J-S82038-18


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,            :     IN THE SUPERIOR COURT OF
                                         :           PENNSYLVANIA
                 Appellee                :
                                         :
                    v.                   :
                                         :
WILLIAM ERIC WEBB,                       :
                                         :
                 Appellant               :     No. 2011 EDA 2018

             Appeal from the PCRA Order Entered June 8, 2018
              in the Court of Common Pleas of Chester County
            Criminal Division at No(s): CP-15-CR-0000064-2013

BEFORE:    LAZARUS, J., OLSON, J. and STRASSBURGER, J.*

MEMORANDUM BY STRASSBURGER, J.:          FILED MARCH 12, 2019

      William Eric Webb (Appellant) appeals from the June 8, 2018 order

dismissing his motion to bar application of any version of sex offender

registration requirements, which the lower court treated as a petition filed

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

affirm.

      In March 2014, a jury convicted Appellant of four counts each of
      aggravated indecent assault and indecent assault, and not guilty
      of two counts of indecent assault. Appellant’s motion for
      extraordinary relief was denied on July 28, 2014. Appellant was
      subsequently found to be a Sexually Violent Predator [(SVP)]
      and was sentenced to an aggregate term of seven to fourteen
      years’ imprisonment. Appellant filed a motion for reconsideration
      on August 6, 2014, which was denied by the court on December
      5, 2014.

      Appellant appealed his judgment of sentence on December 31,
      2014. However, appointed counsel discontinued the appeal on
      March 13, 2015.


*Retired Senior Judge assigned to the Superior Court.
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     On July 17, 2015, through new counsel, Appellant timely filed a
     PCRA petition, asserting ineffective assistance of trial counsel on
     several grounds. On December 17, 2015, the PCRA court issued
     a Pa.R.Crim.P. 907 notice of its intent to dismiss Appellant’s
     petition without a hearing. The court dismissed his petition on
     January 20, 2016.

Commonwealth v. Webb, 159 A.3d 39 (Pa. Super. 2016) (unpublished

memorandum at 1) (footnote and unnecessary capitalization omitted).

Appellant appealed the denial of his first PCRA petition to this Court; we

affirmed. See id.

     On March 13, 2018, Appellant filed a Motion to Bar Applicability of Sex

Offender Registration and/or Petition for Writ of Habeas Corpus based on

Commonwealth        v.   Muniz,    164    A.3d   1189    (Pa.   2017)1     and

Commonwealth v. Butler, 173 A.3d 1212 (Pa. Super. 2017),2 appeal

granted, 190 A.3d 581 (Pa. 2018).        Appellant urged the lower court to

construe his motion as a petition for a writ of habeas corpus or a motion

seeking removal from any sex offender registration, but noted that if the

court construed the motion as a PCRA petition “it is timely filed within 60




1 In Muniz, our Supreme Court held that certain registration provisions of
Pennsylvania’s Sex Offender Registration and Notification Act (SORNA) are
punitive and retroactive application of those provisions violates the ex post
facto clause of the Pennsylvania constitution.

2 In Butler, this Court held that pursuant to Muniz, SORNA’s SVP procedure
is unconstitutional.



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days of [Appellant’s] learning of Butler and Muniz.” Motion, 3/13/2018, at

¶ 21.

        The PCRA court treated Appellant’s motion as his second PCRA

petition, and issued notice of its intent to dismiss Appellant’s petition

pursuant to Pa.R.Crim.P. 907 because it was untimely filed and lacked merit.

Pa.R.Crim.P. 907 Notice, 4/25/2018, at n.1 (unnumbered). Appellant filed a

response on May 15, 2018, and on June 8, 2018, the PCRA court dismissed

Appellant’s petition. This timely-filed appeal followed.3

        Preliminarily, Appellant contends that his motion should not have been

treated as a PCRA petition.       See Appellant’s Brief at 37-38.    Because

Appellant’s claims implicate the legality of his sentence, his claims were

cognizable under the PCRA and must therefore be brought under the PCRA.

See Commonwealth v. Johnson, ___ A.3d ___, 2018 WL 6442321 at *2

(Pa. Super. Dec. 10, 2018) (concluding that Johnson’s claim that SORNA

could not be applied retroactively was cognizable under PCRA).      Thus, the

PCRA court properly considered Appellant’s motion as a second PCRA

petition.




3 Appellant complied with Pa.R.A.P. 1925(b). The PCRA court complied with
Pa.R.A.P. 1925(a) by referring this Court to its April 25, 2018 Rule 907
Notice and June 8, 2018 order dismissing Appellant’s PCRA petition for its
reasons relied upon in doing so. Memorandum Opinion, 7/25/2018, at 1
(unnumbered).



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      Any PCRA petition, including second and subsequent petitions, must

either (1) be filed within one year of the judgment of sentence becoming

final, or (2) plead and prove a timeliness exception. 42 Pa.C.S. § 9545(b).

Furthermore, the petition “shall be filed within 60 days of the date the claim

could have been presented.” 42 Pa.C.S. § 9545(b)(2).

      “For purposes of [the PCRA], 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 Supreme Court of Pennsylvania,

or at the expiration of time for seeking the review.”             42 Pa.C.S.

§ 9545(b)(3).   When a defendant voluntarily discontinues a direct appeal,

his judgment of sentence becomes final on the date of discontinuance. See

Commonwealth v. McKeever, 947 A.2d 782, 785 (Pa. Super. 2008)

(citation omitted).

      Here, Appellant was sentenced on July 28, 2014.       He filed a direct

appeal, which he discontinued on March 13, 2015.       Thus, his judgment of

sentence became final on March 13, 2015, and he had one year, or until

March 14, 2016,4 to file timely a PCRA petition. As such, Appellant’s March

13, 2018 motion is facially untimely, and he was required to plead and prove

an exception to the timeliness requirements.


4See 1 Pa.C.S. § 1908 (“Whenever the last day of any such period shall fall
on Saturday or Sunday…, such day shall be omitted from the
computation.”).



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        In his motion, Appellant attempts to plead the new-retroactive-right

exception5 by invoking Muniz and Butler. Motion, 3/13/2018, at ¶ 21. This

Court considered whether Muniz applied under similar circumstances in

Commonwealth v. Murphy, 180 A.3d 402 (Pa. Super. 2018).                  In that

case, this Court acknowledged

        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 [Murphy’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
        [sub]section 9545(b)(1)(iii). Because at this time, no such
        holding has been issued by our Supreme Court, [Murphy] cannot
        rely on Muniz to meet th[e third] timeliness exception.

Murphy, 180 A.3d at 405–06 (emphasis in original; some citations omitted).




5   This exception provides as follows.

        Any petition under this subchapter, including a second or
        subsequent petition, shall be filed within one year of the date the
        judgment becomes final, unless the petition alleges and the
        petitioner proves that:

                                          ***

              (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)(iii).



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      In other words, this Court concluded that the holding in Muniz does

not apply at this point to untimely-filed PCRA petitions. The same holds true

for Butler.    This Court acknowledges that “if the Pennsylvania Supreme

Court issues a decision holding that Muniz [or Butler] applies retroactively,

[Appellant] can then file a PCRA petition, within 60 days of that decision,

attempting to invoke the ‘new[-]retroactive[-]right’ exception in [sub]section

9545(b)(1)(iii).” Murphy, 180 A.3d at 406 n.1.

      Based on the foregoing, we conclude that Appellant’s petition was filed

untimely,   and    he   has   not   proven   an   exception   to   the   timeliness

requirements.     Thus, he is not entitled to relief.   See Commonwealth v.

Albrecht, 994 A.2d 1091, 1095 (Pa. 2010) (affirming dismissal of PCRA

petition without a hearing because the appellant failed to meet burden of

establishing timeliness exception).

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.

Prothonotary


Date: 3/12/19




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