J-S09022-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                                          :
              v.                          :
                                          :
                                          :
 DONALD IRA CROOKS                        :
                                          :
                    Appellant             :   No. 931 WDA 2018

            Appeal from the PCRA Order Entered May 25, 2018
  In the Court of Common Pleas of Erie County Criminal Division at No(s):
                        CP-25-CR-0002139-2014


BEFORE:    PANELLA, P.J., LAZARUS, J., and STRASSBURGER*, J.

MEMORANDUM BY LAZARUS, J.:                          FILED MARCH 28, 2019

      Donald Ira Crooks appeals from the order, entered in the Court of

Common Pleas of Erie County, dismissing as untimely his petition filed

pursuant to the Post Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-46 (“PCRA”).

After our review, we affirm.

      Following a series of incidents in which Crooks sexually assaulted his

daughter from the age of 7 until she was about 11, Crooks was charged with

various offenses.   On March 19, 2015, a jury convicted Crooks of criminal

attempt: involuntary deviate sexual intercourse, aggravated indecent assault

of a child, endangering the welfare of a child, corruption of minors, indecent

assault, and indecent exposure.

      On June 26, 2015, the court sentenced Crooks to an aggregate term of

imprisonment of 13 to 26 years, followed by five years’ probation. In addition,



____________________________________
* Retired Senior Judge assigned to the Superior Court.
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the court designated Crooks as a sexually violent predator (SVP). Crooks filed

a post-sentence motion, which was denied on July 8, 2015.

       On direct appeal, this Court affirmed Crooks’ judgment of sentence on

April 11, 2016. Commonwealth v. Crooks, 145 A.3d 777 (Pa. Super. 2016)

(Table).    On August 24, 2016, the Pennsylvania Supreme Court denied

allowance of appeal. Commonwealth v. Crooks, 145 A.3d 723 (Pa. 2016)

(Table).1

       On February 1, 2017, Crooks fled a pro se PCRA petition. The PCRA

court appointed counsel, who filed an amended petition.      The PCRA court

dismissed the petition as untimely. On December 17, 2017, Crooks filed a

second pro se PCRA petition. The court again appointed counsel, who filed an

amended petition. On May 24, 2018, the PCRA court dismissed the petition

as untimely. This timely appeal followed.

       Under the PCRA, any petition for post-conviction relief, including a

second or subsequent one, must be filed within one year of the date the

judgment of sentence becomes final, unless one of the following exceptions

set forth in 42 Pa.C.S.A. § 9545(b)(1)(i)–(iii) applies:

       (b) Time for filing petition.—


____________________________________________


1  The Commonwealth incorrectly states that the Supreme Court of
Pennsylvania denied Crooks’ petition for allowance of appeal on September
15, 2016. See Commonwealth’s Brief, at 3. The Commonwealth’s brief also
incorrectly gives the year of this Court’s decision in Commonwealth v.
Murphy, 180 A.3d 402 (Pa. Super. 2018), as 2017. See Commonwealth’s
Brief, at 3.

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          (1) 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:

          (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.A. § 9545(b)(1)(i-iii). Additionally, any petition filed pursuant to

an exception under subsection (b)(1) must be filed within 60 days of the date

that the claim could have been presented. 42 Pa.C.S.A. § 9545(b)(2).2

       Here, Crooks’ judgment of sentence was final on November 24, 2016,

90 days after the Pennsylvania Supreme Court denied his petition for

allowance of appeal, and he failed to petition for a writ of certiorari in the

United States Supreme Court. See 42 Pa.C.S.A. § 9545(b)(3); Sup. Ct. Rule


____________________________________________


2  On October 24, 2018, the General Assembly amended section 9545(b)(2),
extending the time for filing a petition from 60 days to one year from the date
the claim could have been presented. See 2018 Pa. Legis. Serv. Act 2018-
146 (S.B. 915), effective December 24, 2018. The amendment applies only to
claims arising one year before the effective date of this section, December 24,
2017, or thereafter. Here, Crooks’ claim arose on July 19, 2017, the date that
the decision in Commonwealth v. Muniz, 16 A.3d 1189 (Pa. 2016), was
filed, and, therefore, the amendment is inapplicable.

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13. Therefore, Crooks had one year, until November 24, 2017, to file a timely

petition. The instant petition, filed December 17, 2017, is facially untimely.

      Crooks attempts to satisfy the timeliness exception of section

9545(b)(1)(iii), by arguing that the lifetime registration requirement imposed

upon him pursuant to the Sexual Offenders Notification Act (SORNA) is

unconstitutional under our Supreme Court's July 19, 2017 decision in

Commonwealth v. Muniz, 164 A.3d 1189 (Pa. 2016)              (holding SORNA’s

registration provisions are punitive and retroactive application of SORNA’s

provisions violates ex post facto clause of Pennsylvania Constitution).

      This Court has held that Muniz created a substantive rule of

constitutional law that must apply retroactively in timely PCRA proceedings.

Commonwealth v. Rivera–Figueroa, 174 A.3d 674, 678 (Pa. Super. 2017).

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


      [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 [Commonwealth v.] Abdul-
      Salaam, [] [812 A.2d 497, 501 (2002)]. Because at this time, no
      such holding has been issued by our Supreme Court, Appellant
      cannot rely on Muniz to meet that timeliness exception.




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Murphy, 180 A.3d at 405-06. In Murphy, we concluded that the substantive

rule recognized in Muniz does not establish a timeliness exception to the

PCRA.3

       Crooks’ PCRA petition is untimely, and he has failed to establish an

exception to the PCRA time requirement. The PCRA court had no jurisdiction

to address the merits of Crooks’ petition and, therefore, the court properly

dismissed the petition as untimely.

       Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/28/2019




____________________________________________


3Moreover, even if Crooks could rely on the Muniz decision, his petition would
have had to have been filed within 60 days of the decision, or by September
18, 2017. It was not filed until three months later, on December 17, 2017.
See 42 Pa.C.S.A. § 9545(b)(2).

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