J-S61009-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    HOMER RICHARD CLIFFORD SR.                 :
                                               :
                       Appellant               :   No. 1869 EDA 2019

               Appeal from the PCRA Order Entered May 29, 2019
      In the Court of Common Pleas of Chester County Criminal Division at
                        No(s): CP-15-CR-0003562-2011


BEFORE:      BOWES, J., OLSON, J., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.:                        FILED JANUARY 15, 2020

        Appellant, Homer Richard Clifford, Sr., appeals from the order entered

in the Court of Common Pleas of Chester County dismissing his fifth petition

filed pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§

9541-9546, as untimely. We affirm.

        In this Court’s memorandum decision, Commonwealth v. Clifford, No.

28 EDA 2018, 2018 WL 3639603, unpublished memorandum (Pa.Super. filed

Aug. 1, 2018) (dismissing Appellant’s fourth PCRA petition as untimely), we

set forth the following pertinent procedural history:

        On April 30, 2012, Appellant pled guilty to two counts of
        Involuntary Deviate Sexual Intercourse (IDSI, victim less than 13
        years old), Corruption of Minors, and Endangering the Welfare of
        Children. On October 11, 2012, Appellant was sentenced to an
        aggregate term of ten to twenty years' imprisonment and was
        determined to be a Sexually Violent Predator (SVP).
____________________________________________


*   Former Justice specially assigned to the Superior Court.
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     Appellant did not appeal, but instead attempted to file a post-
     sentence motion on November 13, 2012. As this filing was
     submitted more than thirty days after the judgment of sentence,
     the lower court treated the filing as a PCRA petition and appointed
     Appellant counsel. Thereafter, counsel sought to withdraw under
     Commonwealth v. Turner, 518 Pa. 491, 544 A.2d 927 (1988)
     and Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988).

     On April 24, 2013, the PCRA court issued notice of its intent to
     dismiss the PCRA petition pursuant to Pa.R.Crim.P. 907, but
     Appellant did not respond to the Rule 907 notice. On June 21,
     2013, the PCRA court dismissed Appellant's petition and on
     November 26, 2013, this Court dismissed Appellant's appeal for
     the failure to file a brief.

     On October 10, 2014, Appellant filed his second PCRA petition and
     was again appointed counsel, who ultimately sought to withdraw
     under Turner and Finley. On March 10, 2015, the PCRA court
     allowed counsel to withdraw and dismissed the petition. This
     Court affirmed the PCRA court's decision on November 30, 2015.

     On February 8, 2016, Appellant filed a petition for writ of habeas
     corpus, which was treated as Appellant's third PCRA petition and
     subsequently dismissed on April 11, 2016. This Court affirmed
     the PCRA court's order on November 23, 2016 and the Supreme
     Court denied Appellant's petition for allowance of appeal on July
     17, 2017.

     On September 19, 2017, Appellant filed [his fourth] PCRA petition,
     arguing, inter alia, that the application of the lifetime registration
     requirement under Pennsylvania's Sex Offender Registration and
     Notification Act (SORNA) violates his constitutional rights.
     Appellant relies on Commonwealth v. Muniz, ––– Pa. ––––, 164
     A.3d 1189 (2017), in which the Supreme Court held that certain
     provisions of SORNA are punitive and retroactive application of
     such requirements violates the ex post facto clauses of the federal
     and Pennsylvania constitutions.

     On September 29, 2017, the PCRA court issued a notice of intent
     to dismiss, finding Appellant's petition to be untimely filed.
     Moreover, the PCRA court found the decision in Muniz is not
     applicable to Appellant who was subject to a lifetime registration
     requirement under Megan's Law II when he was convicted and

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      sentenced and this registration requirement did not change with
      the enactment of SORNA. On October 23, 2017, Appellant filed a
      response to the Rule 907 notice. On November 21, 2017, the
      PCRA court dismissed the petition as untimely filed.

Clifford, No. 28 EDA 2018, 2018 WL 3639603, at *1.

      On appeal, this Court affirmed. Specifically, we relied on precedent to

hold that until the Pennsylvania Supreme Court holds that Muniz applies

retroactively in order to satisfy the PCRA timeliness exception under

subsection 9545(b)(1)(ii), “Muniz is not applicable at this point to untimely-

filed PCRA petitions.” Clifford, supra.

      On April 12, 2019, Appellant filed pro se the present PCRA petition, his

fifth, raising the same issues he raised in his untimely fourth petition. On May

1, 2019, the PCRA court issued a Notice of its Intent to Dismiss, to which

Appellant filed a Response dated May 22, 2019. On May 29, 2019, the PCRA

court dismissed Appellant’s fifth petition as untimely.     This timely appeal

follows.

      Among the several issues Appellant raises is the jurisdictional question

of whether Muniz applies retroactively to qualify his otherwise patently

untimely fifth petition for an exception to the PCRA timeliness provisions.

Consistent with settled precedent, we hold that it does not.

      Our standard of review for the dismissal of a PCRA petition is limited to

“whether the record supports the PCRA court’s determination and whether the

PCRA court’s decision is free of legal error.” Commonwealth v. Lawson, 90

A.3d 1, 4 (Pa.Super. 2014) (citation omitted). We grant great deference to

the PCRA court’s factual findings and we will not disturb them unless they

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have no support in the record. Commonwealth v. Rigg, 84 A.3d 1080, 1084

(Pa.Super. 2014) (citation omitted).

      It is well settled that “the timeliness of a PCRA petition is a jurisdictional

requisite.” Commonwealth v. Brown, 111 A.3d 171, 175 (Pa.Super. 2015)

(citation omitted). A PCRA petition “including a second or subsequent petition,

shall be filed within one year of the date the judgment becomes final[.]” 42

Pa.C.S. § 9545(b)(1). A judgment is 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. § 9545(b)(3).

      Courts may consider a PCRA petition filed more than one year after a

judgment of sentence becomes final only if the petitioner pleads and proves

one of the following three statutory exceptions:

      (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.




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42 Pa.C.S. § 9545(b)(1)(i)-(iii). Moreover, a petitioner must file his petition

within sixty days of the date the claim could have been presented. See 42

Pa.C.S. § 9545(b)(2).1

       In Commonwealth v. Murphy, 180 A.3d 402 (Pa.Super. 2018), appeal

denied, 195 A.3d 559 (Pa. 2018), this Court explained:

       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 [S]ection
       9545(b)(1)(iii). Because at this time, no such holding has been
       issued by our Supreme Court, Appellant cannot rely on Muniz to
       meet that timeliness exception.

Murphy, 180 A.3d at 405-06 (emphasis in original) (citations omitted).

       Consistent with Murphy, Appellant obtains no relief sub judice because,

to date, our Supreme Court has not held Muniz to apply retroactively to meet

the Section 9545(b)(1)(iii) exception. Accordingly, we affirm the PCRA court's

order, as Appellant's serial petition is untimely.

       Order affirmed.




____________________________________________


1Section 9545(b)(2) was amended on October 24, 2018, effective December
24, 2018, extending the time for filing from sixty days of the date the claim
could have been first presented to one year. The amendment applies to claims
arising on December 24, 2017, or thereafter. See Act 2018, Oct. 24, P.L.
894, No. 146, § 3.



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/15/20




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