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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                        IN THE SUPERIOR COURT
                                                              OF
                                                         PENNSYLVANIA
                          Appellee

                     v.

DARYL TARPLEY

                          Appellant                    No. 3236 EDA 2017


          Appeal from the PCRA Order Entered September 13, 2017
              In the Court of Common Pleas of Chester County
             Criminal Division at No.: CP-15-CR-0004155-2014


BEFORE: STABILE, DUBOW, JJ., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY STABILE, J.:                                    Filed July 20, 2018

      Appellant Daryl Tarpley pro se appeals from the September 13, 2017

order of the Court of Common Pleas of Chester County, which denied his

request for collateral relief pursuant to the Post Conviction Relief Act (“PCRA”),

42 Pa.C.S.A. §§ 9541-56. Upon review, we affirm.

      The facts and procedural history underlying this case are undisputed.

On June 23, 2015, Appellant entered into a negotiated guilty plea to one count

of failure to comply with registration requirements under the Sexual Offender

Registration and Notification Act (“SORNA”), 18 Pa.C.S.A. § 4915.1(a)(2).

Consistent with the plea agreement, the trial court sentenced Appellant to four

to eight years’ imprisonment. Appellant did not file a direct appeal.

      On April 11, 2017, Appellant pro se filed his first PCRA petition, arguing

that “[h]e is being held illegally under a statute enacted years after his
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conviction in violation of [Pennsylvania’s] ex post facto laws.” PCRA Petition,

4/11/17, at 3. In support of his argument, Appellant pointed out that “[his]

conviction for an offense that now carries registration requirements under

Megan’s Law occurred in 1991 over 9 years prior to the instituting of the

registration requirements he is said to have violated.” Id.

       The PCRA court appointed counsel, who eventually filed a no-merit letter

and a motion to withdraw under Turner/Finley.1 On June 19, 2017, the PCRA

court granted counsel’s motion to withdraw. On July 31, 2017, the PCRA court

issued a notice of its intention to dismiss Appellant’s petition without a hearing

under Pa.R.Crim.P. 907. On September 13, 2017, the PCRA court dismissed

as untimely Appellant’s petition.        Appellant pro se appealed to this Court.

Following Appellant’s compliance with the PCRA court’s order to file a Pa.R.A.P.

1925(b) statement of errors complained of on appeal, the court issued a

Pa.R.A.P. 1925(a) opinion.

       On appeal,2 Appellant raises a single issue for our review: “Was the

lower court’s dismissal of appellant PCRA in light of recent Courts decision in



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1 See Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988) and
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
2“In PCRA proceedings, an appellate court’s scope of review is limited by the
PCRA’s parameters; since most PCRA appeals involve mixed questions of fact
and law, the standard of review is whether the PCRA court’s findings are
supported by the record and free of legal error.” Commonwealth v. Pitts,
981 A.2d 875, 878 (Pa. 2009) (citation omitted).



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Commonwealth v. Muniz,[3] 164 A.3d 1189 (Pa. 2017) in error?”

Appellant’s Brief at 2 (unpaginated) (sic).

       Before we may address the merits of this appeal, we must determine

whether the PCRA court had jurisdiction to entertain the underlying PCRA

petition. The PCRA contains the following restrictions governing the timeliness

of any PCRA petition.

       (b) Time for filing petition.--

       (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.



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3 Our Supreme Court issued Muniz on July 19, 2017, after Appellant had filed
the instant PCRA petition, but prior to the PCRA court’s dismissal of the same.
In Muniz, our Supreme Court held that SORNA’s registration provisions are
punitive, and retroactive application of SORNA’s provisions violates the federal
ex post facto clause, as well as the ex post facto clause of the Pennsylvania
Constitution.

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      (2) Any petition invoking an exception provided in paragraph (1)
      shall be filed within 60 days of the date the claim could have been
      presented.

      (3) For purposes of this subchapter, a judgment 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.A.    §   9545(b).    Section   9545’s   timeliness   provisions   are

jurisdictional.   Commonwealth v. Ali, 86 A.3d 173, 177 (Pa. 2014).

Additionally, we have emphasized repeatedly that “the PCRA confers no

authority upon this Court to fashion ad hoc equitable exceptions to the PCRA

time-bar in addition to those exceptions expressly delineated in the Act.”

Commonwealth v. Robinson, 837 A.2d 1157, 1161 (Pa. 2003) (citations

omitted).

      Here, the record reflects Appellant’s judgment of sentence became final

on July 23, 2015. See 42 Pa.C.S.A. § 9545(b)(3); Pa.R.A.P. 903(a). Because

Appellant had one year from July 23, 2015, to file his PCRA petition, the

current filing is facially untimely given it was filed on April 11, 2017.

      The one-year time limitation, however, can be overcome if a petitioner

alleges and proves one of the three exceptions set forth in Section

9545(b)(1)(i)-(iii) of the PCRA.       Here, Appellant invokes the time-bar

exception of Section 9545(b)(1)(iii) of the PCRA in arguing that that our

Supreme Court’s decision in Muniz created a new substantive right that




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applies retroactively.4 Our Supreme Court has set forth a two-part test to

determine the applicability of Section 9545(b)(1)(iii) to a new decision:

       Subsection (iii) of Section 9545 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 this
       [C]ourt 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. 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. Abdul–Salaam, 571 Pa. 219, 812 A.2d 497, 501 (2002).

       To date, our Supreme Court has not recognized a new constitutional

right in Muniz to be applied retroactively under Section 9545(b)(1)(iii).

Appellant, therefore, is not entitled to relief under his untimely filed petition.

Accordingly, the PCRA court did not err in dismissing as untimely his PCRA

petition.

       Order affirmed.




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4 We observe that Appellant raised the Muniz argument for the first time in
his Rule 1925(b) statement.        We need not address that defect as a
jurisdictional issue, since his PCRA petition also raised another jurisdictional
issue that we find dispositive here.

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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/20/2018




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