J-S48005-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA           :   IN THE SUPERIOR COURT OF
                                           :        PENNSYLVANIA
                                           :
               v.                          :
                                           :
                                           :
    JAMES CADE                             :
                                           :
                     Appellant             :   No. 231 EDA 2019

            Appeal from the PCRA Order Entered December 17, 2018
     In the Court of Common Pleas of Delaware County Criminal Division at
                       No(s): CP-23-CR-0008147-2013


BEFORE:      BOWES, J., SHOGAN, J., and STRASSBURGER, J.*

MEMORANDUM BY BOWES, J.:                        FILED SEPTEMBER 19, 2019

        James Cade appeals from the order that dismissed as untimely his

petition filed pursuant to the Post-Conviction Relief Act (“PCRA”). We affirm.

        Appellant pled no contest to involuntary deviate sexual intercourse and

corruption of minors in 1994, and was sentenced to three to ten years of

imprisonment. When he was released from prison at the expiration of his

maximum sentence, he was required to register as a sex offender under

Megan’s Law.

        In March 2013, Appellant was charged with failure to register under the

Sex Offender Registration and Notification Act (“SORNA”). He pled guilty to

that offense on April 8, 2014, and was sentenced to three to six years of

incarceration. Appellant filed no direct appeal.




*   Retired Senior Judge assigned to the Superior Court.
J-S48005-19


       Appellant filed a pro se PCRA petition on January 1, 2018.1

Subsequently-appointed counsel filed an amended petition, claiming that

Appellant’s conviction and sentence resulted from unconstitutional retroactive

application of SORNA in violation of Commonwealth v. Muniz, 164 A.3d

1189 (Pa. 2017) (decided July 19, 2017).         After the Commonwealth filed a

response in opposition to the grant of PCRA relief, the PCRA court issued notice

of its intent to dismiss the petition without a hearing on the basis that it was

untimely. Hearing no response, the PCRA court dismissed Appellant’s petition

by order dated December 17, 2018. Appellant filed a timely notice of appeal,

and both Appellant and the PCRA court complied with Pa.R.A.P. 1925.

       Appellant presents this Court with the following question: “was the

[PCRA] court in error for dismissing Appellant’s petition for post conviction

relief in that his sentence received was unconstitutional pursuant to [Muniz]

and its progeny?” Appellant’s brief at 4 (unnecessary capitalization omitted).

       We begin our consideration of Appellant’s question with a review of the

applicable legal principles. “This Court’s standard of review regarding an order

denying a petition under the PCRA is whether the determination of the PCRA

court is supported by the evidence of record and is free of legal error.”


____________________________________________


1The petition is dated January 1, 2018, but was not docketed until January 8,
2018. The PCRA court properly deemed it to have been filed on January 1,
2018. PCRA Court Opinion, 3/8/19, at 1. See, e.g., Commonwealth v.
Johnson, 192 A.3d 1149, 1152 n.4 (Pa.Super. 2018) (explaining that,
pursuant to the prisoner mailbox rule, “a pro se prisoner’s document is
deemed filed on the date he delivers it to prison authorities for mailing”).

                                           -2-
J-S48005-19


Commonwealth v. Rizvi, 166 A.3d 344, 347 (Pa.Super. 2017).             Further,

“[i]t is an appellant’s burden to persuade us that the PCRA court erred and

that relief is due.” Commonwealth v. Miner, 44 A.3d 684, 688 (Pa.Super.

2012).

      The first hurdle for a PCRA petitioner is establishing the timeliness of

the petition. See Commonwealth v. Pew, 189 A.3d 486, 488 (Pa.Super.

2018) (“If the petition is untimely and the petitioner has not pled and proven

an exception, the petition must be dismissed without a hearing because

Pennsylvania courts are without jurisdiction to consider the merits of the

petition.”). For a petition to be timely under the PCRA, it must be filed within

one year of the date that the petitioner’s judgment of sentence became final.

42 Pa.C.S. § 9545(b)(1).

      Appellant in effect concedes that his petition is patently untimely, but

contends that it satisfied the new-retroactive-constitutional-right timeliness

exception codified at 42 Pa.C.S. § 9545(b)(1)(iii).    Appellant’s brief at 13;

Amended PCRA Petition, 5/14/18, at ¶ 12.            The PCRA court rejected

Appellant’s contention pursuant to this Court’s decision in Commonwealth v.

Murphy, 180 A.3d 402 (Pa.Super. 2018). PCRA Court Opinion, 3/8/19, at 4.

      As we explained in Murphy,

      Muniz cannot satisfy the new retroactive right exception of
      section 9545(b)(1)(iii). . . . [O]ur Supreme Court held that,

            subsection (iii) of Section 9545 has two requirements.
            First, it provides that the right asserted is a
            constitutional right that was recognized by the

                                     -3-
J-S48005-19


              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.

       . . . [B]ecause 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

Murphy, supra at 405–06 (cleaned up).

       The PCRA court’s application of Murphy was correct. Furthermore, even

if Appellant is correct that “Muniz is retroactive on its face,” Appellant’s brief

at 13, the PCRA court aptly observed that Appellant did not file the instant

petition within sixty days of the Muniz decision as was required by 42 Pa.C.S.

§ 9545(b)(2).2 PCRA Court Opinion, 3/8/19, at 4.




____________________________________________


2 As of December 24, 2018, 42 Pa.C.S. § 9545(b)(2) was amended to provide
that a PCRA petition invoking a timeliness exception must be filed within one
year, rather than sixty days, of the date the claim could have been presented.
However, the amendment did not apply in the instant case, as Appellant’s
claim arose before December 24, 2017. See Section 3 of Act 2018, Oct. 24,
P.L. 894, No. 146.

                                           -4-
J-S48005-19


      Accordingly, Appellant failed to establish that a timeliness exception

applied to provide the PCRA court with jurisdiction to grant him relief. As

such, he is entitled to no relief from this Court.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/19/19




                                      -5-
