J-S18044-20

                                   2020 PA Super 114

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    ROLAND MATTHEW HROMEK JR.                  :
                                               :
                       Appellant               :   No. 1461 MDA 2019

              Appeal from the PCRA Order Entered August 9, 2019
    In the Court of Common Pleas of York County Criminal Division at No(s):
                           CP-67-CR-0002872-2013


BEFORE:      KUNSELMAN, J., KING, J., and STEVENS, P.J.E.*

OPINION BY STEVENS, P.J.E.:                               FILED MAY 12, 2020

        Appellant Roland Matthew Hromek, Jr. appeals, pro se, from the order

of the Court of Common Pleas of York County, which granted in part and

denied in part Appellant’s “Petition for Enforcement of Plea Agreement.” As

Appellant’s motion should have been deemed an untimely petition under the

Post-Conviction Relief Act (PCRA),1 the lower court had no jurisdiction to grant

Appellant collateral relief. Accordingly, we affirm in part and reverse in part.

        On August 23, 2013, Appellant entered a negotiated guilty plea to

involuntary deviate sexual intercourse (IDSI) with a child less than thirteen

years of age. Appellant’s plea was based on criminal conduct that occurred

between August 1 and October 31, 2012. On November 25, 2013, the trial

court imposed a sentence of seven to fifteen years of incarceration and
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*   Former Justice specially assigned to the Superior Court.
1   42 Pa.C.S.A. §§ 9541-9546.
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informed Appellant that he was subject to lifetime registration as a sexual

offender pursuant to Megan’s Law III.2 The Sex Offender Assessment Board

determined that Appellant was not a sexually violent predator (SVP).

Appellant did not file a direct appeal.

       On December 9, 2013, Appellant filed his first PCRA petition, but

subsequently withdrew it.        On December 11, 2015 and January 12, 2017,

Appellant filed his second and third PCRA petitions, respectively, which were

both denied as untimely filed.

       On July 19, 2017, Appellant filed his fourth PCRA petition, claiming his

lifetime registration and reporting requirements were unconstitutional under

Commonwealth v. Muniz, 640 Pa. 699, 164 A.3d 1189 (2017), in which our

Supreme Court held that the retroactive application of the registration and

reporting requirements of the Pennsylvania Sex Offender Registration and

Notification Act (SORNA I)3 violated the ex post facto clauses of the United


____________________________________________


2 42 Pa.C.S.A. §§ 9791-9799.9. Megan's Law III expired on December 20,
2012, and gave way to the Sexual Offender Registration and Notification Act
(“SORNA I”), which took effect on that same date. As discussed infra, the
Supreme Court subsequently held that Act 152, which contained the relevant
Megan’s Law III provisions, was unconstitutional as it violated the single
subject rule of the Pennsylvania Constitution. Commonwealth v. Neiman,
624 Pa. 53, 84 A.3d 603 (2013).
3 42 Pa.C.S.A. §§ 9799.10-9799.42. However, in direct response to Muniz,
the General Assembly passed SORNA II, which became effective on June 12,
2018. Act of Feb. 21, 2018, P.L. 27, No. 10 (Act 10); Act of June 12, 2018,
P.L. 140, No. 29 (Act 29). SORNA II is:




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States and Pennsylvania Constitutions. On October 30, 2017, the PCRA court

issued notice of its intent to dismiss the petition without a hearing pursuant

to Pa.R.Crim.P. 907.        On December 15, 2017, the PCRA court dismissed

Appellant’s petition.

       On August 14, 2018, this Court affirmed the PCRA court’s order finding

that Appellant’s fourth PCRA petition was untimely and failed to meet any of

the PCRA timeliness exceptions. This Court reasoned that Appellant could not

rely on the decision in Muniz to satisfy the PCRA timeliness exception under

42 Pa.C.S.A § 9545(b)(1)(iii) based on a newly-recognized constitutional

right, as he failed to demonstrate that the Pennsylvania Supreme Court held

that Muniz applies retroactively on collateral review. See Commonwealth

v. Hromek, 77 MDA 2018, 2018 WL 389778 (Pa.Super. August 14, 2018)

(unpublished memorandum), appeal denied, 203 A.3d 978, 598 MAL 2018

(Pa. March 6, 2019).

       On April 15, 2019, Appellant filed the instant “Petition for Enforcement

of Plea Agreement” in which he challenged his lifetime registration

____________________________________________


       divided into two distinct subchapters – Subchapter H, which
       applies to “individuals who committed a sexually violent offense
       on or after December 20, 2012, for which the individual was
       convicted[,]” 42 Pa.C.S. § 9799.11(c), and Subchapter I, which
       applies to individuals who committed a sexually violent offense
       “on or after April 22, 1996, but before December 20, 2012,” and
       whose period of registration has not yet expired or whose
       registration requirements under a former sexual offender
       registration law have not expired. 42 Pa.C.S. § 9799.52.

Commonwealth v. Moore, 222 A.3d 16, 20 (Pa.Super. 2019).

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requirements based on Commonwealth v. Neiman, 624 Pa. 53, 84 A.3d 603

(2013), in which the Supreme Court held that Act 152, which included the

relevant Megan’s Law III provisions, was unconstitutional as it violated the

single subject rule of the Pennsylvania Constitution.

      On August 9, 2019, the lower court entered an order granting

Appellant’s petition in part and denying it in part, finding that “SORNA cannot

be applied retroactively to [Appellant] pursuant to [Muniz]; and [Appellant]

is subject to the original period of sexual offender registration (lifetime)

imposed at the time of his plea agreement (Megan’s Law III).” Order, 8/9/19,

at 1. This appeal followed.

      As a preliminary matter, we must determine whether the lower court

had jurisdiction to review the merits of Appellant’s “Petition for Enforcement

of Plea Agreement.” This Court has consistently held that “so long as a

pleading falls within the ambit of the PCRA, the court should treat any pleading

filed after the judgment of sentence is final as a             PCRA petition.”

Commonwealth v. Torres, 223 A.3d 715, 716 (Pa.Super. 2019) (citations

omitted). Generally, the PCRA “shall be the sole means of obtaining collateral

relief and encompasses all other common law and statutory remedies ...

including habeas corpus and coram nobis.” Commonwealth v. Descardes,

635 Pa. 395, 402-403, 136 A.3d 493, 497–98 (2016) (citing 42 Pa.C.S.A. §

9542).   The PCRA is “the exclusive vehicle for obtaining post-conviction

collateral relief … regardless of the manner in which the petition is titled.”

Commonwealth v. Kutnyak, 781 A.2d 1259, 1261 (Pa.Super. 2001). See

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also Commonwealth v. Taylor, 65 A.3d 462, 466 (Pa.Super. 2013) (finding

“a defendant cannot escape the PCRA time-bar by titling his petition or motion

as a writ of habeas corpus”).

      In Commonwealth v. Jackson, 30 A.3d 516 (Pa.Super. 2011), this

Court held that the trial court correctly characterized the defendant’s motion

to correct illegal sentence as a PCRA petition, broadly stating that “any petition

filed after the judgment of sentence becomes final will be treated as a PCRA

petition.” Id. at 521-22. Similarly, Appellant’s “Petition for Enforcement of

Plea Agreement,” in which he challenges the legality of his sentence, should

have been treated as a PCRA petition.

      Further, our courts have recognized that “while challenges to the legality

of a defendant's sentence cannot be waived, they ordinarily must be raised

within a timely PCRA petition.” Commonwealth v. Concordia, 97 A.3d 366,

372 (Pa.Super. 2014) (quoting Commonwealth v. Fahy, 558 Pa. 313, 737

A.2d 214, 223 (1999)). This Court has further explained:

      “[t]hough not technically waivable, a legality claim may
      nevertheless be lost should it be raised for the first time in an
      untimely PCRA petition for which no time-bar exception applies,
      thus depriving the court of jurisdiction over the claim.”
      Commonwealth v. Slotcavage, 939 A.2d 901, 903 n. 4
      (Pa.Super. 2007) (citation omitted). “[W]hen a petitioner files an
      untimely PCRA petition raising a legality-of-sentence claim, the
      claim is not waived, but the jurisdictional limits of the PCRA itself
      render the claim incapable of review.” Commonwealth v.
      Jones, 932 A.2d 179, 182 (Pa.Super. 2007).

Commonwealth v. Wojtaszek, 951 A.2d 1169, 1173 n.9 (Pa.Super. 2008).




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      As such, the PCRA court did not have jurisdiction to review Appellant’s

PCRA petition unless it was timely filed. It is well-established that “the PCRA's

timeliness requirements are jurisdictional in nature and must be strictly

construed; courts may not address the merits of the issues raised in a petition

if it is not timely filed.” Commonwealth v. Walters, 135 A.3d 589, 591

(Pa.Super. 2016) (citations omitted). Generally, a PCRA petition “including a

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

judgment of sentence becomes final.” 42 Pa.C.S.A. § 9545(b)(1). A judgment

of sentence becomes final at the conclusion of direct review or the expiration

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

      However, Pennsylvania courts may consider an untimely PCRA petition

if the petitioner explicitly pleads and proves one of the three exceptions

enumerated in Section 9545(b)(1), which include: (1) the petitioner's inability

to raise a claim as a result of governmental interference; (2) the discovery of

previously unknown facts or evidence that would have supported a claim; or

(3) a newly-recognized constitutional right that has been held to apply

retroactively by the Supreme Court of the United States or the Supreme Court

of Pennsylvania. 42 Pa.C.S.A. § 9545(b)(1)(i)-(iii).

      In this case, Appellant’s judgment of sentence became final on

December 26, 2013, when his time for seeking a direct appeal expired. See

Pa.R.A.P. 903(a) (stating that a “notice of appeal … shall be filed within 30

days after the entry of the order from which the appeal is taken). As a result,




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Appellant had until December 26, 2014 to file a timely PCRA petition. This

petition, filed on April 15, 2019, is facially untimely.

      As Appellant attempted to file a “Petition for Enforcement of Plea

Agreement,” Appellant did not argue that any of the PCRA timeliness

exceptions apply. As the lower court failed to treat Appellant’s filing as a PCRA

petition, it did not give Appellant notice of its intent to dismiss the petition

without a hearing pursuant to Pa.R.A.P. 907 or give Appellant any opportunity

to amend the petition. However, this Court has held that “a court's decision

to deny an untimely petition absent directing an amendment does not warrant

reversal where the claim is record-based and our review indicates that the

issue does not fall within a timeliness exception.” Taylor, 65 A.3d at 468.

      As noted above, the lower court granted Appellant’s petition in part and

denied it in part, finding that “SORNA cannot be applied retroactively to

[Appellant] pursuant to [Muniz].” Order, 8/9/19, at 1. First, we note that

Appellant’s instant petition does not challenge his registration requirements

based on Muniz, but argues that he is entitled to collateral relief based on

this Supreme Court’s decision in Neiman. The lower court sua sponte found

Muniz to be applicable and granted Appellant relief on that basis without

acknowledging that Appellant had filed an untimely PCRA petition.

      However, the Muniz decision does not allow a petitioner to escape the

PCRA time-bar as it does not satisfy the newly-recognized constitutional right

exception as set forth in Section 9545(b)(1)(iii). This Court explained this

point in Commonwealth v. Murphy, 180 A.3d 402 (Pa.Super. 2018):

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       Appellant's reliance on Muniz cannot satisfy the [timeliness]
       exception of [S]ection 9545(b)(1)(iii). In Commonwealth v.
       Abdul-Salaam, 571 Pa. 219, 812 A.2d 497 (2002), our Supreme
       Court held that,

          [s]ubsection (iii) of Section 9545 has two requirements.
          First, it provides that the right asserted is a constitutional
          right that was recognized by the Supreme Court of the
          United States or this [C]ourt after the time provided in this
          section. Second, it provides that the right “has been held”
          by “that court” to apply retroactively. Thus, 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. These words mean that the action has already
          occurred, i.e., “that court” has already held the new
          constitutional right to be retroactive to cases on collateral
          review. By employing the past tense in writing this
          provision, the legislature clearly intended that the right was
          already recognized at the time the petition was filed.

       Id. at 501.

       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
       [S]ection 9545(b)(1)(iii). See Abdul-Salaam, supra. Because at
       this time, no such holding has been issued by our Supreme Court,
       Appellant cannot rely on Muniz to meet that timeliness exception.

Murphy, 180 A.3d at 405-406.4             As Appellant cannot rely upon Muniz to

excuse the untimeliness of his PCRA petition under Section 9545(b)(1)(iii),

the lower court had no jurisdiction to grant Appellant relief based on Muniz.
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4 As noted above, this Court rejected this identical claim in denying Appellant’s
fourth PCRA petition. Hromek, 77 MDA 2018, 2018 WL 3849778, at *2–3.
As such, Appellant was not eligible to raise a Muniz claim in his instant (fifth)



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J-S18044-20



       Similarly, Appellant’s citation to Neiman does not overcome the PCRA

time-bar pursuant to 42 Pa.C.S.A. § 9545(b)(1)(iii).      First, the decision in

Neiman did not recognize a new constitutional right, but rather, concluded

that Act 152, which included the relevant Megan’s Law III provisions, was

unconstitutional as it violated the single subject rule of the Pennsylvania

Constitution.    Second, our Supreme Court has not held that the Neiman

decision should be applied retroactively on collateral review.

       As Appellant’s petition does not meet any of the PCRA timeliness

exceptions, the lower court had no jurisdiction to reach the merits of the

petition. Accordingly, we reverse the lower court’s decision granting Appellant

relief under Muniz and affirm in all other respects, albeit on different grounds

than set forth below.

       Order reversed in part and affirmed in part. Jurisdiction relinquished.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 05/12/2020


____________________________________________


PCRA petition as the exact issue was previously litigated in his prior PCRA
petition. See 42 Pa.C.S.A. § 9543(a)(3), § 9544(a)(3).


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