J. A19045/18


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA             :     IN THE SUPERIOR COURT OF
                                         :           PENNSYLVANIA
                   v.                    :
                                         :
GEORGE DENTON MARTIN,                    :         No. 1545 MDA 2017
                                         :
                        Appellant        :


         Appeal from the PCRA Order Entered September 22, 2017,
            in the Court of Common Pleas of Lancaster County
             Criminal Division at No. CP-36-CR-0004746-2012


BEFORE: GANTMAN, P.J., NICHOLS, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:               FILED OCTOBER 11, 2018

      George Denton Martin appeals pro se from the September 22, 2017

order entered in the Court of Common Pleas of Lancaster County that

dismissed, without a hearing, his second petition filed pursuant to the Post

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

      The record reflects that on February 27, 2013, appellant entered a

negotiated guilty plea to one count each of indecent assault person less than

13 years of age, involuntary deviate sexual intercourse with a child, corruption

of minors, and unlawful contact with a minor1 in connection with a sexual

assault that appellant committed on December 11, 2011. Pursuant to the plea

agreement, the trial court imposed an aggregate sentence of 8 to 20 years of


1 18 Pa.C.S.A. §§ 3126(a)(7), 3123(b), 6301(a)(1)(ii), and 6318(a)(1),
respectively.
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incarceration. Appellant failed to take a direct appeal. On March 25, 2014,

appellant filed a counseled PCRA petition, which the PCRA court ultimately

dismissed.   A panel of this court affirmed the PCRA court’s order denying

appellant relief.   Commonwealth v. Martin, No. 1441 MDA 2014,

unpublished memorandum (Pa.Super. filed February 11, 2015).

      On July 26, 2017, appellant filed the PCRA petition that is the subject of

this appeal. The PCRA court filed its Rule 907 notice of intent to dismiss on

August 30, 2017. Appellant filed a response and raised a new issue under

Commonwealth v. Muniz, 164 A.3d 1189 (Pa. 2017). On October 3, 2017,

the PCRA court dismissed appellant’s petition.

      Appellant filed a timely notice of appeal. The PCRA court then ordered

appellant to file a concise statement of errors complained of on appeal

pursuant to Pa.R.A.P. 1925(b). Appellant timely complied. Thereafter, the

PCRA court filed its Rule 1925(a) opinion.

      All PCRA petitions, including second and subsequent petitions, must be

filed within one year of when a defendant’s judgment of sentence becomes

final. 42 Pa.C.S.A. § 9545(b)(1). “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 of Pennsylvania, or at the expiration of

the time for seeking the review.” 42 Pa.C.S.A. § 9545(b)(3). The Supreme

Court of Pennsylvania has held that the PCRA’s time restriction is

constitutionally sound.   Commonwealth v. Cruz, 852 A.2d 287, 292 (Pa.



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2004). In addition, our supreme court has instructed that the timeliness of a

PCRA petition is jurisdictional. If a PCRA petition is untimely, a court lacks

jurisdiction over the petition. Commonwealth v. Callahan, 101 A.3d 118,

120-121 (Pa.Super. 2014) (courts do not have jurisdiction over an untimely

PCRA); see also Commonwealth v. Wharton, 886 A.2d 1120 (Pa. 2005).

      Here, the trial court sentenced appellant on February 27, 2013.

Appellant failed to file a direct appeal to this court, and consequently,

appellant’s judgment of sentence became final on March 29, 2013, thirty days

after imposition of sentence and the time for filing a direct appeal expired.

See 42 Pa.C.S.A. § 9545(b)(3); Pa.R.A.P. 903; Commonwealth v. Cintora,

69 A.3d 759, 763 (Pa.Super. 2013).       Therefore, appellant’s petition, filed

July 26, 2017, is facially untimely.     As a result, the PCRA court lacked

jurisdiction to review appellant’s petition, unless appellant alleged and proved

one of the statutory exceptions to the time-bar, as set forth in 42 Pa.C.S.A.

§ 9545(b)(1).

      Those three narrow exceptions to the one-year time-bar are: when the

government has interfered with the petitioner’s ability to present the claim,

when the appellant has recently discovered facts upon which his PCRA claim

is predicated, or when either the Supreme Court of Pennsylvania or the

Supreme Court of the United States has recognized a new constitutional right

and made     that right   retroactive.     42   Pa.C.S.A. §   9545(b)(1)(i-iii);

Commonwealth v. Brandon, 51 A.3d 231, 233-234 (Pa.Super. 2012). The



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petitioner bears the burden of pleading and proving the applicability of any

exception. 42 Pa.C.S.A. § 9545(b)(1). If a petitioner fails to invoke a valid

exception to the PCRA time-bar, this court may not review the petition. See

42 Pa.C.S.A. § 9545(b)(1)(i-iii).

      Here, appellant asserts the exception to the PCRA’s timeliness

requirement for a newly recognized constitutional right. Specifically, appellant

challenges the retroactive application of the Sexual Offender Registration and

Notification Act (“SORNA”) based upon the Supreme Court of Pennsylvania’s

decision in Muniz, 164 A.3d 1189. Our supreme court filed its decision in

Muniz on July 19, 2017. Appellant filed his petition on July 26, 2017, within

60 days of the supreme court’s Muniz decision.

      The record reflects that appellant was sentenced under Megan’s Law III,

which, in 2013, our supreme court struck down as violative of the single

subject requirement of Article III, Section 3 of the Pennsylvania Constitution

in Commonwealth v. Neiman, 84 A.3d 603, 607 (Pa. 2013).                 SORNA

replaced Megan’s Law III. In Muniz, our supreme court held that application

of the registration requirements under SORNA to sexual offenders who

committed their crimes before SORNA’s effective date violates the ex post

facto clause of the Pennsylvania Constitution.          Therefore, retroactive

application of SORNA would appear to violate the ex post facto clauses of

the United States Constitution and the Pennsylvania Constitutions, as set forth




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in Muniz. See Muniz, 164 A.3d at 1218-1219. Appellant, however, presents

his claim in the context of an untimely filed PCRA petition.

      In a case involving a timely filed PCRA petition, this court has held 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).    Because appellant’s PCRA petition is facially untimely,

however, he must satisfy the jurisdiction requirement set forth at 42 Pa.C.S.A.

§ 9545(b)(1)(iii). To do so, appellant must demonstrate that the Supreme

Court of Pennsylvania has held that Muniz applies retroactively.           See

Commonwealth v. Murphy, 180 A.3d 402, 406-407 (Pa.Super. 2018)

(finding that when the PCRA petition is untimely filed, in order to satisfy the

timeliness exception set forth at 42 Pa.C.S.A. § 9545(b)(1)(iii)), a petitioner

must demonstrate that the Supreme Court of Pennsylvania has expressly held

that Muniz applies retroactively). Because at this time, no such holding has

been issued by our supreme court, appellant cannot rely on Muniz to meet

the timeliness exception set forth at Subsection 9545(b)(1)(iii). If, however,

the Supreme Court of Pennsylvania issues a decision holding that Muniz

applies retroactively, appellant can then file a PCRA petition, within 60 days

of that decision, attempting to invoke the “new retroactive right” exception of

Section 9545(b)(1)(iii).

      Therefore, the PCRA court lacked jurisdiction to review appellant’s

petition, and we may not review the petition on appeal.



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      Order affirmed.2

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 10/11/2018




2 On July 3, 2018, appellant filed a pro se “motion to expedite decision or for
immediate decision” with this court. We deny appellant’s motion.


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