J-S30041-18

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,             :    IN THE SUPERIOR COURT OF
                                          :          PENNSYLVANIA
                  Appellee                :
                                          :
          v.                              :
                                          :
RICHARD DRZEWIECKI, JR.,                  :
                                          :
                  Appellant               :    No. 79 WDA 2018

                 Appeal from the PCRA Order December 1, 2017
                   in the Court of Common Pleas of Erie County
               Criminal Division at No(s): CP-25-CR-0000652-2008

BEFORE: BENDER, P.J.E., STABILE, and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.:                         FILED JULY 06, 2018

      Richard Drzewiecki, Jr. (Appellant) pro se appeals from the December

1, 2017 order denying his petition filed under the Post Conviction Relief Act

(PCRA), 42 Pa.C.S. §§ 9541-9546. We affirm.

      We provide the following background. In 2007, Appellant was charged

with, inter alia, involuntary deviate sexual intercourse (IDSI) by forcible

compulsion or threat of forcible compulsion.       On July 8, 2008, Appellant

entered a guilty plea to IDSI, and the remaining charges were nolle prossed.

On October 27, 2008, Appellant was sentenced to a term of 10 to 20 years

of incarceration. Appellant did not file a notice of appeal to this Court.

      On October 9, 2009, Appellant pro se filed a PCRA petition. The PCRA

court appointed counsel on Appellant’s behalf. On December 4, 2009, in lieu

of an amended PCRA petition, counsel filed a petition to withdraw and no-



* Retired Senior Judge assigned to the Superior Court.
J-S30041-18

merit letter pursuant to Commonwealth v. Turner, 544 A.2d 927 (Pa.

1988) and Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en

banc). The PCRA court granted counsel’s petition to withdraw and dismissed

Appellant’s PCRA petition. Appellant did not file a notice of appeal from that

order.

          On March 19, 2010, Appellant pro se filed a second PCRA petition,

which the PCRA court dismissed on May 14, 2010.1                    On June 9, 2010,

Appellant filed a notice of appeal to this Court, but it was dismissed because

Appellant failed to file a brief.

          On November 6, 2015, Appellant pro se filed a third PCRA petition,

which the PCRA court dismissed on December 1, 2015.                  Appellant filed a

notice of appeal from the PCRA court’s order. The Clerk of Courts returned

the   notice    for    corrections,   but   Appellant   neglected    to   make   those

corrections.

          On September 8, 2017, Appellant pro se filed the instant PCRA

petition, his fourth. In that petition, Appellant asserted that he is serving an

illegal     sentence     pursuant     to    our   Supreme    Court’s      decision   in

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

registration provisions of Pennsylvania’s Sex Offender Registration and

Notification Act (SORNA) are punitive and retroactive application of those



1 During the pendency of this PCRA petition, Appellant filed a motion for
credit for time served, which the PCRA court granted.

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

facto clause of the Pennsylvania constitution).   On November 9, 2017, the

PCRA court issued an opinion and notice of intent to dismiss without a

hearing pursuant to Pa.R.A.P. 907. Specifically, the PCRA court concluded

that Appellant was “properly subject to the registration requirements of

Megan’s Law II, which in this case has not been enhanced or changed under

SORNA.” PCRA Court Opinion, 11/9/2017. Appellant did not file a response,

but he did file an amended PCRA petition. On December 1, 2017, the PCRA

court dismissed Appellant’s petition. This timely-filed appeal followed.2

      On appeal, Appellant raises seven issues for review, in which he

contends, inter alia, that the PCRA court erred in dismissing his petition

because he is serving an illegal sentence pursuant to Muniz.        Appellant’s

Brief at 4. Before reaching the merits of Appellant’s claims, we must first

consider whether Appellant has timely filed his petition, as neither this Court

nor the PCRA court has jurisdiction to address the merits of an untimely-filed

petition.   Commonwealth v. Leggett, 16 A.3d 1144, 1145 (Pa. Super.

2011).

      Any PCRA petition, including second and subsequent petitions, must

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

2The PCRA court did not order Appellant to file a concise statement of errors
complained of on appeal pursuant to Pa.R.A.P. 1925(b). The PCRA court
complied with Pa.R.A.P. 1925(a) by filing a statement relying on its
November 9, 2017 opinion and notice of intent to dismiss. PCRA Court
Order, 1/29/2018.

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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). Here, Appellant was sentenced on October 27, 2008. He did

not file a direct appeal, and thus his judgment of sentence became final 30

days later, on November 26, 2008, and he had one year, or until November

26, 2009, to file timely a PCRA petition.    Thus, Appellant’s September 8,

2017 petition is facially untimely, and he was required to plead and prove an

exception to the timeliness requirements.

      In his petition, Appellant attempts to plead the timeliness exception

set forth in subsection 9545(b)(1)(iii) (“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 … 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




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held by that court to apply retroactively.”).3 Specifically, Appellant relies on

our Supreme Court’s holding in Muniz in support of his petition.           PCRA

Petition, 9/8/2017, at 5.

      This   Court     considered   whether   Muniz   applies   under    similar

circumstances in Commonwealth v. Murphy, 180 A.3d 402 (Pa. Super.

2018).   In that case, Murphy was convicted of a number of sex-related

crimes in 2007, and after review, his judgment of sentence became final on

July 28, 2009.       On October 18, 2017, while a serial PCRA petition was

pending in this Court, Murphy filed a motion asserting that Muniz rendered

portions of his sentence unconstitutional.       This Court considered that

argument and offered the following.

           Here, we 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
      [Murphy’s] PCRA petition is untimely (unlike the petition at issue
      in Rivera–Figueroa), he must demonstrate that the

3  Appellant also attempts to plead the timeliness exception set forth in
subsection 9545(b)(1)(ii) (“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 … 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[.]”).   However, Appellant’s “newly discovered fact” is the
contention that the Commonwealth cannot apply Megan’s Law retroactively.
PCRA Petition, 9/8/2017, at 3. This is not a fact, but an attempt to refashion
the basis for his subsection 9545(b)(1)(iii) exception into a separate
exception under subsection 9545(b)(1)(ii). Because Appellant has not pled
or proven a newly discovered fact, we review the timeliness of his PCRA
petition based on the argument he set forth supra under subsection
9545(b)(1)(iii).

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      Pennsylvania Supreme Court has held that Muniz applies
      retroactively in order to satisfy 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 that timeliness
      exception.

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

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

not apply at this point to untimely-filed PCRA petitions.         This Court

acknowledges that “if the Pennsylvania Supreme Court issues a decision

holding that Muniz applies retroactively, Murphy can then file a PCRA

petition, within 60 days of that decision, attempting to invoke the ‘new

retroactive right’ exception in section 9545(b)(1)(iii).” Murphy, 180 A.3d at

406 n.1. The same holds true for Appellant.

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

untimely, and he has not asserted 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.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/6/2018




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