J-S38027-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    HERBERT DALE CONAWAY                       :
                                               :
                       Appellant               :   No. 1868 WDA 2017

                Appeal from the PCRA Order December 5, 2017
      In the Court of Common Pleas of Fayette County Criminal Division at
                        No(s): CP-26-CR-0001863-2011


BEFORE:      BOWES, J., NICHOLS, J., and STRASSBURGER, J.*

MEMORANDUM BY NICHOLS, J.:                            FILED JANUARY 25, 2019

        Appellant Herbert Dale Conaway appeals pro se from the order

dismissing his third Post Conviction Relief Act1 (PCRA) petition as untimely.

Appellant asserts that he is entitled to PCRA relief because trial counsel was

ineffective for failing to investigate that Appellant was actually innocent and

for failing to properly locate and interview witnesses, and because the trial

court erred in sentencing Appellant prior to having a presentence investigation

report (PSI) or evaluation by the Sex Offender Assessment Board (SOAB)

completed. Appellant also argues that he is subject to unconstitutional sex



____________________________________________


*   Retired Senior Judge assigned to the Superior Court.

1   42 Pa.C.S. §§ 9541-9546.
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offender     registration     requirements       based   upon   the   decision   in

Commonwealth v. Muniz, 164 A.3d 1189 (Pa. 2017).2 We affirm.

        This Court previously summarized the relevant background of this

matter:

        Appellant was arrested for the rape of a young woman who was
        volunteering with Habitat for Humanity.[3]         Represented by
        counsel, Appellant proceeded to a jury trial, following which the
        jury convicted him of rape by forcible compulsion, 18 Pa.C.S.A. §
        3121(a)(1), and related offenses. The trial court sentenced
        Appellant [under Megan’s Law III] to an aggregate of 96 months
        to 200 months in prison [and lifetime registration.] Appellant filed
        a timely post-sentence motion, which the trial court denied on
        August 16, 2012. Thereafter, on August 27, 2012, Appellant filed
        a timely, counseled direct appeal to this Court.[4]

        On appeal, Appellant contended (1) he should be granted a new
        trial due to the prosecutor’s Brady[5] violation, i.e., its failure to
        produce the victim’s emergency room examination records until
        after the start of trial; (2) the evidence was insufficient to support
        his conviction under Section 3121(a)(1); (3) the jury’s verdict was
        against the weight of the evidence; and (4) he should be granted
        a new trial due to the Commonwealth’s failure to present a prima
____________________________________________


2  Muniz, decided on July 19, 2017, held that retroactive application of
Pennsylvania’s Sex Offender Registration and Notification Act (SORNA), 42
Pa.C.S. §§ 9799.10-9799.41, violates the federal and state ex post facto
clauses. Muniz, 164 A.3d at 1193. SORNA took effect upon the expiration of
Megan’s Law III, its predecessor statute, on December 20, 2012. SORNA was
amended in response to Muniz. See 2018, Feb. 21, P.L. 27, No. 10 (Act 10)
(codified, in part, in 42 Pa.C.S. §§ 9799.51-9799.75).

3   The assault occurred on August 11, 2011.

4 On August 27, 2012, Appellant also filed a pro se PCRA petition. On
September 7, 2012, however, Appellant’s counsel filed a petition to
discontinue the PCRA petition on the basis that it had been prematurely filed.

5   Brady v. Maryland, 373 U.S. 83 (1963).



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       facie case of guilt at the preliminary hearing. This Court found
       Appellant was not entitled to relief, and consequently, on February
       5, 2013, we affirmed his judgment of sentence.                 See
       Commonwealth v. Conaway, No. 1320 WDA 2012 (Pa. Super.
       filed 2/5/13) (unpublished memorandum). Appellant did not file
       a petition for allowance of appeal with our Supreme Court.

       On or about February 21, 2013, Appellant filed a timely pro
       se PCRA petition, counsel was appointed to assist Appellant, and
       thereafter, counsel filed a petition to withdraw and
       a Turner/Finley[6] brief.   The PCRA court granted counsel’s
       petition to withdraw and, ultimately, dismissed Appellant’s first
       PCRA petition on March 30, 2015. Appellant did not file an appeal
       to this Court.

       On or about October 6, 2016, Appellant filed a pro se PCRA
       petition, and the PCRA court provided Appellant with notice of its
       intent to dismiss pursuant to Pa.R.Crim.P. 907. Appellant filed
       a pro se response in opposition to the PCRA court’s notice, and by
       opinion and order entered on November 29, 2016, the PCRA court
       dismissed Appellant’s second petition on the basis it was untimely
       filed. [A] timely pro se appeal followed.

Commonwealth v. Conaway, 1877 WDA 2016, 2017 WL 2398703, at *1

(Pa. Super. filed June 2, 2017) (footnotes omitted).

       This Court affirmed the dismissal of Appellant’s second PCRA petition on

June 2, 2017. Id. at *3. Thereafter, on October 25, 2017, Appellant filed the

instant third pro se PCRA petition. Appellant asserted that trial counsel was

ineffective for failing to investigate that Appellant was actually innocent and

for failing to properly locate and interview witnesses. PCRA Pet., 10/25/17,

at 8, 11. Appellant argued that the trial judge erred in sentencing him prior

to receiving a PSI or an evaluation by the SOAB. Id. at 15. Finally, Appellant


____________________________________________


6   Commonwealth   v.    Turner,   544    A.2d   927    (Pa.    1988),
and Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).

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asserted a claim that he is entitled to relief based upon the ruling in Muniz

that retroactive application of SORNA is unconstitutional. Id. at 18.

       On November 15, 2017, the PCRA court issued a Pa.R.Crim.P. 907 notice

of intent to dismiss Appellant’s third PCRA petition without a hearing.

Appellant filed objections to the Rule 907 notice on November 22, 2017, in

which he reiterated the claims made in his third PCRA petition. The PCRA

court entered an order and opinion on December 5, 2017, which dismissed

Appellant’s third PCRA petition.

       Appellant filed a timely notice of appeal and a timely court-ordered

concise statement of errors complained of on appeal pursuant to Pa.R.A.P.

1925(b).7 The PCRA court filed a statement in lieu of a Pa.R.A.P. 1925(a)

opinion, referring to the reasons for dismissing the third PCRA petition as set

forth in the Rule 907 notice and the order and opinion of December 5, 2017.

       Appellant raises four questions, which we have reordered as follows:

       1. Is [Appellant] entitled to relief in light of the recent
          [Pennsylvania] Supreme Court decision in [Muniz]?

       2. Was trial counsel ineffective for failing to investigate that his
          client, [Appellant], was factually innocent, thus causing the
          conviction of an innocent man?

       3. Was trial counsel ineffective for failing to properly locate and
          interview witnesses?

____________________________________________


7 Appellant attaches a different Rule 1925(b) statement to his Appellate brief
than the one appearing in the certified record. Regardless, the docketed Rule
1925(b) statement that appears of record was timely filed and preserves all
of the issues Appellant raised in the instant PCRA petition.


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      4. Did the trial court err[] when [it] sentenced [Appellant] prior
         to having a presentence investigation report (PSI) nor an
         evaluation by the Sex Offender Assessment Board (SOAB) in
         violation of 42 Pa.C.S.[ §§ 9731, 9732, and 9794(E)]?

Appellant’s Brief at 8 (unpaginated) (full capitalization omitted).

      Appellant asserts in his first claim that he is entitled to relief from

unconstitutional sex offender registration requirements based upon the

holding in Muniz. Id. at 28. Appellant argues that “SORNA unconstitutionally

increases the length of registration requirements for sex offenders subject to

its retroactive application [and] increases punishment for conduct which

occur[r]ed before its enactment.”       Id. at 29.    Therefore, according to

Appellant, SORNA is “unconstitutional as applied to someone like him whose

crimes predated its enactment.” Id.

      Our standard of review of the denial of a PCRA petition is well-settled.

We “review[] the PCRA court’s findings of fact to determine whether they are

supported by the record, and review[] its conclusions of law to determine

whether they are free from legal error.” Commonwealth v. Spotz, 84 A.3d

294, 311 (Pa. 2014) (citation omitted).

      Generally, a petition for PCRA relief, including a second or subsequent

petition, must be filed within one year of the date the judgment of sentence

becomes final. See 42 Pa.C.S. § 9545(b)(1). Exceptions to the timeliness

requirement exist, however, as set forth at 42 Pa.C.S. § 9545(b).          The

timeliness requirements of the PCRA are jurisdictional in nature, and, thus, a

PCRA court cannot hear untimely petitions. Commonwealth v. Robinson,

837 A.2d 1157, 1161 (Pa. 2003).

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      The three statutory exceptions for a facially untimely petition under the

PCRA consist of the following:

      (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). Additionally, a petition invoking a timeliness

exception must “be filed within 60 days of the date the claim could have been

presented.” 42 Pa.C.S. § 9545(b)(2).

      Muniz held that retroactive application of SORNA violates the federal

and state ex post facto clauses. Muniz, 164 A.3d at 1193. Muniz has been

held to apply in the PCRA context when a timely PCRA petition has been filed.

See Commonwealth v. Rivera-Figueroa, 174 A.3d 674, 678 (Pa. Super.

2017); see also Commonwealth v. Murphy, 180 A.3d 402, 405-06 (Pa.

Super. 2018) (noting that Muniz applied retroactively in Rivera-Figueroa

because the PCRA petition was timely).

      In Murphy, this Court held that an untimely PCRA petitioner could not

rely on Muniz to meet the timeliness exception regarding a newly recognized

constitutional right because no holding of the Pennsylvania Supreme Court



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“has held that Muniz applies retroactively in order to satisfy in section

9545(b)(1)(iii).” Murphy, 180 A.3d at 406 (citation omitted).

      As an initial matter, we note that Appellant’s issue is waived. He does

not specifically state that he is invoking the newly recognized constitutional

right timeliness exception based on the ruling in Muniz.         See Pa.R.A.P.

2119(a); Appellant’s Brief at 28 (referring to the “recent” Muniz decision).

However, even if the issue of relief under Muniz were not waived, Appellant’s

claim warrants no relief.

       Muniz was decided on July 19, 2017, and Appellant did not file the

instant PCRA petition until October 25, 2017. Accordingly, Appellant failed to

file a petition within sixty days of the date the claim could have been

presented.   See 42 Pa.C.S. § 9545(b)(2).      Even if Appellant had met the

requirement of section 9545(b)(2), Murphy dictates that the decision in

Muniz does not afford relief to a petitioner such as Appellant, who has filed

an untimely PCRA petition. See Murphy, 180 A.3d at 405-06. Accordingly,

we are constrained to find that the PCRA court properly dismissed Appellant’s

claim under Muniz. See Spotz, 84 A.3d at 311.

      As to Appellant’s remaining claims, he does not attempt to invoke any

timeliness exception that would provide this Court with jurisdiction to consider

the merits of those claims. See Robinson, 837 A.2d at 1161. Thus, the

PCRA court properly dismissed Appellant’s claims without a hearing.        See

Spotz, 84 A.3d at 311.

      Order affirmed.

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Judge Strassburger joins the memorandum.

Judge Bowes files a concurring statement.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/25/2019




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