J-S15022-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    DONALD EDWARD PREIK                        :
                                               :
                       Appellant               :   No. 1062 WDA 2018

              Appeal from the PCRA Order Entered June 28, 2018
     In the Court of Common Pleas of Allegheny County Criminal Division at
                       No(s): CP-02-CR-0007565-2004

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    DONALD E. PREIK                            :
                                               :
                       Appellant               :   No. 1063 WDA 2018

              Appeal from the PCRA Order Entered June 28, 2018
     In the Court of Common Pleas of Allegheny County Criminal Division at
                       No(s): CP-02-CR-0007559-2004


BEFORE:      GANTMAN, P.J.E., SHOGAN, J., and COLINS*, J.

MEMORANDUM BY SHOGAN, J.:                                 FILED JUNE 18, 2019

       Appellant, Donald Edward Preik, appeals from the order dismissing his

petitions seeking habeas corpus relief, or alternatively, a remedy pursuant to

the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-9546.1       After


____________________________________________


1Appellant filed a timely notice of appeal at each PCRA court docket number.
On August 3, 2018, this Court consolidated the appeals sua sponte.
____________________________________
* Retired Senior Judge assigned to the Superior Court.
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careful review, we conclude that the PCRA court properly treated Appellant’s

filings as untimely PCRA petitions and correctly dismissed them. Accordingly,

we affirm.2

       The PCRA court set forth the relevant facts and procedural history of

this case as follows:

              [Appellant] has appealed from this Court’s Order of June 28,
       2018, which dismissed his third Amended Post Conviction Relief
       Act Petition without a hearing. However, a review of the record
       reveals that because the Petition is untimely, this Court lacks the
       jurisdiction to address it. The Petition was, therefore, properly
       dismissed.

             [Appellant] was charged at CC 200407565 with 17 counts
       of Invasion of Privacy,1 four (4) counts of Involuntary Deviate
       Sexual Intercourse2 and two (2) counts of Indecent Assault3 and
       at CC 200407559 with 10 counts of Involuntary Deviate Sexual
       Intercourse,4 two (2) counts of Aggravated Indecent Assault5 and
       20 counts of Indecent Assault.6 The charges arose out of
       [Appellant’s] repeated drugging of his girlfriend and several of her
       female relatives, including her mother and sisters, writing obscene
       phrases on their bodies, inserting various items into their bodies
       and then photographing them. On August 15, 2005, [Appellant]
       appeared before this Court and, in exchange for the dismissal of
       the remaining counts, entered a plea of guilty to [several] counts
       of each Information.7 An assessment by the Sexual Offenders
       Assessment Board was ordered and conducted and preliminary
       testimony was heard on November 17, 2005. The conclusion of
       the SVP hearing was held on June 7 and 8, 2006, at which time
____________________________________________


2 Counsel for Appellant, Jacob C. McCrea, Esquire, has filed appeals involving
six defendants, all of whom are convicted sex offenders, at the following
Superior Court docket numbers: Commonwealth v. Robinson at 1057-1058
WDA 2018; Commonwealth v. Bres at 1060 WDA 2018; Commonwealth
v. Brant at 1061 WDA 2018; Commonwealth v. Preik at 1062-1063 WDA
2018; Commonwealth v. Pruitt at 1064-1066 WDA 2018; and
Commonwealth v. Jones at 1067 WDA 2018. The issues raised in all of
these appeals are identical; however, each defendant’s appeal is addressed in
a separate memorandum.

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     this Court found that [Appellant] was a “sexually violent predator”
     within the meaning of the Registration of Sexual Offenders
     statute, 42 Pa.C.S.A. §9791 et seq. [Appellant] was subsequently
     sentenced to three (3) consecutive terms of imprisonment of six
     (6) to twenty (20) years at each of the IDSI counts, and
     consecutive terms of imprisonment of one (1) to two (2) years at
     each indecent Assault count, for a total term of imprisonment of
     twenty (20) to sixty-four (64) years.

           1   18 Pa.C.S.A. §7507.1(a) - 17 counts

           2   18 Pa.C.S.A. §3123(a)(1) - 4 counts

           3   18 Pa.C.S.A. §3126(a)(1) - 2 counts

           4   18 Pa.C.S.A. §3123(a)(1) - 10 counts

           5   18 Pa.C.S.A. §3125 - 2 counts

           6   18 Pa.C.S.[A]. §3126(a)(1)

           7 [Appellant guilty to the following charges:] At CC
           200407559: IDSI (2 counts); Aggravated Indecent
           Assault; Indecent Assault (2 counts); Invasion of
           Privacy; and at CC 200407565: IDSI.

           [Appellant’s] subsequent Post-Sentence Motion to Withdraw
     Guilty Plea and a Motion to Modify his Sentence were denied on
     June 28, 2006. The judgment of sentence was affirmed on
     November 28, 2007 and the Petition for Allowance of Appeal was
     denied on May 9, 2008.

           [Appellant] filed a timely Post Conviction Relief Act Petition
     on July 3, 2008. Counsel was appointed and an Amended Petition
     was filed. After reviewing the Amended Petition and the
     Commonwealth’s Response thereto, and after giving the
     appropriate notice, this Court dismissed the Amended Petition
     without a hearing on December 12, 2008.

            No further action was taken until January 26, 2012, when
     [Appellant] filed a pro se “Motion to Correct Illegal Sentence,”
     raising claims related to the statute of limitations and the alleged
     illegal nature of the multiple sentences. This Court determined
     that the Motion was properly treated as a Post Conviction Relief

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      Act Petition and, finding that it was untimely, gave notice of its
      intent to and ultimately dismissed the Petition on June 7, 2012.
      That Order was affirmed by our Superior Court on August 6, 2013.

             No further action was taken until September 12, 2017, when
      [Appellant] filed a pro se Post Conviction Relief Act Petition
      alleging that, pursuant to Commonwealth v. Muniz, 169 A.3d 1189
      (Pa. 2017), his lifetime registration [as a sex offender] was
      unconstitutional. Counsel was appointed to represent [Appellant]
      and an Amended Petition was filed. The Commonwealth, through
      the Office of the District Attorney filed a response to the Amended
      Petition. Thereafter, the Pennsylvania State Police, through the
      Office of the Attorney General, sought and was granted permission
      to intervene. After giving the appropriate notice of its intent to do
      so, this Court dismissed the Amended Petition on June 28, 2018
      without a hearing. This appeal followed.

PCRA Court Opinion, 10/10/18, at 1-3. The PCRA court dismissed the petitions

because they were untimely. Id. at 5. Appellant filed timely appeals, and

both the PCRA court and Appellant complied with Pa.R.A.P. 1925.

      On appeal, Appellant raises the following issues for this Court’s

consideration:

      1. Whether the trial court erred in ruling that it lacked
      jurisdic[ti]on to adjudicate the merits of the amended PCRA
      petition and/or petition for writ of habeas corpus?

      2. Whether the trial court erred by not ruling that Act 10 of 2018
      is unconstitutional under the federal and state ex post facto and
      double jeopardy clauses?

Appellant’s Brief at 5 (full capitalization omitted).

      At the outset, we must determine whether Appellant’s petitions were

correctly deemed PCRA petitions or whether they should have been considered

petitions for habeas corpus relief. Appellant argues that his filings should have

been treated as habeas corpus petitions because the relief sought falls outside

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of the strictures of the PCRA pursuant to the holding in Commonwealth v.

Bundy, 96 A.3d 390 (Pa. Super. 2014). Appellant’s Brief at 10. We disagree.

       In Bundy, this Court held that the PCRA did not apply to challenges to

sex offender registration requirements under Megan’s Law because claims

under Megan’s Law did not implicate the conviction or sentence. Bundy, 96

A.3d at 394. However, due to substantial changes in the law of sex offender

registration, Bundy does not apply to Appellant’s petition.

       After the enactment of the Sex Offender Registration and Notification

Act (“SORNA”), 42 Pa.C.S. §§ 9799.10-9799.42, which replaced Megan’s Law,

our Supreme Court determined that the SORNA registration provisions are

punitive in nature and that retroactive application of SORNA’s requirements

violates   both    the   Pennsylvania      and   federal   ex   post   facto   clauses.

Commonwealth v. Muniz, 164 A.3d 1189, 1193 (Pa. 2017). Furthermore,

the punitive nature of SORNA’s registration requirements impact the legality

of a sex offender’s sentence. Commonwealth v. Butler, 173 A.3d 1212,

1215 (Pa. Super. 2017), appeal granted, 190 A.3d 581 (Pa. 2018).3

____________________________________________


3 Following the decisions in Muniz and Butler, our General Assembly passed
Acts 10 and 29 of 2018 in an effort to address SORNA’s constitutional defects.
42 Pa.C.S. § 9799.51(b)(4). Specifically, the General Assembly modified the
registration requirements for offenders convicted of committing offenses on
or after SORNA’s effective date, December 20, 2012. The General Assembly
also added Subchapter I to Title 42, Part VII, Chapter 97. Subchapter I sets
forth registration requirements for offenders convicted of committing offenses
on or after the effective date of Megan’s Law I, April 22, 1996, but prior to
SORNA’s effective date of December 20, 2012. Subchapter I applies to



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J-S15022-19


Therefore,    Appellant’s     claims   challenging   the   application   of   SORNA’s

registration requirements, as opposed to the requirements under Megan’s

Law, are issues concerning the legality of a sentence and cognizable under the

PCRA. Commonwealth v. Greco, 203 A.3d 1120, 1123 (Pa. Super. 2019)

(citing Commonwealth v. Murphy, 180 A.3d 402, 405-406 (Pa. Super.

2018), appeal denied, 195 A.3d 559 (Pa. 2018)). Thus, because Appellant is

challenging the application of SORNA, the decision in Bundy is immaterial,

and the PCRA court properly considered Appellant’s claims under the PCRA.

See Commonwealth v. Montgomery, 181 A.3d 359, 367 (Pa. Super. 2018)

(noting that the PCRA is the sole means of obtaining collateral relief, and it

encompasses all other common law and statutory remedies including habeas

corpus) (citing 42 Pa.C.S. § 9542)).

       When reviewing the propriety of an order denying PCRA relief, we

consider the record “in the light most favorable to the prevailing party at the

PCRA level.”     Commonwealth v. Stultz, 114 A.3d 865, 872 (Pa. Super.

2015) (quoting Commonwealth v. Henkel, 90 A.3d 16, 20 (Pa. Super. 2014)

(en banc)). We are limited to determining whether the evidence of record



____________________________________________


offenders whose period of registration has not expired, and offenders required
to register under a prior sexual offender registration law on or after April 22,
1996, but before December 20, 2012, whose period of registration has not
expired. Recently, pursuant to 42 Pa.C.S. § 722(7), our Supreme Court
granted a direct appeal from a decision in the Montgomery County Court of
Common Pleas to determine whether Acts 10 and 29 are constitutional.
Commonwealth v. Lacombe, 35 MAP 2018 (Pa. 2018).

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supports the conclusions of the PCRA court and whether the ruling is free of

legal error. Commonwealth v. Robinson, 139 A.3d 178, 185 (Pa. 2016).

The PCRA court’s findings will not be disturbed unless there is no support for

them in the certified record.        Commonwealth v. Lippert, 85 A.3d 1095,

1100 (Pa. Super. 2014).

       A PCRA petition must be filed within one year of the date that the

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

of sentence “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.” 42 Pa.C.S. § 9545(b)(3). This time requirement is mandatory and

jurisdictional in nature, and the court may not ignore it in order to reach the

merits of the petition. Commonwealth v. Taylor, 67 A.3d 1245, 1248 (Pa.

2013).

       However, an untimely petition may be received when the petition

alleges, and the petitioner proves, that any of the three limited exceptions to

the time for filing the petition, set forth at 42 Pa.C.S. § 9545(b)(1)(i), (ii), and

(iii), is met.4 A petition invoking one of these exceptions must be filed within


____________________________________________


4   The exceptions to the timeliness requirement are:

       (i)    the failure to raise the claim previously was the result of
       interference by government officials with the presentation of the



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sixty days of the date the claim could first have been presented. 42 Pa.C.S.

§ 9545(b)(2).5

        Our review of the record reflects that the trial court imposed Appellant’s

judgment of sentence on June 8, 2006, and Appellant filed a timely direct

appeal.     This Court affirmed Appellant’s judgment of sentence, and our

Supreme Court denied Appellant’s petition for allowance of appeal on May 9,

2008.      Commonwealth v. Preik, 944 A.2d 798, 1413 WDA 2006

(unpublished memorandum) (Pa. Super. filed November 28, 2007), appeal



____________________________________________


        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), (ii), and (iii).
5   We note that Section 9545(b)(2) was amended on October 24, 2018,
effective sixty days later on December 24, 2018, and extended the time for
filing from sixty days of the date the claim could have been presented to one
year. The amendment applies to claims arising on December 24, 2017, or
thereafter. See Act 2018, Oct. 24, P.L. 894, No. 146, § 3. Here, the sixty-day
time limit in section 9545(b)(2) applies to Appellant’s petition, as it was filed
prior to December 24, 2017. Although Appellant also filed amended petitions
after the effective date, it does not alter our analysis or conclusion as Appellant
has failed to plead and prove any exception to the PCRA time bar.




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denied, 948 A.2d 803 (Pa. 2008).               Therefore, Appellant’s judgment of

sentence became final on August 7, 2008, ninety days after our Supreme

Court denied allowance of appeal and the time in which to pursue a writ of

certiorari in the United States Supreme Court expired.           See 42 Pa.C.S.

§ 9545(b)(3); U.S.Sup.Ct.R. 13. Thus, in order to be timely, Appellant needed

to file a PCRA petition on or before August 7, 2009. Appellant did not file the

instant PCRA petitions until September 12, 2017.6 Accordingly, Appellant’s

PCRA petitions are patently untimely.

        However, we reiterate, if a petitioner does not file a timely PCRA

petition, his petition nevertheless may be received under any of the three

limited exceptions to the timeliness requirements of the PCRA. 42 Pa.C.S.

§ 9545(b)(1). Here, Appellant has failed to plead and prove any exception to

the PCRA time bar. Thus, the PCRA court properly denied his petitions.

        Furthermore, assuming Appellant presented the holding in Muniz as an

exception to the PCRA time bar under 42 Pa.C.S. § 9545(b)(1)(iii), we would

still conclude that no relief is due. As this Court recently explained:

        [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, supra. Because at
____________________________________________


6   Appellant filed amended petitions on March 12, 2018.


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      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 (emphasis in original).

      Because our Supreme Court has not held that Muniz applies

retroactively to untimely PCRA petitions, Appellant cannot satisfy his burden

to plead and prove applicability of one of the exceptions to the timeliness

requirement.   Accordingly, had this exception to the PCRA time bar been

properly raised, we would conclude that the PCRA court properly dismissed

Appellant’s petitions as untimely.

      In sum, the PCRA court correctly treated Appellant’s filings as PCRA

petitions, concluded that the petitions were untimely, and found that Appellant

failed to establish the applicability of any exception to the PCRA timing

requirements. PCRA Court Opinion, 10/10/18, at 5. As such, the PCRA court

lacked jurisdiction to address any claims presented. See Commonwealth v.

Fairiror, 809 A.2d 396, 398 (Pa. Super. 2002) (holding that PCRA court lacks

jurisdiction to hear an untimely petition).

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/18/2019


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