J-S55008-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
               v.                              :
                                               :
                                               :
    SCOTT KERNS,                               :
                                               :
                      Appellant                :   No. 606 MDA 2017

                  Appeal from the PCRA Order March 13, 2017
                 In the Court of Common Pleas of Berks County
              Criminal Division at No(s): CP-06-CR-0000371-2001


BEFORE:      DUBOW, J., RANSOM, J., and STRASSBURGER, J.*

MEMORANDUM BY DUBOW, J.:                             FILED NOVEMBER 07, 2017

        Pro se Appellant Scott Kerns seeks review of the denial of his 14th

Petition filed pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.

§§ 9541-9546, as untimely. We affirm.

        Appellant was arrested on November 7, 2000, and charged with

numerous sex offenses committed against his 10-year-old stepdaughter,

including rape.      Appellant ultimately entered an open guilty plea to one

count of Involuntary Deviate Sexual Intercourse.1          On January 18, 2002,

after a hearing, the court found him to be a sexually violent predator (“SVP”)



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*   Retired Senior Judge assigned to the Superior Court.

1 18 Pa.C.S. § 3123(a)(6) (currently 18 Pa.C.S. § 3123(b)) pertaining to
victim under 13 years old.
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and sentenced him to a term of 7½ to 20 years’ incarceration.2 This Court

affirmed his Judgment of Sentence on December 23, 2003, and Appellant

sought no further review. His Judgment of Sentence, thus, became final on

January 12, 2004.

       Appellant subsequently filed 13 unsuccessful PCRA Petitions. He filed

the instant pro se Petition, his 14th, on or about October 7, 2016.                 On

January    27,    2017,    the    PCRA    court   notified   Appellant   pursuant   to

Pa.R.Crim.P. 907 of its intent to dismiss the Petition without a hearing as

untimely filed. Appellant responded. The PCRA court dismissed the Petition

on March 13, 2017.           Appellant filed a timely Notice of Appeal.         Both

Appellant and the trial court complied with Pa.R.A.P. 1925.3

       Appellant raises the following seven issues in his Brief (verbatim):

       1. Did the court err by time barring Petitioner where Petitioner filed
          the instant PCRA within 60 days of the date A.S. v. Police and
          Com v. Lutz-Morrison was decided?

       2. Did the Court err by not correcting an illegal sentence under 42
          Pa.C.S. § 9718?

       3. Did the Court err by stating that IDSI automatically carried Lifetime
          registration?

____________________________________________


2Appellant’s designation as a SVP convicted of IDSI (minor victim) carried
with it a lifetime registration requirement under then-applicable Megan’s
Law II.

3 The trial court submitted a “Statement of Reasons” dated May 4, 2017,
directing this Court’s attention to its January 25, 2017 Pa.R.Crim.P. 907
Order and Notice of Intent to Dismiss.



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       4. Did the Court err by Adding Megan’s Law requirements to
          Petitioner’s sentence after the Plea was accepted where it is not
          part of the Plea Agreement?

       5. Did the court err in not supplying the Appellant with a copy of the
          original Guilty Plea?

       6. Did the court err by not enforcing the guilty Plea?

       7. Did the Court err by classifying Petitioner as an SVP and requiring
          him to register for the rest of his lifetime?

Appellant’s Brief at 3.4

       We review the denial of a PCRA Petition to determine whether the

record supports the PCRA court’s findings and whether its Order is otherwise

free of legal error.       Commonwealth v. Fears, 86 A.3d 795, 803 (Pa.

2014).    Before addressing the merits of Appellant’s claims, however, we

must first determine whether we have jurisdiction to entertain the

underlying PCRA Petition.         No court has jurisdiction to hear an untimely

PCRA Petition. Commonwealth v. Hackett, 956 A.2d 978, 983 (Pa. 2008).

       A PCRA Petition must be filed within one year of the date the

underlying Judgment of Sentence becomes final; a Judgment of Sentence is
____________________________________________


4 With respect to issues 3 through 7, our review of the voluminous certified
record indicates that each of Appellant’s particular challenges to the
application of the lifetime registration requirement imposed upon him as a
SVP pursuant to Megan’s Law II has been previously raised and litigated, on
either direct appeal or in PCRA petitions. Challenges to his 2001 guilty plea
have also been addressed in prior PCRA petitions. Accordingly, Appellant's
issues 3 through 7 are no longer cognizable under the PCRA. See 42
Pa.C.S. §§ 9543(a)(3) and 9544(a)(2); Commonwealth v. Spotz, 18 A.3d
244, 260 (Pa. 2011).




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deemed final at the conclusion of direct review or at the expiration of time

for seeking review.     42 Pa.C.S. § 9545(b)(1), (3).     However, the PCRA

provides exceptions to the timeliness requirement in certain circumstances.

See id. at Section 9545(b)(1)(i)-(iii). For a petitioner to avail himself of one

of the exceptions, he must file his Petition within 60 days of the date the

claim could have been presented. See id. at Section 9545(b)(2).

      “Although legality of sentence is always subject to review within the

PCRA, claims must still first satisfy the PCRA's time limits or one of the

exceptions thereto[,]” including filing the Petition within 60 days of the date

the claim could have been presented. Commonwealth v. Fahy, 737 A.2d

214, 222 (Pa. 1999) (citations omitted); 42 Pa.C.S. 9545(b)(2).            Claims

previously raised and litigated are not cognizable under the PCRA.            42

Pa.C.S. § 9543(a)(3).

      Appellant’s Judgment of Sentence became final on January 12, 2004.

The deadline for filing a timely PCRA Petition was one year later, January 12,

2005. The instant Petition, filed in October 2016, is facially untimely.

      However, Appellant avers that his Petition falls within the exception to

the time bar provided in 42 Pa.C.S. § 9545(b)(1)(ii) because “he filed the

instant Post-Conviction Relief Act Petition within 60 days [of August 24,

2016, the date he] found out about A.S. v. Pa. State Police, 143 A.3d 896

(Pa. 2016) and Commonwealth v. Lutz-Morrison, 143 A.3d 891 (Pa.




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2016).”5 In his Reply Brief, Appellant quite clearly insists that he filed the

instant Petition asserting the “Newly Discovered Facts” exception provided in

Section 9545(b)(1)(ii), not subsection (b)(1)(iii), because “that’s what the

two Pa. Supreme Court decisions are to Appellant (Newly Discovered Facts).”

Reply Brief at 3.6

       “Our Courts have expressly rejected the notion that judicial decisions

can   be    considered     newly-discovered      facts   which   would   invoke   the

protections afforded by [S]ection 9545(b)(1)(ii).”               Commonwealth v.

Cintora, 69 A.3d 759, 763 (Pa. Super. 2013).                Appellant’s reliance on

subsection (b)(1)(ii) is, thus, misplaced and to no avail.

       Appellant also asserts in his Brief that his “conviction under [42

Pa.C.S. §] 9718 must be vacated” based on Commonwealth v. Wolfe, 140

A.3d 651 (Pa. 2016).7 Appellant’s Brief at 6-7. The Pennsylvania Supreme

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5 Appellant asserts that pursuant to A.S. and Lutz-Morrison, “[f]irst time
sex offenders that have lifetime registration it is held unconstitutional, the
Court opinioned that SVP status is only for repeat offenders.” Appellant’s
Brief at 10 (verbatim).

6 The timeliness exception set forth in Section 9545(b)(1)(ii) requires a
petitioner to demonstrate that he did not know the facts upon which he
based his Petition and could not have learned those facts earlier by the
exercise of due diligence. Commonwealth v. Brown, 111 A.3d 171, 176-
77 (Pa. Super. 2015).

7 The Wolfe Court affirmed this Court’s determination that, pursuant to
Alleyne v. United States, 133 S.Ct. 2151 (2013), Section 9718 (imposing
a mandatory minimum sentence of 10 years’ incarceration for IDSI
convictions where the victim is less than sixteen years of age) is
(Footnote Continued Next Page)


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Court affirmed this Court’s decision in Wolfe on June 20, 2016, but

Appellant did not file the instant Petition until October 7, 2016, over sixty

days later.      Accordingly, even if he had raised his claim under Section

9545(b)(1)(iii), it would fail to meet the exception to the PCRA time bar.

      Moreover, the applicability of Wolfe to Appellant’s case has been

previously litigated. Contrary to Appellant’s assertion that he could not have

raised it because his 13th PCRA Petition was pending, he did, in fact, assert a

legality of sentence issue based on the Superior Court’s disposition of Wolfe

in his 13th PCRA. The PCRA court dismissed it, concluding that Alleyne v.

United States, 133 S.Ct. 2151 (2013), is not applicable retroactively. See

PCRA Order and Notice of Intent to Dismiss, dated 11/18/15, at 6; Trial Ct.

Op, dated 3/23/16, at 6.           On appeal, this Court affirmed, noting that

Appellant was not sentenced to the Section 9718 mandatory minimum8 and,

thus, concluding that “[t]he trial court’s exercise of its sentencing discretion

does not implicate Alleyne. Appellant’s argument is unavailing []even if[,]

contrary    to   existing    precedent[,]      we    apply   Alleyne   retroactively.”

Commonwealth v. Kerns, No. 131 MDA 2016 (Pa. Super. filed July 22,

2016)    (unpublished       memorandum).            Accordingly,   because   Appellant

(Footnote Continued) _______________________

“irremediably unconstitutional on its face, non-severable, and void.” Wolfe,
140 A.3d at 663.

8As noted above, Appellant was sentenced to 7½ to 20 years’ incarceration,
not a mandatory minimum of 10 years.



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previously raised the issue, even if it had been timely raised and not subject

to the rules pertaining to timeliness, it is no longer cognizable under the

PCRA.   See 42 Pa.C.S. §§ 9543(a)(3), 9544(a)(3); Commonwealth v.

Spotz, 18 A.3d 244, 260 (Pa. 2011).

      Because no court has jurisdiction to hear an untimely PCRA Petition,

the PCRA court properly dismissed the Petition.

      Order affirmed.

 Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/7/2017




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