J-S07043-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    BARRY BURNELL BECKER                       :
                                               :
                       Appellant               :   No. 1259 MDA 2018

               Appeal from the PCRA Order Entered July 3, 2018
    In the Court of Common Pleas of York County Criminal Division at No(s):
                          CP-67-CR-0002140-2010


BEFORE:      OLSON, J., McLAUGHLIN, J., and PELLEGRINI*, J.

MEMORANDUM BY PELLEGRINI, J                    FILED: MARCH 25, 2019

        Barry Burnell Becker (Becker) appeals from the order entered by the

Court of Common Pleas of York County (PCRA court) dismissing his petition

filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-

9546. We affirm.

        We derive the following relevant facts and procedural history from our

independent review of the certified record.         On October 21, 2011, Becker

entered an open guilty plea to Indecent Assault, Corruption of Minors, and

Unlawful Contact With a Minor.1 The charges stem from Becker’s sexual abuse

of a minor, A.K., over an approximately five-year period. On April 24, 2012,

following a hearing, the trial court sentenced Becker to an aggregate term of

not less than twenty-one months nor more than fourteen years of
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1   18 Pa.C.S. §§ 3126, 6301, and 6318, respectively.


____________________________________
* Retired Senior Judge assigned to the Superior Court.
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incarceration, designated him a Sexually Violent Predator (SVP), and advised

him that he would be required to register under the then-existing sexual

offender registry law, Megan’s Law III. Becker did not file a direct appeal.

       On December 29, 2017, Becker, acting pro se, filed the instant, untimely

PCRA petition. Appointed counsel filed an amended petition seeking removal

of all Sex Offender Registration and Notification Act (SORNA I)2 registration

requirements pursuant to Commonwealth v. Muniz, 164 A.3d 1189, 1195

(Pa. 2017) (Opinion Announcing the Judgment of the Court), cert. denied sub

nom Pennsylvania v. Muniz, 138 S.Ct. 925 (2018).3 In this filing, Becker

noted that his conviction predated enactment of SORNA and he sought a

declaration that he was not subject to retroactive application of SORNA’s

registration provisions.4      While the petition was pending, on February 21,

____________________________________________


2 42 Pa.C.S. §§ 9799.10-9799.41, amended and replaced by 2018, Feb. 21,
P.L. 27, No. 10, § 19, immediately effective. Reenacted 2018, June 12, P.L.
140, No. 29, § 14, immediately effective. 42 Pa.C.S. §§ 9799.51-9799.75
(SORNA II).

3 The Muniz Court held that the registration requirements set forth under
SORNA I constitute punishment and, therefore, their retroactive application
violates the ex post facto clauses of the Pennsylvania and United States
Constitutions. See Muniz, supra at 1193.

4 Although counsel styled the filing as an amended PCRA petition and/or a
petition for writ of habeas corpus, “[a] petition of the sort [Becker] filed—a
post-conviction petition for a declaration that he is not subject to SORNA, filed
in the Court of Common Pleas and against the Commonwealth—is subsumed
under the PCRA.” Commonwealth v. Greco, 2019 WL 510129, at *4 (Pa.
Super. filed Feb. 8, 2019).




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2018, the legislature amended and replaced SORNA I with SORNA II. After

issuing notice of its intent to do so, the PCRA court dismissed Becker’s PCRA

petition without a hearing, See Pa.R.Crim.P. 907(1). Becker timely appealed.

The PCRA court and Becker complied with Pennsylvania Rule of Appellate

Procedure 1925. See Pa.R.A.P. 1925.

       On appeal, Becker chiefly argues that SORNA II, like SORNA I, is

punitive and cannot be applied to him retroactively under the reasoning of

Muniz. (See Becker’s Brief, at 13-14).5 However, “[b]efore we can address

the merits of the issues raised, we must determine whether Appellant has

established that his PCRA petition was timely filed, as the time-bar is

jurisdictional. 42 Pa.C.S. § 9545(b).” Commonwealth v. Graves, 197 A.3d

1182, 1185 (Pa. Super. 2018).            “A PCRA petition, including a second or

subsequent petition, shall be filed within one year of the date the underlying

judgment becomes final.”         Id. (citation omitted).   “[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 time for seeking the review.” 42 Pa.C.S. § 9545(b)(3).

       As noted above, the instant petition is patently untimely because Becker

filed it more than five years after his judgment of sentence became final.

Therefore, we have no jurisdiction to consider it unless Becker pled and proved
____________________________________________


5 When reviewing issues arising from the denial of PCRA relief, we must
determine whether the PCRA court’s ruling is supported by the record and free
of legal error. See Commonwealth v. Bush, 197 A.3d 285, 286–87 (Pa.
Super. 2018).

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one of the three limited exceptions to the PCRA’s one-year time limitation set

forth in section 9545:

      (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); see also Graves, supra at 1186.

      Becker invokes the applicability of the newly-recognized constitutional

right exception at Section 9545(b)(1)(iii) by arguing a right to relief predicated

on an extension of Muniz to SORNA II. (See Amended PCRA Petition, at 4 ¶

13; Becker’s Brief, at 13-16). However, this Court has recently held that “the

rule recognized in Muniz does not establish a timeliness exception to the

PCRA.” Greco, supra at *4 (citation omitted). The Greco Court explained:

      Appellant’s reliance on Muniz cannot satisfy the ‘new retroactive
      right’ exception of section 9545(b)(1)(iii). . . . [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 Appellant’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 [Commonwealth v.] Abdul-Salaam, [571
      Pa. 219, 812 A.2d 497, 501 (2002)]. Because at this time, no


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     such holding has been issued by our Supreme Court, Appellant
     cannot rely on Muniz to meet that timeliness exception.

Id. (quoting Commonwealth v. Murphy, 180 A.3d 402, 405 (Pa. Super.

2018), appeal denied, 195 A.3d 559 (Pa. 2018)).

     Because Becker’s PCRA petition is untimely and he has failed to establish

an exception to the PCRA’s timeliness requirements, we lack jurisdiction to

consider the merits of his claims. See Graves, supra at 1186. Accordingly,

we affirm the order of the PCRA court dismissing Becker’s petition.

     Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 03/25/2019




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