J -S15018-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA              :   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA

               v.


 MARCUS TURNER

                    Appellant              :   No. 1028 WDA 2018
            Appeal from the PCRA Order Entered June 13, 2018
   In the Court of Common Pleas of Allegheny County Criminal Division at
                      No(s): CP-02-CR-0009765-2015

BEFORE:    GANTMAN, P.J.E., SHOGAN, J., and COLINS*, J.

MEMORANDUM BY SHOGAN, J.:                               FILED JULY 22, 2019

      Appellant, Marcus Turner, appeals from the order denying his petition

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

§§ 9541-9546. We affirm.

      The PCRA court summarized the procedural history of this case as
follows:

             On November 30, 2015, Appellant, Marcus Turner, pled
      guilty to one count each of Rape of a Child, Involuntary Deviate
      Sexual Intercourse ("IDSI") of a Child, Sexual Assault, and two
      counts of Indecent Assault with a Person Less than 13 Years of
      Age.' This [c]ourt sentenced Appellant to an aggregate sentence
      of three to ten years of incarceration, with three years of
      consecutive probation, and lifetime registration pursuant to
      SORNA.2 Appellant did not file a Post -Sentence Motion or a direct
      appeal.




   Retired Senior Judge assigned to the Superior Court.
J -S15018-19


              On September 26, 2017, Appellant field a pro se Post
      Conviction Relief Act Petition.[1] Ultimately, this [c]ourt dismissed
      the PCRA on June 1[3], 2018. Appellant filed a Notice of Appeal
      on June 29, 2018 and a Concise Statement of Errors on July 19,
      2018.

              1 18 Pa.C.S §§ 3121 (C), 3123 (B), 3124.1, and 3126
              (A) (7), respectively.

              2   Sex Offender Registration Notification Act, 42
              Pa.C.S. § 9799.10-9799.41.

PCRA Court Opinion, 10/10/18, at 2-3.

      Our standard of review of an order denying PCRA relief is whether the

record supports the PCRA court's determination and whether the PCRA court's

determination is free of legal error. Commonwealth v. Phillips, 31 A.3d
317, 319 (Pa. Super. 2011). The PCRA court's findings will not be disturbed

unless there is no support for the findings in the certified record. Id.

      A PCRA petition must be filed within one year of the date that the
judgment of sentence becomes final. 42 Pa.C.S. § 9545(b)(1). This time

requirement is mandatory and jurisdictional in nature, and the court may not

ignore it in order to reach the merits of the petition.     Commonwealth v.
Hernandez, 79 A.3d 649, 651 (Pa. Super. 2013). 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




1 Counsel was appointed by order of court entered September 28, 2017.
Counsel filed an amended PCRA petition on December 7, 2017.
                                      -2-
J -S15018-19


Pennsylvania, or at the expiration of time for seeking the review." 42 Pa.C.S.

§ 9545(b)(3).

      However, an untimely petition may be received when the petition
alleges, and the petitioner proves, that any of the three limited exceptions to

the time for filing the petition, set forth at 42 Pa.C.S. § 9545(b)(1)(i), (ii), and

(iii), is met.2 Until recently, a petition invoking one of these exceptions must

have been filed within sixty days of the date the claim could first have been

presented.3 42 Pa.C.S. § 9545(b)(2).




2 The exceptions to the timeliness requirement are:
      (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. § 9545(b)(1)(i), (ii), and (iii).
3 Act 146 of 2018 amended 42 Pa.C.S. § 9545(b)(2), and Section 9545(b)(2)
now provides that a PCRA petition invoking a timeliness exception must be
filed within one year of the date the claim could have been presented. See
2018 Pa.Legis.Serv.Act 2018-146 (S.B. 915), effective December 24, 2018, §
2 and § 3 ("[T]he amendment ... shall apply to claims arising on Dec. 24,
2017 or thereafter."). This change in the law is inapplicable to Appellant's
instant petition because the petition was filed September 26, 2017, and
amended on December 7, 2017.
                                         -3
J -S15018-19


      Our review of the record reflects that Appellant was sentenced on
November 30, 2015.      Appellant did not file a direct appeal.    Accordingly,

Appellant's judgment of sentence became final on December 30, 2015, when

the time allowed for filing a direct appeal expired. 42 Pa.C.S. § 9545(b)(3);

Pa.R.A.P. 903; Commonwealth v. Zuniga, 772 A.2d 1028, 1030 (Pa. Super.

2001). Therefore, Appellant had to file the current PCRA petition by December

30, 2016, in order for it to be timely. See 42 Pa.C.S. § 9545(b)(1) (a PCRA

petition must be filed within one year of the date that the judgment of
sentence becomes final). Appellant did not file the instant PCRA petition until

September 26, 2017.      Thus, Appellant's instant PCRA petition is patently

untimely.

     As previously stated, if a petitioner does not file a timely PCRA petition,

his petition may nevertheless be received under any of the three limited
exceptions to the timeliness requirements of the PCRA.             42 Pa.C.S.

§ 9545(b)(1). It is the petitioner's burden to allege and prove that one of the

exceptions exists. Commonwealth v. Whitehawk, 146 A.3d 266, 269-270

(Pa. Super. 2016).

     Appellant argues that his case falls within the newly recognized
constitutional -right exception. Appellant's Brief at 12. Appellant asserts that

he filed his PCRA petition within sixty days of the Pennsylvania Supreme

Court's ruling in Commonwealth v. Muniz, 164 A.3d 1189 (Pa. 2017), that

Muniz "established a newly recognized constitutional right that applies


                                     -4
J -S15018-19


retroactively," and the PCRA court therefore had jurisdiction to consider his

petition. Id. at 12-13.
      Appellant's claim, however, fails to establish this exception to the PCRA

time bar. Collateral relief premised on Muniz is only available via a timely

PCRA petition.   As this Court explained in Commonwealth v. Greco, 203
A.3d 1120, 1124 (Pa. Super. 2019), wherein the appellant attempted to
invoke Muniz as an exception to the PCRA time bar:

            Appellant's reliance on Muniz cannot satisfy the 'new
      retroactive right' exception of section 9545(b)(1)(iii).... 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
      section 9545(b)(1)(iii).    See [Commonwealth v.] Abdul -
      Salaam, [812 A.2d 497, 501 (Pa. 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.

Greco, 203 A.3d at 1124 (quoting Commonwealth v. Murphy, 180 A.3d
402, 405-406 (Pa. Super. 2019)).

      Consequently, because the instant PCRA petition was untimely and no

exceptions apply, the PCRA court lacked jurisdiction to address the claims

presented and grant relief. See Commonwealth v. Fairiror, 809 A.2d 396,

398 (Pa. Super. 2002) (holding that PCRA court lacks jurisdiction to hear

untimely petition).   Likewise, we lack the authority to address the merits of

any substantive claims raised in the PCRA petition.


                                     -5
J -S15018-19


     Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Es
Prothonotary
                        ,
    A2-10e.4J4a'7''/Aex--



Date: 7/22/2019




                            -6
