J-S03028-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA           :   IN THE SUPERIOR COURT OF
                                           :        PENNSYLVANIA
                                           :
               v.                          :
                                           :
                                           :
    PAUL FRANK KATONKA                     :
                                           :
                     Appellant             :   No. 1032 WDA 2019

               Appeal from the PCRA Order Entered June 3, 2019
    In the Court of Common Pleas of Westmoreland County Criminal Division
                      at No(s): CP-65-CR-0001110-2008


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

MEMORANDUM BY McCAFFERY, J.:                     FILED FEBRUARY 25, 2020

        Paul Frank Katonka (Appellant), proceeding pro se, appeals from the

order entered in the Westmoreland County Court of Common Pleas, dismissing

his third petition under the Post Conviction Relief Act1 (PCRA) as untimely

filed. We affirm.

        On May 12, 2008, the Commonwealth charged Appellant with four

counts of involuntary deviate sexual intercourse of a victim less than 13 years

old;2 two counts each of attempted rape, aggravated indecent assault of a

victim less than 13 years old, indecent assault of a victim less than 13 years




*   Retired Senior Judge assigned to the Superior Court.

1   42 Pa.C.S. §§ 9541-9546.

2   18 Pa.C.S. § 3123(b).
J-S03028-20


old,3 involuntary deviate sexual intercourse of a victim less than 16 years old;4

and one count each of aggravated indecent assault of a victim less than 16

years old, indecent assault of a victim less than 16 years old, endangering the

welfare of a child, and corruption of minors.5 Appellant pleaded guilty and the

trial court imposed a sentence of 10 to 20 years’ imprisonment, to be followed

by 15 years’ probation.

        Appellant appealed to this Court, which, on en banc review, vacated the

judgment of sentence and remanded for the trial court to reconsider

Appellant’s motion to withdraw his guilty plea. Commonwealth v. Katonka,

33 A.3d 44 (Pa. Super. 2011) (en banc).

        Ultimately, on November 26, 2012, Appellant again entered a guilty plea

to all 16 counts and was immediately sentenced to an aggregate term of 8 to

16 years’ imprisonment, to be followed by 19-years’ probation. On April 5,

2013, the trial court held a hearing at which it determined Appellant was a

“Tier III” offender under the Sexual Offenders Notification Act6 (SORNA I),

and subject to lifetime registration.7 Appellant did not file a direct appeal.


3   18 Pa.C.S. §§ 901, 3121, 3125(a)(7), 3126(a)(7).

4   18 Pa.C.S. § 3123(a)(8).

5   18 Pa.C.S. §§ 3125(a)(8), 3126(a)(8), 4304(a)(1), 6301(a)(1).

6   42 Pa.C.S. §§ 9799.10 to 9799.41.

7The lifetime registration requirement, set forth at42 Pa.C.S. § 9799.24, was
held to be unconstitutional in Commonwealth v. Butler, 173 A.3d 1212 (Pa.
Super. 2017), appeal granted, 47 WAL 2018 (Pa. July 31, 2018).

                                      -2-
J-S03028-20


      On March 23, 2016, Appellant filed his first pro se PCRA petition.

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

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

v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc). On November 17, 2016,

the PCRA court dismissed the petition as untimely filed, and granted counsel’s

motion to withdraw.    Appellant filed a timely notice of appeal which was

docketed in this Court at 4 WDA 2017.

      During the pendency of that appeal, on July 19, 2017, our Supreme

Court decided Commonwealth v. Muniz, 164 A.3d 1189 (Pa. 2017)

(retroactive application of SORNA violates the ex post facto clauses of United

States and Pennsylvania constitutions). On August 2, 2017, Appellant filed a

second pro se PCRA petition, pleading for relief under Muniz. On August 22,

2017, the PCRA court dismissed that petition for lack of jurisdiction, as the

appeal regarding Appellant’s initial petition was still before this Court.

Appellant filed a notice of appeal, docketed at 1493 WDA 2017.

      Appellant’s two appeals were consolidated, and on May 4, 2018, this

Court affirmed both orders of the PCRA court. Commonwealth v. Katonka,

4 WDA 2017 & 1493 WDA 2017 (Pa. Super. May 4, 2018). We agreed with

the PCRA court’s conclusions that Appellant’s first PCRA petition was untimely

filed and that the court lacked jurisdiction to hear his second petition. Our

Supreme Court denied allocatur on November 28, 2018. Commonwealth v.

Katonka, 229 WAL 2018 & 230 WAL 2018 (Pa. Nov. 28, 2018).


                                    -3-
J-S03028-20


      Appellant filed the instant untimely pro se PCRA petition, his third, on

January 25, 2019. On February 12, the PCRA court notified Appellant of its

intent to dismiss, per Pa.R.Crim.P. 907. The PCRA court dismissed the petition

by order of June 3, finding it to be untimely and meritless. Appellant filed a

timely notice of appeal and complied with the court’s order to file a statement

of errors complained of on appeal per Pa.R.A.P. 1925(b).

      In the instant PCRA appeal, Appellant seeks dismissal of all charges of

his conviction, reiterating his claim for relief under Muniz. Appellant claims

that under the Supremacy Clause — Article VI, Paragraph 2 — of the United

States   Constitution,   the    timeliness   requirements   of   the   PCRA   are

unconstitutional inasmuch as they conflict with the Constitution and federal

law on retroactivity. His central complaint is that his registration requirement

under SORNA is unconstitutional.

      We first review whether Appellant’s instant PCRA petition was timely

filed. This Court has stated:

      [T]he PCRA time limitations implicate our jurisdiction and may not
      be altered or disregarded in order to address the merits of a
      petition. Under the PCRA, any petition for post-conviction relief,
      including a second or subsequent one, must be filed within one
      year of the date the judgment of sentence becomes final, unless
      one of the following exceptions set forth in 42 Pa.C.S. §
      9545(b)(1)(i)–(iii) applies:

            (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:

                                       -4-
J-S03028-20



               (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).

Commonwealth v. Murphy, 180 A.3d 402, 404 (Pa. Super. 2018) (some

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

      Appellant’s sentence was imposed on November 26, 2012, and he did

not take a direct appeal. Thus, his judgment of sentence became final on

December 26, 2012. See 42 Pa.C.S. § 9545(b)(3) (judgment of sentence

becomes final at conclusion of direct review or at expiration of time for seeking

the review); Pa.R.Crim.P. 720(A)(3) (if defendant does not file timely post-

sentence motion, defendant’s notice of appeal shall be filed within 30 days of

imposition of sentence). Generally, Appellant had one year, until December

26, 2013, to file a PCRA petition. See 42 Pa.C.S. § 9545(b)(1); Murphy, 180

A.3d at 404. The instant appeal, filed on January 25, 2019, is thus facially

untimely, and we must determine whether Appellant properly pleaded any of

the Section 9545(b)(1) untimeliness exceptions.

                                      -5-
J-S03028-20


        As stated above, Appellant relies on Muniz. However, this Court has

held Muniz is not a basis for relief under the “newly recognized constitutional

right” exception at section 9545(b)(1)(iii). Murphy, 180 A.3d at 405; see

also Commonwealth v. Greco, 203 A.3d 1120, 1125 (Pa. Super. 2019)

(applying Murphy and holding “the rule recognized in Muniz does not

establish a timeliness exception to the PCRA”).    Appellant also claims that

Section 9545(b)(1) is preempted by Montgomery v. Louisiana, 136 S.Ct.

718 (2016), as revised (Jan. 27, 2016). He cites Montgomery’s language

that “courts must give retroactive effect to new ‘watershed rules of criminal

procedure’ implicating the fundamental fairness and accuracy of the criminal

proceeding.” Appellant’s Brief at 18, citing Montgomery, 136 S.Ct. at 728.

        In Murphy, as in Greco, this Court reiterated the requirement that, in

order to render an otherwise-untimely PCRA petition viable, the new

constitutional rule recognized must have been held by a high court (either our

Supreme Court or the Supreme Court of the United States) to be of the type

that would establish a timeliness exception. See Greco, 203 A.3d at 1124;

Murphy, 180 A.3d at 405-06; Commonwealth v. Abdul-Salaam, 812 A.2d

497, 501 (Pa. 2002) (“[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 tense.”).8 Here, no




8   This Court has stated:


                                     -6-
J-S03028-20


such timeliness exception has been declared by either high court. There is no

conflict between Montgomery’s guidance that changes in the law be given

retroactive effect and the requirement that a high court explicitly determine

that a particular change in the law affords relief under the Section

9545(b)(1)(iii) time exception of the PCRA.

     Because Appellant has not established application of an exception to the

PCRA’s rules on timeliness, the PCRA court properly dismissed his petition.

     Order affirmed.




     Here, we 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 Abdul–Salaam,
     supra. [A]t this time, no such holding has been issued by our
     Supreme Court[. Therefore,] Appellant cannot rely on Muniz to
     meet that timeliness exception. [FN]
     _______________
     [FN] Certainly, if the Pennsylvania Supreme Court issues a decision

     holding that Muniz applies retroactively, Appellant can then file a
     PCRA petition, within [one year] of that decision, attempting to
     invoke the ‘new retroactive right’ exception of section
     9545(b)(1)(iii).

Murphy, 180 A.3d at 405-06 (emphasis in original); see 42 Pa.C.S. §
9545(b)(2), as amended, effective Dec. 24, 2018.


                                    -7-
J-S03028-20




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/25/2020




                          -8-
