J-S72043-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :     IN THE SUPERIOR COURT OF
                                               :          PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    JOHN JOSEPH RICHARDSON,                    :
                                               :
                       Appellant.              :     No. 898 MDA 2018


                   Appeal from the PCRA Order, May 2, 2018,
               in the Court of Common Pleas of Dauphin County,
             Criminal Division at No(s): CP-22-CR-0002203-2014,
                           CP-22-CR-0004265-2004.


BEFORE: BOWES, J., SHOGAN, J., and KUNSELMAN, J.

MEMORANDUM BY KUNSELMAN, J.:                           FILED FEBRUARY 26, 2019

       John Joseph Richardson appeals from the order denying as untimely his

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

Pa.C.S.A. §§ 9541-46.1 We affirm.

       The   PCRA     court    summarized      the   facts   and   procedural   history

surrounding Richardson’s initial charges as follows:

             On April 7, 2006, pursuant to a negotiated plea
          agreement, [Richardson] pleaded guilty at docket number
          4265 CR 2004 to one count each of Statutory Sexual Assault
____________________________________________


1 Although Richardson’s notice of appeal contains two docket numbers, our
review of the record reveals that the second docket number involves his
original charges and that this appeal only involves the first docket number.
Thus, although the notice of appeal technically bears two docket numbers,
Pa.R.A.P. 341 and Commonwealth v. Walker, 185 A.3d 969 (Pa. 2018)
(requiring separate notices of appeal for each docket number), are not
implicated.
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         (Count I), Unlawful Contact with a Minor (Count II),
         Indecent Assault (Count III), and Corruption of Minors
         (Count IV). Sentencing was deferred until July 26, 2006,
         pending a Megan’s Law assessment and a presentence
         investigation. According to the Megan’s Law assessment,
         the Commonwealth determined that [Richardson] did not
         constitute a sexually violent predator. On July 26, 2006,
         [Richardson] was sentenced to serve two to five (2-5) years
         of state incarceration on Count I, a consecutive seven (7)
         years of probation on Count II, and one-and-a-half to three
         (1 ½ to 3) years of incarceration on Count IV, consecutive
         to Count I. Count III merged with Count II for sentencing
         purposes.

PCRA Court Opinion, 7/23/18, at 1.

      The PCRA court then discussed the charge at issue, and the post-

conviction proceeding that gives rise to this appeal, as follows:

             In August of 2013, while [Richardson] was still on
         probation in connection with his 2006 conviction,
         [Richardson] allegedly absconded from his residence at a
         halfway house in Harrisburg and traveled to another state
         without notifying the Pennsylvania State Police of his
         address change within three business days. [Richardson’s]
         alleged actions constituted both a violation of Megan’s Law,
         as well as a violation of the terms of his probation. On
         September 2, 2014, at Docket 2203 CR 2014, [Richardson]
         pleaded guilty to Failure to Register (a third-degree felony)
         in violation of 18 [Pa.C.S.A.] § 4915.1(a)(1). Pursuant to a
         negotiated plea agreement, [Richardson] was sentenced to
         1 to 2 years in state prison to be followed by a consecutive
         2-year term of probation. Also on September 2, 2014,
         pursuant to the same negotiated plea agreement,
         [Richardson] pleaded guilty to a probation violation at
         Docket 4265 CR 2004. On that docket, he was sentenced
         to 1 to 5 years in state prison, consecutive to Docket 2203
         CR 2014.

            On November 15, 2017, [Richardson] filed a pro se
         [PCRA petition]. [Richardson] was appointed counsel, and
         on January 12, 2018, PCRA counsel filed an Amended PCRA
         Petition on [Richardson’s] behalf. [Richardson] claimed that

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        the registration requirements for the Sex Offenders
        Registration and Notification Act (“SORNA”), 42 Pa.C.S.[A.]
        §§ 9799.10-9799.41, which was enacted after his 2006
        conviction, had been applied to him retroactively in violation
        of the Supreme Court of Pennsylvania’s recent decision in
        Commonwealth v. Muniz, 164 A.3d 1189 (Pa. 2017).
        Evidently, [Richardson’s] original 2006 sentence required
        him to conduct sex-offender registry with the Pennsylvania
        State Police for a period of only 10 years, whereas the
        subsequent enactment of SORNA imposed a lifetime-
        registration requirement on [Richardson] because he is
        classified as a “Tier 3” sexual offender. Thus, [Richardson]
        requested that his original 10-year registration requirement
        which was imposed upon him at his original sentencing be
        reinstated, and that he be permitted to withdraw his guilty
        plea he entered on September 2, 2014 for Failure to
        Register.

           On May 2, 2018, this Court conducted PCRA hearing in
        the instant matter. At the hearing, [Richardson] and the
        Commonwealth stipulated that [Richardson] should be a 10-
        year Megan’s Law registrant rather than a lifetime
        registrant.     Therefore, we re-imposed [Richardson’s]
        registration requirement effective July 26, 2006, under 42
        Pa.C.S.A. § 9799.55(a)(1)(i)(A).      However, we denied
        [Richardson’s] request to withdraw his September 2, 2014
        guilty plea for Failure to Register.

PCRA Court Opinion, 7/23/18, at 1-3.

     The PCRA court denied post-conviction relief because the PCRA petition

was untimely filed and Richardson “had not demonstrated the applicability of

any exceptions to the PCRA timeliness requirement.” Id. at 3. This timely

appeal follows.   Both Richardson and the PCRA court have complied with

Pa.R.A.P. 1925.

     Richardson raises the following issue on appeal:

        I.    Whether the PCRA court erred in dismissing
              Richardson’s PCRA petition as HB 631 (which was


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                 recently signed into law) is unconstitutional and
                 punitive?

See Richardson’s Brief at 4.

        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).

        Before addressing the issue Richardson raises on appeal, we must first

determine whether the PCRA court correctly concluded that his PCRA petition

is untimely.

        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.2 42 Pa.C.S.A. § 9545. A PCRA petition


____________________________________________


2   The exceptions to the timeliness requirement are:

        (i) the failure to raise the claim previously was the result of
        interference of government officials with the presentation of the



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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, Richardson’s judgment of sentence became final on October 2,

2014, thirty days after he failed to file an appeal to this Court following the

imposition of his sentence on September 2, 2014. Thus, in order to be timely,

Richardson had to file his PCRA petition by October 2, 2015. As he filed the

petition at issue in 2017, it is untimely, unless Richardson satisfied his burden




____________________________________________


       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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of pleading and proving that one of the enumerated exceptions applies. See

Hernandez, supra.

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

Within his brief, he first acknowledges that his PCRA petition is untimely, but

“claims a timeliness exception under 42 Pa.C.S.A. §9545(b)(2) as he filed said

Petition within sixty (60) days of the date the claim could have been

presented.”       Richardson’s Brief at 9.      Richardson provides no further

discussion.     As noted by the PCRA court, while Richardson relies upon our

Supreme Court’s decision in Muniz, supra, the Muniz decision was filed on

July 19, 2017, approximately three months prior to Richardson filing his PCRA

petition on November 15, 2017. See PCRA Court Opinion, 7/23/18, at 5 n.1.

          Moreover, even if Richardson had filed his PCRA petition within sixty

days of the Muniz decision, he would still not be entitled 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 Richardson’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


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A.3d 402, 405-06 (Pa. Super. 2018). However, if our Supreme Court should

hold that Muniz applies retroactively, as an exception to the PCRA time bar,

Richardson can then file another PCRA petition, within sixty days of that

decision, attempting to invoke the “new constitutional right” exception found

at 42 Pa.C.S.A. § 9545(b)(1)(iii). See id. at 406, n.1.

      In light of the foregoing, we conclude that Richardson’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, and we affirm the court’s order denying Richardson post-

conviction relief.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 02/26/2019




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