J-S10026-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    D.S.                                       :
                                               :
                       Appellant               :   No. 1659 MDA 2019


           Appeal from the PCRA Order Entered September 18, 2019,
               in the Court of Common Pleas of Franklin County,
             Criminal Division at No(s): CP-28-CR-0000204-2002.


BEFORE: PANELLA, P.J., KUNSELMAN, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY KUNSELMAN, J.:                              FILED MAY 07, 2020

       D.S. appeals from the order denying his second petition for relief filed

pursuant to the Post Conviction Relief Act (“PCRA”).1 We affirm.

       The pertinent facts and procedural history are as follows. In June of

1998, D.S. engaged in inappropriate conduct with his two daughters. The

police arrested him in July of 2001 and charged him with various offenses.

Following a trial on August 29, 2002, a jury convicted him of one count each

of sexual abuse of children, endangering the welfare of children, corruption of

minors, and providing intoxicants to minors.            The trial court deferred


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1 See 42 Pa.C.S.A. §§ 9541-9546. Pursuant to I.O.P. 424, we have corrected
the caption to reflect the appellant’s initials in order to protect the identity of
the victims.
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sentencing pending an assessment of D.S. by the Sexual Offenders

Assessment Board (“SOAB”), and a sexually violent predator (“SVP”) hearing.

      On December 9, 2002, the trial court held a hearing, designated D.S.

an SVP, and sentenced him to an aggregate term of seven to twenty-one years

of imprisonment. D.S. filed a timely appeal. On March 22, 2004, we affirmed

his judgment of sentence. D.S. did not seek further review.

      On March 4, 2005, D.S. filed a pro se PCRA petition. The PCRA court

appointed counsel, and PCRA counsel filed a “no-merit” letter and petition to

withdraw pursuant to Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988),

and Commonwealth v. Finley 550 A.2d 213 (Pa. Super. 1988) (en banc).

On June 7, 2005, the PCRA court granted counsel’s petition to withdraw and

stated its intention to dismiss D.S.’s PCRA petition pursuant to Pa.R.Crim.P.

907. By order entered July 22, 2005, the PCRA court denied D.S.’s petition.

D.S. did not file an appeal.

      On May 20, 2019, D.S. filed another pro se PCRA petition. On June 17,

2019, he filed a “Supplemental Issue to his Pending PCRA Petition.” On July

25, 2019, D.S. filed a motion for appointment of counsel, which the PCRA

court denied on August 2, 2019.        The Commonwealth filed an answer.

Thereafter, the PCRA court sua sponte asked the parties to address the

timeliness of the PCRA petition. Both D.S. and the Commonwealth complied.

On August 12, 2019, the PCRA court issued Rule 907 notice of its intention to

dismiss the petition without a hearing. D.S. filed a response. By order entered


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September 18, 2019, the PCRA court denied D.S.’s second PCRA petition on

the basis that it was untimely filed and the court lacked jurisdiction to address

his claims. D.S. filed a timely notice of appeal, and both he and the PCRA

court complied with Pa.R.A.P. 1925.

      D.S. now raises the following issues:

         I.     Whether [D.S.’s requirements] as a sexually violent
                predator [SVP] now provided under the [Sex]
                Offender Registration and Notification Act [SORNA] is
                unconstitutional and violates [D.S.’s] fundamental
                rights against [ex post facto] laws as guaranteed by
                both    the    Pennsylvania    and    United   States
                Constitutions?

         II.    Whether [D.S.] is entitled to relief in that the [ex post
                facto application of [SORNA], Chapter I, is
                unconstitutional    and    therefore      [D.S.’s   SVP]
                registration requirement must be terminated?

         III.   Whether the PCRA court erred, when it failed to
                provide [D.S.] the benefit of a properly conducted
                evidentiary hearing to determine the credibility of all
                issues presented that led to the filing of both the PCRA
                petition and supplemental issue in support of his PCRA
                petition?

         IV.    Whether the PCRA court abused [its] discretion when
                failing to reinstate both [D.S’s] PCRA petition and
                appeal [nunc pro tunc] after confirming that the
                certified record did not reflect that PCRA counsel had
                ever actually filed on the trial court docket either his
                motion to withdraw or no-merit letter?

         V.     Whether the PCRA court erred, when it failed to
                provide [D.S.] with the complete benefit of Governor
                [Wolf’s] October 28, 2018, Senate Bill 915 that led to
                the filing of all issues as presented within [SD.S.’s]
                initial [PCRA] petition, and his supplemental issue?




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D.S.’s Brief at 4 (excess capitalization omitted).2

        Before addressing these issues, we must first determine whether the

PCRA court correctly determined that D.S.’s current PCRA petition was

untimely filed.

        This Court’s standard of review regarding an order dismissing a petition

under the PCRA is to ascertain whether “the determination of the PCRA court

is supported by the evidence of record and is free of legal error. The PCRA

court’s findings will not be disturbed unless there is no support for the findings

in the certified record.” Commonwealth v. Barndt, 74 A.3d 185, 191-92

(Pa. Super. 2013) (citations omitted).

        Generally, a petition for relief under the PCRA, including a second or

subsequent petition, must be filed within one year of the date the judgment

is final unless the petition alleges, and the petitioner proves, that an exception

to the time limitation for filing the petition, set forth at 42 Pa.C.S.A. sections

9545(b)(1)(i), (ii), and (iii), is met.3 A PCRA petition invoking one of these
____________________________________________


2   The Commonwealth did not file a brief.

3   The exceptions to the timeliness requirement are:

        (i) the failure to raise the claim previously was the result of
        interference of 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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statutory exceptions must be filed within one year the date the claims could

have been presented. See 42 Pa.C.S.A. § 9545(b)(2) (as amended, effective

December 24, 2018). Asserted exceptions to the time restrictions for a PCRA

petition must be included in the petition, and may not be raised for the first

time on appeal.       Commonwealth v. Furgess, 149 A.3d 90 (Pa. Super.

2016).

       Here, because D.S. did not file a petition for allowance of appeal after

we affirmed his direct appeal on March 22, 2004, his judgment of sentence

became final thirty days thereafter, or on April 23, 2004. See 42 Pa.C.S.A. §

9545(b)(3). Thus, for purposes of the PCRA’s time bar, D.S. had to file any

PCRA petition by April 23, 2005. D.S. filed this second PCRA petition at issue

on May 20, 2019. Thus, the petition is patently untimely, unless D.S. has

satisfied his burden of pleading and proving that one of the enumerated

exceptions applies. See Hernandez, supra.

       D.S. failed to plead and prove a timeliness exception. In his supplement

to his PCRA petition, as well as within his appellate brief, D.S. argues that he

has established the newly-recognized constitutional right under 42 Pa.C.S.A.

section 9545(b)(1)(iii) based upon our Supreme Court’s decision in of
____________________________________________




       (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)(i), (ii), and (iii).


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Commonwealth v. Muniz, 164 A.3d 1189 (Pa. 2017) (holding that that the

registration provisions of SORNA are punitive, and that retroactive application

of those provisions violates federal and state ex post facto clauses), and this

Court’s decision in Commonwealth v. Butler, 173 A.3d 1212 (Pa. Super.

2017) (holding that the portion of SORNA that permits a trial court to find a

defendant to be an SVP by clear and convincing evidence is unconstitutional,

and that trial courts can no longer designate defendants as SVPs or hold SVP

hearings until our General Assembly enacts a constitutional designation

mechanism).

      However, this Court has determined that, although Muniz applies to

timely collateral appeals, it does not establish a timeliness exception under

the PCRA. As this Court has explained:

         Appellant’s 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.” Commonwealth v. Rivera-Figueroa,
         174 A.3d 674, 678 (Pa. Super. 2017). However, because
         Appellant’s PCRA petition is untimely (unlike the [timely]
         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.




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

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

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

       D.S.’s claim of retroactivity of the Butler decision also fails. Indeed,

our Supreme Court has recently reversed this Court, finding that SVP process

to be constitutional. See Commonwealth v. Butler, 2020 Pa. LEXIS 1692

(Pa. 2020) (holding the lifetime registration, notification, and counseling

requirements do not constitute punishment and therefore the procedure for

designating individuals as SVPs under SORNA remains constitutionally

permissible). Thus, Butler provides D.S. no relief.

       In sum, D.S.’s PCRA petition was untimely and he cannot establish a

timeliness exception. See Commonwealth v. Knecht, 219 A.3d 689 (Pa.

Super. 2019) (reiterating that Muniz does not establish a timeliness exception

under the PCRA).4 Therefore, the PCRA court lacked jurisdiction to consider

the merits of D.S.’s second PCRA petition. See Commonwealth v. Leggett,

16 A.3d 1144, 1145 (Pa. Super. 2011) (holding that neither this Court nor the

PCRA court has jurisdiction to address the merits of an untimely-filed petition).

We therefore affirm its order denying post-conviction relief.




____________________________________________


4 If, in the future, the Pennsylvania Supreme Court issues a decision holding
that Muniz applies retroactively, D.S. can then file a PCRA petition, within one
year of that decision, attempting to invoke the timeliness exception of 42
Pa.C.S.A. section 9545(b)(1)(iii). Murphy, 180 A.3d at 406, n.1.


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Order affirmed.



 Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/7/2020




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