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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    MICHAEL DWAYNE KARRAKER                    :
                                               :
                       Appellant               :   No. 1159 WDA 2018

                Appeal from the PCRA Order Entered July 6, 2018
             In the Court of Common Pleas of Westmoreland County
              Criminal Division at No(s): CP-65-CR-0001699-2009


BEFORE:      BENDER, P.J.E., OTT, J., and STRASSBURGER, J.

MEMORANDUM BY OTT, J.:                                     FILED MAY 15, 2019

        Michael Dwayne Karraker appeals from the order entered July 6, 2018,

in the Westmoreland County Court of Common Pleas, dismissing his first

petition for collateral relief filed pursuant to the Post Conviction Relief Act

(“PCRA”).1 Karraker seeks relief from an aggregate term of two-and-one-half

to five years’ state incarceration, followed by five years of probation, imposed

on July 19, 2010.        On appeal, Karraker claims the PCRA court erred in

dismissing his petition as untimely filed because legal precedent holds that

the retroactive application of the Sexual Offender Registration and Notification


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   Retired Senior Judge assigned to the Superior Court.

1   42 Pa.C.S. §§ 9541-9546.
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Act (“SORNA”)2 “violated the ex post facto clause of both the Federal

Constitution and the Pennsylvania Constitution.” Karraker’s Brief at 7 (italics

added). For the reasons below, we affirm.

       The facts underlying Karraker’s negotiated guilty plea are well known to

the parties, and we need not recite them in detail herein. Briefly, Karraker,

who was 22 years old at the time, sexually assaulted the 15-year-old female

victim on multiple occasions from January to March of 2009. On March 5,

2010, Karraker entered a negotiated guilty plea to charges of aggravated

indecent assault, statutory sexual assault, and corruption of minors. 3     In

exchange for the plea, the Commonwealth agreed to the following sentence:

(1) 30 to 60 months’ incarceration for the aggravated assault offense; (2) a

concurrent term of 12 to 24 months’ imprisonment for the statutory sexual

assault count; and (3) a consecutive term of five years’ probation for the

corruption of minors crime. Following a hearing, the court accepted Karraker’s

guilty plea and deferred sentencing pending a Megan’s Law4 assessment. On

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2 42 Pa.C.S. §§ 9799.10-9799.41, amended and replaced by 2018, Feb. 21,
P.L. 27, No. 10, § 19, immediately effective. Reenacted 2018, June 12, P.L.
140, No. 29, § 14, immediately effective. 42 Pa.C.S. §§ 9799.51-9799.75
(“SORNA II”).

3   18 Pa.C.S. §§ 3125(a)(8), 3122.1, and 6301(a)(1), respectively.

4 Karraker was sentenced under SORNA’s predecessor, commonly known as
Megan’s Law III, 42 Pa.C.S. §§ 9791-9799.9 (expired), which was in effect
when the crimes at issue occurred. On December 20, 2012, SORNA replaced
Megan’s Law III.



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July 19, 2010, the court sentenced Karraker in accordance with the terms of

the plea agreement. Moreover, the court ordered, inter alia, that Karraker

was subject to lifetime registration requirements of Megan’s Law.5

       On December 11, 2017, Karraker filed the instant, pro se PCRA petition,

alleging he was eligible for relief pursuant to 42 Pa.C.S. § 9543(a)(2)(i).

Counsel was appointed, who subsequently filed an amended petition on

February 22, 2018, and argued Karraker is entitled to a court order removing

him from the sexual offender registry pursuant to Commonwalth v. Muniz,

164 A.3d 1189 (Pa. 2017),6 and Commonwealth v. McCullough, 174 A.3d




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5  In October of 2014, Karraker was found to have violated his probation and
following a revocation proceeding, the court sentenced him to a term of 9
months to three years for the corruption of minors conviction.

6  Muniz was a plurality decision. Justice Dougherty authored the Opinion
Announcing the Judgment of the Court (“OAJC”), holding: (1) SORNA’s
registration requirements constitute punishment; (2) the retroactive
application of the registration requirements violates the ex post facto clauses
of the United States and Pennsylvania Constitutions; and (3) Pennsylvania’s
ex post facto clause provides greater protection than its federal counterpart.
See Muniz, 164 A.3d at 1193, 1223. Justices Baer and Donahue joined the
OAJC in full. Justice Wecht filed a Concurring Opinion, joined by Justice Todd,
which joined those parts of the OAJC concluding the registration requirements
constitute punishment, and their retroactive application runs afoul of
Pennsylvania’s ex post facto clause. However, he disagreed with the OAJC’s
holding that the Pennsylvania Constitution provides greater protection than
the federal constitution, and, additionally, stated he would decline to address
the federal claim. See id. at 1224. Justice Saylor authored a Dissenting
Opinion in which he concluded SORNA is not punitive. Justice Mundy did not
participate in the decision.



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1094 (Pa. Super. 2017) (en banc).7 A PCRA hearing was held on April 16,

2018. On June 5, 2018, the PCRA court issued a Pa.R.Crim.P. 907 notice of

intent to dismiss Karraker’s petition. The court explained:

             [Karraker] was required to comply with lifetime registration
       under both Megan’s Law and SORNA. The Pennsylvania Supreme
       Court found that the retroactive application of SORNA violates the
       ex post facto clause of both the Federal and Pennsylvania
       Constitutions. Muniz, 164 A.3d at 1218, 1223. It held that
       SORNA is “an unconstitutional ex post facto law when applied
       retroactively to those sexual offenders convicted of applicable
       crimes before the act’s effectiveness date and subjected to
       increased registration requirements under SORNA after its
       passage.” Commonwealth v. McCullough, 174 A.3d 1094,
       1095 (Pa. Super. Ct. 2017). The Court’s decision in Muniz
       ultimately “created a substantive rule that retroactively applies in
       the collateral context, because SORNA punishes a class of
       defendant's [sic] due to their status as sex offenders and creates
       a significant risk of punishment that the law cannot impose.”
       Commonwealth v. Rivera-Figueroa, 174 A.3d 674, 678 (Pa.
       Super. Ct. 2017).

             [Karraker], however, is not subject to the continued
       reporting requirements in the version of SORNA that was in effect
       and under review in Muniz. See Muniz, 164 A.3d 1189. Rather,
       [Karraker] is subject to the reporting requirements of Act 10 of
       2018 which was passed on February 21, 2018. The new Act was
       intended to address the Pennsylvania Supreme Court’s decision in
       Muniz, and it applies the following individuals:

          (1) [individuals who were] convicted of a sexually violent
          offense committed on or after April 22, 1996, but before
          December 20, 2012, whose period of registration with the
          Pennsylvania State Police, as described in section 9799.55
          (relating to registration), has not expired; or
____________________________________________


7   McCullough recognized the following: “The Muniz Court held that
Pennsylvania’s SORNA is an unconstitutional ex post facto law when applied
retroactively to those sexual offenders convicted of applicable crimes before
the act’s effective[] date and subjected to increased registration requirements
under SORNA after its passage.” McCullough, 174 A.3d at 1095.

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          (2) [individuals who were] required to register with the
          Pennsylvania State Police under a former sexual offender
          registration law of this Commonwealth on or after April 22,
          1996, but before December 20, 2012, whose period of
          registration has not expired.

       42 Pa.C.S.A. §§ 9799.51(b)(4), 9799.52. [Karraker] was required
       to register with the Pennsylvania State Police under a former
       sexual offender registration law of this Commonwealth within the
       proscribed time period.      Additionally, [Karraker]’s period of
       registration has not yet expired because he is required to register
       as a sex offender for life; therefore, [Karraker] is subject to the
       reporting requirements of Act 10 of 2018. The Applicability
       Section of Act 10 of 2018 also requires [Karraker]’s continued
       registration for the same aforementioned reasons. § 9799.54.

Notice of Intent to Dismiss Motion for Post-Conviction Collateral Relief,

6/5/2018, at 2-3.        Subsequently, on July 6, 2018, the court dismissed

Karraker’s petition, finding it was untimely filed and he failed to prove any of

the timeliness exceptions, 42 Pa.C.S. § 9545(b)(1)(i)-(iii), applied.        This

appeal followed.8

       “In reviewing the denial of PCRA relief, we examine whether the PCRA

court’s determination is supported by the record and free of legal error.”

Commonwealth v. Mitchell, 141 A.3d 1277, 1283–1284 (Pa. 2016)

(internal punctuation and citation omitted). Here, the PCRA court determined

that Karraker’s petition was untimely. We agree.


____________________________________________


8   The court did not order Karraker to file a concise statement of errors
complained of on appeal under Pa.R.A.P. 1925(b). On September 6, 2018,
the court issued a Pa.R.A.P. 1925(a) statement, indicating it was adopting its
rationale from its June 5, 2018 Rule 907 notice and its July 6, 2018, order
dismissing Karraker’s petition.

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      “Crucial to the determination of any PCRA appeal is the timeliness of the

underlying petition. Thus, we must first determine whether the instant PCRA

petition was timely filed.” Commonwealth v. Smith, 35 A.3d 766, 768 (Pa.

Super. 2011), appeal denied, 53 A.3d 757 (Pa. 2012).

      The PCRA timeliness requirement … is mandatory and
      jurisdictional in nature. Commonwealth v. Taylor, 933 A.2d
      1035, 1038 (Pa. Super. 2007), appeal denied, 597 Pa. 715, 951
      A.2d 1163 (2008) (citing Commonwealth v. Murray, 562 Pa. 1,
      753 A.2d 201, 203 (2000)). The court cannot ignore a petition’s
      untimeliness and reach the merits of the petition. Id.

Commonwealth v. Taylor, 67 A.3d 1245, 1248 (Pa. 2013), cert. denied,

134 S. Ct. 2695 (U.S. 2014). A PCRA petition must be filed within one year

of the date the underlying judgment becomes final.         See 42 Pa.C.S. §

9545(b)(1). A judgment is deemed 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

review.” 42 Pa.C.S. § 9545(b)(3). Here, Karraker’s judgment of sentence

was final on August 18, 2010, 30 days after the trial court imposed his

sentence and Karraker did not file a direct appeal. See Pa.R.A.P. 903(a); 42

Pa.C.S. § 9545(b)(3). Therefore, he had until August 18, 2011, to file a timely

PCRA petition.   The one before us, filed December 11, 2017, is patently

untimely.

      Nevertheless, we may still consider an untimely PCRA petition if one of

the three time-for-filing exceptions applies:




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       (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). For claims arising prior to December 24, 2017,

a petitioner invoking an exception must file his petition within 60 days of the

date he or she could have presented the claim.9 See Act 2018, Oct. 24, P.L.

894, No. 146, § 2 and §3.

       In the present case, Karraker argues that his sentence is illegal and he

is entitled to a court order removing him from the sexual offender registration

in light of Muniz, McCullough, and Commonwealth v. Butler, 173 A.3d

1212 (Pa. Super. 2017),10 and that he timely filed his decision within 60 days

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9 Effective December 24, 2018, Act 146 of 2018 amended 42 Pa.C.S. §
9545(b)(2), and now provides that a PCRA petitioner invoking a timeliness
exception must file the petition within one year of the date the claim could
have been presented, for all claims arising after December 24, 2017. See Act
2018, Oct. 24, P.L. 894, No. 146, § 2 and § 3.

10  The Butler court held Section 9799.24(e)(3) of SORNA, which concerns
the procedure for determining whether a defendant is a sexually violent
predator (“SVP”), “violates the federal and state constitutions because it
increases the criminal penalty to which a defendant is exposed without the
chosen fact-finder making the necessary factual findings beyond a reasonable



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of that date, thus invoking properly the third exception to the time-for-filing

requirement. See Karraker’s Brief at 8-11. We disagree.

       As pointed out by the PCRA court,11 this Court recently considered

whether Muniz applied under similar circumstances in Commonwealth v.

Murphy, 180 A.3d 402 (Pa. Super. 2018), appeal denied, 195 A.3d 559 (Pa.

2018). In Murphy, a panel of this Court explained:

       Appellant’s reliance on Muniz cannot satisfy the ‘new retroactive
       right’ exception of [S]ection 9545(b)(1)(iii). In Commonwealth
       v. Abdul-Salaam, 571 Pa. 219, 812 A.2d 497 (Pa. 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 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 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.
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doubt” and that “trial courts cannot designate convicted defendants SVPs (nor
may they hold SVP hearings) until our General Assembly enacts a
constitutional designation mechanism.” Butler, 173 A.3d at 1218. Turning
to the present matter, we note Karraker was not deemed to be an SVP. See
N.T., 7/19/2010, at 2. Therefore, Butler is not applicable to the present
matter.

11   Order of Court, 7/6/2018, at unnumbered 2.

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      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, []
      2017 PA Super 359, 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.1

         1  Certainly, if the Pennsylvania Supreme Court issues a
         decision holding that Muniz applies retroactively, Appellant
         can then file a PCRA petition, within 60 days of that decision,
         attempting to invoke the ‘new retroactive right’ exception of
         [S]ection 9545(b)(1)(iii).

Murphy, 180 A.3d at 405–406 (emphasis in original).

      In other words, this Court concluded that the holding in Muniz, and in

turn, McCullough, does not apply presently to untimely-filed PCRA petitions.

See Commonwealth v. Johnson, 200 A.3d 964, 967 (Pa. Super. 2018)

(“Muniz applies retroactively on collateral review only to those persons who

could raise the issue in a timely PCRA petition.”).      Here, the PCRA court

correctly determined Murphy controls in the present matter. See Order of

Court, 7/6/2018, at unnumbered 2. Therefore, we are constrained to agree

with the PCRA court’s determination that Karraker’s petition is untimely, the

petition does not satisfy any timeliness exception, and we are without

jurisdiction to review the petition. Accordingly, we affirm the PCRA court’s

July 6, 2018, order dismissing Karraker’s petition.

      Order affirmed.

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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/15/2019




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