J-S53025-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    PATRICK BROWN                              :
                                               :
                       Appellant               :   No. 2404 EDA 2017

                   Appeal from the PCRA Order June 23, 2017
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0605961-2006,
               CP-51-CR-0606151-2006, CP-51-CR-0606161-2006


BEFORE:      GANTMAN, P.J., OTT, J., and PLATT, J.

MEMORANDUM BY OTT, J.:                               FILED NOVEMBER 1, 2018

        Patrick Brown appeals from the order entered June 23, 2017, in the

Philadelphia County Court of Common Pleas, dismissing as untimely filed his

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

Act (“PCRA”).1       Brown seeks relief from the judgment of sentence of an

aggregate term of 15 to 30 years’ imprisonment, imposed on December 18,

2006, and July 12, 2007, following his conviction of sexual offenses against

minors in three separate cases. On appeal, he asserts the PCRA court erred

in dismissing the petition as untimely filed when: (1) the mandatory minimum

sentencing statutes that tainted his guilty plea negotiations have been

declared unconstitutional; (2) his claim qualifies as a newly discovered fact
____________________________________________


   Retired Senior Judge assigned to the Superior Court.

1   42 Pa.C.S. §§ 9541-9546.
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pursuant to the PCRA’s timing exceptions; (3) his status as a sexually violent

predator (“SVP”) is also unconstitutional; and (4) trial counsel rendered

ineffective assistance.

        The facts and procedural history underlying this appeal are well known

to the parties and we need not recite them herein. In summary, on December

18, 2006, Brown entered a guilty plea in the following three cases involving

the sexual assault of a minor:2 (1) at Docket No. 605961-2006, he pled guilty

to attempted aggravated indecent assault3 on victim, R.D.; (2) at Docket No.

606161-2006, he pled guilty to rape, endangering the welfare of a child, and

corruption of minors4 for his assault on victim, D.D.; and (3) at Docket No.

606151-2006, he pled guilty to indecent assault and endangering the welfare

of a child5 for his assault on victim, L.D.      That same day, he was sentenced

to an aggregate term of 15 to 30 years’ imprisonment for the charges at

Docket Nos. 605961-2006 and 606161-2006.               Sentencing for Docket No.

606151 was deferred so that an assessment could be conducted to determine

if Brown was a sexually violent predator (“SVP”) under the now-repealed

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2 At least one of the victims was Brown’s biological daughter, and none of the
victims were over the age of 10 at the time of the respective assaults.

3   See 18 Pa.C.S. §§ 901 and 3125.

4   See 18 Pa.C.S. §§ 3121, 4304, and 6301, respectively.

5   See 18 Pa.C.S. §§ 3126 and 4304.




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Megan’s Law.6 On July 12, 2007, the trial court determined Brown met the

criteria for classification as an SVP, and sentenced him to a term of five to 10

years’ imprisonment, to run concurrently to the other sentences. No direct

appeal was taken.

       Brown filed a pro se PCRA petition on August 11, 2008, listing all three

dockets. After counsel was appointed and petitioned to withdraw, the PCRA

court dismissed the petition as to Docket Nos. 605961-2006 and 606161-2006

on April 8, 2010. The petition at Docket No. 606151-2006 remained pending

for possible future filings, until it was formally dismissed on October 12, 2012.

Brown did not appeal either the April 2010 or October 2012 orders dismissing

his first petition.

       On July 23, 2010, Brown filed a second, pro se PCRA petition at Docket

Nos. 605961-2006 and 606161-2006.7               The PCRA court subsequently

dismissed the petition as untimely filed on October 18, 2012. Brown filed an

appeal, and on May 19, 2014, a panel of this Court affirmed the PCRA court’s

order in a memorandum decision. See Commonwealth v. Brown, 104 A.3d

51 (Pa. Super. 2014) (unpublished memorandum).


____________________________________________


6 See 42 Pa.C.S. § 9795.4 (repealed). Effective December 20, 2012, Megan’s
Law was replaced by the Sexual Offenders Registration and Notification Act
(“SORNA”). See 42 Pa.C.S. §§ 9799.10-9799.41 (as amended 2011, Dec.
20, P.L. 446, No. 111, § 12).

7 As noted above, the first PCRA petition filed at Docket No. 606151-2006 was
still pending at that time.


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       Thereafter, on November 17, 2015, Brown filed the instant PCRA

petition, pro se, his third at Docket Nos. 605961-2006 and 606161-2006, and

his second at Docket No. 606151-2006.            He filed an amended petition on

December 18, 2015. On September 2, 2016, the PCRA court issued notice,

pursuant to Pa.R.Crim.P. 907, of its intent to dismiss the petition as untimely

filed. Brown filed three pro se responses to the court’s Rule 907 notice. On

June 23, 2017, the PCRA court entered an order dismissing Brown’s petition.

This timely appeal follows.8

       On appeal, Brown contends the trial court erred in dismissing his petition

as untimely filed. “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 concluded Brown’s petition was untimely filed, and

Brown failed to establish the applicability of one of the time-for-filing

exceptions. See PCRA Court Opinion, 12/20/2017, at 4-7.

       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.
____________________________________________


8On July 31, 2017, the PCRA court ordered Brown to file a concise statement
of matters complained of on appeal pursuant to Pa.R.A.P. 1925(b). Brown
complied with the court’s directive, and filed a concise statement on August
14, 2017.


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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). Brown’s judgment of

sentence at Docket Nos. 605961-2006 and 606161-2006, was final on January

17, 2007, and his sentence at Docket No. 606151-2006 was final on August

11, 2007, 30 days after the court imposed the sentences and the time for

filing a direct appeal expired. Therefore, the petition before us, filed more

than eight years later, is patently untimely. See also Brown, supra, 104

A.3d 51 (unpublished memorandum) (holding Brown’s prior PCRA petition was

untimely filed).

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

alleges and the petitioner proves” one of the following three time-for-filing

exceptions:

         (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.



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42 Pa.C.S. § 9545(b)(1)(i)-(iii). A PCRA petition alleging any of the exceptions

under Section 9545(b)(1) must be filed within 60 days of when the PCRA claim

could have first been brought. See 42 Pa.C.S. § 9545(b)(2).

       Here, Brown attempts to invoke the previously unknown facts exception

set forth in Subsection 9545(b)(1)(ii). He claims:

       [U]nknown to [him] at the time he was sentenced, and for which
       he could not uncover through the exercise of due diligence, [] he
       was the subject of a mandatory minimum sentence statute of 18
       Pa.C.S. § 3121(a)(1); Rape by forcible compulsion.           And
       sentenced to (10) to (20) years of imprisonment, and not
       sentenced to (5) to (10) years under the prescribed statutory
       maximum sentence statute of 18 Pa.C.S. § 3121.

Brown’s Brief at 14. Further, Brown insists the mandatory minimum sentence

he received was ruled unconstitutional in Commonwealth v. Hopkins, 117

A.3d 247 (Pa. 2015), which “applied the principles” of Alleyne v. United

States, 570 U.S. 1 (2013).9          Id.       We find this argument fails for several

reasons.

       First, upon our review of the record we can find no indication that Brown

was sentenced to a mandatory minimum term.                     Indeed, there was no

reference to a mandatory during either of his sentencing hearings.                See

generally N.T., 12/18/2006 and 7/12/2007. Second, assuming, arguendo,

he was sentenced to a mandatory minimum ten-year term for rape, Brown


____________________________________________


9 We note Brown’s argument is misplaced because the rape statute, codified
at 18 Pa.C.S. § 3121, does not provide for a mandatory minimum sentence.
We presume Brown is referring to 42 Pa.C.S. § 9718, which provides for
mandatory minimum sentences when the victim of a crime is less than 16
years of age.

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can not obtain relief pursuant to the newly discovered facts exception to the

PCRA’s timing requirements. It is well-established that “subsequent decisional

law does not amount to a new ‘fact’ under section 9545(b)(1)(ii) of the PCRA.”

Commonwealth v. Watts, 23 A.3d 980, 987 (Pa. 2011).                Third, even if

Brown had brought his claim under the newly recognized constitutional right

exception, set forth in Subsection 9545(b)(1)(iii), the Pennsylvania Supreme

Court has held “Alleyne does not apply retroactively to cases pending on

collateral review.” Commonwealth v. Washington, 142 A.3d 810, 820 (Pa.

2016). Accordingly, Brown’s first argument fails.

      However, Brown also insists he is entitled to relief because “[t]he

mandatory minimum sentence tainted the negotiated plea agreement.”

Brown’s Brief at 18. Relying upon Commonwealth v. Melendez-Negron,

123 A.3d 1087 (Pa. Super. 2015), he argues, “any negotiated sentence

premised on the consideration of a now discredited mandatory minimum

sentence statute, is per se illegal.” Brown’s Brief at 18. Nevertheless, because

Brown failed to include this claim in either his initial or amended petition, it is

waived for our review. See Commonwealth v. Edmiston, 851 A.2d 883,

889 (Pa. 2004) (“Claims not raised in the PCRA court are waived and cannot

be raised for the first time on appeal to this Court.”).

      Next, Brown argues his designation as an SVP “was ruled to be

unconstitutional” in Commonwealth v. Butler, 173 A.3d 1212 (Pa. Super.

2017), appeal granted, 190 A.3d 581 (Pa. July 31, 2018). Brown’s Brief at

21. He further maintains this “new ruling of constitutional law” was unknown

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to him previously and could not have been ascertained by the exercise of due

diligence, and he filed this claim within 60 days of the date it could be

presented. Id.

       By way of background, on July 17, 2017, two days before Brown filed

the instant appeal, the Pennsylvania Supreme Court, in Commonwealth v.

Muniz, 164 A.3d 1189 (Pa. 2017), cert. denied, 138 S.Ct. 925 (U.S. 2018),

concluded SORNA’s registration provisions constitute punishment, and,

therefore, the retroactive application of those provisions violates the ex post

facto clauses of the federal and Pennsylvania constitutions. Thereafter, on

October 31, 2017, while Brown’s present appeal was pending, a panel of this

Court, in Commonwealth v. Butler, 173 A.3d 1212 (Pa. Super. 2017),

appeal granted, 190 A.3d 581 (Pa. 2018), held the statutory mechanism for

designating a defendant as an SVP set forth in 42 Pa.C.S. § 9799.24(e)(3)

was “constitutionally flawed” pursuant to the United States Supreme Court’s

decisions in Alleyne v. United States, 570 U.S. 99 (2013), and Apprendi

v. New Jersey, 530 U.S. 466 (2000). Accordingly, the Butler panel held:

“[T]rial courts cannot designate convicted defendants SVPs (nor may they

hold SVP hearings) until our General Assembly enacts a constitutional

designation mechanism.”10 Butler, supra, 173 A.3d at 1218.


____________________________________________


10As noted above, the Supreme Court granted allowance of appeal in the
Butler case, framing the issue as follows:




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       Although Brown recognizes he did not include this claim in either his

original or amended PCRA petitions, he insists it is not waived because he

raised it within 60 days of the date the Butler decision was filed via a motion

for leave to amend his concise statement.         See Brown’s Reply Brief at 4;

Motion for Leave to Amend 1925(b) Statement, 11/13/2017.

       Brown’s attempt to bootstrap this claim onto the present appeal fails.

His only avenue for relief is to file another PCRA petition within 60 days of the

date this appeal is affirmed, absent any further appeal to the Pennsylvania

Supreme Court. As our Court sitting en banc recently observed:

       In Commonwealth v. Lark, 560 Pa. 487, 746 A.2d 585 (2000),
       our Supreme Court held that “a subsequent PCRA petition cannot
       be filed until the resolution of review of the pending PCRA petition
       by the highest state court in which review is sought, or upon the
       expiration of the time for seeking such review.” Id. at 588. Our
       Supreme Court reasoned that “[a] second appeal cannot be taken
       when another proceeding of the same type is already pending.”
       Id. (citation omitted). Where a petitioner attempts to raise a
       subsequent, independent claim for relief during the pendency of
       an earlier PCRA petition, his or her “only option is to raise it within
       a second PCRA petition filed within [60] days of the date of the
       order that finally resolves the [pending] PCRA petition[.]”
       Commonwealth v. Steele, 599 Pa. 341, 961 A.2d 786, 808–809
       (2008).
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       Whether the Superior Court of Pennsylvania erred in vacating the
       trial cour’'s Order finding [Respondent] to be [a Sexually Violent
       Predator (“SVP”) ] by extrapolating the decision in
       [Commonwealth v. Muniz, 640 Pa. 699, 164 A.3d 1189
       (2017),]      to  declare    SVP   hearings    and   designations
       unconstitutional under 42 Pa.C.S. § 9799.24(e)(3).

Butler, supra, 190 A.3d at 582.




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Commonwealth v. Montgomery, 181 A.3d 359, 363 (Pa. Super. 2018) (en

banc), appeal denied, 190 A.3d 1134 (Pa. 2018). Accordingly, no relief is

warranted.11

       In his final claim, Brown asserts the ineffective assistance of prior

counsel for failing to challenge his purported mandatory minimum sentence

and SVP determination “at trial, at sentencing, or on direct appeal.” Brown’s

Brief at 22. However, once again, because Brown failed to raise this claim in

either his original or amended PCRA petitions, it is waived. See Edmiston,

supra. Furthermore, he fails to demonstrate how this claim overcomes the

PCRA’s timing restriction. Accordingly, Brown is entitled to no relief.

       Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/1/18




____________________________________________


11We caution Brown, however, that if he does intend to file another PCRA
petition based upon Butler, he will still be required to plead and prove the
applicability of one of the timing exceptions, and to date, Butler has not been
held to apply retroactively to cases on collateral review by the Pennsylvania
Supreme Court. See 42 Pa.C.S. § 9545(b)(1)(iii).

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