J-S71039-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    DENNIS L. PRENDES                          :
                                               :
                       Appellant               :   No. 698 EDA 2018

                  Appeal from the PCRA Order January 31, 2018
     In the Court of Common Pleas of Northampton County Criminal Division
                       at No(s): CP-48-CR-0001246-2012


BEFORE: PANELLA, J., DUBOW, J., and NICHOLS, J.

MEMORANDUM BY NICHOLS, J.:                          FILED DECEMBER 21, 2018

        Appellant Dennis L. Prendes appeals from the order dismissing his

second Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546, petition

as untimely. Appellant claims that the PCRA court erred in concluding that

the Pennsylvania Supreme Court decision in Commonwealth v. Muniz, 164

A.3d 1189 (Pa. 2017), did not establish a basis for a time-bar exception under

42 Pa.C.S. § 9545(b)(1)(iii). We affirm.

        The procedural and relevant background to this matter is well known to

the parties and need not be recited in extensive detail. On January 11, 2013,

after entering into a negotiated guilty plea to indecent assault of a child,1 the

trial court sentenced Appellant to thirty to sixty months’ imprisonment


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1   18 Pa.C.S. § 3126(a)(7).
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followed by thirty-six months’ probation. Appellant was found to be a sexually

violent predator, and the trial court imposed a lifetime registration

requirement.2 This Court affirmed the judgment of sentence on July 22, 2017.

Commonwealth v. Prendes, 97 A.3d 337 (Pa. Super. 2014).                     The

Pennsylvania Supreme Court denied Appellant’s petition for allowance of

appeal. Commonwealth v. Prendes, 105 A.3d 736 (Pa. 2014).

       Appellant filed a first PCRA petition, which the PCRA court denied on

June 15, 2016. This Court affirmed on June 29, 2017, and the Pennsylvania

Supreme Court denied Appellant’s petition for allowance of appeal on

November 14, 2017.         Commonwealth v. Prendes, 2313 EDA 2016 (Pa.

Super. filed June 29, 2017) (unpublished mem.), appeal denied, 508 MAL

2017 (Pa. filed Nov. 14, 2017).

       While Appellant’s appeal from the denial of his first PCRA petition was

pending, the Pennsylvania Supreme Court decided Muniz on July 19, 2017.

The Muniz Court concluded that the former version SORNA imposed punitive

requirement on sexual offenders.           Muniz, 164 A.3d at 1218.   The Muniz

Court, therefore, determined that the retroactive application of SORNA’s




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2  At the time of sentencing, Appellant’s conviction for indecent assault of a
child and the trial court’s sexually violent predator designation required a
lifetime registration requirement under the former version of the Sexual
Offender Registration and Notification Act (SORNA), 42 Pa.C.S. §§ 9799.10-
9799.41 (subsequently amended Feb. 21, 2018).



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requirements on sexual offenders violated ex post facto principles under the

United States and Pennsylvania Constitutions.3 Id. at 1223.

       Appellant filed the instant petition to remove the lifetime registration

requirement within sixty days of the denial of his petition for allowance of

appeal of his first PCRA petition. The PCRA court regarded Appellant’s petition

as a second PCRA petition and dismissed it as untimely on January 31, 2018.

In an extensive opinion, the PCRA court concluded that Muniz was not held

to apply retroactively and therefore did not provide a basis for a time-bar

exception based on a newly recognized constitutional right. See PCRA Ct.

Op., 1/31/18, at 14-25 (discussing 42 Pa.C.S. § 9545(b)(1)(iii)).

       Appellant timely appealed and complied with the PCRA court’s order to

submit a Pa.R.A.P. 1925(b) statement. The PCRA court issued a responsive

opinion noting that this Court recently decided Commonwealth v. Murphy,

180 A.3d 402 (Pa. Super 2018), appeal denied, 202 MAL 2018 (Pa. filed Oct.

9, 2018), which held that Muniz did not provide a basis for a PCRA time-bar

exception under 42 Pa.C.S. § 9545(b)(1)(iii). PCRA Ct. Op., 3/22/18, at 2-3

(discussing Murphy, 180 A.3d at 405-06).


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3 The General Assembly subsequently responded to the Muniz decision by
amending SORNA. See 2018, Feb. 21, P.L. 27, No. 10 (Act 10). The amended
version of SORNA, which is currently in effect, clarifies that its registration
requirements apply to a defendant who committed an offense on or after its
initial effective date of December 20, 2012. See 42 Pa.C.S. § 9799.11(c).
Act 10 also added Subchapter I to SORNA, which purports to address the
retroactivity and ex post facto concerns set forth in Muniz. See 42 Pa.C.S. §
9799.51(b)(4).

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       Appellant presents the following question for our review:

       Where the Supreme Court in [Muniz] created a substantive
       change in SORNA, did the [PCRA c]ourt err in not finding this
       change retroactive and thereby not finding it met the timeliness
       requirements set forth in 42 Pa.C.S. § 9545 (b)(1)(iii)?

Appellant’s Brief at 2.

       Appellant, in brief, asserts there is persuasive legal support for his

assertion that Muniz was intended to apply retroactively.          In particular,

Appellant asserts that the principles of Montgomery v. Louisiana, 136 S.

Ct. 718 (2016), should control.4 Id. at 12, 21. The Commonwealth responds

that this appeal is governed by Murphy. Commonwealth’s Brief at 9. In his

reply brief, Appellant concedes that this Court’s recent decision in Murphy

controls, but suggests Murphy was wrongly decided. Appellant’s Reply Brief,

at 4 (unpaginated).

       “Our standard of review of the denial of a PCRA petition is limited to

examining whether the evidence of record supports the court’s determination

and whether its decision is free of legal error.” Commonwealth v. Secreti,

134 A.3d 77, 79-80 (Pa. Super. 2016) (citation omitted).

       Following our review, we agree with the PCRA court and the parties that

Murphy controls. As this Court stated in Murphy:



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4Montgomery held that the United States Supreme Court’s decision in Miller
v. Alabama, 567 U.S. 460 (2012), regarding mandatory life sentences
without parole for juvenile offenders, announced a substantive rule and
applied retroactively. Montgomery, 136 S. Ct. at 736.

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     [The a]ppellant’s reliance on Muniz cannot satisfy the ‘new
     retroactive right’ exception of section 9545(b)(1)(iii). In
     Commonwealth v. Abdul–Salaam, 571 Pa. 219, 812 A.2d 497
     (2002), our Supreme Court held that,

        [s]ubsection (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 court 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.

     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 Appellant's
     PCRA petition is untimely (unlike the 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). Because at this time, no such holding has
     been issued by our Supreme Court, Appellant cannot rely on Muniz
     to meet that timeliness exception.[fn1]



            Certainly, if the Pennsylvania Supreme Court issues a
        [fn1]

        decision holding that Muniz applies retroactively, Appellant
        can then file a PCRA petition, within 60 days of that decision,
        attempting to invoke the ‘new retroactive right’ exception of
        section 9545(b)(1)(iii).

Murphy, 180 A.3d at 405-06 (some citations omitted).




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      Thus, there is no basis to find legal error in the PCRA court’s

determination that Appellant failed to establish a time-bar exception under 42

Pa.C.S. § 9545(b)(1)(iii).

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/21/18




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