J-S15023-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA          :   IN THE SUPERIOR COURT OF
                                       :        PENNSYLVANIA
                                       :
              v.                       :
                                       :
                                       :
 FRANK PRUITT                          :
                                       :
                   Appellant           :   No. 1064 WDA 2018

           Appeal from the PCRA Order Entered June 27, 2018
  In the Court of Common Pleas of Allegheny County Criminal Division at
                    No(s): CP-02-CR-0005388-2008

 COMMONWEALTH OF PENNSYLVANIA          :   IN THE SUPERIOR COURT OF
                                       :        PENNSYLVANIA
                                       :
              v.                       :
                                       :
                                       :
 FRANK PRUITT                          :
                                       :
                   Appellant           :   No. 1065 WDA 2018

           Appeal from the PCRA Order Entered June 27, 2018
  In the Court of Common Pleas of Allegheny County Criminal Division at
                    No(s): CP-02-CR-0002640-2004

 COMMONWEALTH OF PENNSYLVANIA          :   IN THE SUPERIOR COURT OF
                                       :        PENNSYLVANIA
                                       :
              v.                       :
                                       :
                                       :
 FRANK PRUITT                          :
                                       :
                   Appellant           :   No. 1066 WDA 2018

           Appeal from the PCRA Order Entered June 27, 2018
  In the Court of Common Pleas of Allegheny County Criminal Division at
                    No(s): CP-02-CR-0008223-2007


BEFORE:   GANTMAN, P.J.E., SHOGAN, J., and COLINS*, J.

____________________________________
* Retired Senior Judge assigned to the Superior Court.
J-S15023-19


MEMORANDUM BY SHOGAN, J.:                              FILED JUNE 18, 2019

       Appellant, Frank Pruitt, appeals from three orders dismissing separate

petitions in which he sought habeas corpus relief, or alternatively, a remedy

pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-9546.

Appellant filed timely notices of appeal at each of the PCRA court’s docket

numbers, and these separate appeals were consolidated by this Court sua

sponte on August 7, 2018. After careful review, we conclude that the PCRA

court properly treated Appellant’s filings as untimely PCRA petitions and

correctly dismissed the petitions. Accordingly, we affirm.1

       The PCRA court set forth the relevant facts and procedural history of

this case as follows:

              [Appellant] has appealed from this Court’s Order of June 27,
       2018, which dismissed his third Amended Post Conviction Relief
       Act Petition without a hearing. However, a review of the record
       reveals that because the Petition is untimely, this Court lacks the
       jurisdiction to address it. The Petition was, therefore, properly
       dismissed.

             [Appellant] was charged at three (3) separate informations
       with various crimes relating to three (3) separate victims, as
       follows: At CC 200805388 (Victim [D.H.]): Rape of a Child,1
____________________________________________


1 Counsel for Appellant, Jacob C. McCrea, Esquire, has filed appeals involving
six defendants, all of whom are convicted sex offenders, at the following
Superior Court docket numbers: Commonwealth v. Robinson at 1057-1058
WDA 2018; Commonwealth v. Bres at 1060 WDA 2018; Commonwealth
v. Brant at 1061 WDA 2018; Commonwealth v. Preik at 1062-1063 WDA
2018; Commonwealth v. Pruitt at 1064-1066 WDA 2018; and
Commonwealth v. Jones at 1067 WDA 2018. The issues raised in all of
these appeals are identical; however, each defendant’s appeal is addressed in
a separate memorandum.


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J-S15023-19


     Rape,2 Endangering the Welfare of a Child,3 Terroristic Threats4
     and Simple Assault of a Child;5 At CC 200708223 (Victim [M.A.]):
     Rape,6 Rape of a Child,7 Involuntary Deviate Sexual Intercourse
     with a Child,8 Indecent Assault9 and Corruption of Minors;10 and
     at CC 200402640 (Victim [L.H.]): Rape of a Child11 and
     Involuntary Deviate Sexual Intercourse.12

          1   18 Pa.C.S.A. §3123(c)

          2   18 Pa.C.S.A. §3121(a)

          3   18 Pa.C.S.A. §4304

          4   18 Pa.C.S.A. §2706(a)(1)

          5   18 Pa.C.S.A. §2701(b)(2)

          6   18 Pa.C.S.A. §3121

          7   18 Pa.C.S.A. §3121(c)

          8   18 Pa.C.S.A. §3123(b)

          9   18 Pa.C.S.A. §3126(a)(1)

          10   18 Pa.C.S.A. §6301(a)(1)

          11   18 Pa.C.S.A. §3121(c)

          12   18 Pa.C.S.A. §3123

           [Appellant] was tried before this Court along with a Co-
     Defendant, [D.H.’s mother,] who was facing conspiracy and child
     endangerment and charges. At the close of the Commonwealth’s
     case, this Court granted [Appellant’s] Motions for Judgment of
     Acquittal at the 200805388 Terroristic Threats charge and at the
     200402640 IDSI charge. [Appellant] was convicted of the
     remaining charges while his co-Defendant was acquitted.

           [Appellant] appeared before this Court on November 17,
     2008 and was sentenced to four (4) terms of imprisonment of ten
     (10) to twenty (20) years at each of the Rape and Rape of a Child
     convictions, for an aggregate sentence of 40-80 years. Timely


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J-S15023-19


       Post-Sentence Motions were filed and denied on December 1,
       2008. The judgment of sentence was affirmed on July 14, 2010.[2]

              On August 24, [Appellant] filed a pro se Post Conviction
       Relief Act Petition. Counsel was appointed to represent [Appellant]
       and an Amended Petition was filed. After reviewing the record and
       giving the appropriate notice of its intent to do so, this Court
       dismissed the Amended Petition without a hearing on February 28,
       2011. That Order was affirmed by our Superior Court on
       December 30, 2011.[3]

              No further action was taken until January 2, 2013, when
       [Appellant] filed his second pro se Post Conviction Relief Act
       Petition. After reviewing the record in its entirety and giving the
       appropriate notice of its intent to do so, this Court dismissed the
       Petition without a hearing on April 4, 2013. No direct appeal was
       taken.

              No further action was taken until February 20, 2018, when
       [Appellant] filed a pro se Post Conviction Relief Act Petition
       alleging that, pursuant to Commonwealth v. Muniz, 169 A.3d 1189
       (Pa. 2017), his lifetime [sexual offender] registration was
       unconstitutional. Counsel was appointed to represent [Appellant]
       and an Amended Petition was filed. The Commonwealth, through
       the Office of the District Attorney filed a response to the Amended
       Petition. Thereafter, the Pennsylvania State Police, through the
       Office of the Attorney General, sought and was granted permission
       to intervene. After giving the appropriate notice of its intent to do
       so, this Court dismissed the Amended Petition on June 27, 2018
       without a hearing. This appeal followed.

PCRA Court Opinion, 10/10/18, at 1-3.            Appellant filed timely notices of

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




____________________________________________


2Commonwealth v. Pruitt, 6 A.3d 562, 2145 WDA 2008 (unpublished
memorandum) (Pa. Super. filed July 14, 2010).

3Commonwealth v. Pruitt, 40 A.3d 207, 531 WDA 2011 (unpublished
memorandum) (Pa. Super. filed December 30, 2011).

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J-S15023-19


       On appeal, Appellant raises the following issues for this Court’s

consideration:

       1. Whether the trial court erred in ruling that it lacked
       jurisdic[ti]on to adjudicate the merits of the amended PCRA
       petition and/or petition for writ of habeas corpus?

       2. Whether the trial court erred by not ruling that Act 10 of 2018
       is unconstitutional under the federal and state ex post facto and
       double jeopardy clauses?

Appellant’s Brief at 5 (full capitalization omitted).4

       At the outset, we must determine whether Appellant’s petitions were

correctly deemed PCRA petitions or whether they should have been considered

petitions for habeas corpus relief. Appellant argues that his filings should have

been treated as habeas corpus petitions because the relief sought falls outside

of the strictures of the PCRA pursuant to the holding in Commonwealth v.

Bundy, 96 A.3d 390 (Pa. Super. 2014). Appellant’s Brief at 12. We disagree.

       In Bundy, this Court held that the PCRA did not apply to challenges to

sex offender registration requirements under Megan’s Law, because claims

under Megan’s Law did not implicate the conviction or sentence. Bundy, 96

A.3d at 394. However, due to substantial changes in the law of sex offender

registration, Bundy does not apply to Appellant’s petitions.




____________________________________________


4 As noted, although Appellant filed what were properly deemed PCRA
petitions at each lower court docket number, these cases were later
consolidated. For clarification, in this consolidated appeal, we note that the
PCRA court and Appellant refer to the PCRA petitions as a singular “petition.”

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J-S15023-19


       After the enactment of the Sex Offender Registration and Notification

Act (“SORNA”), 42 Pa.C.S. §§ 9799.10-9799.42, which replaced Megan’s Law,

our Supreme Court determined that the SORNA registration provisions are

punitive in nature and that retroactive application of SORNA’s requirements

violates   both    the   Pennsylvania      and   federal   ex   post   facto   clauses.

Commonwealth v. Muniz, 164 A.3d 1189, 1193 (Pa. 2017). Furthermore,

the punitive nature of SORNA’s registration requirements impact the legality

of a sex offender’s sentence. Commonwealth v. Butler, 173 A.3d 1212,

1215 (Pa. Super. 2017), appeal granted, 190 A.3d 581 (Pa. 2018).5

Therefore,    Appellant’s     claims   challenging   the   application   of    SORNA’s

registration requirements, as opposed to the requirements under Megan’s

Law, are issues concerning the legality of a sentence and cognizable under the

PCRA. Commonwealth v. Greco, 203 A.3d 1120, 1123 (Pa. Super. 2019)


____________________________________________


5 Following the decisions in Muniz and Butler, our General Assembly passed
Acts 10 and 29 of 2018 in an effort to address SORNA’s constitutional defects.
42 Pa.C.S. § 9799.51(b)(4). Specifically, the General Assembly modified the
registration requirements for offenders convicted of committing offenses on
or after SORNA’s effective date, December 20, 2012. The General Assembly
also added Subchapter I to Title 42, Part VII, Chapter 97. Subchapter I sets
forth registration requirements for offenders convicted of committing offenses
on or after the effective date of Megan’s Law I, April 22, 1996, but prior to
SORNA’s effective date of December 20, 2012. Subchapter I applies to
offenders whose period of registration has not expired, and offenders required
to register under a prior sexual offender registration law on or after April 22,
1996, but before December 20, 2012, whose period of registration has not
expired. Recently, pursuant to 42 Pa.C.S. § 722(7), our Supreme Court
granted a direct appeal from a decision in the Montgomery County Court of
Common Pleas to determine whether Acts 10 and 29 are constitutional.
Commonwealth v. Lacombe, 35 MAP 2018 (Pa. 2018).

                                           -6-
J-S15023-19


(citing Commonwealth v. Murphy, 180 A.3d 402, 405-406 (Pa. Super.

2018) appeal denied, 195 A.3d 559 (Pa. 2018)). Thus, because Appellant is

challenging the application of SORNA, the decision in Bundy is immaterial,

and the PCRA court properly considered Appellant’s claims under the PCRA.

See Commonwealth v. Montgomery, 181 A.3d 359, 367 (Pa. Super. 2018)

(noting that the PCRA is the sole means of obtaining collateral relief, and it

encompasses all other common law and statutory remedies including habeas

corpus) (citing 42 Pa.C.S. § 9542)).

      When reviewing the propriety of an order denying PCRA relief, we

consider the record “in the light most favorable to the prevailing party at the

PCRA level.”   Commonwealth v. Stultz, 114 A.3d 865, 872 (Pa. Super.

2015) (quoting Commonwealth v. Henkel, 90 A.3d 16, 20 (Pa. Super. 2014)

(en banc)). We are limited to determining whether the evidence of record

supports the conclusions of the PCRA court and whether the ruling is free of

legal error. Commonwealth v. Robinson, 139 A.3d 178, 185 (Pa. 2016).

The PCRA court’s findings will not be disturbed unless there is no support for

them in the certified record.   Commonwealth v. Lippert, 85 A.3d 1095,

1100 (Pa. Super. 2014).

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

judgment of sentence becomes final. 42 Pa.C.S. § 9545(b)(1). A judgment

of sentence “becomes final at the conclusion of direct review, including

discretionary review in the Supreme Court of the United States and the


                                       -7-
J-S15023-19


Supreme Court of Pennsylvania, or at the expiration of time for seeking the

review.” 42 Pa.C.S. § 9545(b)(3). This time requirement is mandatory and

jurisdictional in nature, and the court may not ignore it in order to reach the

merits of the petition. Commonwealth v. Taylor, 67 A.3d 1245, 1248 (Pa.

2013).

       However, an untimely petition may be received when the petition

alleges, and the petitioner proves, that any of the three limited exceptions to

the time for filing the petition, set forth at 42 Pa.C.S. § 9545(b)(1)(i), (ii), and

(iii), is met.6 A petition invoking one of these exceptions must be filed within

one year of the date the claim could first have been presented. 42 Pa.C.S.

§ 9545(b)(2).7

____________________________________________


6   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), (ii), and (iii).
7 We note that Section 9545(b)(2) was amended on October 24, 2018,
effective sixty days later on December 24, 2018, and extended the time for



                                           -8-
J-S15023-19


        As noted above, the trial court imposed Appellant’s judgment of

sentence on November 17, 2008, and this Court affirmed Appellant’s

judgment of sentence on July 14, 2010. Appellant did not file a petition for

allowance of appeal in our Supreme Court. Therefore, Appellant’s judgment

of sentence became final on August 13, 2010. See 42 Pa.C.S. § 9545(b)(3);

Pa.R.A.P. 903(a). Thus, in order to be timely, Appellant needed to file the

underlying PCRA petitions on or before August 15, 2011.8 Appellant did not

file the petitions until February 20, 2018.9     Accordingly, Appellant’s PCRA

petitions are patently untimely.

        However, we reiterate, if a petitioner does not file a timely PCRA

petition, his petition nevertheless may be received under any of the three

limited exceptions to the timeliness requirements of the PCRA. 42 Pa.C.S.

§ 9545(b)(1). Here, Appellant has failed to plead and prove any exception to

the PCRA time bar. Thus, the PCRA court properly denied his petitions.


____________________________________________


filing from sixty days of the date the claim could have been presented to one
year. The amendment applies to claims arising on December 24, 2017, or
thereafter. See Act 2018, Oct. 24, P.L. 894, No. 146, § 3.

8 Appellant’s one-year period in which to file a timely PCRA petition expired
on Saturday, August 13, 2011, thus, Appellant had until Monday, August 15,
2011, to file a timely PCRA petition. See 1 Pa.C.S. § 1908 (“Whenever the
last day of any ... period [of time referred to in a statute] shall fall on a
Saturday or Sunday, or on any day made a legal holiday by the laws of this
Commonwealth or of the United States, such day shall be omitted from the
computation.”).

9   Appellant filed amended petitions on March 26, 2018.


                                           -9-
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      Furthermore, assuming Appellant presented the holding in Muniz as an

exception to the PCRA time bar under 42 Pa.C.S. § 9545(b)(1)(iii), we would

still conclude that no relief is due. As this Court recently explained:

      [W]e acknowledge that this Court has declared that, “Muniz
      created a substantive rule that retroactively applies in the
      collateral context.” Commonwealth v. Rivera-Figueroa, 174
      A.3d 674, 678 (Pa. Super. 2017). However, because Appellant's
      PCRA petition is untimely (unlike the petition at issue in Rivera-
      Figueroa), he must demonstrate that the Pennsylvania Supreme
      Court has held that Muniz applies retroactively in order to satisfy
      section 9545(b)(1)(iii). See Abdul–Salaam, supra. 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, 180 A.3d at 405-406 (emphasis in original).

      Because our Supreme Court has not held that Muniz applies

retroactively to untimely PCRA petitions, Appellant cannot satisfy his burden

to plead and prove applicability of one of the exceptions to the timeliness

requirement.   Accordingly, had this exception to the PCRA time bar been

properly raised, we would conclude that the PCRA court properly dismissed

Appellant’s petitions as untimely.

      In sum, the PCRA court correctly treated Appellant’s filings as PCRA

petitions, concluded that the petitions were untimely, and found that Appellant

failed to establish the applicability of any exception to the PCRA timing

requirements. PCRA Court Opinion, 10/10/18, at 5. As such, the PCRA court

lacked jurisdiction to address any claims presented. See Commonwealth v.

Fairiror, 809 A.2d 396, 398 (Pa. Super. 2002) (holding that PCRA court lacks

jurisdiction to hear an untimely petition).

                                     - 10 -
J-S15023-19


     Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/18/2019




                          - 11 -
