J-S05045-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

MARK LEE TITUS,

                            Appellant                 No. 285 MDA 2015


                Appeal from the PCRA Order December 23, 2014
                in the Court of Common Pleas of Luzerne County
               Criminal Division at No.: CP-40-CR-0003368-2009


BEFORE: BENDER, P.J.E., SHOGAN, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                         FILED FEBRUARY 17, 2016

        Appellant, Mark Lee Titus, appeals from the order of December 23,

2014, dismissing, following a hearing, his first counseled petition brought

under the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546.

For the reasons discussed below, we affirm.

        We take the underlying facts in this matter from our independent

review of the certified record. On March 17, 2010, Appellant pleaded guilty

to one count of failure to comply with registration of sexual offender

requirements.1 On May 14, 2010, the trial court sentenced Appellant to not


____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
    18 Pa.C.S.A. § 4915(a)(1).
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less than forty nor more than eighty months of incarceration. Appellant did

not file a direct appeal.

      On May 12, 2014, Appellant, through counsel, filed the instant PCRA

petition challenging the legality of his sentence.   A hearing on Appellant’s

PCRA petition took place on December 23, 2014. Immediately following the

hearing, the PCRA court denied the petition on the merits. On January 21,

2015, Appellant filed the instant, timely appeal. On February 2, 2015, the

PCRA court ordered Appellant to file a concise statement of errors

complained of on appeal. See Pa.R.A.P. 1925(b). On February 13, 2015,

Appellant filed a timely Rule 1925(b) statement.     On March 10, 2015, the

PCRA court issued an opinion. See Pa.R.A.P. 1925(a).

      Appellant raises one question on appeal:

      Whether the [PCRA] court erred in denying [Appellant’s]
      [p]etition for [p]ost-[c]onviction [r]elief where [Appellant] is
      currently serving an illegal sentence and is incarcerated in
      violation of the due process clauses of both the Constitution of
      the United States and the Constitution of the Commonwealth of
      Pennsylvania?

(Appellant’s Brief, at 2).

      Our standard of review for an order denying PCRA relief is well-settled:

            This Court’s standard of review regarding a PCRA court’s
      order is whether the determination of the PCRA court is
      supported by the evidence of record and is free of legal error.
      Great deference is granted to the findings of the PCRA court, and
      these findings will not be disturbed unless they have no support
      in the certified record.




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Commonwealth v. Carter, 21 A.3d 680, 682 (Pa. Super. 2011) (citations

and quotation marks omitted). However, “if a PCRA [p]etition is untimely, a

trial court has no jurisdiction to entertain the petition.” Commonwealth v.

Hutchins, 760 A.2d 50, 53 (Pa. Super. 2000) (citations omitted).

        Here, Appellant filed his first PCRA petition on May 12, 2014.       The

PCRA provides that “[a]ny petition under this subchapter, including a second

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

judgment becomes final[.]”             42 Pa.C.S.A. § 9545(b)(1).   Appellant’s

judgment of sentence became final on June 14, 2010, thirty days2 after the

trial court imposed sentence and Appellant did not file a direct appeal with

this Court. Therefore, Appellant had one year, until June 14, 2011, to file a

timely PCRA petition. Because Appellant did not file his current petition until

May 12, 2014, the petition is facially untimely.      Thus, he must plead and

prove that he falls under one of the exceptions at Section 9545(b) of the

PCRA. See 42 Pa.C.S.A. § 9545(b)(1).

        Section 9545 provides that the court can still consider an untimely

petition where the petitioner successfully proves that:

              (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;


____________________________________________


2
    The thirtieth day, June 13, 2010, was a Sunday.



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            (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.

Id. at § 9545(b)(1)(i)-(iii).   Further, a petitioner who wishes to invoke any

of the above exceptions must file the petition “within [sixty] days of the date

the claim could have been presented.”           Id. at § 9545(b)(2).       The

Pennsylvania Supreme Court has repeatedly stated that it is an appellant’s

burden to plead and prove that one of the above-enumerated exceptions

applies. See, e.g., Commonwealth v. Abu-Jamal, 941 A.2d 1263, 1268

(Pa. 2008), cert. denied, 555 U.S. 916 (2008).      Here, Appellant contends

that he falls under the third exception of Section 9545(b)(1).            (See

Appellant’s Brief, at 7); see also 42 Pa.C.S.A. § 9545(b)(1)(iii) (providing

relief where appellant proves newly-recognized constitutional right).

      Here, Appellant claims that Megan’s Law III, under which the trial

court sentenced him, is void ab initio, resulting in an unconstitutional

sentence because it is as if the offense for which the jury convicted him

never existed. (See Appellant’s Brief, at 4-12). Appellant bases his claim

on the Pennsylvania Supreme Court’s decision in Commonwealth v.

Neiman, 84 A.3d 603 (Pa. 2013), which declared Act 152, which included




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the relevant Megan’s Law III provisions, unconstitutional.           (See id.).

Appellant’s claim does not merit relief.3

       Appellant cannot claim an exception under § 9545(b)(1)(iii) unless he

can prove a “constitutional right” recognized in Neiman “has been held by

[our Supreme Court] to apply retroactively.” 42 Pa.C.S.A. § 9545(b)(1)(iii).

       In Commonwealth v. Abdul-Salaam, 812 A.2d 497 (Pa. 2002), our

Supreme Court addressed the issue of whether a determination of

retroactivity must have already occurred before a petitioner files a PCRA

claiming a “constitutional right” exception pursuant to § 9545(b)(1)(iii). The

Court stated:

             In construing subsection (iii), as with any question of
       statutory construction, we must begin with the Rules of
       Statutory Construction. A statute’s words and phrases are to be
       construed according to their common and approved usage, and
       where the words of a statute are clear and free from ambiguity,
       the letter of the statute may not be disregarded. See 1 Pa.C.S.
       §§ 1903(a), 1921(b); Commonwealth v. MacPherson, 561
       Pa. 571, 752 A.2d 384, 391 (2000).

              Subsection (iii) of Section 9545 has two requirements.
       First, it provides that the right asserted is a constitutional right
____________________________________________


3
   We briefly note that Appellant’s reliance on this Court’s decisions in
Commonwealth v. Michuk, 686 A.2d 403, 407 (Pa. Super. 1996), appeal
denied, 698 A.2d 593 (Pa. 1997) (vacating conviction under Motor Vehicle
Code because, during pendency of direct appeal, Pennsylvania Supreme
Court struck down subsection of Code under which defendant was convicted)
and Commonwealth v. Muhammed, 992 A.2d 897, 903 (Pa. Super. 2010)
(reversing conviction for trademark counterfeiting because Pennsylvania
Supreme Court declared trademark counterfeiting statute unconstitutional)
is misplaced because both cases, unlike the instant matter, were on direct
appeal, not collateral review.



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     that was recognized by the Supreme Court of the United States
     or this court after the time provided in this section. Second, it
     provides that the right “has been held” by “that court” to apply
     retroactively. Thus, a petitioner must prove that there is a
     “new” constitutional right and that the right “has been held” by
     that court to apply retroactively. The language “has been held”
     is in the past tense. These words mean that the action has
     already occurred, i.e., “that court” has already held the new
     constitutional right to be retroactive to cases on collateral
     review. By employing the past tense in writing this provision,
     the legislature clearly intended that the right was already
     recognized at the time the petition was filed.

Id. at 501. The Court concluded:

           [W]e hold that the language “has been held” means that
     the ruling on retroactivity of the new constitutional law must
     have been made prior to the filing of the petition for collateral
     review.

           We find further support for our conclusion today in a
     recent United States Supreme Court case. Tyler v. Cain, 533
     U.S. 656, 121 S.Ct. 2478, 150 L.Ed.2d 632 (2001). In Tyler,
     the [United States Supreme] Court looked at a similar provision
     of the Antiterrorism and Effective Death Penalty Act (“AEDPA”),
     which provided that the petitioner must make “a prima facie
     showing” that his “claim relies on a new rule of constitutional
     law, made retroactive to cases on collateral review by the
     Supreme Court, that was previously unavailable.” Tyler, 533
     U.S. at 660, 121 S.Ct. 2478 (quoting 28 U.S.C. § 2244(b)).
     Specifically, the [United States Supreme] Court was called upon
     to interpret the phrase “made retroactive to cases on collateral
     review by the Supreme Court.”

            When reviewing the new constitutional rule in context, the
     [United States Supreme] Court explained that the only way a
     new rule becomes retroactive was simply by the action of the
     Supreme Court itself. Further, “the only way the Supreme Court
     can, by itself ‘lay out and construct’ a rule’s retroactive effect . .
     . is through a holding.” Id. at 663, 121 S.Ct. 2478. Thus, the
     Court determined that a new rule of constitutional law is not
     “made retroactive to cases on collateral review” unless the
     Supreme Court has held it to be retroactive. Id.


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Id. at 501-02.   “After reviewing the plain language of the subsection and

United States Supreme Court caselaw, we are persuaded that the language

‘has been held’ in 42 Pa.C.S. § 9545(b)(1)(iii) means that a retroactivity

determination must exist at the time that the petition is filed.” Id. at 502.

      Here, as discussed above, Appellant bases his claim that his sentence

is illegal on our Supreme Court’s decision in Neiman finding Act 152

unconstitutional. It is unnecessary for us to consider whether in declaring

Act 152 unconstitutional the Pennsylvania Supreme Court announced a new

“constitutional right” because our review of Neiman confirms that our

Supreme Court did not direct that the decision was to apply retroactively.

Moreover, the Neiman decision did not discuss the effects of its ruling on

cases that had become final before it was decided. Thus, it cannot be said

that the right asserted by Appellant “has been held by [our Supreme Court]

to apply retroactively.” 42 Pa.C.S.A. § 9545(b)(1)(iii). Therefore, Appellant

has not met the requirements of § 9545(b)(1)(iii).

      Moreover, the fact that Appellant challenges the legality of sentence

does not change the result. In Commonwealth v. Fahy, 737 A.2d 214 (Pa.

1999), the Pennsylvania Supreme Court rejected this contention. The Fahy

Court stated, “[a]lthough 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.” Fahy, supra at 223 (citation omitted). Thus,




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Appellant cannot evade the PCRA timeliness requirements based on a claim

of an illegal sentence. See id.

     Although the PCRA court did not dismiss Appellant’s PCRA petition as

untimely, we conclude that Appellant did not file a timely PCRA petition and

is not saved by any exception under § 9545(b)(1). “As an appellate court,

we may affirm by reasoning different than that used by the trial court.”

Commonwealth v. Miller, 787 A.2d 1036, 1038 (Pa. Super. 2001), appeal

denied, 798 A.2d 1288 (Pa. 2002) (citation omitted).    Because Appellant’s

petition is untimely with no statutory exception to the time bar pleaded and

proven, the PCRA court was without jurisdiction to address the merits of

Appellant’s claims, and we are without jurisdiction to review them.     See

Hutchins, supra at 53.

     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/17/2016




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