J-S12042-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA       :   IN THE SUPERIOR COURT OF
                                    :         PENNSYLVANIA
                                    :
              v.                    :
                                    :
                                    :
 LEROY MILLER, JR.,                 :
                                    :
                   Appellant        :       No. 1664 MDA 2018

         Appeal from the PCRA Order Entered August 29, 2018
           in the Court of Common Pleas of Lycoming County
          Criminal Division at No(s): CP-41-CR-0000789-2002

 COMMONWEALTH OF PENNSYLVANIA       :   IN THE SUPERIOR COURT OF
                                    :         PENNSYLVANIA
                                    :
              v.                    :
                                    :
                                    :
 LEROY MILLER, JR.,                 :
                                    :
                   Appellant        :       No. 1665 MDA 2018

         Appeal from the PCRA Order Entered August 29, 2018
           in the Court of Common Pleas of Lycoming County
          Criminal Division at No(s): CP-41-CR-0000131-2003

 COMMONWEALTH OF PENNSYLVANIA       :   IN THE SUPERIOR COURT OF
                                    :         PENNSYLVANIA
                                    :
              v.                    :
                                    :
                                    :
 LEROY MILLER, JR.,                 :
                                    :
                   Appellant        :       No. 1666 MDA 2018
J-S12042-19


           Appeal from the PCRA Order Entered August 29, 2018
             in the Court of Common Pleas of Lycoming County
            Criminal Division at No(s): CP-41-CR-0001070-2003

 COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                            :         PENNSYLVANIA
                                            :
              v.                            :
                                            :
                                            :
 LEROY MILLER, JR.,                         :
                                            :
                    Appellant               :       No. 1667 MDA 2018

           Appeal from the PCRA Order Entered August 29, 2018
             in the Court of Common Pleas of Lycoming County
            Criminal Division at No(s): CP-41-CR-0001081-2003

BEFORE: BOWES, J., DUBOW, J., and MUSMANNO, J.

MEMORANDUM BY MUSMANNO, J.:                            FILED APRIL 16, 2019

      In these consolidated appeals, Leroy Miller, Jr. (“Miller”), pro se, appeals

from the Order dismissing his serial Petition for Relief filed pursuant to the

Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. We affirm.

      In January 2003, Miller pled guilty to various sexual offenses, including

rape and indecent assault, at four separate trial court docket numbers

(hereinafter, the “four docket numbers”).       The charges arose out of his

repeated abuses of his minor niece and nephew. On April 9, 2003, the trial

court sentenced Miller to an aggregate term of 11½ to 29 years in prison,

followed by six years of probation.     Miller was also found to be a sexually

violent predator (“SVP”), and, notably to this appeal, was subject to a period

of lifetime registration and reporting, pursuant to Megan’s Law II. See 42



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Pa.C.S.A. § 9795.1(b)(2) (expired).1 Miller filed an appeal from his judgment

of sentence, which this Court dismissed in November 2003 for his failure to

file a brief.

       Miller thereafter filed several PCRA Petitions, all of which were

dismissed. On March 1, 2018, Miller filed a pro se “Motion to Dismiss”2 at the

four docket numbers. Therein, he asserted that pursuant to the Pennsylvania

Supreme Court’s decision in Commonwealth v. Muniz, 164 A.3d 1189 (Pa.

2017), retroactive application of SORNA’s registration requirements to Miller’s

convictions rendered this component of his sentence unlawful. The Muniz

Court held that SORNA’s registration requirements constitute criminal

punishment, and thus, their retroactive application to increase a sexual

offender’s term of registration violates the ex post facto clauses of the United

States and Pennsylvania Constitutions. Id. at 1193, 1223.

       On May 17, 2018, pursuant to Pa.R.Crim.P. 907, the PCRA court gave

Miller Notice of its intent to dismiss his Petition as being untimely. Miller later

filed a Response objecting to the Rule 907 Notice. By an Order entered on

August 29, 2018, the PCRA court dismissed Miller’s PCRA Petition.               On

____________________________________________


1 Effective December 20, 2012, Megan’s Law was replaced by the Sex
Offenders Registration and Notification Act (“SORNA”). See 42 Pa.C.S.A.
§§ 9799.10-9799.41 (subsequently amended on Feb. 21, 2018, by H.B. 631,
202 Gen. Assem., Reg. Sess. (Pa. 2018), Act 10 of 2018 (hereinafter, “Act
10”)).

2 The PCRA court properly treated this Motion as a PCRA Petition, and we will
therefore refer to it as such.


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September 26, 2018, Miller filed timely Notices of Appeal,3 followed by court-

ordered Pa.R.A.P. 1925(b) Concise Statements of errors complained of on

appeal.

       Miller now presents the following issues for our review:

          1.) Whether the [PCRA] court erred in denying [Miller’s Petition]
              to be removed from SORNA[,] as it is unconstitutional when
              applied to him retroactively[?]

          2.) Whether the [PCRA] court erred in not applying the punitive
              side of SORNA to [Miller], and that Act 10 is a retroactive
              law against him and is the same as SORNA[,] and is not part
              of his original plea deal[?]

Brief for Appellant at v (some capitalization omitted). We will address Miller’s

issues simultaneously, as they are closely related.

       In reviewing an order dismissing a PCRA petition, “we examine whether

the PCRA court’s determination is supported by the record and free of legal

error.”    Commonwealth v. Montalvo, 114 A.3d 401, 409 (Pa. 2015)

(citation and internal quotation marks omitted).

       Before addressing Miller’s claims, we first must ascertain whether he

timely filed his PCRA Petition, as any PCRA petition must be filed within one

year of the date the petitioner’s judgment of sentence became final. See 42

Pa.C.S.A. § 9545(b)(3). The one-year time limitation is jurisdictional, and a



____________________________________________


3 In filing his appeals, Miller complied with the mandates of Commonwealth
v. Walker, 185 A.3d 969, 971, 977 (Pa. June 1, 2018) (holding that,
prospectively from the date of the Walker decision, “where a single order
resolves issues arising on more than one docket, separate notices of appeal
must be filed for each case.”); see also Pa.R.A.P. 341, note.
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PCRA court has no power to address the substantive merits of an untimely

petition. Commonwealth v. Abu-Jamal, 833 A.2d 719, 723-24 (Pa. 2003).

The three exceptions to the one-year filing requirement are for after-

discovered facts, interference by a government official, and a newly-

recognized constitutional right. 42 Pa.C.S.A. § 9545(b)(1)(i)-(iii). A petition

asserting one of these exceptions must also establish that the exception was

raised within one year of the date the claim could have been first presented.

42 Pa.C.S.A. § 9545(b)(2).4

       Here, because Miller’s respective judgments of sentence became final in

December 2003, and he did not file the instant PCRA Petition until March 1,

2018, it is facially untimely. However, Miller purports to invoke the newly-

recognized constitutional right exception at 42 Pa.C.S.A. § 9545(b)(1)(iii).5

Miller urges that his sentence is illegal as a result of Muniz, and this Court’s



____________________________________________


4  Section 9545(b)(2) was amended on October 24, 2018, effective in 60 days
(i.e., Dec. 24, 2018), extending the time for filing from 60 days of the date
the claim could have been first 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 (hereinafter “Act 146”). In the instant case,
the one-year time limit of Act 146 applies to Miller’s PCRA Petition, since he
filed it on March 1, 2018.

5Though Miller did not explicitly invoke this exception in his PCRA Petition, he
implicitly pointed to it due to the nature of his claim, and the PCRA court
addressed Miller’s claim under this exception in its Order dismissing his
Petition. Accordingly, Miller’s claim on appeal regarding this exception is
properly preserved for our review. See Commonwealth v. Collins, 957 A.2d
237, 247-48 (Pa. 2008) (holding that the PCRA petitioner had properly
preserved his claim where he raised it before the PCRA court).

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later decision in Commonwealth v. Rivera-Figueroa, 174 A.3d 674, 678

(Pa. Super. 2017) (holding that “Muniz created a substantive rule that

retroactively applies in the collateral context.”).

      Miller has failed to meet the requirements of the newly-recognized

constitutional right exception.    As our Supreme Court has explained, this

exception has two requirements:

      First, it provides that the right asserted is a constitutional right
      that was recognized by the Supreme Court of the United States or
      [the Pennsylvania Supreme 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.

Commonwealth v. Spotz, 171 A.3d 675, 679 (Pa. 2017) (emphasis added;

citation omitted).

      Though the Superior Court in Rivera-Figueroa held that Muniz applies

retroactively, because Miller’s instant PCRA Petition is facially untimely (unlike

the timely-filed first 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

Commonwealth v. Murphy, 180 A.3d 402, 405-06 (Pa. Super. 2018)

(recognizing that to invoke the timeliness exception at subsection (iii), the

petitioner must demonstrate that the Pennsylvania Supreme Court has held

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that Muniz applies retroactively). To date, the Pennsylvania Supreme Court

has not expressly held that Muniz applies retroactively. Therefore, Muniz is

not availing to Miller to meet the newly-recognized constitutional right

exception.6 See id.

       Because Miller failed to timely file his PCRA Petition, and because he has

not met an exception to the PCRA’s timeliness requirement, we affirm the

Order of the PCRA court.

       Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 04/16/2019




____________________________________________


6 Should the Pennsylvania Supreme Court expressly hold that Muniz applies
retroactively, Miller may again petition for PCRA relief within one year of that
decision.
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