J-S03004-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    JOHN ROBERT PAYNE, SR.                     :
                                               :
                       Appellant               :   No. 196 WDA 2019

            Appeal from the PCRA Order Entered January 11, 2019
    In the Court of Common Pleas of Erie County Criminal Division at No(s):
                          CP-25-CR-0001639-2006


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

MEMORANDUM BY McLAUGHLIN, J.:                            FILED APRIL 30, 2020

        John Robert Payne, Sr. appeals from the order dismissing his petition

filed under the Post Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-9546. We

conclude that Payne’s PCRA petition is untimely and he fails to satisfy any

time-bar exception. We therefore affirm.

        In January 2007, a jury found Payne guilty of aggravated indecent

assault of a child, indecent assault, corruption of minors, and endangering

welfare of children.1 In May 2007, the trial court sentenced Payne to five to

10 years’ imprisonment for aggravated assault of a child, nine to 24 months’

imprisonment for corruption of minors, and five years’ probation for

endangering the welfare of children. The court ordered that the sentences

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*   Retired Senior Judge assigned to the Superior Court.

1   18 Pa.C.S.A. § 3125(b), 3126(a), 6301, and 4304(a), respectively.
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were to be served consecutive to each other and found that the indecent

assault conviction merged for sentencing purposes. On October 16, 2008, this

Court affirmed the judgment of sentence. Payne did not file a petition for

allowance of appeal with the Pennsylvania Supreme Court.

      Payne filed several unsuccessful PCRA petitions. In September 2017,

Payne filed the instant PCRA petition asserting he is entitled to relief under

Commonwealth v. Muniz, 164 A.3d 1189 (Pa. 2017). The PCRA court

appointed counsel, who filed an amended petition, alleging “[p]ursuant to

Muniz, [Payne] was never constitutionally subject to registration under

SORNA and thus, could not be prosecuted for failure to comply with

registration” under SORNA. Amended Petition for Post-Conviction Relief Under

the PCRA and/or Habeas Corpus Relief, filed Jan. 9, 2018, ¶ 9. Payne claimed

that the petition was timely because Muniz established a constitutional right

that the Pennsylvania Supreme Court recognized to apply retroactively.

      The PCRA court issued notice of intent to dismiss the petition without a

hearing pursuant to Pennsylvania Rule of Criminal Procedure 907. The court

reasoned that Payne had not been convicted of violating any enhanced

registration requirement and therefore there was no case or controversy. In

January 2019, the court dismissed the petition. Payne filed a timely notice of

appeal.

      Payne raises the following issue:

          1. Did the Court below commit reversible error by failing to
          grant [Payne’s] PCRA Petition which argued that requiring
          [Payne] to register under SORNA, which essentially was an

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         unconstitutional retroactive registration statute, was in
         violation of Commonwealth v. Muniz?

Payne’s Br. at 1.

      When reviewing the denial or grant of relief under the PCRA, “[w]e 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).

      We do not reach the merits of Payne’s claim because his petition was

untimely. See Commonwealth v. Pursell, 749 A.2d 911, 913-14 (Pa. 2000).

A criminal defendant has one year from the time the judgment of sentence

becomes final to file a timely PCRA petition, unless an exception applies. See

42 Pa.C.S.A. § 9545(b)(1). A judgment of sentence 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.A. § 9545(b)(3). The

petitioner bears the burden of pleading and proving at least one of the time-

bar exceptions:

         (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

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          provided in this section and has been held by that court to
          apply retroactively.

42 Pa.C.S.A. § 9545(b)(1)(i)-(iii).

       Here, Payne’s judgment of sentence became final on November 17,

2008, when the time to file a petition for allowance of appeal with the

Pennsylvania Supreme Court expired. Pa.R.A.P. 1113(a) (providing that a

petition for allowance of appeal shall be filed within 30 days of the entry of

the Superior Court order).2 Payne thus had until November 17, 2009, to file a

timely PCRA petition. Therefore, the instant petition, which he filed in January

2017, is untimely and the PCRA court lacked jurisdiction over it unless Payne

pled and proved at least one of the time-bar exceptions. See Commonwealth

v. Albrecht, 994 A.2d 1091, 1093 (Pa. 2010).

       In his PCRA petition, Payne claimed he satisfied the new retroactive

constitutional right exception to the PCRA time bar, that is, he claimed that

Muniz established a constitutional right which was found to apply

retroactively. We have concluded that Muniz does not satisfy the new

retroactive constitutional right exception to the time bar because the

Pennsylvania Supreme Court has not held that the right applies retroactively.

Commonwealth v. Murphy, 180 A.3d 402, 406 (Pa.Super. 2018).


____________________________________________


2 Thirty days from October 16, 2008 was Saturday, November 15, 2008.
Therefore, Payne had until Monday, November 17, 2008 to file a timely
petition for allowance of appeal. 1 Pa.C.S.A. § 1908 (excluding weekends and
holidays from the computation of time when the last day of the time period
falls on a weekend or holiday).



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Accordingly, Payne did not establish that an exception to the time bar applies,

and the PCRA court lacked jurisdiction over the petition. We therefore affirm

the order dismissing the PCRA petition.3

       Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/30/2020




____________________________________________


3We may affirm an order on any basis. See Commonwealth v. Clouser,
998 A.2d 656, 661 n.3 (Pa.Super. 2010).

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