J-S02040-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :         PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    TIMOTHY JAY ADAMS,                         :
                                               :
                       Appellant               :       No. 38 MDA 2019

           Appeal from the PCRA Order Entered December 14, 2018
               in the Court of Common Pleas of Bradford County
             Criminal Division at No(s): CP-08-CR-0000984-2013

BEFORE: BENDER, P.J.E., KING, J., and MUSMANNO, J.

MEMORANDUM BY MUSMANNO, J.:                             FILED MARCH 18, 2020

        Timothy Jay Adams (“Adams”) appeals from the Order denying his first

Petition for relief filed pursuant to the Post Conviction Relief Act (“PCRA”).1

We affirm.

        On March 3, 2014, Adams pled guilty to unlawful contact with a minor,

obstructing administration of law or other government function, and the failure

to verify address.2, 3 That same day, the trial court sentenced Adams to an

aggregate prison term of 63 to 132 months. Adams filed no direct appeal of

his judgment of sentence.

____________________________________________


1   42 Pa.C.S.A. §§ 9541-9546.

2   See 18 Pa.C.S.A. §§ 6318, 5101, 4915.1.

3 According to Adams, the counts of obstruction and failure to verify were
based upon an underlying West Virginia conviction, which occurred in 1998.
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       On August 17, 2017, Adams filed a pro se first PCRA Petition. The PCRA

court appointed counsel, who filed an Amended PCRA Petition. The PCRA court

conducted a hearing on Adams’s Amended PCRA Petition and, on December

14, 2018, the PCRA court denied Adams’s PCRA Petition as untimely filed.

Adams timely filed a Notice of Appeal, and a Pa.R.A.P. 1925(b) Concise

Statement of matters complained of on appeal.4

       Adams raises the following claim for our review:

       Did the trial court commit reversible error by denying [Adams]
       PCRA relief[,] in the form of vacating [his] convictions[,] when
       [his] sentence was an illegal sentence as a result of ex post
       facto/retroactive/illegal application of SORNA[5] to [Adams’s] sex
       offenses conviction out of West Virginia, thereby making
       [Adams’s] sex offender reporting obligations more onerous, when
       such ex post facto/retroactive/illegal application of SORNA to [his]
       West Virginia conviction occurred after [Adams] had already
       satisfied his ten[-]year sex offender registration and reporting
       requirements[,] and when SORNA has been struck down as being
       unconstitutional by the Pennsylvania Supreme Court following
       [Adams’s] convictions in the instant matter?


____________________________________________


4 Our review discloses that on February 27, 2019, while his first PCRA appeal
was pending, Adams filed a second PCRA Petition. On March 3, 2019, the
PCRA court issued Notice of its intention to dismiss Adams’s second PCRA
Petition without a hearing. It is not clear from the record whether the second
PCRA Petition was dismissed. However, the existence of a second, pending
PCRA Petition does not affect our jurisdiction over the present appeal. See
Commonwealth v. Lark, 746 A.2d 585, 588 (Pa. 2000) (holding that where
a PCRA appeal is pending, a subsequent PCRA petition cannot be filed until
resolution of review of the pending PCRA petition by highest state court in
which review is sought, or at expiration of the time for seeking such review).

5SORNA is the commonly-used acronym for the “Sex Offender Registration
and Notification Act,” 42 Pa.C.S.A §§ 9799.10-9799.41.



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Brief for Appellant at 3-4 (footnote added, some emphasis and capitalization

omitted).

      Adams claims that the PCRA court improperly denied his PCRA Petition,

because he was subjected to an illegal sentence pursuant to the Pennsylvania

Supreme Court’s decision in Commonwealth v. Muniz, 164 A.3d 1189 (Pa.

2017). Brief for Appellant at 18. Adams asserts that pursuant to Muniz, he

“was never constitutionally subject to registration under SORNA, and thus,

could not be prosecuted for failure to comply with [the] registration under

[s]ection 4915.1 ….” Brief for Appellant at 9. Adams additionally asserts that

he was not convicted of a crime subject to registration [requirements] under

that section. Id. at 10. Further, Adams contends that his conviction cannot

be sustained under any prior version of SORNA.              Id.    Adams cites

Commonwealth v. Rivera-Figuero, 174 A.3d 674 (Pa. Super. 2017), and

other similar cases holding that Muniz created a substantive rule that

retroactively applies in the collateral context. Brief for Appellant at 13, 15.

      As our Supreme Court has explained,

      [u]pon reviewing an order in a PCRA matter, we must determine
      whether the findings of the PCRA court are supported by the
      record and whether the court’s legal conclusions are free from
      error. The findings of the PCRA court and the evidence of record
      are viewed in a light most favorable to the prevailing party. The
      PCRA court’s credibility determinations, when supported by the
      record, are binding; however, this court applies a de novo
      standard of review to the PCRA court’s legal conclusions. We must
      keep in mind that the petitioner has the burden of persuading this
      Court that the PCRA court erred and that such error requires relief.
      Finally, this Court may affirm a valid judgment or order for any
      reason appearing of record.

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Commonwealth v. Montalvo, 205 A.3d 274, 286 (Pa. 2019) (citations

omitted).

      A PCRA petition must be filed within one year of the date the petitioner’s

judgment of sentence became final.           42 Pa.C.S.A. § 9545(b)(1).    “[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.” 42 Pa.C.S.A. § 9545(b)(3). The timeliness requirement for PCRA

petitions “is mandatory and jurisdictional in nature.”    Commonwealth v.

Taylor, 67 A.3d 1245, 1248 (Pa. 2013) (citation omitted).            The three

exceptions to the timeliness requirement are for newly discovered facts,

interference by a government official, and a newly-recognized constitutional

right. 42 Pa.C.S.A. § 9545(b)(1)(i)-(iii).

      In Muniz, our Supreme Court held that the retroactive application of

SORNA to offenders who committed their crimes before SORNA’s effective

date violates the ex post facto clauses of the United States and Pennsylvania

constitutions. Muniz, 164 A.3d at 1218. In Rivera-Figueroa, this Court

recognized that “the recent holding in Muniz created a substantive rule that

retroactively applies in the collateral context, because SORNA punishes a class

of defendants due to their status as sex offenders and creates a significant

risk of punishment that the law cannot impose.” Rivera-Figueroa, 174 A.3d




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at 678. However, Rivera-Figueroa did not involve the “retroactive right”

exception to the PCRA’s timeliness requirement. As this Court has explained,

      reliance on Muniz cannot satisfy the “new retroactive right” 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.”       [] Rivera-
      Figueroa, … 174 A.3d [at] 678…. 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 [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, the
      a]ppellant cannot rely on Muniz to meet that timeliness
      exception.

Commonwealth v. Greco, 203 A.3d 1120, 1124 (Pa. Super. 2019) (quoting

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

      In the instant case, Adams’s PCRA Petition was untimely filed, and he

has not established an exception to the timeliness requirement.              See

Commonwealth v. Knecht, 219 A.3d 689, 692 (Pa. Super. 2019)

(reiterating that Muniz does not establish an exception to the PCRA’s

timeliness requirement). Consequently, the PCRA court lacked jurisdiction to

consider the merits of Adams’s PCRA Petition. For this reason, we affirm its

Order denying post-conviction relief.

      Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/18/2020




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