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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    MICHAEL WHELPLEY                           :
                                               :
                       Appellant               :   No. 1323 WDA 2019

             Appeal from the PCRA Order Entered August 12, 2019
     In the Court of Common Pleas of Jefferson County Criminal Division at
                       No(s): CP-33-CR-0000431-2008


BEFORE: McLAUGHLIN, J., McCAFFERY, J., and PELLEGRINI, J.*

MEMORANDUM BY PELLEGRINI, J.:                       FILED FEBRUARY 20, 2020

        Michael Whelpley (Whelpley) appeals from the order of the Court of

Common Pleas of Jefferson County (PCRA court) denying his second petition

for relief pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§

9541-9546. As the petition is untimely, we affirm.

        We briefly recount the procedural history of this case. On November

10, 2008, Whelpley pled guilty to two counts of Indecent Assault—Person Less

Than 13 Years of Age.1         Following an assessment by the Sexual Offender

Assessment Board (SOAB) and evidentiary hearing, the PCRA court designated


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*   Retired Senior Judge assigned to the Superior Court.

1   18 Pa.C.S. § 3126(a)(7).
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Whelpley as a sexually violent predator (SVP) pursuant to then-in-effect

Megan’s Law III.2 On March 18, 2009, the PCRA court sentenced Whelpley to

an aggregate term of one to two years of incarceration, followed by three

years of probation.        Because Whelpley did not file a direct appeal, his

judgment of sentence became final on April 17, 2010.3

       On February 28, 2018, Whelpley filed a Motion to Vacate an Illegal

Sentence arguing that his SVP designation and registration requirements

under the Sex Offender Registration and Notification Act (SORNA)4 constituted

an illegal sentence based on the decisions in Commonwealth v. Neiman, 84

A.3d 603 (Pa. 2013), Commonwealth v. Muniz, 164 A.3d 1189 (Pa. 2017),

and Commonwealth v. Butler, 173 A.3d 1212 (Pa. Super. 2017). The PCRA

court denied the motion on March 2, 2018.         Whelpley filed a motion for

permission to appeal nunc pro tunc in July 2018 alleging that he was not

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2 42 Pa.C.S.A. § 9791, et seq., Act of Nov. 4, 2004, P.L. 1243, No. 152,
effective January 24, 2005.

3 Whelpley violated the terms of his probation, and the PCRA court revoked
his probation and resentenced him to one to five years of incarceration in April
2013. Because Whelpley challenges his SVP designation and registration
requirements, which arose out of his initial guilty plea and sentence and not
his resentencing following revocation of probation, the resentencing hearing
did not reset the clock for the purposes of determining when Whelpley’s
judgment of sentence became final. See Commonwealth v. Anderson, 788
A.2d 1019, 1021 (Pa. Super. 2001).

4 Act of Dec. 20, 2011, P.L. 446, No. 111, amended as 42 Pa.C.S.A. §§
9799.10-9799.41.




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served with the PCRA court’s order. The PCRA court denied the motion and

Whelpley did not appeal.

       On September 6, 2018, Whelpley filed a pro se PCRA petition alleging

that the PCRA court’s negligence prevented him from filing a timely appeal

from the March 2, 2018 order, and again raising his challenge to his SVP

designation and SORNA registration requirements. The PCRA court appointed

counsel to represent Whelpley on his petition.      Counsel filed a petition to

withdraw and Turner/Finley5 no-merit letter stating that the petition was

untimely, frivolous, and that Whelpley was ineligible for relief because he was

no longer serving his sentence. The PCRA court filed a notice of intent to

dismiss the petition and allowed counsel to withdraw. No response was filed

and the PCRA court subsequently dismissed the petition.

       Whelpley filed the instant PCRA petition, his second, on June 24, 2019,

again challenging his SVP designation and SORNA registration requirements.

The PCRA court issued a notice of intent to dismiss on the basis that Whelpley

is ineligible for PCRA relief because he is no longer serving a sentence in this

case. See 42 Pa.C.S. § 9543(a)(1)(i). Whelpley did not file a response and




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5Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth v.
Finley, 550 A.2d 213 (Pa. 1988) (en banc).




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the PCRA court dismissed the petition.           Whelpley timely filed a notice of

appeal, and he and the PCRA court have complied with Pa.R.A.P. 1925.6

       Before we consider the merits of Whelpley’s petition, we must determine

whether we have jurisdiction to do so. “A PCRA petition, including a second

and subsequent petition, shall be filed within one year of the date the

underlying judgment becomes final.” Commonwealth v. Graves, 197 A.3d

1182, 1185 (Pa. Super. 2018) (citation omitted).          “[A] judgment becomes

final at the conclusion of direct review, including discretionary review in the

Supreme Court of the United States and the Supreme Court of Pennsylvania,

or at the expiration of time for seeking the review.” 42 Pa.C.S. § 9545(b)(3).

As Whelpley’s sentence became final on April 17, 2010, and he did not file the

instant petition until June 24, 2019, his petition is untimely and he must plead

and prove one of the exceptions to the PCRA’s timeliness requirements.

       There are three limited exceptions to the PCRA’s jurisdictional time-bar:

       (i) the failure to raise the claim previously was the result of
       interference by government officials with the presentation of the
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6  In his brief, Whelpley challenges the denials of his first motion to vacate
illegal sentence, motion to appeal nunc pro tunc, and first PCRA petition, and
contends that PCRA counsel on his first petition was ineffective. These
arguments are waived, as Whelpley did not file timely notices of appeal
challenging these orders. See Pa.R.A.P. 903(a) (stating that a notice of
appeal “shall be filed within 30 days after the entry of the order from which
the appeal is taken”). After the PCRA court denied his motion to vacate illegal
sentence and motion to appeal nunc pro tunc, Whelpley elected to file his first
pro se PCRA petition. He did not file a timely notice of appeal after the PCRA
court denied the petition and granted counsel’s motion to withdraw pursuant
to Turner/Finley. Instead, he filed the instant PCRA petition.


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       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). In addition, a PCRA petitioner must present

a claimed exception within 60 days of the date the claim could have been

presented. 42 Pa.C.S.A. § 9545(b)(2).7

       Whelpley first argues that the newly-discovered evidence exception to

the time-bar under 42 Pa.C.S. § 9545(b)(1)(ii) applies because he learned of

the decisions in Neiman, Muniz and Butler well after his convictions became

final. However, “judicial decisions do not constitute new ‘facts’ for purposes

of the newly-discovered evidence exception set forth in Section 9545(b)(1)(ii).



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7 As of December 24, 2018, Section 9545(b)(2) states that any PCRA petition
invoking a time-bar exception must be filed within one year of the date the
claim first could have been presented. See Act 2018, Oct. 24, P.L. 894, No.
146, § 2, effective Dec. 24, 2018. The amendment applies only to claims
arising on or after December 24, 2017. Whelpley’s claim, however, is
premised on Neiman, decided on December 16, 2013, Muniz, decided on
July 19, 2017, and Butler, decided on October 31, 2017. Therefore, the 60-
day requirement under the prior version of 42 Pa.C.S. § 9545(b)(2) was
applicable. While Whelpley cites additional unpublished memoranda as the
basis for overcoming the time-bar, these cases were mere applications of the
decisions in Muniz and Butler and did not themselves announce any new
principles of law.


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New legal decisions can only overcome the PCRA’s timeliness requirements in

the context of Section 9545(b)(1)(iii).” Commonwealth v. Kretchmar, 189

A.3d 459, 467 (Pa. Super. 2018) (internal citation omitted).        Therefore,

Whelpley cannot rely on these decisions to overcome the time-bar pursuant

to 42 Pa.C.S. § 9545(b)(1)(ii).

        Whelpley also argues that the newly-recognized constitutional right

under 42 Pa.C.S. § 9545(b)(1)(iii) applies based on the holdings in Neiman,

Muniz and Butler.      In Neiman, our Supreme Court held that legislation

amending Megan’s Law violated the Pennsylvania Constitution’s single-subject

rule.   Neiman, supra, at 605.     However, the court did not hold that the

decision recognized a new constitutional right that applied retroactively. As a

result, Neiman does not apply to overcome the time-bar pursuant to 42

Pa.C.S. § 9545(b)(1)(ii).

        Muniz held that the retroactive application of SORNA’s registration

scheme to offenders who committed their crimes before SORNA’s effective

date violates the ex post facto clauses of the United States and Pennsylvania

constitutions. See Muniz, supra at 1217. This court has already determined

that Muniz did not establish a timeliness exception under the PCRA.

Commonwealth v. Greco, 203 A.3d 1120, 1124 (Pa. Super. 2019) (citing

Commonwealth v. Murphy, 180 A.3d 402, 405 (Pa. Super. 2018), appeal

denied, 195 A.3d 559 (Pa. 2018)).          Similarly, Butler held that SVP

designations pursuant to SORNA were unconstitutional in light of Muniz


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because they increased an offender’s punishment under the statute based only

on clear and convincing evidence.              Butler, supra, at 1217-18.   However,

Butler was a decision of this court, and the Supreme Court has not

subsequently held that Butler recognized a new constitutional right that

applies retroactively.      See 42 Pa.C.S. § 9545(b)(1)(iii) (stating that the

exception applies when “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” (emphasis added)).

       Because Whelpley cannot establish an exception to the PCRA’s

timeliness requirements based on Neiman, Muniz or Butler, we lack

jurisdiction to consider the merits of his claims.8

       Order affirmed.




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8Even if Whelpley’s claim was not time-barred, he would be ineligible for relief
because he is no longer serving a sentence in this case. To be eligible for
PCRA relief, a petitioner must, at the time relief is granted, be “currently
serving a sentence of imprisonment, probation or parole” for the crime for
which he seeks relief. 42 Pa.C.S. § 9543(a)(1)(i). As the PCRA court noted,
Whelpley’s one to five year sentence following the revocation hearing expired
no later than April 2018, approximately two months before he filed the instant
petition, and he is ineligible for relief. See Commonwealth v. Kirwan, 221
A.3d 196 (Pa. Super. 2019).

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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/20/2020




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