J-S76024-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA            :   IN THE SUPERIOR COURT OF
                                         :        PENNSYLVANIA
                                         :
              v.                         :
                                         :
                                         :
 BRIAN ALEX SCHAFFNER,                   :
                                         :
                   Appellant.            :   No. 610 WDA 2018


                  Appeal from the Order, March 28, 2018,
            in the Court of Common Pleas of Allegheny County,
           Criminal Division at No(s): CP-02-CR-0005883-2000.


BEFORE: BENDER, P.J.E., KUNSELMAN, J., and MURRAY, J.

MEMORANDUM BY KUNSELMAN, J.:                       FILED MARCH 01, 2019

      Brian Alex Schaffner appeals from the order denying as untimely his

serial petition filed pursuant to the Post Conviction Relief Act (“PCRA”). 42

Pa.C.S.A. §§ 9541-46. We affirm.

      The pertinent facts and procedural history are as follows: On July 26,

2000, Schaffner entered a negotiated guilty plea to one count each of

aggravated indecent assault, indecent assault, and corruption of minors.

These charges resulted from acts he perpetrated upon his girlfriend’s nine-

year-old niece. On October 20, 2000, the trial court sentenced Schaffner to

the negotiated 2 ½ to 5 year sentence. In addition, the trial court designated

Schaffner a sexually violent predator.   Schaffner therefore was required to

comply with the registration, verification, counseling, and notification

provisions of Megan’s Law II. 42 Pa.C.S.A. §§ 9791-99 (expired).
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      Schaffner filed a timely appeal to this Court.       In an unpublished

memorandum filed on February 19, 2004, we affirmed his judgment of

sentence, and on September 29, 2004, our Supreme Court denied his petition

for allowance of appeal. Commonwealth v. Schaffner, 849 A.2d 609 (Pa.

Super. 2004), appeal denied, 859 A.2d 768 (Pa. 2004). While this appeal was

pending, Schaffner filed a pro se PCRA petition, which the PCRA court

dismissed without prejudice.

      On August 30, 2005, Schaffner filed another pro se PCRA petition, and

the PCRA court appointed counsel. On September 20, 2006, PCRA counsel

filed a no-merit letter and motion to withdraw as counsel pursuant to the

dictates of Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and

Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc). On

October 3, 2006, the PCRA court issued Pa.R.Crim.P. 907 notice of its intention

to dismiss Schaffner’s PCRA petition and granted PCRA counsel’s motion to

withdraw. Schaffner did not file a response. By order entered October 25,

2006, the PCRA court dismissed the petition.

      No further action appears in the certified record until September 18,

2017, when counsel filed a “Petition to Remove Defendant from the

Registration and Reporting Requirements” of the Sex Offender Registration

and Notification Act (“SORNA”). On February 28, 2018, the Commonwealth

filed an answer. Treating the filing as a serial PCRA petition, the PCRA court

issued, on March 22, 2018, Pa.R.Crim.P. 907 notice of its intention to dismiss

the petition as untimely. Schaffner filed a timely response. By order entered

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March 28, 2018, the PCRA court denied the petition. This appeal follows. The

PCRA Court did not require Pa.R.A.P. 1925 compliance.

      Schaffner raises the following issues on appeal:

         I.    Whether the PCRA court erred in finding Schaffner’s
               petition to remove him from the SORNA registration
               and reporting requirements was time barred?

         II.   Whether the PCRA court erred in failing to allow
               Schaffner to advance the claim that Act 10 of 2018 is
               unconstitutional?

Schaffner’s Brief at 4.

      Initially, we note that the trial court correctly treated Schaffner’s 2017

filing as a serial PCRA petition. In response to the PCRA court’s Rule 907

notice, Schaffner cited this Court’s decision in Commonwealth v. Partee, 86

A.3d 245 (Pa. Super. 2014), to argue that his petition should not be treated

under the PCRA. In the alternative, Schaffner argued that his filing could be

considered as a petition for habeas corpus relief. Finally, Schaffner argued

that if the filing was to be treated under the PCRA, he had proven an exception

to the PCRA’s time bar in that he filed his petition within sixty days of our

Supreme Court’s decision in Commonwealth v. Muniz, 164 A.3d 1189 (Pa.

2017), which recognized a new constitutional right.

      Schaffner’s reliance upon this Court’s decision in Partee, supra, is

misplaced, as his filing did not request specific enforcement of a plea

agreement he made with the Commonwealth. Additionally, “this Court has

consistently held that, pursuant to the plain language of Section 9542, where



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a claim is cognizable under the PCRA, the PCRA is the only method of obtaining

collateral review.    See Commonwealth v. Turner, 622 Pa. 318, 80 A.3d

754, 770 (2013) (“The PCRA at Section 9542 subsumes the remedies of

habeas corpus and coram nobis.”) Therefore, Schaffner’s characterization of

his request as a habeas corpus petition is incorrect. Thus, we will address

Schaffner’s remaining claim, that although untimely, he has met an exception

to the PCRA’s time bar.

        This Court’s standard of review regarding an order dismissing a petition

under the PCRA is whether the determination of the PCRA court is supported

by the evidence of record and is free of legal error.          Commonwealth v.

Halley, 870 A.2d 795, 799 n.2 (Pa. 2005). The PCRA court’s findings will not

be disturbed unless there is no support for the findings in the certified record.

Commonwealth v. Carr, 768 A.2d 1164, 1166 (Pa. Super. 2001).

        The   timeliness     of   a   post-conviction   petition   is   jurisdictional.

Commonwealth v. Hernandez, 79 A.3d 649, 651 (Pa. Super. 2013).

Generally, a petition for relief under the PCRA, including a second or

subsequent petition, must be filed within one year of the date the judgment

becomes final unless the petition alleges, and the petitioner proves, that an

exception to the time for filing the petition, set forth at 42 Pa.C.S.A. sections

9545(b)(1)(i), (ii), and (iii), is met.1 42 Pa.C.S.A. § 9545. A PCRA petition

____________________________________________


1   The exceptions to the timeliness requirement are:




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invoking one of these statutory exceptions must “be filed within 60 days of

the date the claims could have been presented.” See Hernandez, 79 A.3d

651-52 (citations omitted); see also 42 Pa.C.S.A. § 9545(b)(2).            Finally,

exceptions to the PCRA’s time bar must be pled in the petition, and may not

be raised for the first time on appeal. Commonwealth v. Burton, 936 A.2d

521, 525 (Pa. Super. 2007); see also Pa.R.A.P. 302(a) (providing that issues

not raised before the lower court are waived and cannot be raised for the first

time on appeal).

       Here, Schaffner’s judgment of sentence became final on December 28,

2004, ninety days after he failed to file a writ of certiorari to the United States

Supreme Court after the Pennsylvania Supreme Court denied his petition for

allowance of appeal on September 29, 2004. See 42 Pa.C.S.A. § 9545(b)(3);

U.S .Sup.Ct.R. 13. Thus, in order to be timely, Schaffner had to file his PCRA

____________________________________________


       (i) the failure to raise the claim previously was the result of
       interference of 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)(i), (ii), and (iii).


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petition by December 28, 2005. As he filed the petition at issue in 2017, it is

untimely, unless Schaffner satisfied his burden of pleading and proving that

one of the enumerated exceptions applies. See Hernandez, supra.

      Schaffner has failed to establish any exception to the PCRA’s time bar.

As noted above, he claims that the Muniz decision establishes the “newly

recognized constitutional right exception to the PCRA’s time bar pursuant to

Section 9545(b)(1)(iii). Schaffner also notes that he filed his petition within

sixty days of the Muniz decision. 42 Pa.C.S.A. § 9545(b)(2). In Muniz, the

Pennsylvania Supreme Court held that SORNA’s registration provisions

constituted criminal punishment that cannot be retroactively applied to a

defendant whose crimes were committed prior to SORNA’s enactment.

      The Muniz decision does not entitle Schaffner to post-conviction relief.

This Court has held that “the recent holding in 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

Schaffner’s PCRA petition was untimely, unlike the timely PCRA petition at

issue in Rivera-Figueroa, he must demonstrate that the Pennsylvania

Supreme Court has held Muniz applies retroactively to untimely PCRA

petitions in order to satisfy Section 9545(b)(1)(iii).   Because our Supreme

Court has yet to reach this conclusion, he cannot rely on Muniz to establish

that time-bar exception. See Commonwealth v. Murphy, 180 A.3d 402,

405-06 (Pa. Super. 2018). However, if our Supreme Court issues a decision


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holding that Muniz applies retroactively, Schaffner may file another PCRA

petition within one year of that decision, attempting to invoke a time-bar

exception in subsection 9545(b)(1)(iii). See Act of 2018, October 24, P.L.

894, No. 146, §§ 2 and 3 (recent amendment to the PCRA); see also

Commonwealth v. Murphy, 180 A.3d at 406 n.1.

       In light of the foregoing, we conclude that Schaffner’s PCRA petition was

untimely filed, and he has not pled and proven an exception to the PCRA’s

timeliness requirements. As such, the PCRA court correctly concluded that it

lacked jurisdiction,2 and we affirm the court’s order denying Schaffner post-

conviction relief.

       Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 3/01/2019




____________________________________________


2 Because Schaffner’s petition was time-barred, he also cannot proceed with
the constitutional claim he raises in his second issue.



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