J-S15043-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                    Appellee              :
                                          :
              v.                          :
                                          :
 KENNETH DUANE HUSBAND                    :
                                          :
                    Appellant             :        No. 1624 WDA 2018

           Appeal from the PCRA Order Entered October 11, 2018
           In the Court of Common Pleas of Westmoreland County
            Criminal Division at No(s): CP-65-CR-0000738-2013


BEFORE:    GANTMAN, P.J.E., SHOGAN, J., and COLINS*, J.

JUDGMENT ORDER BY GANTMAN, P.J.E.:                    FILED APRIL 15, 2019

      Appellant, Kenneth Duane Husband, appeals pro se from the order that

denied his second petition per the Post Conviction Relief Act (“PCRA”), at 42

Pa.C.S.A. §§ 9541-9546. On June 30, 2014, Appellant entered a negotiated

guilty plea to multiple sex offenses. The court sentenced Appellant that day

to an aggregate term of 15 to 30 years’ imprisonment, plus 5 years’ probation,

and ordered lifetime sex offender registration under Megan’s Law III.

Appellant did not file a direct appeal. On June 19, 2015, Appellant timely filed

his first pro se PCRA petition; the PCRA court appointed counsel and later

denied relief on December 22, 2016. This Court affirmed on September 6,

2017, and our Supreme Court denied allowance of appeal on February 27,

2018. See Commonwealth v. Husband, 178 A.3d 138 (Pa.Super. 2017)

(unpublished memorandum), appeal denied, ___ Pa. ___, 182 A.3d 435


____________________________________
* Retired Senior Judge assigned to the Superior Court.
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(2018).

      On June 29, 2018, Appellant filed pro se his second PCRA petition, styled

as a post-sentence motion, asserting relief due from an illegal sentence under,

inter alia, Commonwealth v. Muniz, 640 Pa. 699, 164 A.3d 1189 (2017),

cert denied, ___ U.S. ___, 138 S.Ct. 925, 200 L.Ed.2d 213 (2018), and

Commonwealth v. Butler, 173 A.3d 1212 (Pa.Super. 2017), appeal granted,

___ Pa. ___, 190 A.3d 581 (2018). The PCRA court issued Rule 907 notice

on September 5, 2018, and on October 11, 2018, the court denied relief.

Appellant timely filed a pro se notice of appeal on November 9, 2018, and a

timely court-ordered Rule 1925(b) statement on November 29, 2018.

      Any petition for post-conviction collateral relief will generally be

considered a PCRA petition if the petition raises issues cognizable under the

PCRA. Commonwealth v. Jackson, 30 A.3d 516 (Pa.Super. 2011), appeal

denied, 616 Pa. 634, 47 A.3d 845 (2012); 42 Pa.C.S.A. § 9542. The timeliness

of a PCRA petition is a jurisdictional requisite. Commonwealth v. Zeigler,

148 A.3d 849 (Pa.Super. 2016). A PCRA petition must be filed within one year

of the date the underlying judgment becomes final.             42 Pa.C.S.A. §

9545(b)(1). A judgment of sentence is deemed final at the conclusion of direct

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

9545(b)(3). The statutory exceptions to the time-bar allow for very limited

circumstances to excuse the late filing of a petition; a petitioner asserting an

exception must file a petition within 60 days of the date the claim could first


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have been presented. See 42 Pa.C.S.A. § 9545(b)(1)-(b)(2).1 To assert the

newly-created-constitutional-right exception under Section 9545(b)(1)(iii), “a

petitioner must prove that there is a new constitutional right and that the right

has been held by that court to apply retroactively.”       Commonwealth v.

Chambers, 35 A.3d 34, 41 (Pa.Super. 2011), appeal denied, 616 Pa. 625, 46

A.3d 715 (2012).

       Instantly, Appellant’s petition challenged the legality of the sentence,

which is cognizable under the PCRA, and the court properly treated the filing

as a PCRA petition. See 42 Pa.C.S.A. § 9543(a)(2)(i); Jackson, supra. The

judgment of sentence became final on July 30, 2014, upon expiration of the

time to file a direct appeal. See Pa.R.A.P. 903(a). Appellant filed the current

PCRA petition on June 29, 2018, which is patently untimely. See 42 Pa.C.S.A.

§ 9545(b)(1).      Appellant attempts to invoke the “new constitutional right”

exception, citing Muniz, supra. Muniz, however, does not satisfy the newly-

recognized constitutional-right exception to the PCRA time-bar.             See

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



____________________________________________


1  As of December 24, 2018, Section 9545(b)(2) now provides any PCRA
petition invoking a timeliness exception must be filed within one year of the
date the claim could first have been presented. See Act 2018, Oct. 24, P.L.
894, No. 146, § 2, effective in 60 days [Dec. 24, 2018]. This amendment
does not apply to Appellant’s case, which arose before the effective date of
the amendment. Further, the timing under Section 9545(b)(2) runs from the
filing date of the cited decision. Commonwealth v. Secreti, 134 A.3d 77,
80 (Pa.Super. 2016). Here, Appellant filed his current petition on June 29,
2018, more than 60 days after Muniz, which was decided on July 19, 2017.

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___ Pa. ___, 195 A.3d 559 (2018) (stating petitioner cannot rely on Muniz to

meet timeliness exception under Section 9545(b) unless and until Supreme

Court allows). Therefore, Appellant’s petition remains time-barred; and the

PCRA court lacked jurisdiction to review it on the merits. See Zeigler, supra.

Accordingly, we affirm.

      Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/15/2019




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