J-S04017-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                                          :
              v.                          :
                                          :
                                          :
 ALBERT SAWYER                            :
                                          :
                    Appellant             :   No. 1122 MDA 2018

             Appeal from the PCRA Order Entered June 27, 2018
     In the Court of Common Pleas of Berks County Criminal Division at
                      No(s): CP-06-CR-0004210-2014


BEFORE:    SHOGAN, J., OTT, J., and STEVENS*, P.J.E.

MEMORANDUM BY OTT, J.:                              FILED MARCH 07, 2019

      Albert Sawyer appeals pro se from the order entered June 27, 2018, in

the Court of Common Pleas of Berks County, that dismissed as untimely his

second petition filed pursuant to the Pennsylvania Post Conviction Relief Act

(PCRA), 42 Pa.C.S. §§ 9541-9546. Sawyer seeks relief from the judgment of

sentence of five to 10 years’ imprisonment, imposed after he pleaded nolo

contendere to failure to comply with registration requirements, 18 Pa.C.S. §

4915.1(a)(2), pursuant to a negotiated plea agreement.       Sawyer presents

three issues: (1) Does applying 18 Pa.C.S. § 4915.1(a)(2) retroactively violate

the Eighth Amendment of the United States Constitution and the Declaration

of Independence, (2) Does applying 18 Pa.C.S. § 4915.1(a)(2) retroactively

violate the Pennsylvania Constitution, Article 1, sections 13 and 17, and the

Declaration of Independence’s “Right to be free from the constraints of foreign

laws,” and (3) Did the trial court err in sentencing Sawyer for a felony minor

____________________________________
* Former Justice specially assigned to the Superior Court.
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offense that violates both constitutions. See Sawyer’s Brief, at 1-2. Based

upon the following, we affirm.

     The PCRA court summarized the background of this case, as follows:

     On January 6, 2015, [Sawyer] entered into a nolo contendere plea
     agreement. [Sawyer] plead[ed] [nolo contendere] to one count
     of Failure to Comply with Registration Requirements.1 This was
     charged as a felony of the second degree. In exchange for
     [Sawyer’s] plea, the Commonwealth dismissed one count of
     Failure to Comply with Registration Requirements2 that was
     charged as a felony of the first degree. [Sawyer] was sentenced
     to serve not less than five (5) years nor more than ten (10) years
     of incarceration in a state correctional facility, with credit given of
     one hundred and thirty-nine (139) days time served. [Sawyer] is
     a lifetime SORNA [Sexual Offender Registration and Notification
     Act, 42 Pa.C.S. §§ 9799.10-9799.42] registrant, due to previous
     convictions of rape and attempted rape. There was no direct
     appeal taken.

            [Sawyer] filed his first pro se PCRA petition on May 27,
     2015. Counsel was appointed, and this Court dismissed the
     petition on January 15, 2016. [Sawyer] filed a second pro se
     motion, titled “Amended Petition for Post Conviction Collateral
     Relief” on March 22, 2018. This Court treated the motion as a
     second PCRA petition. [On June 6, 2018, Pa.R.Crim.P. 907 notice
     of intent to dismiss the PCRA petition was issued.] This Court
     dismissed the petition on June 27, 2018.
     ___________________________________

         1   18 Pa.C.S.A. § 4915[.1](a)(2).

         18 Pa.C.S.A. § 4915[.1](a)(3).
         2

     ___________________________________

           On July 9, 2018, [Sawyer] filed a timely Notice of Appeal to
     the Superior Court. On July 16, 2018, [Sawyer] filed a Statement
     of Errors or Matters Complained of on Appeal, Pa.R.A.P. 1925(b)
     [without being ordered to do so by the PCRA Court].

PRCA Court Opinion, 9/6/2018, at 1.



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      The principles that guide our review are well settled. In reviewing an

order denying PCRA relief, “[w]e must determine whether the PCRA court’s

ruling is supported by the record and free of legal error.” Commonwealth

v. Spotz, 171 A.3d 675, 678 (Pa. 2017). A PCRA petition, including a second

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

underlying judgment becomes final. See 42 Pa.C.S. § 9545(b)(1). The

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

underlying judgment becomes final “is mandatory and jurisdictional in

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

denied, 572 U.S. 1151 (2014). “The court cannot ignore a petition’s

untimeliness and reach the merits of the petition.” Id.

      In the instant case, Sawyer’s judgment of sentence became final on

February 5, 2015, after the expiration of the 30-day period for filing an appeal

to this Court from the January 6, 2015 judgment of sentence. See 42 Pa.C.S.

§ 9545(b)(3) (“For purposes of this subchapter, a judgment 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.”); Pa.R.A.P. 903(a) (providing thirty

days to take an appeal). Therefore, the present petition, filed on March 22,

2018, is manifestly untimely, as it was filed more than three years after the

judgment of sentence became final.

      Nevertheless, an untimely petition may still be considered if “the petition

alleges and the petitioner proves” one of the time-for-filing exceptions set

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forth in Section 9545(b)(1). See 42 Pa.C.S. § 9545(b)(1)(i)-(iii).1              Any

petition invoking an exception must be filed within 60 days of when the claim

could first be raised. 42 Pa.C.S. § 9545(b)(2). 2 It is important to point out

that “the PCRA confers no authority upon this Court to fashion ad hoc equitable

exceptions to the PCRA time-bar in addition to those exceptions expressly

delineated in the Act.” Commonwealth v. Robinson, 837 A.2d 1157, 1161

(Pa. 2003) (citations omitted).



____________________________________________


1   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
        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).

2Section 9545(b)(2) was recently amended so that a petitioner must file his
petition asserting a timeliness exception within one year of the date he could
have presented his claim. See Section 3 of Act 2018, Oct. 24, P.L. 894, No.
146, effective Dec. 24, 2018 (“The amendment of 42 Pa.C.S. § 9545(b)(2)
shall apply to claims arising one year before the effective date of this section
or thereafter.”).




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      In the instant PCRA petition, Sawyer specially invoked the newly

discovered fact exception, 42 Pa.C.S. § 9545(b)(1)(ii), based upon the

Pennsylvania Supreme Court decision in Commonwealth v. Muniz, 164 A.3d

1189 (Pa. 2017). The PCRA court, in its Rule 907 notice, explained Sawyer’s

petition was untimely and that no statutory exception invoked or implicated

in Sawyer’s petition was satisfied. The PCRA court, in its Pa.R.A.P. 1925(b)

opinion, again determined Sawyer had not demonstrated how he was eligible

for one of the PCRA’s timeliness exceptions. See Order and Notice of Intent

to Dismiss, 6/6/2018; PCRA Court Opinion, 9/6/2018.

      Here, however, Sawyer does not argue the applicability of any timing

exception in his appellate brief. Consequently, Sawyer has waived any claim

that his petition satisfies an exception to the PCRA’s timeliness requirements.

See Commonwealth v. Lewis, 63 A.3d 1274, 1279 (Pa. Super. 2013) (“The

PCRA squarely places upon the petitioner the burden of proving an untimely

petition fits within one of the three exceptions. Moreover, the Rules of

Appellate Procedure require that an appellant properly develop his arguments

on appeal.”) (quotations and citations omitted).

      In any event, while Sawyer asserted in his petition that his Muniz claim

satisfies the newly discovered fact exception, 42 Pa.C.S. § 9545(b)(1)(ii), this

argument fails as this Court has held that a new judicial opinion does not

constitute an exception to the time bar under Section 9545(b)(1)(ii). See


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Commonwealth v. Watts, 23 A.3d 980, 987 (Pa. 2011); Commonwealth

v. Cintora, 69 A.3d 759 (Pa. Super. 2013).

      Further, to the extent Sawyer’s Muniz claim implicates the newly

recognized constitutional right exception, 42 Pa.C.S. § 9545(b)(1)(iii), Sawyer

cannot rely on this exception because the Supreme Court of Pennsylvania has

not issued a holding that Muniz applies retroactively where the petition is

untimely.    See Commonwealth v. Murphy, 180 A.3d 402, 405-406 (Pa.

Super. 2018) (“Because Appellant’s PCRA petition is untimely … 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, Appellant cannot

rely on Muniz to meet that timeliness exception.” (citations and footnote

omitted).)

      Therefore, even if Sawyer had preserved his timeliness argument, we

would agree with the PCRA court’s determination that the instant petition is

untimely, that the petition does not satisfy any statutory exception, and that

there is no jurisdiction for any court to review the petition.

      Accordingly, we affirm.

      Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 03/07/2019




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