J-S14008-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA  :            IN THE SUPERIOR COURT OF
                                  :                 PENNSYLVANIA
                                  :
            v.                    :
                                  :
                                  :
    EDWARD GALLOWAY SCHWARTZ, JR. :
                                  :
                 Appellant        :            No. 2952 EDA 2018

             Appeal from the PCRA Order Entered October 1, 2018
     In the Court of Common Pleas of Delaware County Criminal Division at
                       No(s): CP-23-CR-0001551-2009


BEFORE:      LAZARUS, J., NICHOLS, J., and PELLEGRINI*, J.

MEMORANDUM BY LAZARUS, J.:                            FILED APRIL 08, 2019

        Edward Galloway Schwartz, Jr. appeals, pro se, from the order, entered

in the Court of Common Pleas of Delaware County, dismissing, without a

hearing, his third petition filed pursuant to the Post Conviction Relief Act, 42

Pa.C.S.A. §§ 9541-9546 (PCRA). We affirm.

        On December 22, 2009, Schwartz entered a negotiated guilty plea to

eight counts of sexual abuse of children (possession of child pornography),1

and one count of criminal use of a communication facility.2 The court ordered

an assessment by the Sexual Offender Assessment Board (SOAB) to

determine whether Schwartz was a sexually violent predator (SVP) under

Megan’s Law. On May 5, 2010, the court determined that Schwartz was an

____________________________________________


1   18 Pa.C.S.A. § 6312(D)(1).

2   18 Pa.C.S.A. § 7512(A).
____________________________________
* Retired Senior Judge assigned to the Superior Court.
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SVP, and the court imposed the agreed-upon sentence of 12½ to 25 years’

incarceration, followed by 5 years of probation. The remaining charges were

nolle prossed. Schwartz did not file post-sentence motions or a direct appeal.

       Schwartz filed the instant PCRA petition on September 11, 2017. The

PCRA court appointed counsel, who, after review, filed a Turner/Finley no-

merit letter.3    On August 21, 2018, the PCRA court served Schwartz with a

notice of intent to dismiss pursuant to Pa.R.Crim.P. 907(1). On September

10, 2018, Schwartz filed a response and an amended petition. Thereafter, on

October 1, 2018, the court dismissed Schwartz’s petition and granted

counsel’s request to withdraw. This timely appeal followed. Both Schwartz

and the PCRA court have complied with Pa.R.A.P. 1925(b).

       Schwartz raises the following claims on appeal:

          1. Was Schwartz entitled to PCRA relief from SORNA[4]imposed
             sex offender registration requirements, which were applied
             to him retroactively, following the Pennsylvania Supreme
             Court’s decision in Commonwealth v. Muniz, [164 A.3d
             1189 (Pa. 2017)], which determined the retroactive
             application of SORNA to be unconstitutional?

____________________________________________


3Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth
v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).

4 Sex Offender Registration and Notification Act (SORNA), 42 Pa.C.S.A. §§
9799.10 et seq. On December 20, 2011, the legislature replaced Megan’s Law
with SORNA, effective December 20, 2012, to strengthen registration
requirements for sex offenders and to bring Pennsylvania into compliance with
the Adam Walsh Child Protection and Safety Act, 42 U.S.C.A. §§ 16901, et
seq. Commonwealth v. Sampolski, 89 A.3d 1287, 1288 (Pa. Super. 2014).
SORNA was amended on July 5, 2012, also effective December 20, 2012.



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          2. Was Schwartz entitled to PCRA relief from the trial court’s
             designation at sentencing as an SVP in light of recent
             Pennsylvania case law which has since invalidated the SVP
             hearing designation process as unconstitutional?

          3. Was Schwartz entitled to PCRA relief through his amended
             PCRA where he presented a constitutional challenge to the
             new sex offender registration laws replacing SORNA law in
             Pennsylvania, and retroactively imposed upon him following
             the enactment of “Act 10 of 2018 (February 21, 2018)?”5

Appellant’s Brief, at 2.

       The timeliness of a PCRA petition is a jurisdictional prerequisite.

Commonwealth v. Zeigler, 148 A.3d 849 (Pa. Super. 2016).              A PCRA

petition must be filed within one year of the date the underlying judgment

____________________________________________


5 In response to Commonwealth v. Muniz, 164 A.3d 1189 (Pa. 2017), and
this Court’s decision in Commonwealth v. Butler, 173 A.3d 1212 (Pa. Super.
2017), the General Assembly passed Acts 10 and 29 of 2018 to cure SORNA’S
constitutional defects. See 42 Pa.C.S.A. § 9799.51(b)(4) (“it is the intention
of the General Assembly to address [Muniz and Butler].”) Specifically, our
General Assembly modified Subchapter H’s registration requirements for those
offenders convicted of committing offenses that occurred on or after SORNA’S
effective date, i.e., December 20, 2012. Moreover, the General Assembly
added Subchapter I to Title 42, Part VII, Chapter 97. Subchapter I sets forth
registration requirements that apply to all offenders convicted of committing
offenses on or after the effective date of Megan’s Law I (April 22, 1996), but
prior to SORNA’s effective date (December 20, 2012), whose period of
registration has not expired, as well as those offenders required to register
under a former sexual offender registration law of this Commonwealth on or
after April 22, 1996, but before December 20, 2012, whose period of
registration has not expired. Because we conclude that Schwartz’s petition is
time-barred, he cannot proceed with the constitutional claim he raises on
appeal. We note that the Supreme Court recently granted review, in its
original jurisdiction, to determine the issue of whether Acts 10 and 29 are
constitutional. See Commonwealth v. Lacombe, 35 MAP 2018 (Pa. 2018).




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becomes final. 42 Pa.C.S.A. § 9545(b)(1). A judgment of sentence is deemed

final at the conclusion of direct review or at the expiration of time for seeking

review. 42 Pa.C.S.A. § 9545(b)(3). The statutory exceptions to the time bar

allow for very limited circumstances to excuse the late filing of a petition; 6 a

petitioner asserting an exception must file a petition within 60 days of the date

the claim could have been presented. See 42 Pa.C.S.A. § 9545(b)(1-2).

       Here, Schwartz was sentenced on May 5, 2010 and he did not file a

direct appeal. Therefore, his judgment of sentence became final on June 4,

2010. See 42 Pa.C.S.A. § 9545(b)(3) (“For purposes of this subchapter, a

judgment becomes final at the conclusion of direct review, including

discretionary review in the Supreme Court of the United States and the

____________________________________________


6 In order to meet one of the statutory exceptions to the one-year time
requirement, a petition must allege and prove that:

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

42 Pa.C.S.A. § 9545(b)(1)(i-iii).


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Supreme Court of Pennsylvania, or at the expiration of time for seeking the

review.”); Pa.R.A.P. 903(a). Thus, Schwartz had one year, until June 4, 2011,

to file any petition, “including a second or subsequent petition.” 42 Pa.C.S.A.

§ 9541(b)(1). Instantly, Schwartz filed his petition on September 11, 2017.

His petition, therefore, is patently untimely.

      After our review, we conclude Schwartz has not proven any of the

statutory exceptions to the PCRA time-bar. See id. This Court has declared

that Muniz created a substantive rule that applies in the collateral context.

Commonwealth v. Rivera–Figueroa, 174 A.3d 674, 678 (Pa. Super. 2017).

However, as we recognized in Commonwealth v. Murphy, 180 A.3d 402,

405–406 (Pa. Super. 2018), “because [a]ppellant’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).” No such holding has yet been issued

by our Supreme Court.

      The same holds true for Schwartz’s argument that his SVP designation,

and thus his lifetime registration requirement, is illegal under Muniz and

Commonwealth v. Butler, 173 A.3d 1212 (Pa. Super. 2017). Schwartz

attempts to satisfy the timeliness exception of section 9545(b)(1)(iii) by

arguing that his designation as an SVP is unconstitutional under this Court’s

decision in Butler, supra. In Butler, this Court concluded that, in light of

our Supreme Court's decision in Muniz, “section 9799.24(e)(3) of SORNA

[regarding SVP designation] violates the federal and state constitutions

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because it increases the criminal penalty to which a defendant is exposed

without the chosen fact-finder making the necessary factual findings beyond

a reasonable doubt.” Butler, 173 A.3d at 1218. This Court’s reasoning in

Butler was based on the United States Supreme Court’s decision in Alleyne

v. United States, 570 U.S. 99, 102 (2013) (holding that “[a]ny fact that, by

law, increases the penalty for a crime is an ‘element’ that must be submitted

to the jury and found beyond a reasonable doubt”), which our Supreme Court

has held does not apply retroactively where, as here, the judgment of

sentence is final. See Commonwealth v. Washington, 142 A.3d 810, 820

(Pa. 2016) (holding that “Alleyne does not apply retroactively to cases

pending on collateral review”).

      In sum, because Schwartz’s PCRA petition is untimely, and neither the

United States Supreme Court nor the Pennsylvania Supreme Court has held

that either Muniz or Butler applies retroactively, Schwartz cannot satisfy the

timeliness exception of section 9545(b)(1)(iii). We conclude, therefore, that

Schwartz’s petition is time-barred, and the PCRA court lacked jurisdiction to

review it.    See Commonwealth v. Monaco, 996 A.2d 1076, 1079 (Pa.

Super. 2010) (“Pennsylvania law makes clear no court has jurisdiction to hear

an untimely PCRA petition.”) (quoting Commonwealth v. Robinson, 837

A.2d 1157, 1161 (Pa. 2003)). Accordingly, we affirm the PCRA court’s order.

      Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/8/19




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