J-S21039-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :         PENNSYLVANIA
                                               :
               v.                              :
                                               :
                                               :
    ERIC MATTHEW KENNEDY,                      :
                                               :
                      Appellant                :          No. 1564 WDA 2019

          Appeal from the PCRA Order Entered September 17, 2019
             in the Court of Common Pleas of Somerset County
            Criminal Division at No(s): CP-56-CR-0000308-2011

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

MEMORANDUM BY MUSMANNO, J.:                                   FILED JUNE 09, 2020

        Eric Matthew Kennedy (“Kennedy”) 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 March 5, 2012, Kennedy entered a negotiated guilty plea to two

counts each of rape and rape of a child.1           The trial court ordered a pre-

sentence    investigation report, and          directed    Kennedy   to   undergo   an

evaluation by the Sexual Offenders Assessment Board. On June 20, 2012,

following a hearing, the trial court sentenced Kennedy to an aggregate term

of 10 to 40 years in prison, and designated him a sexually violent predator

(“SVP”) pursuant to Megan’s Law. Kennedy did not file a direct appeal.


____________________________________________


1   See 18 Pa.C.S.A. §§ 3121(a)(1), 3121(c).
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       On August 15, 2016, Kennedy, represented by counsel, filed his first

PCRA Petition. On August 3, 2018, following a hearing, the PCRA court filed

Notice of its intent to dismiss Kennedy’s Petition.        On August 23, 2018,

Kennedy filed a Response. On August 31, 2018, the PCRA court dismissed

Kennedy’s PCRA Petition.

       On November 26, 2018, Kennedy filed the instant, counseled, PCRA

Petition, his second. On May 17, 2019, following a hearing, the PCRA court

filed Notice of its intent to dismiss Kennedy’s second PCRA Petition. On June

6, 2019, Kennedy filed a Response.             On September 17, 2019, the PCRA

court dismissed Kennedy’s Petition. Kennedy 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, Kennedy presents the following questions for our review:

       1. Whether the [PCRA] court erred in dismissing [Kennedy’s]
       claim for post-conviction relief because [Commonwealth v.
       Muniz, 164 A.2d 1189 (Pa. 2017),2] and its progeny confirmed
       United States and Pennsylvania substantive constitutional rights
       that cannot be abrogated by any statute[,] including the
       jurisdictional grounds under the PCRA timeliness exception at 42
       Pa.C.S.A. §[ ]9545(b)(1)(iii)?


____________________________________________


2 Our Supreme Court in Muniz held that the registration requirements
established by the Sex Offender Registration and Notification Act (“SORNA”)
(the successor to Megan’s Law) 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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       2. Whether the lower court erred in dismissing [Kennedy’s] claim
       requesting [that] his [SVP] classification be vacated, because the
       statutory mechanism undertaking the adjudication of the [SVP]
       status is flawed per the rulings in Muniz and [Commonwealth
       v. Butler, 173 A.3d 1212 (Pa. Super. 2017)3]?

Brief for Appellant at 3.

              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).

       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).


____________________________________________


3 Our decision in Butler was recently reversed and remanded by our
Supreme Court in Commonwealth v. Butler, 2020 WL 1466299, ___ A.3d
___ (Pa. Mar. 26, 2020).



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       Here, Kennedy’s judgment of sentence became final on July 20, 2012,

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

Kennedy had until July 22, 2013,4 to file a timely PCRA Petition. The instant

Petition, which was filed on November 26, 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 one year of the date the claim could have

been presented.” Id. § 9545(b)(2). 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).

       Kennedy 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.

       However,      Kennedy      has    failed    to   prove   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
____________________________________________


4July 20, 2013, was a Saturday. Therefore, Kennedy was required to file his
Petition by Monday, July 22, 2013. See 1 Pa.C.S.A. § 1908.



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        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) (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 Kennedy’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); accord Commonwealth v. Greco, 203

A.3d 1120, 1124 (Pa. Super. 2019).           To date, the Pennsylvania Supreme

Court     has    not    expressly   held    that   Muniz   applies   retroactively.




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Consequently, Kennedy cannot rely on Muniz to meet that timeliness

exception.5 See id.

       Because Kennedy 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: 6/9/2020




____________________________________________


5 We note that Kennedy was sentenced under Megan’s Law, not SORNA, and
there is no indication in the record that SORNA was retroactively applied to
Kennedy.



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