J-S30032-18


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,           :    IN THE SUPERIOR COURT OF
                                        :          PENNSYLVANIA
                  Appellee              :
                                        :
          v.                            :
                                        :
DONALD TROUTMAN,                        :
                                        :
                  Appellant             :    No. 1669 WDA 2017

                  Appeal from the PCRA Order October 19, 2017
                in the Court of Common Pleas of Allegheny County
               Criminal Division at No(s): CP-02-CR-0004416-2007

COMMONWEALTH OF PENNSYLVANIA,           :    IN THE SUPERIOR COURT OF
                                        :          PENNSYLVANIA
                  Appellee              :
                                        :
          v.                            :
                                        :
DONALD TROUTMAN,                        :
                                        :
                  Appellant             :    No. 1699 WDA 2017

                  Appeal from the PCRA Order November 6, 2017
                in the Court of Common Pleas of Allegheny County
               Criminal Division at No(s): CP-02-CR-0004416-2007

BEFORE: BENDER, P.J.E., STABILE, and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.:                      FILED JUNE 07, 2018

      Donald Troutman (Appellant) appeals at docket number 1669 WDA

2017, from the October 19, 2017 order denying his petition filed under the

Post-Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546.1 We affirm.



1At docket number 1699 WDA 2017, Appellant has appealed from an order
purportedly entered on November 6, 2017. This Court sua sponte
(Footnote Continued Next Page)


* Retired Senior Judge assigned to the Superior Court.
J-S30032-18


      We provide the following background.               In 2007, victim’s mother

reported to police that victim told her that her biological father, Appellant,

raped the victim several times in 2001.                Appellant was charged with

numerous crimes related to these sexual assaults, and he proceeded to a

bench trial in 2009. On October 5, 2009, Appellant was found guilty of all

charges, and on March 22, 2010, Appellant was sentenced to an aggregate

term of seven and one half to fifteen years of incarceration. Appellant timely

filed an appeal to this Court, and on June 14, 2011, this Court affirmed

Appellant’s judgment of sentence. Commonwealth v. Troutman, 31 A.3d

744 (Pa. Super. 2011) (unpublished memorandum). Appellant did not file a

petition for allowance of appeal to our Supreme Court.

      On January 21, 2016, Appellant pro se filed a PCRA petition.           The

PCRA court appointed counsel on Appellant’s behalf.             On December 22,

2016, counsel filed a petition to withdraw and no-merit letter pursuant to

Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988) and Commonwealth

v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).              The PCRA court

granted counsel’s petition to withdraw and dismissed Appellant’s PCRA

petition. Appellant did not file a notice of appeal from that order.




(Footnote Continued)   _______________________

consolidated the appeals. The certified record does not contain any order
entered on that day, and Appellant does not offer any explanation about
what that order entailed. Accordingly, we dismiss the appeal docketed at
1699 WDA 2017.

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      On August 3, 2017, Appellant filed a motion entitled “Motion to Modify

Sentence.” In that motion, Appellant asserted that he is serving an illegal

sentence pursuant to our Supreme Court’s decision in Commonwealth v.

Muniz, 164 A.3d 1189 (Pa. 2017) (holding that certain registration

provisions of Pennsylvania’s Sex Offender Registration and Notification Act

(SORNA) are punitive and retroactive application of those provisions violates

the federal ex post facto clause, as well as the ex post facto clause of the

Pennsylvania constitution). The PCRA court treated this motion as a PCRA

petition, and on October 19, 2017, issued an order dismissing the petition.

Appellant timely filed a notice of appeal. Both Appellant and the PCRA court

have complied with Pa.R.A.P. 1925.2

      On appeal, Appellant contends that the PCRA court erred in dismissing

his petition.   In considering this issue, we must first consider whether

Appellant has timely filed his petition, as neither this Court nor the PCRA

court has jurisdiction to address the merits of an untimely-filed petition.

Commonwealth v. Leggett, 16 A.3d 1144, 1145 (Pa. Super. 2011).

      Any PCRA petition, including second and subsequent petitions, must

either (1) be filed within one year of the judgment of sentence becoming

final, or (2) plead and prove a timeliness exception. 42 Pa.C.S. § 9545(b).

2 On January 24, 2018, the PCRA court issued an opinion stating that it “has
conducted an additional review of the PCRA petition and would request that
in light of” Muniz, supra, this Court remand the case for further
consideration. PCRA Court Opinion, 1/24/2018. For the reasons that follow,
we decline to do so.

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Furthermore, the petition “shall be filed within 60 days of the date the claim

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

      “For purposes of [the PCRA], 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). Here, this Court affirmed Appellant’s judgment of sentence on

June 14, 2011, and he did not file a petition for allowance of appeal to our

Supreme Court. Thus, his judgment of sentence became final 30 days later,

or on July 14, 2011, and he had one year, or until July 13, 2012, to file

timely a PCRA petition. Thus, Appellant’s August 3, 2017 petition is facially

untimely, and he was required to plead and prove an exception to the

timeliness requirements.

      Although Appellant has not cited to 42 Pa.C.S. § 9545 in his PCRA

petition, it is apparent that he is attempting to plead the exception set forth

in section 9545(b)(1)(iii) (“Any petition under this subchapter, including a

second or subsequent petition, shall be filed within one year of the date the

judgment becomes final, unless the petition alleges and the petitioner

proves that … 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.”).      Here, Appellant relies on our


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Supreme Court’s holding in Muniz in support of his petition. See Motion to

Modify Sentence, 8/3/2017, at ¶ 1.

     This   Court     considered   whether   Muniz   applies   under   similar

circumstances in Commonwealth v. Murphy, 180 A.3d 402 (Pa. Super.

2018).   In that case, Murphy was convicted of a number of sex-related

crimes in 2007, and after review, his judgment of sentence became final on

July 28, 2009.      On October 18, 2017, while a serial PCRA petition was

pending in this Court, Murphy filed a motion asserting that Muniz renders

portions of his sentence unconstitutional.      This Court considered that

argument and offered the following.

           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,
     174 A.3d 674, 678 (Pa. Super. 2017). However, because
     [Murphy’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). Because
     at this time, no such holding has been issued by our Supreme
     Court, [Murphy] cannot rely on Muniz to meet that timeliness
     exception.

Murphy, 180 A.3d at 405–06 (emphasis in original; some citations omitted).

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

not apply at this point to untimely-filed PCRA petitions.         This Court

acknowledges that “if the Pennsylvania Supreme Court issues a decision

holding that Muniz applies retroactively, Murphy can then file a PCRA

petition, within 60 days of that decision, attempting to invoke the ‘new


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retroactive right’ exception in section 9545(b)(1)(iii).” Murphy, 180 A.3d at

406 n.1. The same holds true for Appellant.

      Based on the foregoing, we conclude that Appellant’s petition was

untimely filed, and he has not asserted an exception to the timeliness

requirements. Thus, he is not entitled to relief.3

      Order on appeal at docket number 1669 WDA 2017 affirmed. Appeal at

docket number 1699 WDA 2017 dismissed. Jurisdiction relinquished.

      Judge Stabile joins the memorandum.

      PJE Bender files a dissenting memorandum

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/7/2018




3  The Commonwealth suggests that not only does this Court not have
jurisdiction to address the merits of this untimely-filed PCRA petition, as
discussed supra, but also contends that the petition is moot pursuant to
newly-enacted legislation. See Commonwealth’s Brief at 19-21. However,
because we conclude we do not have jurisdiction, we decline to reach the
issue of mootness.

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