J-S44008-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                  IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                          Appellee

                     v.

TIMOTHY SENICH,

                          Appellant                No. 1542 WDA 2013


              Appeal from the Order Entered August 29, 2013
              In the Court of Common Pleas of Butler County
           Criminal Division at No(s): CP-10-CR-0001465-2009


BEFORE: BENDER, P.J.E., LAZARUS, J., and OTT, J.

MEMORANDUM BY BENDER, P.J.E.:                 FILED SEPTEMBER 09, 2014

     Appellant, Timothy Senich, appeals from the August 29, 2013 order

denying his Motion to Compel Specific Performance. We affirm.

     On January 6, 2010, Appellant entered a plea of guilty to criminal

attempt (unlawful contact with a minor), criminal solicitation (unlawful

contact with a minor), and criminal use of a communication facility. On May

26, 2010, he was sentenced to a term of 6 – 12 months’ incarceration, one

term of 84 months’ probation to be served concurrently to the term of

incarceration, and one term of 108 months’ probation to be served

consecutively to the term of incarceration.   Following a revocation hearing

on August 13, 2010, Appellant was sentenced to an additional term of 12

months’ probation.    No direct appeal was taken from either the May 26,

2010, or the August 13, 2010, judgments of sentence.
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       At   the   time    of   Appellant’s     plea,   the   parties   to   this   appeal

acknowledged there was no agreement relative to Appellant’s sexual

offender registration requirements under 42 Pa.C.S. § 9791, et seq., known

as “Megan’s Law.”          Appellant became subject to a 10 year reporting

requirement due to his convictions for criminal attempt and criminal

solicitation to commit unlawful contact with a minor.1

       On December 20, 2012, Appellant became subject to the newly-

effective sex offender registration requirements of 42 Pa.C.S. § 9799, et

seq., known as the Sex Offender Registration and Notification Act (SORNA).

Pursuant to the new registration requirements, Appellant is subject to a

lifetime reporting requirement due to his convictions for attempt and

solicitation.2

       On December 19, 2012, Appellant filed a motion to terminate his

probation so that he would not be subject to the new requirement. The trial

court denied this motion following a hearing on January 11, 2013. No direct

appeal was taken from the trial court’s order.
____________________________________________


1
  Pursuant to 42 Pa.C.S. § 9795.1(a)(2), a conviction of attempt, conspiracy
or solicitation to commit unlawful contact with a minor triggers a
requirement to register with the Pennsylvania State Police for a period of ten
years.
2
  Pursuant to 42 Pa.C.S. § 9799.15(a)(3), a conviction of a Tier III sexual
offense triggers a requirement to register with the Pennsylvania State Police
for the life of the individual. Two or more convictions of attempt, conspiracy
or solicitation to commit unlawful contact with a minor constitutes a Tier III
sexual offense. 42 Pa.C.S. § 9799.14(d)(16).



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      Appellant then filed a Post Conviction Relief Act (PCRA) petition on

March 4, 2013, alleging that SORNA “violates both the United States’ and

Pennsylvania’s Ex Post Facto Clauses.”     PCRA Petition, 3/4/13, at 2.    A

hearing on this petition was held on April 23, 2013, and the court denied the

petition on May 8, 2013.

      On June 17, 2013, Appellant filed a petition seeking the reinstatement

of his rights to file a direct appeal from the May 8, 2013 order denying PCRA

relief. In addition, Appellant filed a motion for specific performance of his

plea bargain (petitioning the court to issue an order imposing the initial 10

year registration requirement).   A hearing on these motions was held on

August 19, 2013, and the court denied them both on August 29, 2013. On

September 25, 2013, Appellant filed a notice of appeal “from the August 29,

2013 [] Order of Court denying Defendant’s Post-Sentencing Motions.”

Appellant also filed a timely concise statement of errors complained of on

appeal pursuant to Pa.R.A.P. 1925(b).

      Appellant now presents the following question for our review:

          Did the trial court err when it denied [Appellant’s] Motion to
          Compel      Specific    Performance    where     the   record
          demonstrated that the Commonwealth agreed to or
          consented to a period of [10] years[’] registration pursuant
          to “Megan’s Law” when it notified the [c]ourt it would not
          seek sexually violent predator status against [Appellant] at
          sentencing and where the Commonwealth is now seeking
          lifetime registration pursuant to SORNA?

Appellant’s brief at 4.




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       Appellant’s sole briefed argument on appeal addresses whether the

trial court erred in denying his Motion to Compel Specific Performance.3

Appellant concedes this motion constitutes a PCRA petition, stating “[a]

defendant may properly raise a claim pursuant to the Post Conviction Relief

Act, codified at 42 Pa.C.S.[] [§] 9541 et seq., where the defendant claims

his plea was unlawfully induced because the terms thereof were breached by

the Commonwealth.”           Appellant’s brief at 9 (citing Commonwealth v.

Zuber, 353 A.2d 441, 443 n.1 (Pa. 1976)).

       Our standard of review for an order denying PCRA relief is whether the

record supports the PCRA court’s determination, and whether the PCRA

court’s determination is free of legal error. Commonwealth v. Ragan, 923

A.2d 1169, 1170 (Pa. 2007). We will not disturb the PCRA court’s findings

unless there is no support for the findings in the certified record.

Commonwealth v. Carr, 768 A.2d 1164, 1166 (Pa. Super. 2001).

       Before we may address any of Appellant’s claims, we must assess the

timeliness of his 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) (stating PCRA time limitations implicate our jurisdiction and may
____________________________________________


3
  We note that the issue of whether the trial court erred in denying
Appellant’s petition to reinstate his appellate rights is not before this Court,
and we do not address it.




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not be altered or disregarded to address the merits of the petition);

Commonwealth v. Johnson, 803 A.2d 1291, 1294 (Pa. Super. 2002)

(holding the Superior Court lacks jurisdiction to reach merits of an appeal

from an untimely PCRA petition).

      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 exceptions set forth

in 42 Pa.C.S. § 9545(b) applies. That section states, in relevant part:

      (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.

42 Pa.C.S. § 9545(b)(1)(i)-(iii).   Any petition attempting to invoke one of

these exceptions “shall be filed within 60 days of the date the claim could

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



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      Here, Appellant was sentenced on August 13, 2010, and did not file a

direct appeal from that sentence.     Thus, Appellant’s judgment of sentence

became final 30 days thereafter, or on September 12, 2010. See 42 Pa.C.S.

§ 9545(b)(3) (stating that a judgment of sentence becomes final at the

conclusion of direct review or the expiration of the time for seeking the

review).   Consequently, Appellant had until September 12, 2011, to file a

timely PCRA petition. He did not file the instant petition until June 17, 2013.

Appellant was required to plead and prove in his PCRA petition that one of

the above-stated exceptions applied to his claim(s). Appellant did not plead

an exception to the PCRA time-bar in his petition, however, and so his PCRA

petition was untimely filed.

      Even assuming that Appellant’s PCRA petition was timely filed, we

would conclude his claim is belied by the record. Appellant concedes that “at

the time of his plea the parties agreed that there was no agreement relative

to [a] Megan’s Law registration requirement and the Commonwealth would

take an appropriate position once Appellant was evaluated by the Sexual

Offender Assessment Board.” Appellant’s brief at 5. Appellant contends that

his registration requirement should be limited to ten years because “[p]rior

to Appellant’s May 26, 2010 [] sentencing hearing the Commonwealth

advised the [c]ourt i[t] was not seeking lifetime registration/sexually violent

predator classification.”   Id.   The record clearly demonstrates that a ten-

year term of registration was not a term of Appellant’s plea bargain.

Appellant’s claim relies on a discussion regarding registration that occurred

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after Appellant’s plea had been negotiated, proffered, and accepted.   That

discussion was not a term of Appellant’s plea bargain.    Accordingly, we

would conclude that Appellant’s claim is without merit.

     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/9/2014




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