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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                          :         PENNSYLVANIA
                                          :
              v.                          :
                                          :
                                          :
 RONALD DRASZKIEWICZ, JR.,                :
                                          :
                    Appellant             :       No. 1074 WDA 2018

            Appeal from the PCRA Order Entered June 28, 2018
                in the Court of Common Pleas of Erie County
            Criminal Division at No(s): CP-25-CR-0001094-1996

BEFORE: PANELLA, J., SHOGAN, J., and MUSMANNO, J.

MEMORANDUM BY MUSMANNO, J.:                     FILED FEBRUARY 28, 2019

      Ronald Draszkiewicz, Jr. (“Draszkiewicz”), appeals from the Order

dismissing his second Petition for relief filed pursuant to the Post Conviction

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

      On November 15, 1996, following a jury trial, Draszkiewicz was found

guilty of various crimes, including rape and involuntary deviate sexual

intercourse. On December 19, 1996, the trial court sentenced Draszkiewicz

to an aggregate term of 15 to 40 years in prison, followed by five years of

probation. Draszkiewicz did not file a direct appeal.

      On August 17, 1998, Draszkiewicz, pro se, filed his first PCRA Petition.

The PCRA court appointed Draszkiewicz counsel, who filed an Amended

Petition.   Following an evidentiary hearing, the        PCRA court denied

Draszkiewicz’s Petition, which this Court affirmed. See Commonwealth v.
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Draszkiewicz, 759 A.2d 18 (Pa. Super. 2000) (unpublished memorandum),

appeal denied, 764 A.2d 48 (Pa. 2000).

       On March 14, 2018, Draszkiewicz, pro se, filed the instant PCRA Petition.

The PCRA court appointed Draszkiewicz counsel, who filed a supplemental

Petition. After filing a Pa.R.Crim.P. 907 Notice of Intent to Dismiss, the PCRA

court dismissed the Petition without a hearing. Draszkiewicz filed a timely

Notice of Appeal and a court-ordered Pa.R.A.P. 1925(b) Concise Statement of

matters complained of on appeal.

       On appeal, Draszkiewicz presents the following questions for our review:

       A. Whether the PCRA court erred in failing to grant collateral relief
       under [Commonwealth v. Muniz, 164 A.3d 1189 (Pa. 2017)1]?

       B. Whether the PCRA court erred in fin[d]ing the PCRA filing
       untimely?

Brief for Appellant at 2 (capitalization omitted).

                We review an order dismissing a petition under the PCRA in
       the light most favorable to the prevailing party at the PCRA level.
       This review is limited to the findings of the PCRA court and the
       evidence of the record. We will not disturb a PCRA court’s ruling
       if it is supported by evidence of record and is free of legal error.

Commonwealth v. Ford, 44 A.3d 1190, 1194 (Pa. Super. 2012) (citations

omitted).




____________________________________________


1 The court in Muniz held that SORNA’S registration requirements constitute
criminal punishment, as opposed to a mere civil penalty, and therefore, their
retroactive application violates the ex post facto clause of the U.S.
Constitution. See Muniz, 164 A.3d at 1192.

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       Under the PCRA, any PCRA petition “shall be filed within one year of the

date the judgment becomes final.” 42 Pa.C.S.A. § 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

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

review.”     Id. § 9545(b)(3).          The PCRA’s timeliness requirements are

jurisdictional in nature, and a court may not address the merits of the issues

raised if the PCRA petition was not timely filed. Commonwealth v. Albrecht,

994 A.2d 1091, 1093 (Pa. 2010).

       Here, Draszkiewicz’s judgment became final on January 20, 1997,2

when the time to appeal to this Court expired. See Pa.R.A.P. 903(a). Thus,

Draszkiewicz had until January 20, 1998, to file a timely PCRA Petition. The

current Petition, which was filed on March 14, 2018, is thus facially untimely.

See 42 Pa.C.S.A. § 9545(b).

       However, Pennsylvania courts may consider an untimely petition if the

petitioner can explicitly plead and prove one of three exceptions set forth at

42 Pa.C.S.A. § 9545(b)(1)(i)-(iii).            Any PCRA Petition invoking one of the

exceptions “shall be filed within 60 days of the date the claim could have been



____________________________________________


2 Thirty days from December 19, 1996, is Saturday, January 18, 1997. See
1 Pa.C.S.A. § 1908 (stating that when the last day of any period of time falls
on a Saturday or a Sunday, “such day shall be omitted from the
computation.”).


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presented.”     Id. § 9545(b)(2); Albrecht, 994 A.2d at 1094.          The PCRA

petitioner bears the burden of proving the applicability of one of the

exceptions. Commonwealth v. Edmiston, 65 A.3d 339, 346 (Pa. 2013).

        Draszkiewicz purports to invoke the newly-recognized constitutional

right exception at 42 Pa.C.S.A. § 9545(b)(1)(iii), alleging that his sentence is

illegal as a result of the Pennsylvania Supreme Court’s decision in Muniz.

        The Pennsylvania Supreme Court filed its decision in Muniz on July 19,

2017.     Thus, Draszkiewicz was required to file his PCRA petition invoking

Muniz on or before Monday, September 17, 2017.3 Draszkiewicz filed the

instant Petition on March 14, 2018. Consequently, Draszkiewicz cannot invoke

a timeliness exception based upon the decision in Muniz. See 42 Pa.C.S.A.

§ 9545(b)(2).

        Even if Draszkiewicz had filed his Petition within 60 days of the decision

in Muniz, he has failed to plead and prove the newly-recognized constitutional

right exception set forth at subsection 9545(b)(1)(iii). 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.
____________________________________________


3The 60th day fell on Sunday, September 16, 2017. Therefore, Draszkiewicz
was required to file his Petition by Monday, September 17, 2017. See 1
Pa.C.S.A. § 1908.

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       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) (citation omitted,

emphasis added).

       This Court has previously recognized 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

Draszkiewicz’s 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 that Muniz applies retroactively).

To date, the Pennsylvania Supreme Court has not expressly held that Muniz

applies retroactively. Consequently, Draszkiewicz cannot rely on Muniz to

meet that timeliness exception.4 See id.




____________________________________________


4 Should the Pennsylvania Supreme Court expressly hold that Muniz applies
retroactively, Draszkiewicz may again petition for PCRA relief within 60 days
of that decision.

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     Because Draszkiewicz failed to timely file his PCRA Petition, and because

he has not demonstrated 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: 2/28/2019




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