J-S35025-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT
                                                     OF PENNSYLVANIA
                             Appellee

                        v.

 SHAWN ALBERT DIEHL

                             Appellant               No. 1904 EDA 2018


               Appeal from the PCRA Order Entered June 14, 2018
              In the Court of Common Pleas of Montgomery County
                Criminal Division at No: CP-46-CR-0003321-2009

BEFORE: OLSON, J., STABILE, J. and STRASSBURGER, J.*

MEMORANDUM BY STABILE, J.:                         FILED AUGUST 27, 2019

       Appellant, Shawn Albert Diehl, appeals from an order dismissing his

petition for relief under the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A.

§§ 9541—9546, as untimely. Citing Commonwealth v. Muniz, 164 A.3d

1189 (Pa. 2017), Appellant argues that the requirement that he register for

life as a sex offender under the Sex Offender Registration and Notification Act

(“SORNA”), 42 Pa.C.S.A. §§ 9799.10—9799.41, violates his rights under the

Ex Post Facto Clauses of the federal and Pennsylvania Constitutions. We hold

that the PCRA court properly dismissed Appellant’s petition without a hearing,

and we affirm.




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* Retired Senior Judge assigned to the Superior Court.
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        On January 12, 2010, after a non-jury trial, the trial court convicted

Appellant of three counts of involuntary deviate sexual intercourse (“IDSI”)

with a child, three counts of aggravated indecent assault, one count of

indecent exposure, one count of endangering the welfare of a child and one

count of corruption of minors.1           On September 7, 2010, the trial court

sentenced Appellant to an aggregate term of 13 to 30 years’ imprisonment.

The court also determined that Appellant was a sexually violent predator

(“SVP”).

        On May 3, 2011, the Superior Court affirmed Appellant’s judgment of

sentence on direct appeal. On February 29, 2012, the Supreme Court denied

Appellant’s petition for allowance of appeal.

        On December 20, 2012, SORNA became effective. Under SORNA, SVP’s

are subject to lifetime registration as sex offenders.          42 Pa.C.S.A. §

9799.15(a)(6).

        On August 26, 2015, Appellant filed a PCRA petition.      On March 25,

2016, the PCRA court dismissed the petition without a hearing.        Appellant

appealed to this Court, which affirmed on February 2, 2017.

        On July 19, 2017, our Supreme Court held in Muniz that SORNA’s

registration provisions are punitive, and that retroactive application of SORNA


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1   18 Pa.C.S.A. §§ 3123, 3125, 3127, 4303, and 6301, respectively.




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violates the Ex Post Facto clauses of the federal and Pennsylvania

Constitutions. Id., 164 A.3d at 1218-19.2

       On April 20, 2018, Appellant filed his second PCRA petition, the petition

that is the subject of this appeal.            Therein, Appellant contended that his

conduct predated SORNA’s enactment, and that retroactive application of

SORNA’s registration provision against him was unconstitutional under Muniz.

On May 14, 2018, the PCRA Court issued a notice of intent to dismiss the PCRA

petition without a hearing pursuant to Pa.R.Crim.P. 907. On June 14, 2018,

the Court dismissed the petition. This timely appeal followed. Appellant filed

a concise statement of issues complained of on appeal even though the PCRA

court did not order him to do so. On October 16, 2018, the PCRA court filed

an opinion in which it reasoned that Appellant’s petition was untimely.

       In this appeal, Appellant contends that (1) the PCRA court erred by

determining that his second petition is untimely, and (2) Muniz applies

retroactively     and      renders     his      lifetime   registration   requirement

unconstitutional.       We begin by examining the timeliness of Appellant’s



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2 Following Muniz, the Pennsylvania General Assembly enacted legislation to
amend SORNA. See Act of Feb. 21 2018, P.L. 27, No. 10 (“Act 10”). Act 10
amended several provisions of SORNA and added several new sections found
at 42 Pa.C.S.A. §§ 9799.42 and 9799.51 through 9799.75. In addition, the
Governor of Pennsylvania recently signed new legislation striking the Act 10
amendments and reenacting several SORNA provisions, effective June 12,
2018, including Section 9799.15, but limiting their applicability to individuals
who commit offenses on or after December 20, 2012. See Act of June 12,
2018, P.L. 1952, No. 29.

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petition, because the PCRA time limitations implicate our jurisdiction and may

not be altered or disregarded in order to address the merits of a petition.

Commonwealth v. Bennett, 930 A.2d 1264, 1267 (Pa. 2007).

      Under the PCRA, the petitioner must move for post-conviction relief

within one year of the date the judgment of sentence becomes final.            42

Pa.C.S.A. § 9545(b)(1). A judgment becomes final under the PCRA “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.A. § 9545(b)(3). The

one-year limitation period does not apply, however, when the petitioner

pleads and proves that:

      (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.




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42 Pa.C.S.A. § 9545(b)(1)(i)—(iii). Any petition attempting to invoke one of

these exceptions “shall be filed within one year[3] of the date the claim could

have been presented.” 42 Pa.C.S.A. § 9545(b)(2).

       Here, Appellant’s judgment of sentence became final in mid-2012,

ninety days after our Supreme Court denied his petition for allowance of

appeal. His present petition, filed in 2018, is facially untimely. Thus, for this

Court to have jurisdiction to review his petition on the merits, he must prove

that he meets one or more of the exceptions in Section 9545(b).

       The PCRA court addressed whether Appellant’s PCRA petition satisfied

each of the three exceptions in Section 9545(b)(1). The court concluded that

Appellant failed to meet all three exceptions. In this Court, Appellant only

argues that one of the exceptions applies: the new retroactive right exception

in Section 9545(b)(1)(iii).        Our Supreme Court has recognized that this

exception 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 court 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
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3 Effective December 24, 2018, the Legislature amended Section 9545(b)(2)
of the PCRA, increasing the time period for invoking an exception under
Section 9545(b)(1) from sixty days to one year. See Section 3 of Act 2018,
Oct. 24, P.L. 894, No. 146. The amendment applies only to claims arising on
or after December 24, 2017.

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       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.

Commonwealth v. Abdul–Salaam, 812 A.2d 497, 501 (Pa. 2002).

       Pursuant to Commonwealth v. Murphy, 180 A.3d 402 (Pa. Super.

2018), we conclude that the new retroactive right exception does not apply to

this case. The facts in Murphy are much the same as the present case. In

2007, the petitioner was convicted of IDSI and other sexual offenses.           His

judgment of sentence became final at the conclusion of his direct appeal in

2009, several years before SORNA’s enactment.             He filed several PCRA

petitions between 2009 and 2015, all of which were denied. In 2016, he filed

another PCRA petition, and it was denied in early 2017. The petitioner timely

appealed to this Court. During his appeal, the Supreme Court decided Muniz.

More than sixty days4 after Muniz’s issuance, the appellant filed a motion in

this Court contending, based on Muniz, that his PCRA petition was timely

under the new retroactive right exception. We disagreed, stating:

       [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 Abdul–Salaam. . .
       Because at this time, no such holding has been issued by our


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4At the time Murphy was decided, the time period for raising an exception
under Section 9545(b)(1) was sixty days. See n. 3, supra.

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        Supreme Court, Appellant cannot rely on Muniz to meet that
        timeliness exception.

Id. at 405-06 (emphasis in original). In a footnote, we added: “Certainly, if

the Pennsylvania Supreme Court issues a decision holding that Muniz applies

retroactively, Appellant can then file a PCRA petition, within 60 days 5 of that

decision, attempting to invoke the ‘new retroactive right’ exception of section

9545(b)(1)(iii).” Id. at 406 n.1.

        In the present case, as of this date, neither the United States Supreme

Court nor the Pennsylvania Supreme Court has held that the rights recognized

in Muniz apply retroactively.         Moreover, as in Murphy, Appellant’s PCRA

petition is untimely because Appellant filed his petition more than one year

after his judgment of sentence became final.        42 Pa.C.S.A. § 9545(b)(1).

Thus, the PCRA court properly dismissed Appellant’s present petition as

untimely. We note, as did the Murphy court, that if either the United States

Supreme Court or the Pennsylvania Supreme Court issues a decision that the

rights recognized in Muniz apply retroactively, Appellant can then file another

PCRA petition attempting to invoke the new retroactive right exception within

Section 9545(b)(1)(iii).

        Order affirmed.




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5   See nn. 3 & 4, supra.

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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/27/19




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