J-S40012-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA,                 IN THE SUPERIOR COURT
                                                     OF PENNSYLVANIA
                             Appellee

                        v.

    FREDERICK SHELDON WALTER,

                             Appellant               No. 1700 WDA 2018


             Appeal from the PCRA Order Entered October 31, 2018
               In the Court of Common Pleas of Venango County
              Criminal Division at No(s): CP-61-CR-0001011-2003

BEFORE: BENDER, P.J.E., MCLAUGHLIN, J., and PELLEGRINI, J.*

MEMORANDUM BY BENDER, P.J.E.:                     FILED OCTOBER 03, 2019

        Appellant, Frederick Sheldon Walter, appeals pro se from the post-

conviction court’s October 31, 2018 order denying, as untimely, his petition

under the Post Conviction Relief Act (PCRA), 42 Pa.C.S. § 9541-9546. We

affirm.

        The PCRA court summarized the pertinent facts and procedural history

of Appellant’s case, as follows:

              On March 9, 2007, a jury found [Appellant] guilty of
        involuntary deviate sexual intercourse, aggravated indecent
        assault, criminal attempt of aggravated indecent assault,
        corruption of minors, and two (2) counts of indecent assault. On
        September 19, 2007, [Appellant] was sentenced to a total
        aggregate [term] of 138 months to 288 months[’ incarceration],
        and was found to be a sexually violent predator [(SVP)] under


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*   Retired Senior Judge assigned to the Superior Court.
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      Megan’s law II, thereby subjecting [Appellant] to a lifetime
      registration requirement.

             [Appellant] filed a PCRA petition, and was thereafter
      assigned counsel[,] who subsequently amended the PCRA
      petition. The amended PCRA petition argued [that Appellant]
      received ineffective [assistance of] counsel.       This [c]ourt
      dismissed the petition. [Appellant] appealed the dismissal to the
      Superior Court, however, the dismissal was affirmed.
      Commonwealth v. Walter, 2015 WL 6940138 (Pa. Super. []
      2015) [(unpublished memorandum)].

             On September 14, 2018, [Appellant] filed the instant PCRA
      petition pro se[,] arguing he is entitled to relief under the ruling
      in Commonwealth v. Muniz, 164 A.3d 1189 (Pa. 2017). On
      October 31, 2018, this [c]ourt dismissed the petition without a
      hearing because it was untimely. On November 28, 2018,
      [Appellant] filed his [n]otice of [a]ppeal with the Superior Court
      and thereafter received notice from this [c]ourt directing
      compliance with Pa.R.A.P. 1925[(b)]. [Appellant] failed to file his
      [c]oncise [s]tatement within the time permitted, but he filed a
      motion for [an] extension of time, which this [c]ourt granted on
      January 3, 2019. [Appellant] filed his [c]oncise [s]tatement,
      which reiterated his argument in the PCRA petition.

PCRA Court Opinion (PCO), 1/18/19, at 1-2 (unnumbered; footnote and

citations to record omitted). The PCRA court filed its Rule 1925(a) opinion on

January 18, 2019.

      Herein, Appellant states seven issues for our review:

      1. Does a lack of judicial reviewability of a[n SVP] finding render
      Megan’s Law II unconstitutionally overbroad and excessive?

      2. Is Megan’s Law II unconstitutionally vague?

      3. Did the trial court err in finding that the Commonwealth
      established by clear and convincing evidence that [A]ppellant
      meets the statutory criteria for classification as a[n SVP]?

      4. Was [the] verdict against the weight of [the] evidence? []

      5. Was [t]rial … [c]ounsel[’]s performance ineffective and
      prejudic[ial]?


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      6. Was there abuse of discretion?

      7. Is the statu[t]e [im]permissibly vague, because it fails to allow
      for [a] sufficiently precise understanding of who is or is not a[n
      SVP]?

Appellant’s Brief at 4 (individual page not numbered).

      This Court’s standard of review regarding an order denying a petition

under the PCRA is whether the determination of the PCRA court is supported

by the evidence of record and is free of legal error.      Commonwealth v.

Ragan, 923 A.2d 1169, 1170 (Pa. 2007). We must begin by addressing the

timeliness of Appellant’s petition, because the PCRA time limitations implicate

our jurisdiction and may not be altered or disregarded in order to address the

merits of a petition. Commonwealth v. Bennett, 930 A.2d 1264, 1267 (Pa.

2007). 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. § 9545(b)(1)(i)-(iii) applies:

      (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


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              (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. § 9545(b)(1)(i)-(iii). Additionally, at the time Appellant’s petition

was filed, section 9545(b)(2) required that any petition attempting to invoke

one of these exceptions “be filed within sixty days of the date the claim could

have been presented.” 42 Pa.C.S. § 9545(b)(2).1

       Here, Appellant’s judgment of sentence became final in 2007, and thus,

his present petition filed in 2018 is patently untimely. For this Court to have

jurisdiction to review the merits thereof, Appellant must prove that he meets

one of the exceptions to the timeliness requirements set forth in 42 Pa.C.S. §

9545(b).

       Instantly, Appellant does not argue the applicability of any of the above-

stated timeliness exceptions. Instead, he seems to contend that Megan’s Law

II — the statute under which his SVP designation was imposed — is

unconstitutional in light of Muniz. In that case, our Supreme Court held that
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1 An amendment to section 9545(b)(2), which became effective on December
24, 2018, changed the language to require that a petition “be filed within one
year of the date the claim could have been presented.” 42 Pa.C.S. §
9545(b)(2). That amendment applies to any claim arising on or after
December 24, 2017. Id. Here, as we will discuss infra, Appellant’s claims are
premised on our Supreme Court’s decisions in Muniz and Commonwealth
v. Derhammer, 173 A.3d 723 (Pa. 2017), which were decided on July 19,
2017, and November 22, 2017, respectively. Thus, Appellant’s claims arose
before December 24, 2017, and he therefore must satisfy the 60-day
requirement of the prior version of section 9545(b)(2).




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the retroactive application of the registration and reporting requirements of

the Sexual Offenders Registration and Notification Act (SORNA), 2 which

replaced Megan’s Law, violated the ex post facto clauses of the United States

and Pennsylvania Constitutions. Muniz, 164 A.3d at 1223. Appellant also

claims that Derhammer invalidates his registration requirement under

Megan’s Law II. There, our Supreme Court held that the Derhammer could

not be prosecuted for violating the registration requirements of Megan’s Law

III because, at the time of his trial, Megan’s Law III had been voided as

unconstitutional. Derhammer, 173 A.3d at 729-30.

        To the extent we could view Appellant’s argument as an attempt to rely

on Muniz and/or Derhammer to meet the timeliness exception of section

9545(b)(1)(iii), that effort would fail for two reasons. First, as the PCRA court

observes, Appellant did not meet the 60-day requirement of the version of

section 9545(b)(2) in effect at the time his claim(s) arose.     See PCO at 4

(unnumbered).         Again, Muniz was decided on July 19, 2017, and

Derhammer was decided on November 22, 2017. Appellant’s pro se PCRA

petition was not filed until September 14, 2018, which was well past the 60-

day deadline.

        Second, the Pennsylvania Supreme Court has not held that either Muniz

or Derhammer applies retroactively. In Commonwealth v. Abdul-Salaam,

812 A.2d 497 (Pa. 2002), our Supreme Court held that to satisfy section

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2   42 Pa.C.S. §§ 9799.10-9799.42.

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9545(b)(1)(iii), the petitioner must prove both that a “new” constitutional

right has been recognized by the United States Supreme Court or the

Pennsylvania Supreme Court, and that the right “has been held” by that

court, to apply retroactively. Id. at 501 (emphasis added). Thus, Appellant

cannot rely on Muniz or Derhammer to meet the timeliness exception of

section 9545(b)(1)(iii).    See Commonwealth v. Murphy, 180 A.3d 402,

405-06 (Pa. Super. 2018) (holding that Muniz cannot satisfy the timeliness

exception of section 9545(b)(1)(iii) because the Pennsylvania Supreme Court

has not held that Muniz applies retroactively).

      For these reasons, Appellant has failed to demonstrate that his untimely

PCRA petition meets a timeliness exception.       Thus, we cannot review his

claims      that   Muniz   and/or   Derhammer     invalidate   his   registration

requirements as an SVP under Megan’s Law II. Additionally, Appellant makes

no attempt to aver that any of his remaining claims satisfy a timeliness

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

petition.

     Order affirmed.
Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/3/2019


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