J-S22043-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                                          :
               v.                         :
                                          :
                                          :
 SHANE NELSON BUNTING                     :
                                          :
                    Appellant             :   No. 1450 MDA 2018

           Appeal from the PCRA Order Entered August 17, 2018
   In the Court of Common Pleas of Lancaster County Criminal Division at
                     No(s): CP-36-CR-0002591-2016


BEFORE:      SHOGAN, J., DUBOW, J., and PELLEGRINI*, J.

MEMORANDUM BY PELLEGRINI, J.:             FILED: MAY 20, 2019

      Shane Nelson Bunting (Bunting) appeals from an order the Court of

Common Pleas of Lancaster County (PCRA court) denying his petition filed

pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546.

We affirm.

      We take the following pertinent factual and procedural background from

the PCRA court’s December 13, 2018 opinion and our independent review of

the certified record. On January 31, 2017, Bunting pled guilty to Solicitation-

Rape of a Child, 18 Pa.C.S. § 902(a), pursuant to a negotiated plea. The same

day, the court sentenced him according to the agreement’s terms, to not less

than five-and-one-half nor more than eleven years.         Consistent with the

registration signed by Bunting, the sentencing court informed him that he was

a lifetime registrant pursuant to the Sex Offender Registration and Notification


____________________________________
* Retired Senior Judge assigned to the Superior Court.
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Act (SORNA), 42 Pa.C.S. §§ 9799.10-9799.41.1 Bunting did not file a direct

appeal.

       On June 20, 2018, he filed a pro se “Motion to be Removed from SORNA

as it is Punitive,” which the court treated as a PCRA petition. The PCRA court

appointed counsel, who filed a Turner/Finley2 “no merit” letter and petition

to withdraw, which the PCRA court granted. The PCRA court denied Bunting’s

petition as untimely, with no exception to the one-year time bar pled or

proven. Bunting timely appealed.3 (See PCRA Court Opinion, 12/13/18, at

3-4). He and the court complied with the requirements of Rule 1925. See

Pa.R.A.P. 1925.

       A PCRA petition “shall be filed within one year of the date the judgment

becomes final[.]” 42 Pa.C.S. § 9545(b)(1). A judgment becomes final at the

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1 Under SORNA, the sentencing judge is to inform the offender that he or she
has to register under SORNA. 42 Pa.C.S. § 9799.20. However, the sentencing
court’s failure to do so is irrelevant: “Failure by the court to provide the
information . . . to correctly inform . . . or to require a sexual offender to
register shall not relieve the sexual offender from the requirements of this
subchapter.” 42 Pa.C.S. § 9799.23(b)(1). In fact, with limited exceptions, a
court has “no authority to relieve a sexual offender from the duty to register
. . . or to modify the requirements[.]” 42 Pa.C.S. § 9799.23(b)(2).

2Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth v.
Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).

3 “Our review of a PCRA court’s decision is limited to examining whether the
PCRA court’s findings of fact are supported by the record, and whether its
conclusions of law are free from legal error.” Commonwealth v. Mason,
130 A.3d 601, 617 (Pa. 2015) (citation omitted).




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conclusion of direct review by this Court or the United States Supreme Court

or at the expiration of the time for seeking such review. See 42 Pa.C.S. §

9545(b)(3).       “The    PCRA’s timeliness      requirements   are   jurisdictional;

therefore, a court may not address the merits of the issues raised if the

petition was not timely filed[,]” unless an appellant pleads and proves a

timeliness exception. Commonwealth v. Jones, 54 A.3d 14, 17 (Pa. 2012)

(citations omitted); see also 42 Pa.C.S. § 9545(b)(1)(i)-(iii).4         “The PCRA

squarely places upon the petitioner the burden of proving an untimely petition

fits within one of the three exceptions.”          Jones, supra at 17 (citation

omitted). The timeliness requirements apply to all PCRA petitions, regardless

of the nature of the individual claims raised therein. See Jones, supra at 17

(citation omitted).

       In this case, Bunting’s judgment of sentence became final on March 2,

2017. Therefore, he had one year from that date to file a petition for collateral

relief unless he pleaded and proved that a timeliness exception applied. See

42 Pa.C.S. §§ 9545(b)(1)(i)-(iii). Because Bunting’s petition was filed on June



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4 The three exceptions that allow for review of an untimely PCRA petition are
limited to:   (1) the petitioner’s inability to raise a claim because of
governmental interference; (2) the discovery of previously unknown facts that
would have supported a claim; and (3) a newly recognized constitutional right.
See 42 Pa.C.S. § 9545(b)(1)(i)-(iii). Any petition attempting to invoke these
exceptions “shall be filed within 60 days of the date the claim could have been
presented.”    42 Pa.C.S. § 9545(b)(2); see also Commonwealth v.
Gamboa-Taylor, 753 A.2d 780, 783 (Pa. 2000).


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20, 2018, it is untimely on its face and we lack jurisdiction to consider its merit

unless he pleads and proves one of the statutory exceptions to the time bar.

       Although Bunting argues that the court erred in denying his PCRA

petition because SORNA is unconstitutionally punitive, (see Bunting’s Brief, at

v), we lack jurisdiction to consider this issue where he failed to either

acknowledge the untimeliness of his petition or argue the applicability of a

timeliness exception. (See id. at 1-15). Because he has failed to meet his

burden of pleading and proving a timeliness exception, we lack jurisdiction to

review the merits of his claim. See Jones, supra at 17.

       Additionally,    even    if   we   were   to   ignore   that   his   reliance   on

Commonwealth v. Muniz, 164 A.3d 1189 (Pa. 2017), cert. denied, 138 S.

Ct. 925 (2018) is misplaced5 because its holding does not apply to him,

Bunting still is not due any relief.6 (See PCRA Ct. Op., at 3). In fact, this



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5 In Muniz, the Pennsylvania Supreme Court held that the retroactive
application of SORNA’s registration scheme to sexual offenders who
committed their crimes before the SORNA’s effective date violates
Pennsylvania’s ex post facto clause because of the scheme’s punitive nature.
See Muniz, supra at 1217.            Muniz does not hold that SORNA is
unconstitutional nor does it invalidate SORNA’s registration requirements. It
holds only that SORNA violates the ex post facto clause of the Pennsylvania
Constitution when its provisions are applied retroactively.              See
Commonwealth v. Hart, 174 A.3d 660, 667 n.9 (Pa. Super. 2017).

6 Muniz was decided on July 19, 2017. Therefore, Bunting failed to comply
with the requirement that he file his petition within sixty days of the date when
the claim could have been presented. See 42 Pa.C.S. § 9545(b)(2);
Gamboa-Taylor, supra at 783.


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Court has expressly held that Muniz does not satisfy the requirements of

Section 9545(b)(1)(iii). See Commonwealth v. Greco, ___ A.3d ___, 2019

WL 510129, at*4 (Pa. Super. filed Feb. 8, 2019).

        There are two requirements for the applicability of the newly recognized

constitutional right exception to the PCRA. “First, [42 Pa.C.S. § 9545(b)(1)(iii)

requires] that the right asserted is a constitutional right that was recognized

by the Supreme Court of the United States or [the Pennsylvania Supreme

Court] after the time provided in this section. Second, it provides that the

right    “has   been   held”     by   “that   court”   to   apply   “retroactively.”

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

omitted).

        In Greco, like Bunting, the appellant challenged the application of

SORNA’s registration provision on the basis of Muniz in an untimely PCRA

petition. In considering the issue, “we acknowledge[d] that this Court has

declared that ‘Muniz created a substantive rule that retroactively applies in

the collateral context.’”      Greco, supra at *4 (citing Commonwealth v.

Rivera-Figueroa, 174 A.3d 674, 678 (Pa. Super. 2017)).                  We found,

however, that

        because [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). Because
        at this time, no such holding has been issued by our Supreme
        Court, [a]ppellant cannot rely on Muniz to meet that timeliness
        exception.


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Greco, supra at *4 (citations omitted).

       Based on the foregoing, Bunting failed to plead and prove the

applicability of the newly discovered constitutional right exception by relying

on Muniz.7      Additionally, he has failed to establish any other timeliness

exception.     Therefore, we lack jurisdiction to consider the merits of his

petition.    See Jones, supra at 16-17.          We affirm the PCRA court’s order

dismissing Bunting’s petition as untimely.

       Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/20/2019




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7 Moreover, as we noted previously, Bunting would be due no relief based on
Muniz, even if it did satisfy the requirements of the timeliness exception,
because Muniz is inapplicable to him. In Muniz, the Pennsylvania Supreme
Court held that the retroactive application of SORNA’s registration scheme
to sexual offenders who committed their crimes before the SORNA’s
effective date violates Pennsylvania’s ex post facto clause. SORNA’s
effective date was December 12, 2012. Bunting committed his crimes in
2015. Hence, the holding of Muniz does not apply to him because SORNA
was not retroactively applied to him in violation of ex post facto provisions.
See Commonwealth v. Horning, 193 A.3d 411, 417 (Pa. Super. 2018)
(holding that critical inquiry for determining whether application of SORNA to
a convicted sex offender violates ex post facto prohibitions is the date of the
offense).

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