J-S39017-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    ROLAND MATTHEW HROMEK, JR.                 :
                                               :
                       Appellant               :   No. 77 MDA 2018

                Appeal from the PCRA Order December 15, 2017
    In the Court of Common Pleas of York County Criminal Division at No(s):
                           CP-67-CR-0002872-2013

BEFORE: STABILE, J., MURRAY, J., and MUSMANNO, J.

MEMORANDUM BY MURRAY, J.:                              FILED AUGUST 14, 2018

        Roland Matthew Hromek, Jr. (“Appellant”) appeals pro se from the order

dismissing as untimely his fourth petition filed pursuant to the Post Conviction

Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. We affirm.

        The facts and procedural history of this case are convoluted due to

Appellant’s serial PCRA filings.        On August 23, 2013, Appellant entered a

negotiated guilty plea to one count of involuntary deviate sexual intercourse

with a child less than thirteen years of age.1 This charge arose from criminal

conduct that occurred between August 1 and October 31, 2012. On November

25, 2013, the trial court sentenced Appellant pursuant to the negotiated

agreement to 7 to 15 years of incarceration. The court also informed Appellant

that he was to register as a sexual offender with the Pennsylvania State Police

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1   18 Pa.C.S.A. § 3123(b).
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for the remainder of his life under Megan’s Law III, 42 Pa.C.S.A. §§ 9791-

9799.9 (expired). Appellant did not file a direct appeal from his judgment of

sentence.

         On December 9, 2013, Appellant filed his first PCRA petition, but

subsequently withdrew it on the basis that he had no meritorious issues to

raise.    Motion to Withdraw Petition for Post Conviction Relief, 3/6/14.        On

December 11, 2015 and January 12, 2017, Appellant filed his second and third

PCRA petitions, both of which the PCRA court denied as untimely.

         On July 19, 2017, our Supreme Court decided Commonwealth v.

Muniz, 164 A.3d 1189 (Pa. 2017). In Muniz, our Supreme Court held that

retroactive application of the registration and reporting requirements of the

Pennsylvania Sex Offender Registration and Notification Act, (SORNA),2

violated the ex post facto clauses of the United States and Pennsylvania

Constitutions. Id. at 1223.

         On September 14, 2017, Appellant filed his fourth PCRA petition, pro se.

Appellant     asserted     that   his    lifetime   registration   requirement   was

unconstitutional under Muniz.           Additionally, Appellant argued that Muniz

satisfied the newly recognized constitutional right exception to the PCRA’s

time bar. See 42 Pa.C.S.A. § 9545(b)(1)(iii). On October 11, 2017, the PCRA

court issued notice of its intent to dismiss Appellant’s PCRA petition pursuant



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2   42 Pa.C.S.A. §§ 9799.10-9799.42.

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to Rule 907 of the Pennsylvania Rules of Criminal Procedure. On October 30,

2017, Appellant filed a response to the PCRA court’s Rule 907 notice. On

December 15, 2017, the PCRA court entered an order denying Appellant’s

PCRA petition as untimely. This timely appeal followed.3

       Appellant presents the following issues for review:

       I.     WHETHER THE [PCRA] COURT INCORRECTLY DENIED
              [APPELLANT]’S PCRA PETITION ON THE BASIS THAT IT WAS
              JURISDICTIONALLY UNTIMELY BY FAILING TO RECOGNIZE
              A VALID EXCEPTION TO THE TIMELINESS REQUIREMENT.

       II.    WHETHER THE [PCRA] COURT ERRED IN NOT CORRECTING
              AN ILLEGAL SENTENCE BY FAILING TO RECOGNIZE THE
              RETROACTIVE APPLICATION OF MUNIZ.

Appellant’s Brief at 3.

       Before addressing the merits of Appellant’s claims, we must determine

whether we have jurisdiction. “Pennsylvania law makes clear no court has

jurisdiction to hear an untimely PCRA petition.” Commonwealth v. Monaco,

996 A.2d 1076, 1079 (Pa. Super. 2010) (quoting Commonwealth v.

Robinson, 837 A.2d 1157, 1161 (Pa. 2003)). A petitioner must file a PCRA

petition within one year of the date on which the petitioner’s judgment became

final, unless one of the three statutory exceptions apply:

              (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;
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3 Both the PCRA court and Appellant have complied with Rule 1925 of the
Pennsylvania Rules of Appellate Procedure.

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            (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.A. § 9545(b)(1). A petitioner must file a petition invoking one of

these exceptions “within 60 days of the date the claim could have been

presented.” 42 Pa.C.S.A. § 9545(b)(2).        If a petition is untimely, and the

petitioner has not pled and proven any exception, “neither this Court nor the

trial court has jurisdiction over the petition. Without jurisdiction, we simply

do not have the legal authority to address the substantive claims.”

Commonwealth v. Derrickson, 923 A.2d 466, 468 (Pa. Super. 2007)

(quoting Commonwealth v. Chester, 895 A.2d 520, 522 (Pa. 2006)).

      In this case, Appellant concedes that his PCRA petition is untimely.

Appellant’s Brief at 3.   Accordingly, we are without jurisdiction to decide

Appellant’s appeal unless he pled and proved one of the three timeliness

exceptions of Section 9545(b)(1).        See Derrickson, 923 A.2d at 468.

Appellant asserts that he has satisfied the timeliness exception of Section

9545(b)(1)(iii) because Muniz recognized a new constitutional right that

applies retroactively on collateral review. Appellant’s Brief at 3-8.

      Recently, in Commonwealth v. Murphy, 180 A.3d 402 (Pa. Super.

2018), this Court rejected this exact claim. We explained:

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        Appellant’s reliance on Muniz cannot satisfy the [timeliness]
     exception of [S]ection 9545(b)(1)(iii). In Commonwealth v.
     Abdul-Salaam, [] 812 A.2d 497 ([Pa.] 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 [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.

     Id. at 501.

        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
     [S]ection 9545(b)(1)(iii). See Abdul-Salaam, supra. Because
     at this time, no such holding has been issued by our Supreme
     Court, Appellant cannot rely on Muniz to meet that timeliness
     exception.

Id. at 405-06.




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       Because Appellant cannot rely upon Muniz to satisfy the timeliness

exception of Section 9545(b)(1)(iii), we are without jurisdiction to review the

merits of his PCRA claims.4

       Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/14/18




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4  We note that even if we had jurisdiction to review Appellant’s claims, they
are patently meritless. The record reflects that the trial court at sentencing
informed Appellant that he would be required to register as a sexual offender
for the remainder of his life under Megan’s Law, not SORNA. N.T., 11/25/13,
at 1, 5-8. Therefore, Muniz, which only involved the retroactive application
of SORNA’s registration and reporting requirements, is inapplicable to
Appellant’s case.

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