J-S69036-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA              :   IN THE SUPERIOR COURT OF
                                           :        PENNSYLVANIA
                                           :
              v.                           :
                                           :
                                           :
 CHALLAN A. GALLEHER                       :
                                           :
                    Appellant              :   No. 654 MDA 2018

             Appeal from the Order Entered January 10, 2018
   In the Court of Common Pleas of Bradford County Criminal Division at
                     No(s): CP-08-CR-0000295-2006

BEFORE: BENDER, P.J.E., LAZARUS, J., and MURRAY, J.

MEMORANDUM BY MURRAY, J.:                          FILED JANUARY 08, 2019

      Challan A. Galleher (Appellant) appeals from the order dismissing his

petition for writ of habeas corpus. We affirm.

      A prior panel of this Court summarized the relevant facts and procedural

history of this case as follows:

          The record reveals that Appellant appeared at an October 16,
      2006 hearing and pled guilty to involuntary deviate sexual
      intercourse with a child and involuntary deviate sexual intercourse
      with a person less than 16 years of age. Pursuant to the parties’
      plea agreement, the trial court imposed a sentence of 13 to 45
      years of incarceration at a January 15, 2007 sentencing hearing.
      Also pursuant to the parties’ plea agreement, the Commonwealth
      dismissed numerous other charges and did not seek to have
      Appellant declared a sexually violent predator.         This Court
      affirmed the judgment of sentence on November 2, 2007.
      Appellant did not seek allowance of appeal in the Pennsylvania
      Supreme Court.

         On May 15, 2009, Appellant filed a pro se petition for a writ of
      habeas corpus. The PCRA court treated that filing as a first PCRA
      petition, and on August 31, 2010 the court filed its notice of intent
      to dismiss the petition without a hearing pursuant to Pa.R.Crim.P.
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     907. The PCRA court dismissed the petition on September 8, 2010
     without ever having appointed counsel, and Appellant filed a
     timely pro se appeal. In an unpublished memorandum filed
     August 11, 2011, this court vacated and remanded for
     appointment of counsel. The PCRA court appointed counsel on
     March 19, 2012. On January 29, 2013, the trial court once again
     entered notice of its intent to dismiss Appellant’s petition without
     a hearing. The PCRA court dismissed Appellant’s petition on May
     10, 2013.

Commonwealth v. Galleher, 365 MDA 2013 at 1-2 (Pa. Super. Aug. 28,

2014) (unpublished memorandum; footnotes omitted).

     On August 28, 2014, this Court affirmed Appellant’s appeal from the

order dismissing his first PCRA petition on the basis that the petition was

untimely. Id. at 3-4. The panel explained:

         We begin our own review with an analysis of the timeliness of
     Appellant’s petition. The PCRA’s jurisdictional timeliness provision
     requires a petitioner to file a PCRA petition within one year of the
     date on which the judgment of sentence becomes final. 42
     Pa.C.S.A. § 9545(b)(1). This Court affirmed Appellant’s judgment
     of sentence on November 2, 2007. Because Appellant did not seek
     allowance of appeal to our Supreme Court, his judgment of
     sentence became final thirty days later, on December 3, 2007.
     See Pa.R.A.P. 1113(a) (requiring an appellant to seek allowance
     of appeal to the Supreme Court within 30 days of this Court’s
     order). Accordingly, Appellant had until December 3, 2008 to file
     a timely PCRA petition.

        Appellant’s May 15, 2009 filing is therefore facially untimely. A
     petitioner can avoid the time bar if he or she pleads and proves
     the applicability of one of three timeliness exceptions set forth in
     § 9545(b)(1)(i-iii). Since Appellant has not attempted to plead or
     prove the applicability of any of the three timeliness exceptions,
     the PCRA court was without jurisdiction to entertain his petition.

Id. (footnotes omitted).




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        On November 28, 2017, Appellant filed a second pro se petition for writ

of habeas corpus.       Appellant asserted that his sentence was illegal under

Commonwealth v. Muniz, 164 A.3d 1189 (Pa. 2017).                    In Muniz, our

Supreme Court held that retroactive application of the registration and

reporting requirements of the Pennsylvania Sex Offender Registration and

Notification Act, (SORNA),1 violated the ex post facto clauses of the United

States and Pennsylvania Constitutions. Id. at 1223. On January 10, 2018,

the trial court dismissed Appellant’s habeas petition, concluding that Muniz

was inapplicable because Appellant was never sentenced under SORNA. This

timely appeal followed.

        On appeal, Appellant presents the following issues for review:

        1. Whether the trial [c]ourt erred as a [m]atter of [l]aw and/or
        abused [its] discretion in denying Appellant’s requested relief
        violating Appellant's Article 1 §1 Pennsylvania Constitutional Right
        to reputation?

        2. Whether the trial [c]ourt erred as a [m]atter of [l]aw for failing
        to realize ALL prior ver[s]ions of Megan’s Law[] expired on
        December 12, 2012 upon the enactment of SORNA, 42 Pa.C.S.
        §9799.41?

        3. Whether the trial [c]ourt erred as a [m]atter of [l]aw and/or
        abused [its] discretion by failing to realize any [c]onstitutional
        ruling that deems statutes, or portions thereof constitute
        punishment outside the scope of [c]onstitutional protections is an
        error of [l]aw?

        4. Whether the trial [c]ourt erred as a [m]atter of [l]aw as it relied
        on statutes and procedures prior to the Muniz ruling?


____________________________________________


1   42 Pa.C.S.A. §§ 9799.10-9799.42.

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      5. Whether the trial [c]ourt erred as a [m]atter of [l]aw for failing
      to acknowledge Megan’s Law III to which Appellant was sentenced
      under was found unconstitutional by the Neiman Court?

      6. Whether the trial [c]ourt erred as a [m]atter of [l]aw for not
      considering statutes to which Appellant plead guilty both carry
      mandatory minimum sentences, and mandatory registration both
      of which are unconstitutional?

      7. Whether the trial [c]ourt erred as a [m]atter of [l]aw for not
      considering Act 10 of 2018, sub-chapter I (42 Pa.C.S. §§ 9799.51-
      9799.75) are facially and otherwise unconstitutional, and violate
      [d]ue [p]rocess when applied retroactively to pre-SORNA
      offenders who were not advised of the applicable registration
      requirements at the time of their guilty plea resulting in manifest
      injustice?

Appellant’s Brief at 4.

      Prior to addressing Appellant’s issues, we must first determine whether

we have jurisdiction. Although Appellant identified his filing underlying this

appeal as a petition for writ of habeas corpus, our Supreme Court has held

that “the PCRA subsumes all forms of collateral relief, including habeas corpus,

to the extent a remedy is available under such enactment.”

Commonwealth v. West, 938 A.2d 1034, 1043 (Pa. 2007) (emphasis in

original).   Consequently, Appellant’s habeas petition was his second PCRA

petition. We must therefore consider the timeliness of the petition.

      “Pennsylvania law makes clear no court has jurisdiction to hear an

untimely PCRA petition.” Commonwealth v. Monaco, 996 A.2d 1076, 1079

(Pa. Super. 2010) (quoting Commonwealth v. Robinson, 837 A.2d 1157,

1161 (Pa. 2003)). A petitioner must file a PCRA petition within one year of




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the date on which the petitioner’s judgment became final, unless one of the

three statutory exceptions apply:

      (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). A petitioner must file a petition invoking one of

these exceptions “within 60 days of the date the claim could have been

presented.” 42 Pa.C.S.A. § 9545(b)(2).       If a petition is untimely, and the

petitioner has not pled and proven any exception, “neither this Court nor the

trial court has jurisdiction over the petition. Without jurisdiction, we simply

do not have the legal authority to address the substantive claims.”

Commonwealth v. Derrickson, 923 A.2d 466, 468 (Pa. Super. 2007)

(quoting Commonwealth v. Chester, 895 A.2d 520, 522 (Pa. 2006)).

      As set forth above, a prior panel of this Court explained that Appellant’s

“judgment of sentence became final . . . on December 3, 2007[,]” and thus,

“Appellant had until December 3, 2008 to file a timely PCRA petition.”

Galleher, 365 MDA 2013 at 3. Accordingly, Appellant’s second PCRA petition,

which he filed on November 28, 2017, is facially untimely, and we lack


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jurisdiction to decide Appellant’s appeal unless he pled and proved one of the

three timeliness exceptions of section 9545(b)(1). See id.

       Here, Appellant did not attempt to plead or prove any of the timeliness

exceptions of section 9545(b)(1) in his PCRA petition. See Petition for Writ

of Habeas Corpus, 11/28/17. We are therefore without jurisdiction to address

the merits of his appeal.2        See Derrickson, 923 A.2d at 468; see also

Commonwealth v. Murphy, 180 A.3d 402, 405-06 (Pa. Super. 2018)

(holding that an appellant cannot rely on Muniz to satisfy the newly

recognized constitutional right timeliness exception of the PCRA).

       Order affirmed.



       P.J.E. Bender joined the memorandum.



       Judge Lazarus files a concurring statement.




____________________________________________


2  Even if Appellant’s PCRA petition was timely, he would not be entitled to
relief under Muniz. In Muniz, the Supreme Court held that the retroactive
application of the registration and reporting requirements of SORNA, which
became effective on December 20, 2012, violated the ex post facto clauses of
the United States and Pennsylvania Constitutions. Muniz, 164 A.3d at 1223.
In this case, as the trial court pointed out, Appellant was not sentenced to any
sexual offender registration under SORNA because he pled guilty and was
sentenced long before SORNA’s effective date. Trial Court Order, 1/10/18.

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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 1/8/2019




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