J-S15025-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    BRUCE ASBURY                               :
                                               :
                       Appellant               :   No. 1393 WDA 2019

                Appeal from the Order Entered August 13, 2019
    In the Court of Common Pleas of Erie County Criminal Division at No(s):
                                  754 1979


BEFORE:      BENDER, P.J.E., OLSON, J., and STEVENS, P.J.E.*

MEMORANDUM BY OLSON, J.:                                 FILED APRIL 17, 2020

        Appellant, Bruce Asbury, appeals pro se from the order entered on

August 13, 2019. We affirm.

        On March 30, 1981, Appellant was found guilty of rape, involuntary

deviate sexual intercourse, and burglary. N.T. Trial, 3/30/81, at 54.     On

August 12, 1981, the trial court sentenced Appellant to serve an aggregate

term of eight-and-one-half to 20 years in prison for his convictions.    N.T.

Sentencing, 8/12/81, at 11-12. We affirmed Appellant’s judgment of sentence

on September 16, 1983 and the Pennsylvania Supreme Court denied

Appellant’s petition for allowance of appeal on September 13, 1984.

Commonwealth v. Asbury, 466 A.2d 717 (Pa. Super. 1983), appeal denied,

___ A.2d ___, 263 W.D. Allo. Dkt. 1983 (Pa. 1984). Thereafter, on June 22,

____________________________________________


*   Former Justice specially assigned to the Superior Court.
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1987, this Court affirmed the dismissal of Appellant’s Post Conviction Hearing

Act (“PCHA”) petition and on July 5, 1996, this Court dismissed Appellant’s

appeal from the denial of his second petition for post-conviction relief.

Commonwealth v. Asbury, 531 A.2d 29 (Pa. Super. 1987) (unpublished

memorandum) at 1-6; Commonwealth v. Asbury, 685 A.2d 206 (Pa. Super.

1996) (unpublished memorandum) at 1-4.

        As the Commonwealth avers, “[Appellant] was released from the

Department of Corrections on September 1, 2000 when Megan’s Law II1 was

in effect” and, in accordance with Megan’s Law II, Appellant was required to

register with the Pennsylvania State Police for life.   See Commonwealth’s

Response to Appellant’s Motion to Review, 8/13/19, at 1.

        On June 26, 2019, Appellant filed, at his criminal docket number, a pro

se motion entitled “Motion to Review Full Sentencing Instruction: Procedure

at Time of Sentencing Under Rule 234 Pa Code Rule 704” (hereinafter

Appellant’s “Motion to Review”). Within the motion, Appellant requested “a

court order removing [him] from a life time sexual offense registration.”

Appellant’s Motion to Review, 6/26/19, at 3. According to Appellant, he was

entitled to this relief because “the Megan’s [L]aw retroactivity clause [is]

unconstitutional.” Id. at 4.

        The lower court dismissed Appellant’s Motion to Review on August 13,

2019, without holding a hearing. Appellant filed a timely notice of appeal and,

____________________________________________


1   42 Pa.C.S.A. §§ 9791-9799.7 (expired).

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within his brief, Appellant claims that the Megan’s Law registration

requirements are unconstitutional, as they violate the due process and ex post

facto clauses of the United States Constitution. Appellant’s Brief at 7.

      Appellant challenges his registration obligation and claims that he is not

required to register as a sexual offender because Megan’s Law II is

unconstitutional. See id. However, the General Assembly amended Megan’s

Law II “with the passage of Act 152 of 2004, commonly referred to as Megan's

Law III.” Commonwealth v. Muniz, 164 A.3d 1189, 1197 (Pa. 2017). As

we explained:

        Megan's Law III expired on December 20, 2012, and gave
        way to the Sexual Offender Registration and Notification Act
        (“SORNA”), which took effect on that same date. SORNA
        required individuals convicted of certain sexual offenses to
        register with the Pennsylvania State Police, including
        individuals previously subject to reporting requirements who
        had not yet fulfilled their registration period.

Commonwealth v. Rivera-Figueroa, 174 A.3d 674, 676 (Pa. Super. 2017).

      The General Assembly amended SORNA most recently on June 12,

2018, by passing P.L. 140, No. 29, 42 Pa.C.S.A. §§ 9799.10-9799.75

(hereinafter    “Act   29”),   which   became   effective   immediately.   See

Commonwealth v. Moore, 222 A.3d 16, 18 n1 (Pa. Super. 2019).

      Appellant is now subject to registration under Subchapter I of SORNA,

not Megan’s Law II. See 42 Pa.C.S.A. § 9799.52 (“[t]his subchapter shall

apply to individuals who were . . . required to register with the Pennsylvania

State Police under a former sexual offender registration law of this



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Commonwealth on or after April 22, 1996, but before December 20, 2012,

whose period of registration has not expired”).

      As we have held, “claims challenging application of SORNA’s registration

provisions . . . are considered under the [Post Conviction Relief Act (“PCRA”),

42 Pa.C.S.A. §§ 9541-9546].” Commonwealth v. Greco, 203 A.3d 1120,

1123 (Pa. Super. 2019). Further, the PCRA expressly states that it “is the

sole means of obtaining collateral relief and encompasses all other common

law and statutory remedies . . . including habeas corpus and coram nobis.”

42 Pa.C.S.A. § 9542; see also Commonwealth v. Ahlborn, 699 A.2d 718,

721 (Pa. 1997). Thus, under the plain terms of the PCRA, “if the underlying

substantive claim is one that could potentially be remedied under the PCRA,

that claim is exclusive to the PCRA.” Commonwealth v. Pagan, 864 A.2d

1231, 1233 (Pa. Super. 2004) (emphasis in original).

      Therefore, since Appellant is required to register under SORNA and since

“claims challenging application of SORNA’s registration provisions . . . are

considered under the PCRA,” Appellant’s claim, challenging his registration

requirement, falls under the rubric of the PCRA. Greco, 203 A.3d at 1123.

Since the PCRA encompasses Appellant’s claim, Appellant “can only find relief

under the PCRA’s strictures.”      Pagan, 864 A.2d at 1233; see also

Commonwealth v. Descardes, 136 A.3d 493, 501 (Pa. 2016) (“[the

Pennsylvania Supreme] Court has consistently held that, pursuant to the plain

language of Section 9542, where a claim is cognizable under the PCRA, the

PCRA is the only method of obtaining collateral review”). Hence, Appellant’s

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Motion to Review must be considered under the PCRA and must be viewed as

Appellant’s third petition for post-conviction collateral relief.

      The PCRA contains a jurisdictional time-bar, which is subject to limited

statutory exceptions.     This time-bar demands that “any PCRA petition,

including a second or subsequent petition, [] be filed within one year of the

date that the petitioner’s judgment of sentence becomes final, unless [the]

petitioner pleads [and] proves that one of the [three] exceptions to the

timeliness requirement . . . is applicable.” Commonwealth v. McKeever,

947 A.2d 782, 785 (Pa. Super. 2008); 42 Pa.C.S.A. § 9545(b). Further, since

the time-bar implicates the subject matter jurisdiction of our courts, we are

required to first determine the timeliness of a petition before we are able to

consider any of the underlying claims. Commonwealth v. Yarris, 731 A.2d

581, 586 (Pa. 1999). Our Supreme Court has explained:

         the PCRA timeliness requirements are jurisdictional in nature
         and, accordingly, a PCRA court is precluded from considering
         untimely PCRA petitions. [The Pennsylvania Supreme Court
         has] also held that even where the PCRA court does not
         address the applicability of the PCRA timing mandate, th[e
         court would] consider the issue sua sponte, as it is a
         threshold question implicating our subject matter jurisdiction
         and ability to grant the requested relief.

Commonwealth v. Whitney, 817 A.2d 473, 475-476 (Pa. 2003) (citations

omitted).   “The question of whether a [PCRA] petition is timely raises a

question of law. Where the petitioner raises questions of law, our standard of

review is de novo and our scope of review plenary.” Commonwealth v.

Taylor, 65 A.3d 462, 468 (Pa. Super. 2013) (citations omitted).


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      Appellant’s judgment of sentence became final in January 1985, when

the time for filing a petition for writ of certiorari with the United States

Supreme Court expired. As Appellant did not file his current petition until June

26, 2019, the current petition is manifestly untimely and the burden thus fell

upon Appellant to plead and prove that one of the enumerated exceptions to

the one-year time-bar applied to his case. See 42 Pa.C.S.A. § 9545(b)(1);

Commonwealth v. Perrin, 947 A.2d 1284, 1286 (Pa. Super. 2008) (to

properly invoke a statutory exception to the one-year time-bar, the PCRA

demands that the petitioner properly plead and prove all required elements of

the relied-upon exception).

      Appellant did not attempt to plead any exception to the one-year

time-bar. Thus, Appellant's petition is time-barred and our “courts are without

jurisdiction to offer [Appellant] any form of relief.”    Commonwealth v.

Jackson, 30 A.3d 516, 523 (Pa. Super. 2011). Therefore, we affirm the PCRA

court's order, which dismissed Appellant's third petition for post-conviction

collateral relief without a hearing.

      Order affirmed. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/17/2020

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