J-S18004-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                                          :
              v.                          :
                                          :
                                          :
 JOHN ALLEN BARTON                        :
                                          :
                    Appellant             :   No. 2043 MDA 2018

          Appeal from the PCRA Order Entered November 27, 2018
  In the Court of Common Pleas of Huntingdon County Criminal Division at
                     No(s): CP-31-CR-0000348-2014


BEFORE:    BOWES, J., NICHOLS, J., and STEVENS*, P.J.E.

MEMORANDUM BY BOWES, J.:                             FILED APRIL 18, 2019

      John Allen Barton appeals from the order dismissing his petition filed

pursuant to the Post Conviction Relief Act (“PCRA”). We affirm.

      Between 2010 and 2013, Appellant sexually abused his biological

daughter on approximately ten occasions. The abuse started when she was

fifteen, and continued until she was eighteen. The incidents occurred when

the victim asked Appellant if she could go out with her boyfriend or for money.

Appellant demanded sexual intercourse and various sex acts from the victim

before providing the requested consent or money.

      In 2014, Appellant was arrested and charged with numerous sexual

offenses. He confessed to sexually abusing the victim, and ultimately entered

a guilty plea to one count each of rape and aggravated indecent assault of a

child under sixteen. On March 12, 2015, the trial court sentenced Appellant


____________________________________
* Former Justice specially assigned to the Superior Court.
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to serve a prison term of five to ten years on the rape conviction, and a

consecutive prison term of five to ten years on the aggravated indecent

assault conviction. Additionally, the court ordered Appellant to comply with

Megan’s Law and lifetime reporting requirements for sexual offenders.

Appellant did not file a post-sentence motion or a direct appeal.

          On January 3, 2018, Appellant filed the instant pro se PCRA petition

alleging that the portions of his sentence which classified him as a sexually

violent predator (“SVP”) and imposed lifetime registration requirements were

illegal     in   light   of   the    Pennsylvania   Supreme    Court’s   decision   in

Commonwealth v. Muniz, 164 A.3d 1189 (Pa. 2017) (holding that the

Sexual Offender Registration and Notification Act’s (“SORNA”)1 registration

provisions are punitive, and that retroactive application of SORNA’s provisions

violates the federal ex post facto clause, as well as the ex post facto clause of

Pennsylvania’s Constitution). The PCRA court appointed counsel, who filed

amendments and supplemental amendments to the petition. The PCRA court

conducted a hearing, and on November 27, 2018, entered an order dismissing

the petition as untimely.           Appellant filed a timely notice of appeal, and a

Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal.

          Appellant raises the following issue for our review:

                Whether th[e PCRA c]ourt erred in ruling that [Appellant] is
          not entitled to relief under the [PCRA] regarding the requirements
          to register as a [SVP] under [SORNA] where the same has been
____________________________________________


1   See 42 Pa.C.S. §§ 9799.10-9799.42.

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      ruled   unconstitutional  by   [a]ppellate  [c]ourts  of the
      Commonwealth, especially wherein [Appellant] was never
      interviewed by the Sexual Offenders Assessment Board?

Appellant’s brief at 2.

      Before we may address the merits of Appellant’s issue, we must

determine whether his petition was timely filed. Under the PCRA, any petition

“shall be filed within one year of the date the judgment 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 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).

      Appellant’s judgment of sentence became final on April 13, 2015, when

the   period   to   file   a    direct   appeal   expired.   See   42   Pa.C.S.

§ 9545(b)(3); see also Commonwealth v. Rojas, 874 A.2d 638, 643

(Pa.Super. 2005). Appellant had until April 13, 2016, to file the instant PCRA

petition, but did not do so until January 3, 2018. Thus, Appellant’s petition is

facially untimely under the PCRA.        Nevertheless, Pennsylvania courts may

consider an untimely PCRA petition if the petitioner can explicitly plead and

prove one of the three exceptions set forth under 42 Pa.C.S. § 9545(b)(1).




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       Appellant seemingly attempts to satisfy the timeliness exception

provided in § 9545(b)(1)(iii)2 by arguing that the imposition of additional

registration requirements upon him pursuant to SORNA is unconstitutional

under Muniz, supra.3          While this court has ruled that Muniz created a

substantive rule that retroactively applies in the collateral context to timely-

filed PCRA petitions, see Commonwealth v. Rivera-Figueroa, 174 A.3d 674

(Pa. Super. 2017), Appellant concedes that our Supreme Court has not ruled

that Muniz applies retroactively. Appellant’s brief at 4. He further concedes

that his petition is untimely, and that this Court has held on multiple occasions

that Muniz does not provide an exception to the PCRA’s timeliness



____________________________________________


2 Subsection 9545(b)(1)(iii) provides an exception to the PCRA’s one year time
bar when the petition alleges and the petitioner proves that “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). Additionally, any PCRA petition invoking a
timeliness exception shall be filed within one year of the date the claim could
have been presented. 42 Pa.C.S. § 9545(b)(2).

3 Appellant was sentenced under SORNA’s predecessor, commonly known as
Megan’s Law III, 42 Pa.C.S. §§ 9791-9799.9 (expired), which was in effect
when the sexual abuse at issue occurred. On December 20, 2012, SORNA
replaced Megan’s Law III. While SORNA did not enhance the registration
period for rape, which remained lifetime registration, it did augment the
registration requirements for all Tier III offenders, such as Appellant, which
included quarterly in-person reporting and the posting of their personal
information on the Pennsylvania State Police website. Muniz, supra at 1210-
11. As our Supreme Court pointed out in Muniz, these additional registration
requirements constitute a greater punishment than what Megan’s Law would
have imposed and consequently, their retroactive application violates the ex
post facto clause of the Pennsylvania Constitution. Id. at 1193-96, 1216.

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requirements. See id.; see also Commonwealth v. Murphy, 180 A.3d 402,

406 (Pa.Super. 2018) (holding that, because the Pennsylvania Supreme Court

has not held that Muniz applies retroactively, appellant could not rely on

Muniz to satisfy the PCRA’s timeliness requirements).         Here, because

Appellant’s PCRA petition was untimely (unlike the petition filed in Rivera-

Figueroa), and our Supreme Court has not ruled that Muniz applies

retroactively to untimely PCRA petitions, the PCRA court correctly determined

that it lacked jurisdiction to address it.

      Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 04/18/2019




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