J-S83024-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                                          :
              v.                          :
                                          :
                                          :
 KYLA HOLLINGSHEAD                        :
                                          :
                    Appellant             :   No. 718 WDA 2018

                    Appeal from the Order April 19, 2018
  In the Court of Common Pleas of Blair County Criminal Division at No(s):
                         CP-07-CR-0001252-2013


BEFORE: PANELLA, J., SHOGAN, J., and MUSMANNO, J.

MEMORANDUM BY SHOGAN, J.:                              FILED MAY 30, 2019

      Appellant, Kyla Hollingshead, appeals from the order denying her

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

§§ 9541-9546. We affirm.

      Previously, this Court summarized the history of this case as follows:

             The factual background of this case is as follows. In August
      2010, Appellant was hired by Altoona Area High School to serve
      as an assistant coach of the girls’ soccer team. In October 2010,
      Appellant began a romantic relationship with a 15-year-old player
      on the team. In October 2012, Appellant began a romantic
      relationship with a 16-year-old player on the team. Eventually,
      both relationships led to sexual contact between Appellant and the
      players.

            The procedural history of this case is as follows. On June
      21, 2013, Appellant was charged via criminal information with two
      counts of corruption of minors1 and one count of institutional
      sexual assault.2 On December 9, 2013, Appellant pled guilty to
      one count [each] of corruption of minors and institutional sexual
      assault. She was immediately sentenced to 60 days to 23 ½
      months’ imprisonment followed by 30 months’ probation. The trial
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       court also ordered that the Sexual Offender Assessment Board
       (“SOAB”) evaluate Appellant to determine if she met the criteria
       to be classified as [a sexually violent predator (“SVP”)].

              1   18 Pa.C.S.A. § 6301(a)(1).

              2   18 Pa.C.S.A. § 3124.2(a)(2.1).

             On March 17, 2014, the Commonwealth filed a praecipe for
       an SVP hearing, which occurred on June 3, 2014. Corrine
       Scheuneman, MA, LPC, a member of the SOAB, testified on behalf
       of the Commonwealth and Dr. Timothy Foley testified on behalf of
       Appellant. After considering post-hearing briefs, the trial court
       designated Appellant an SVP, and issued an opinion explaining its
       rationale.

Commonwealth v. Hollingshead, 111 A.3d 186, 188-189 (Pa. Super.

2015).

       Appellant filed a timely direct appeal.1 This Court affirmed Appellant’s

judgment of sentence on February 19, 2015. Hollingshead, 111 A.3d 186.

On October 14, 2015, our Supreme Court denied Appellant’s petition for

allowance of appeal. Commonwealth v. Hollingshead, 125 A.3d 1199 (Pa.

2015).

       On January 11, 2018, Appellant filed the instant PCRA petition, which

she entitled “Petitions Relative to Sexual Offender Registration.”         PCRA

Petition, 1/11/18.       In the petition, Appellant sought to vacate her SVP

determination and to terminate registration. Id. at 4. The PCRA court held a


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1 As this Court stated in Appellant’s direct appeal, “[Appellant] appeals from
the judgment of sentence entered on December 9, 2013, as made final by the
order entered on July 30, 2014 which designated [Appellant] as a[n SVP].”
Hollingshead, 111 A.3d at 188.

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hearing on February 27, 2018.        Subsequently, both Appellant and the

Pennsylvania State Police filed memoranda of law. On April 19, 2018, the

PCRA court entered an order denying and dismissing Appellant’s petition. This

timely appeal followed.   Both Appellant and the PCRA court complied with

Pa.R.A.P. 1925.

      Appellant presents the following issues for our review:

      I. WHETHER THE TRIAL COURT ERRED IN DISMISSING THE
      APPELLANT’S POST CONVICTION RELIEF ACT PETITION’S
      REQUEST    THAT  HER  SEXUALLY   VIOLENT   PREDATOR
      DESIGNATION BE REMOVED DESPITE APPELLATE RULINGS TO
      THE CONTRARY?

      II. WHETHER THE TRIAL COURT ERRED IN DISMISSING THE
      APPELLANT'S POST CONVICTION RELIEF ACT PETITION’S
      REQUEST THAT SHE NOT BE SUBJECT TO SORNA I
      REGISTRATION UNDER 42 PA.C.S.A. 9799.10 et seq. (CHAPTER
      H) WHEN SORNA I HAS BEEN RENDERED OBSOLETE AND NO
      LONGER VALID BY THE PASSAGE OF SORNA II (CHAPTER I)?

Appellant’s Brief at 4.

      When reviewing the propriety of an order denying PCRA relief, we

consider the record “in the light most favorable to the prevailing party at the

PCRA level.”   Commonwealth v. Stultz, 114 A.3d 865, 872 (Pa. Super.

2015) (quoting Commonwealth v. Henkel, 90 A.3d 16, 20 (Pa. Super. 2014)

(en banc)).    This Court is limited to determining whether the evidence of

record supports the conclusions of the PCRA court and whether the ruling is

free of legal error. Commonwealth v. Robinson, 139 A.3d 178, 185 (Pa.

2016).   The PCRA court’s findings will not be disturbed unless there is no




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support for them in the certified record. Commonwealth v. Lippert, 85 A.3d

1095, 1100 (Pa. Super. 2014).

       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). 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 Pennsylvania, or at the expiration of time for seeking the

review.” 42 Pa.C.S. § 9545(b)(3). 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).

       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 See Commonwealth v. Perrin, 947 A.2d 1284, 1286 (Pa.


____________________________________________


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




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Super. 2008) (to properly invoke a statutory exception to the one-year time-

bar, the PCRA demands that the petitioner properly plead all required

elements of the relied-upon exception).

       As previously noted, Appellant’s judgment of sentence was affirmed by

this Court on February 19, 2015. Hollingshead, 111 A.3d 186. On October

14, 2015, our Supreme Court denied Appellant’s petition for allowance of

appeal. Hollingshead, 125 A.3d 1199. However, Appellant did not file a

petition for writ of certiorari with the United States Supreme Court.

Accordingly, Appellant’s judgment of sentence became final on January 12,

2016, ninety days after the Pennsylvania Supreme Court dismissed Appellant’s

appeal and the time for filing a petition for review with the United States

Supreme Court expired.          See 42 Pa.C.S. § 9545(b)(3) (providing that “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.”); U.S.Sup.Ct.R. 13. Thus, the instant PCRA petition, filed on January

11, 2018, is patently untimely.

____________________________________________


       (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).




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         As stated, if a petitioner does not file a timely PCRA petition, her 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). If a petitioner

asserts one of these exceptions, she must file his petition within sixty days of

the date that the exception could be asserted.3 42 Pa.C.S. § 9545(b)(2).

         Appellant attempts to satisfy the “newly recognized constitutional right”

exception to the time-bar under Section 9545(b)(1)(iii), by arguing that the

registration requirement imposed upon her pursuant to the Sexual Offenders

Notification Act (“SORNA”) is unconstitutional under our Supreme Court’s July

19, 2017 decision in Muniz, 164 A.3d 1189, holding SORNA’s registration

provisions are punitive and retroactive application of SORNA’s provisions

violates the ex post facto clause of the Pennsylvania Constitution. This claim

fails.

         Regarding this exception, our Supreme Court explained:

                Subsection (iii) of Section 9545(b)(1) 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
         the Supreme Court of Pennsylvania after the time provided in this
         section. Second, it provides that the right “has been held”
____________________________________________


3 On October 24, 2018, the General Assembly amended section 9545(b)(2),
extending the time for filing a petition from sixty days to one year from the
date the claim could have been presented. 2018 Pa. Legis. Serv. Act 2018-
146 (S.B. 915), effective December 24, 2018. The amendment applies only
to claims arising one year before the effective date of this section, which is
December 24, 2017, or thereafter. Here, Appellant’s claim arose on July 19,
2017, the date that the decision in Commonwealth v. Muniz, 164 A.3d 1189
(Pa. 2016), was filed. Therefore, the amendment is inapplicable because the
decision in Muniz preceded December 24, 2017.

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      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.

Commonwealth v. Copenhefer, 941 A.2d 646, 649-650 (Pa. 2007)

(quoting Commonwealth v. Abdul-Salaam, 812 A.2d 497, 501 (Pa. 2002))

(emphases added).

      We have held that Muniz created a substantive rule of constitutional

law   that   must   apply   retroactively   in   timely   PCRA    proceedings.

Commonwealth v. Rivera–Figueroa, 174 A.3d 674, 678 (Pa. Super. 2017).

Thereafter, in Commonwealth v. Murphy, 180 A.3d 402 (Pa. Super. 2018),

appeal denied, 195 A.3d 559 (Pa. 2018), we stated the following:

      [W]e 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.

Murphy, 180 A.3d at 405-406. Hence, in Murphy, we concluded that the

substantive rule recognized in Muniz does not establish a timeliness exception




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to the PCRA.4 Hence, no exceptions apply to exempt Appellant from failing to

meet the timeliness requirement of the PCRA.

       In conclusion, because Appellant’s PCRA petition was untimely and no

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

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. See Commonwealth v.

Bennett, 930 A.2d 1264, 1267 (Pa. 2007) (“[J]urisdictional time limits go to

a court’s right or competency to adjudicate a controversy.”).

       Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/30/2019




____________________________________________


4Even if Appellant could rely on Muniz to establish a timeliness exception,
her petition had to have been filed within sixty days of the decision, or by
September 18, 2017. It was not filed until three months later, on December
17, 2017. 42 Pa.C.S. § 9545(b)(2). Consequently, for this additional reason,
Appellant would not be entitled to invoke the timeliness exception.

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