J-S78037-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    LEONARD JAMES SHUGARS                      :
                                               :
                       Appellant               :   No. 1146 EDA 2018

                     Appeal from the Order March 14, 2018
      In the Court of Common Pleas of Lehigh County Criminal Division at
                       No(s): CP-39-CR-0002387-2015


BEFORE:      LAZARUS, J., McLAUGHLIN, J., and STEVENS*, P.J.E.

MEMORANDUM BY STEVENS, P.J.E.:                        FILED JANUARY 17, 2019

       Appellant Leonard James Shugars appeals pro se from the Order entered

in the Court of Common Pleas of Lehigh County on March 14, 2018, denying

as untimely his petition filed pursuant to the Post Conviction Relief Act

(PCRA).1 We affirm.

       In 2004, Appellant pled guilty to a single count of aggravated indecent

assault of a person less than 13 years of age 2 and consequently was

determined to be a sexually violent predator (SVP) under Megan’s Law II,3 the
____________________________________________


1 42 Pa.C.S.A. §§ 9541-9546.
2 18 Pa.C.S.A. § 3125(a)(7).
3 Act of May 10, 2000, P.L. 74, No. 18 (as amended, 42 Pa.C.S. §§ 9791–

9799.7). The statute was referred to as “Megan's Law II” because the General
Assembly had enacted a prior version of Megan's Law in 1995, see Act of Oct.
24, 1995, P.L. 1079 (Spec. Sess. No. 1), substantial portions of which were
ultimately deemed unconstitutional. See Commonwealth v. Williams, 574
Pa. 487, 493, 832 A.2d 962, 965 (2003).


____________________________________
* Former Justice specially assigned to the Superior Court.
J-S78037-18



law then in effect. Due to his SVP status, Appellant was required to report for

the remainder of his life. N.T. Hearing, 1/3/18, at 3-4.

        On or about April 10, 2015, Appellant failed to register with the

Pennsylvania State Police, and on October 2, 2015, he pled guilty to Failure

to Comply with Registration Requirements- graded as a second offense.4 On

February 1, 2016, Appellant was sentenced to three (3) years to (6) years in

prison. Appellant filed a “Post-Trial Motion” on February 9, 2016, wherein he

requested that the trial court reconsider its sentence. Following a hearing,

the trial court entered its Order denying Appellant’s motion on March 14,

2016. Appellant did not file an appeal from this Order.

        On   July   19,   2017,     the   Pennsylvania   Supreme   Court   decided

Commonwealth v. Muniz, 640 Pa. 699, 164 A.3d 1189 (2017) wherein it

held the registration requirements of the Sex Offender Registration and

Notification Act (“SORNA”), 42 Pa.C.S.A. §§ 9799.10-9799.41, constitute

criminal punishment and that retroactive application of SORNA’s Subchapter

H requirements to defendants whose crimes occurred prior to SORNA’s

effective date of December 20, 2012, violated the ex post facto clause of the

federal and Pennsylvania Constitutions. Id. at 749, 164 A.3d at 1218.

        On September 21, 2017, Appellant filed the instant PCRA petition, pro

se. Therein, Appellant alleged he was entitled to the benefit of the exceptions

to the PCRA time-bar set forth in 42 Pa.C.S.A. §§ 9545(b)(1)(ii), (iii) and in

____________________________________________


4   18 Pa.C.S.A. § 4915.1(a)(1).

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doing so reasoned that because Muniz invalidated SORNA’s registration

requirements, he “should never have been charged with failure to comply with

registration.” See PCRA Petition, filed 9/21/17, at 7. In its Order entered on

October 17, 2017, the PCRA court appointed counsel to represent Appellant

and scheduled a hearing on Appellant’s PCRA petition for January 3, 2018.

      On December 7, 2017, counsel filed his Motion to Withdraw as Counsel

wherein he alleged that after a full review of the record he believed Appellant’s

pro se petition lacked merit and that no additional meritorious claims could be

brought on Appellant’s behalf. Counsel attached as “Exhibit A” to his motion

to withdraw a “no-merit” letter dated December 5, 2017, and addressed to

Appellant providing Appellant with an explanation as to why counsel deemed

his claims to be meritless.

      Following a hearing, the PCRA court entered an Order on January 3,

2018, granting counsel’s motion to withdraw.         In an Order entered on

February 13, 2018, following its consideration of Appellant’s PCRA petition

along with counsel’s motion to withdraw and the accompanying “no merit”

letter, the PCRA court provided Appellant with notice pursuant to Pa.R.Crim.P.

907(1) of its intention to dismiss Appellant’s petition as untimely. Appellant

filed a response on March 2, 2018, and on March 14, 2018, the PCRA court

entered its Order denying and dismissing Appellant’s PCRA petition.

      Appellant filed a timely notice of appeal with this Court on April 13,

2018. In its April 17, 2018, Order the PCRA court directed Appellant to file a

concise statement of the errors complained of on appeal, and Appellant

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complied on May 11, 2018. On June 8, 2018, the PCRA court filed its Pa.R.A.P.

1925(a) Opinion. In his brief, Appellant presents the following questions for

this Court’s review:

      I.     Did the PCRA [c]ourt err and abuse is discretion when
             informing [Appellant] that said court did not have
             jurisdiction over his TIMELY filed PCRA Petition?

      II.    Did the PCRA [c]ourt erred, [sic] when it failed to investigate
             and correct the State’s illegal/unlawful sentence of
             Appellant for “FAILURE TO REGISTER” pursuant to SORNA,
             which is EX POST FACTO TO Appellant’s predicate
             sentence, docketed at CP-42-CR-0563-2002 which was
             based on the now expired Megan’s Law II?

      III.   Did the PCRA [c]ourt err, when it failed to correct the trial
             court’s assessment of [Appellant] as an [sic] Sexually
             Violent Predator (SVP) since the recently rendered decision
             in Commonwealth v. Butler 1225 WDA 2016 (Pa.
             Superior Court) ruled that the process by which [Appellant]
             was found an SVP violated [Appellant’s] Constitutional
             Rights?

Brief for Appellant at 3 (emphasis in original).

      Before we may address the merits of any of these issues, we must begin

by examining the timeliness of Appellant's petition, because the PCRA time

limitations implicate our jurisdiction and may not be altered or disregarded in

order to address the merits of a petition. Commonwealth v. Bennett, 593

Pa. 382, 388, 930 A.2d 1264, 1267 (2007).

      Under the PCRA, any petition for post-conviction relief, including a

second or subsequent one, must be filed within one year of the date the

judgment of sentence becomes final, unless one of the following exceptions

set forth in 42 Pa.C.S.A. §§ 9545(b)(1)(i)–(iii) applies:


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      (b) Time for filing petition.—

      (1) Any petition under this subchapter, including a second or
      subsequent petition, shall be filed within one year of the date the
      judgment becomes final, unless the petition alleges and the
      petitioner proves 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. § 9545(b)(1)(i)–(iii). “Any petition attempting to invoke one of

these exceptions ‘shall be filed within 60 days of the date the claim could have

been presented.’” 42 Pa.C.S.A. § 9545(b)(2); Commonwealth v. Murphy,

180 A.3d 402, 404, appeal denied, 195 A.3d 559 (Pa. 2018).

      Herein, Appellant's post sentence motion was denied on March 14, 2016.

Therefore, his judgment of sentence became final on or about April 14, 2016,

the time in which he had to file a direct appeal with this Court.         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 Supreme Court of

Pennsylvania, or at the expiration of time for seeking the review”); Pa.R.A.P.

903(a) (“the notice of appeal ... shall be filed within 30 days after the entry


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of the order from which the appeal is taken”); Pa.R.Crim.P. 720(a)(2)(c) (“If

the defendant files a timely post-sentence motion, the notice of appeal shall

be filed ... within 30 days of the entry of the order deciding the motion”). A

timely petition needed to have been filed on or before April 14, 2017, within

one year after the judgment of sentence became final; thus, Appellant’s

present petition filed on      September    21, 2017, is facially untimely.

Consequently, for this Court to have jurisdiction to review the merits of his

claims, Appellant must prove that he meets one of the exceptions to the

timeliness requirements set forth in 42 Pa.C.S.A. § 9545(b). For the reasons

that follow, we find Appellant has failed to meet this burden.

      Appellant seemingly attempts to satisfy the timeliness exception of

Section 9545(b)(1)(iii) by arguing that the lifetime registration requirement

imposed upon him pursuant to Megan’s Law II is unconstitutional under our

Supreme Court decision in Muniz (holding that SORNA's registration

provisions are punitive and that retroactive application of those provisions

violates the federal ex post facto clause, as well as the ex post facto clause of

Pennsylvania's Constitution) and that his designation as an SVP is

unconstitutional under this Court’s subsequent decision in Commonwealth

v. Butler, 173 A.3d 1212 (Pa.Super. 2017) (holding that, in light of Muniz

and the United States Supreme Court's decision in Alleyne v. United States,

570 U.S. 99 (2013), the process for designating an individual as an SVP under

SORNA is unconstitutional).


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      The PCRA court stresses that Appellant had until September 18, 2017,

to file a PCRA petition in reliance upon Muniz which had been decided on July

19, 2017, and that he provided no reasonably verifiable evidence in the record

to support a finding he provided the petition to prison authorities before then.

Specifically, the PCRA court states that “[t]he petition is not dated, there is no

envelope attached to the petition, no prisoner cash slip, and no Postal Form

3817 certifying the date of mailing.” See Trial Court Opinion, filed 6/8/18, at

3.

      It is incumbent upon the incarcerated pro se litigant to “supply sufficient

proof of the date of mailing[.]” Thomas v. Elash, 781 A.2d 170, 176 (Pa.

Super. 2001). While Appellant’s PCRA petition is time stamped as filed on

September 21, 2015, Appellant represents that he handed the petition to

prison authorities on September 15, 2017. We agree with the trial court that

there is no record evidence to substantiate Appellant’s claim and, in fact, no

date appears on the pro se petition itself. Thus, the trial court correctly found

the petition to be untimely in that while illegal sentencing issues cannot be

waived,   they   still   must   be   presented   in   a   timely   PCRA   petition.

Commonwealth v. Holmes, 593 Pa. 601, 607, 933 A.2d 57, 60 (2007).

      Even were we to give credence to Appellant’s representation and deem

his PCRA petition as having been filed on September 15, 2017, within sixty




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days of the Muniz decision under the “Prisoner Mailbox Rule,”5 Muniz would

afford Appellant no relief, as he was sentenced pursuant to Megan’s Law II,

not SORNA, the latter of which our Supreme Court concluded to be “much

more retributive than Megan’s Law II.”           Id. at 744, 164 A.3d at 1216.

       Moreover, in Commonwealth v. Abdul–Salaam, 571 Pa. 219, 812

A.2d 497 (2002), our Supreme Court held that,

       [s]ubsection (iii) of Section 9545 has two requirements. First, it
       provides that the right asserted is a constitutional right that was
       recognized by the Supreme Court of the United States or this court
       after the time provided in this section. Second, it provides that
       the right “has been held” by “that court” to apply retroactively.
       Thus, a petitioner must prove that there is a “new” constitutional
       right and that the right “has been held” by that court to apply
       retroactively. The language “has been held” is in the past tense.
       These words mean that the action has already occurred, i.e., “that
       court” has already held the new constitutional right to be
       retroactive to cases on collateral review. By employing the past
       tense in writing this provision, the legislature clearly intended that
       the right was already recognized at the time the petition was filed.

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5 This Rule provides that a pro se document is deemed filed on date a prisoner
deposits the document with the proper prison authority and/or places it in the
prison mailbox, even where it is actually received by the court after deadline
for filing. See Commonwealth v. Wilson, 911 A.2d 942, 944 (Pa.Super.
2006). Under the Rule, “we are inclined to accept any reasonably verifiable
evidence of the date that the prisoner deposits the [pro se document] with
the prison authorities....” Commonwealth v. Perez, 799 A.2d 848, 851 (Pa.
Super. 2002) (quoting Commonwealth v. Jones, 700 A.2d 423, 426 (Pa.
1997)). Although not made a part of the certified record, Appellant attaches
to his appellate brief as “Appendix B” what he purports to be a cash slip dated
9/15/17 requesting that an amount be deducted from his inmate account for
additional postage for the purposes of mailing his PCRA petition. He also
attaches as “Appendix C” a copy of what appears to be his monthly account
statement which shows an amount of $1.82 was deducted for postage on
9/18/17.



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Id. at 226, 812 A.2d at 501.

      This Court has determined that the holding in Muniz does not apply

retroactively at this time to untimely-filed PCRA petitions and, therefore,

Muniz cannot satisfy the “new constitutional right” exception of Section

9545(b)(1)(iii). In doing so, we

      [a]cknowledge[d] 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 [the]
      [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). See
      Abdul–Salaam, supra. Because at this time, no such holding has
      been issued by our Supreme Court, [the] [a]ppellant cannot rely
      on Muniz to meet that timeliness exception.

Murphy, at 405–06 (emphasis in original).

       Finally, while Appellant did not present an argument regarding the

Butler decision in his PCRA petition, that decision was not filed until October

31, 2017, at the time Appellant’s petition was pending.        Nevertheless, this

claim raised for the first time in his appellate brief affords Appellant no relief,

as neither the United States Supreme Court nor the Pennsylvania Supreme

Court has held that this Court’s decision in Butler applies retroactively, even

if Butler could be construed as creating a new constitutional right.

      In sum, because Appellant'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, Appellant cannot satisfy the

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timeliness exception of Section 9545(b)(1)(iii).6 Since Appellant makes no

attempt to plead and prove any other timeliness exception to the PCRA time-

bar, we discern no error in the PCRA court’s decision to deny his untimely

petition and conclude that we are without jurisdiction to offer Appellant any

form of relief. See Commonwealth v. Jackson, 30 A.3d 516, 523 (Pa.Super.

2011), appeal denied, 616 Pa. 634, 47 A.3d 845 (2012).7

      Order affirmed.

      Judge Lazarus joins the memorandum.

      Judge McLaughlin concurs in the result.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/17/19




____________________________________________


6 Certainly, if the Pennsylvania Supreme Court issues a decision holding that
either Muniz or Butler applies retroactively, Appellant may then file a PCRA
petition, within 60 days of that decision, attempting to invoke the ‘new
retroactive right’ exception of section 9545(b)(1)(iii). See Murphy at 405 n.
1.
7 “[A]n appellate court is not bound by the rationale of the trial court and may

affirm on any basis if the record supports it.” Commonwealth v. Diaz, 183
A.3d 417, 421 (Pa.Super. 2018).

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