison.[1] [Appellant] appealed his judgment of sentence and
       this Court affirmed the sentence on May 3, 2006.               See
       Commonwealth v. Vela, 903 A.2d 54 (Pa. Super. 2006)
       (unpublished memorandum).

Commonwealth v. Vela, No. 2032 WDA 2007, at 1-2 (Pa. Super. Filed

January 30, 2009), appeal denied, 983 A.2d 728 (Pa. 2009).

       On September 5, 2017, Appellant filed the instant, his fourth, PCRA

petition, asserting relief under Commonwealth v. Muniz, 164 A.3d 1189

(Pa. 2017),2 which was decided on July 19, 2017. Following its issuance of a

Pa.R.Crim.P. 907 notice of its intent to dismiss the petition without a hearing,

the PCRA court denied Appellant PCRA relief on October 12, 2017. Appellant

appealed to this Court. The PCRA court directed Appellant to file a Pa.R.A.P.

1925(b) statement. Appellant complied. In response, the PCRA court issued

a Pa.R.A.P. 1925(a) opinion.

       On appeal,3 Appellant argues only that “the sentencing court erred by

not reversing its order determining Appellant to be a sexually violent predator

requiring him to register for life as a sex offender.” Appellant’s Brief at 4

____________________________________________


1On December 8, 2004, the trial designated Appellant to be sexually violent
predator (“SVP”) under Megan’s Law II, 42 Pa.C.S.A. § 9795.4.
2In Muniz, our Supreme Court held that SORNA’s registration provisions are
punitive, and retroactive application of SORNA’s provisions violates the federal
ex post facto clause, as well as the ex post facto clause of the Pennsylvania
Constitution.
3“In PCRA proceedings, an appellate court’s scope of review is limited by the
PCRA’s parameters; since most PCRA appeals involve mixed questions of fact
and law, the standard of review is whether the PCRA court’s findings are
supported by the record and free of legal error.” Commonwealth v. Pitts,
981 A.2d 875, 878 (Pa. 2009) (citation omitted).

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(unnecessary capitalization omitted).        Essentially, Appellant argues that

Muniz renders his SVP designation and the resultant lifetime registration

unconstitutional.

      Before we may address the merits of this appeal, we must determine

whether the PCRA court had jurisdiction to entertain the underlying PCRA

petition. The PCRA contains the following restrictions governing the timeliness

of any PCRA petition.

      (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:

            (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.

      (2) Any petition invoking an exception provided in paragraph (1)
      shall be filed within 60 days of the date the claim could have been
      presented.

      (3) For purposes of this subchapter, a judgment becomes final at
      the conclusion of direct review, including discretionary review in
      the Supreme Court of the United States and the Supreme Court


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      of Pennsylvania, or at the expiration of time for seeking the
      review.

42 Pa.C.S.A. § 9545(b) (emphasis added).            Section 9545’s timeliness

provisions are jurisdictional. Commonwealth v. Ali, 86 A.3d 173, 177 (Pa.

2014). Additionally, we have emphasized repeatedly that “the PCRA confers

no authority upon this Court to fashion ad hoc equitable exceptions to the

PCRA time-bar in addition to those exceptions expressly delineated in the Act.”

Commonwealth v. Robinson, 837 A.2d 1157, 1161 (Pa. 2003) (citations

omitted).

      Here, the record reflects Appellant’s judgment of sentence became final

on May 3, 2006. See 42 Pa.C.S.A. § 9545(b)(3); Pa.R.A.P. 903(a). Because

Appellant had one year from May 3, 2006, to file his PCRA petition, the current

filing is facially untimely given it was filed on September 5, 2017.

      The one-year time limitation, however, can be overcome if a petitioner

alleges and proves one of the three exceptions set forth in Section

9545(b)(1)(i)-(iii) of the PCRA.      Here, Appellant invokes the time-bar

exception of Section 9545(b)(1)(iii) of the PCRA in arguing that that our

Supreme Court’s decision in Muniz created a new substantive right that

applies retroactively.   Our Supreme Court has set forth a two-part test to

determine the applicability of Section 9545(b)(1)(iii) to a new decision:

      Subsection (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
      [C]ourt 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

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      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.

Commonwealth v. Abdul–Salaam, 571 Pa. 219, 812 A.2d 497, 501 (2002).

      To date, our Supreme Court has not recognized a new constitutional

right in Muniz to be applied retroactively under Section 9545(b)(1)(iii).

Appellant, therefore, is not entitled to relief under his untimely filed petition.

      Additionally, Appellant, for the first time on appeal, raises an argument

under Commonwealth v. Butler, 173 A.3d 1212 (Pa. Super. 2017) to

challenge his SVP designation.        Under Pennsylvania Rule of Appellate

Procedure 302(a), however, his argument is waived because he failed to

preserve it for our review. See Pa.R.A.P. 302(a) (“Issues not raised in the

lower court are waived and cannot be raised for the first time on appeal.”).

Even if his Butler argument is not waived, he still is not entitled to relief. In

Butler, this Court concluded that, in light of our Supreme Court’s decision in

Muniz, “Section 9799.24(e)(3) of SORNA [regarding SVP designation]

violates the federal and state constitutions because it increases the criminal

penalty to which a defendant is exposed without the chosen fact-finder making

the necessary factual findings beyond a reasonable doubt.” Butler, 173 A.3d

at 1218. This Court’s reasoning in Butler was based on the United States

Supreme Court’s decision in Alleyne v. United States, 570 U.S. 99 (2013)

(holding that “[a]ny fact that, by law, increases the penalty for a crime is an

‘element’ that must be submitted to the jury and found beyond a reasonable


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doubt”), which our Supreme Court has held does not apply retroactively

where, as here, the judgment of sentence is final. See Commonwealth v.

Washington, 142 A.3d 810, 820 (Pa. 2016) (holding that “Alleyne does not

apply retroactively to cases pending on collateral review”).        Moreover, as

noted    earlier,   to   overcome   the    PCRA’s   one-year   time-bar,   Section

9545(b)(1)(iii) provides that the United States Supreme Court or our Supreme

Court must have recognized a new constitutional right and have held it to

apply retroactively. Here, we do not construe Butler, which has not been

adopted by our Supreme Court, to apply retroactively to cases pending on

collateral review, including the instant case. Accordingly, Appellant would not

obtain relief.

        In sum, the PCRA court did not err in dismissing as untimely his PCRA

petition.

        Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/23/2018




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