J-S22041-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA            :   IN THE SUPERIOR COURT OF
                                         :        PENNSYLVANIA
                                         :
              v.                         :
                                         :
                                         :
 JOSE LUIS GARCIA                        :
                                         :
                    Appellant            :   No. 1387 MDA 2018

             Appeal from the PCRA Order Entered July 24, 2018
     In the Court of Common Pleas of Berks County Criminal Division at
                      No(s): CP-06-CR-0003340-2012


BEFORE:    SHOGAN, J., DUBOW, J., and PELLEGRINI*, J.

MEMORANDUM BY PELLEGRINI, J.:                         FILED MAY 10, 2019

      Jose Luis Garcia (Garcia) appeals from the order of the Court of Common

Pleas of Berks County (PCRA court) dismissing his third petition filed under

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

petition is untimely, we affirm.

      At a January 2013 jury trial, Garcia was convicted of various sexual

offenses, including Aggravated Indecent Assault, 18 Pa.C.S. § 3125(b). The

trial court sentenced Garcia to serve eight-and-a-half to twenty-five years’

imprisonment and designated him as a Tier III sexual offender with lifetime

reporting requirements under the Sexual Offender and Notification Act

(SORNA), 42 Pa.C.S. §§ 9799.10-9799.41. On November 14, 2013, this Court

affirmed the judgment of sentence. See Commonwealth v. Garcia, 91 A.3d

1284 (Pa. Super. 2013) (unpublished memorandum). Garcia did not file a


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* Retired Senior Judge assigned to the Superior Court.
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petition for allowance of appeal with our Supreme Court.      As a result, his

judgment of sentence became final on December 16, 2013.1

       In November 2014, Garcia filed a pro se PCRA petition that was

dismissed two years later and we affirmed. See Commonwealth v. Garcia,

2017 WL 4177027 (Pa. Super. 2017) (unpublished memorandum).             Garcia

then filed a second PCRA petition which was dismissed by the PCRA court in

October 2017.

       On February 8, 2018, Garcia filed his third pro se PCRA petition raising

separate claims for relief based on the decisions in Alleyne v. United States,

570 U.S. 99 (2013) and Commonwealth v. Muniz, 164 A.3d 1189 (Pa.

2017).    In Alleyne, the United States Supreme Court held that because

mandatory minimum sentences increase the penalty for a crime, any fact that

increases the mandatory minimum is an “element” of the crime that must be

submitted to the jury.        He contends that Alleyne made any mandatory

minimum sentence unconstitutional. In Muniz, our Supreme Court held that

SORNA violates the Ex Post Facto clause of the Pennsylvania Constitution

when its provisions are applied retroactively. It does not hold that SORNA is

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1 The thirtieth day for filing an allowance of appeal fell on a Saturday. Thus,
Garcia had until Monday, December 16, 2013 to file a timely petition for
allowance of appeal with our Supreme Court. See 1 Pa.C.S. § 1908
(“Whenever the last day of any such period shall fall on Saturday or Sunday,
or on any day made a legal holiday by the laws of this Commonwealth or of
the United States, such day shall be omitted from the computation.”).




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unconstitutional nor does it invalidate SORNA’s registration requirements.

Garcia apparently claims that because SORNA is punitive, it constitutes a

second punishment for his offenses. In July 2018, the PCRA court dismissed

Garcia’s petition as untimely. He then filed the instant appeal.2

       Before addressing the merits of the issues raised, we must first

determine whether Garcia has established that his PCRA petition was timely,

as the PCRA’s time-bar is jurisdictional. “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).

       There are three limited exceptions to the PCRA’s one-year time

limitation set forth in Section 9545:

       (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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2“Our standard of review for issues arising from the denial of PCRA relief is
well-settled. We must determine whether the PCRA court’s ruling is supported
by the record and free of legal error.” Commonwealth v. Presley, 193 A.3d
436, 442 (Pa. Super. 2018) (citation omitted).


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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. § 9545(b)(1)(i)-(iii). In addition, a PCRA petitioner must present

the petition within 60 days of the date the claim could have been presented.

42 Pa.C.S.A. § 9545(b)(2).3

       Because Garcia’s third PCRA petition was filed over four years after his

judgment of sentence became final, it is untimely and we have no jurisdiction

to consider his claim unless it falls within one of those exceptions.       Garcia

claims that it falls within 42 Pa.C.S. § 9545(b)(1)(iii) because Alleyne and

Muniz created new constitutional rights that apply retroactively.

       First, Garcia’s Alleyne claim clearly fails. Our Supreme Court has held

that Alleyne does not apply retroactively in PCRA proceedings.                  See

Commonwealth v. Washington, 142 A.3d 810 (Pa. 2016).

       Next, Garcia’s Muniz claim also fails because it was not filed within 60

days from the date of the Muniz decision which was July 19, 2017. Even if

his PCRA petition had been timely filed, we have held that Muniz does not


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3 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 in 60 days [Dec. 24, 2018]. The amendment applies only
to claims arising on or after December 24, 2017.

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satisfy Section 9545(b)(3).     See Commonwealth v. Greco, 2019 WL

510129, at *4 (Pa. Super. filed February 8, 2019).        The Greco Court

explained:

      Appellant’s reliance on Muniz cannot satisfy the ‘new retroactive
      right’ exception of section 9545(b)(1)(iii).... [W]e 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). See [Commonwealth v.] Abdul-Salaam, [571
      Pa. 219, 812 A.2d 497, 501 (2002) ]. 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. (quoting Commonwealth v. Murphy, 180 A.3d 402, 405 (Pa. Super.

2018), appeal denied, 195 A.3d 559 (Pa. 2018)).

      Because Garcia’s PCRA petition is untimely and does not establish an

exception to the PCRA’s timeliness requirements, we lack jurisdiction to

consider the merits of his claims.

      Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 05/10/2019


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