J-S12026-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :     IN THE SUPERIOR COURT OF
                                               :          PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    JAMES LEE NEAL                             :
                                               :
                       Appellant               :     No. 1512 MDA 2018

             Appeal from the PCRA Order Entered August 13, 2018
     In the Court of Common Pleas of Dauphin County Criminal Division at
                       No(s): CP-22-CR-0005782-2016

BEFORE: BOWES, J., DUBOW, J., and MUSMANNO, J.

MEMORANDUM BY DUBOW, J.:                           FILED: MAY 3, 2019

       Appellant, James Lee Neal, appeals from the August 13, 2018 Order

dismissing his Petition filed pursuant to the Post Conviction Relief Act

(“PCRA”), 42 Pa.C.S §§ 9541-9546, as untimely.             After careful review, we

affirm.

       The facts and procedural history are, briefly, as follows. On October 5,

2016, police arrested Appellant, a convicted sex offender, for failing to register

his cell phone on August 30, 2016.1, 2 The Commonwealth charged Appellant
____________________________________________


1 Appellant was subject to the registration and reporting requirements of
Megan’s Law owing to his conviction of a sexual offense that he committed
“[o]n some date prior to January 1, 2001.” Appellant’s Brief at 5. The offense
of which Appellant was convicted is not specified in the record in this matter.

2 On December 20, 2012, the legislature enacted the Sexual Offender
Notification and Registration Act (“SORNA”), 42 Pa.C.S. §§ 9799.10-9799.42.
SORNA repealed Megan’s Law II and III, and applied to Appellant retroactively
pursuant to Section 9799.13.
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with Failure to Register with the Pennsylvania State Police (“Failure to

Register”),    Failure   to   Comply      with   Registration   of   Sexual   Offender

Requirements, and Failure to Provide Accurate Information.

        On December 20, 2016, Appellant entered a negotiated guilty plea to

the Failure to Register3 charge. That same day, the trial court sentenced him

pursuant to that agreement to a term of one and a half to three years’

incarceration followed by five years’ probation. Appellant did not file a Post-

Sentence Motion or a direct appeal from his Judgment of Sentence.

Appellant’s Judgment of Sentence, thus, became final on January 19, 2017.

See 42 Pa.C.S. § 9545(b)(3) (providing “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[ ]”); U.S. Sup. Ct. R. 13.

        On June 11, 2018, Appellant filed a counselled PCRA Petition. In the

Petition, he alleged that, pursuant to Commonwealth v. Muniz, 164 A.3d

1189 (Pa. 2017),4 he is serving an illegal sentence for his Failure to Register


____________________________________________


3   18 Pa.C.S. §§ 4915.1(a)(1).

4 In Muniz, decided on July 19, 2017, the Pennsylvania Supreme Court
determined that retroactive application of SORNA’s registration requirements
violates the ex post facto clause of the Pennsylvania Constitution. Thus, the
Court declared SORNA unconstitutional when applied to defendants who were
convicted of crimes committed before SORNA’s December 20, 2012 effective
date. In response, the Legislature recently amended SORNA with by H.B. 631,
202 Gen. Assem., Reg. Sess. (Pa. 2018), Act 10 of 2018 (“Act 10”).


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conviction.    Petition, 6/11/18, at ¶¶ 9, 20-23.         On June 19, 2018, the

Commonwealth filed a Response to Appellant’s Petition.

        On July 7, 2018, the PCRA court notified Appellant of its intent to dismiss

his PCRA Petition without a hearing pursuant to Pa.R.Crim.P. 907. Appellant

did not file a Response to the Petition. On August 13, 2018, the PCRA court

dismissed Appellant’s Petition as untimely.

        This timely appeal followed.           Both Appellant and the PCRA court

complied with Pa.R.A.P. 1925.5

        Appellant raises the following issue on appeal:

           Is not [Appellant’s] conviction for Failure to [Register] under
           18 Pa.C.S. § 4915.1 rendered invalid by the Pennsylvania
           Supreme Court’s Muniz decision and is not [Appellant] entitled
           to contest that conviction under the PCRA because the
           Supreme Court in Commonwealth v. Polzer, ruled that
           Muniz is applicable retroactively on collateral review?

Appellant’s Brief at 4.

        On appeal, Appellant challenges the retroactive application of SORNA’s

registration requirements as unconstitutional after Muniz. Appellant’s Brief

at 12-26.

Standard/Scope of Review

        “Our standard of review of a PCRA court's dismissal of a PCRA petition

is limited to examining whether the PCRA court's determination is supported

by the record evidence and free of legal error.” Commonwealth v. Root,

179 A.3d 511, 515-16 (Pa. Super. 2018) (citation omitted). This Court grants
____________________________________________


5   The PCRA court filed a Statement in Lieu of Memorandum Opinion.

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great deference to the findings of the PCRA court if they are supported by the

record. Commonwealth v. Boyd, 923 A.2d 513, 515 (Pa. Super. 2007). We

give no     such deference, however, to             the court’s   legal conclusions.

Commonwealth v. Ford, 44 A.3d 1190, 1194 (Pa. Super. 2012).

       In order to obtain relief under the PCRA, a petition must be timely filed.

See 42 Pa.C.S. § 9545 (providing jurisdictional requirements for the timely

filing of a petition for post-conviction relief). A petition must be filed within

one year from the date the judgment of sentence became final. Id. at Section

9545(b)(1).      The PCRA, however, provides exceptions to the timeliness

requirement in certain circumstances.            42 Pa.C.S. §9545(b)(1)(i)-(iii).   In

addition to establishing the elements of a timeliness exception, a petitioner

must also establish that he filed his PCRA Petition within 60 days of the date

he could have presented his claim. 42 Pa.C.S. § 9545(b)(2). 6 Appellant’s

Petition, filed almost a year and a half after his Judgment of Sentence became

final, is facially untimely.

       Appellant attempts to invoke the exception set forth at Section

9545(b)(1)(iii).    See 42 Pa.C.S. § 9545(b)(1)(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 as has been held by that court to apply retroactively.”).
____________________________________________


6 Effective December 24, 2018, Section 9545(b)(2) now provides that, for
claims arising on December 24, 2017, or after, “[a]ny petition invoking an
exception . . . shall be filed within one year of the date the claim could have
been presented.”

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      Our Supreme Court decided Muniz on July 17, 2017. Appellant did not

file the instant PCRA Petition until June 11, 2018, which is almost a year after

the date of the decision in Muniz, and well beyond the 60-day filing

requirement set forth in Section 9545(b)(2).

      Even if Appellant had filed this Petition within 60 days of the Supreme

Court’s decision in Muniz, Appellant would still not be entitled to relief.

Because Appellant's PCRA petition is untimely, the timeliness exception

provided in Section 9545(b)(1)(iii) requires that he demonstrate that the

Pennsylvania Supreme Court has held that the holding in Muniz applies

retroactively.    Because our Supreme Court has issued no such holding,

Appellant cannot rely at this time on Muniz to meet that timeliness exception.

Commonwealth v. Murphy, 180 A.3d 402, 405-06 (Pa. Super. 2018),

appeal denied, 195 A.3d 559 (Pa. 2018). Thus, even if Appellant had filed his

Petition within 60 days of the Muniz decision, he cannot satisfy this timeliness

exception. Accordingly, we are without jurisdiction to address this issue.

      In conclusion, Appellant has not pleaded and proved the applicability of

any of the PCRA’s timeliness exceptions and, therefore, we are without

jurisdiction to consider the merits of this appeal. The PCRA court properly

dismissed Appellant’s Petition as untimely.     The record supports the PCRA

court’s findings and its Order is free of legal error. We, thus, affirm the denial

of PCRA relief.

      Order affirmed.



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/3/2019




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