J-S39004-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA                  IN THE SUPERIOR COURT
                                                     OF PENNSYLVANIA
                             Appellee

                        v.

    AARON C. GASPARICH

                             Appellant               No. 1866 MDA 2017


            Appeal from the PCRA Order entered November 2, 2017
              In the Court of Common Pleas of Lancaster County
               Criminal Division at No: CP-36-CR-0004383-2010


BEFORE: STABILE, MURRAY, and MUSMANNO, JJ.

MEMORANDUM BY STABILE, J.:                     FILED SEPTEMBER 18, 2018

        Appellant, Aaron C. Gasparich, appeals pro se from the November 2,

2017 order entered in the Court of Common Pleas of Lancaster County,

denying his fifth petition for collateral relief pursuant to the Post Conviction

Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-46. Following review, we affirm.

        As the PCRA court explained in its Rule 1925(a) opinion, Appellant

entered into a guilty plea on June 29, 2011 to two counts of involuntary

deviate sexual intercourse (IDSI) and one count of indecent assault, all of

which occurred on July 24, 2010 and involved a child less than 13 years of

age.1    During his plea hearing, Appellant acknowledged the offenses were



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1   18 Pa.C.S.A. §§ 3123(b) and 3126(a)(7), respectively.
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Megan’s Law offenses requiring lifetime registration.       He signed a form

acknowledging he would be required to register for life with the Pennsylvania

State Police (PSP).       Rule 1925(a) Opinion, 1/8/18, at 1 (citing Notes of

Testimony, Guilty Plea Hearing, 6/29/11, at 5 and 6).

         Appellant was sentenced on September 19, 2011 to a term of ten to

twenty years in prison on each count of IDSI, followed by ten years of

consecutive probation, and nine months to five years in prison for indecent

assault, running concurrently with the IDSI sentences. He was again informed

he was subject to Megan’s Law restrictions, including lifetime registration with

the PSP.2 He did not file a direct appeal. Id. at 2 (citing Notes of Testimony,

Sentencing, 9/19/11, at 7-8).

         On September 15, 2017, Appellant filed the instant PCRA petition, his

fifth.     Relying on our Supreme Court’s July 19, 2017 decision in

Commonwealth v. Muniz, 164 A.3d 1189 (Pa. 2017), Appellant argued that

compelling his compliance with SORNA’s registration requirements would

constitute ex post facto punishment.3 The Commonwealth filed a response,

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2 As of the dates of the offenses at issue and Appellant’s sentencing, Megan’s
Law II was in effect. On December 12, 2012, Megan’s Law II was replaced by
the Sex Offender Registration and Notification Act (“SORNA”), 42 Pa.C.S.A.
§ 9799.41. SORNA applied retroactively to persons who had not completed
their registration periods under Megan’s Law II and other registration statutes.
42 Pa.C.S.A. § 9799.13.

3 In Muniz, our Supreme Court held that “SORNA’s registration provisions
constitute punishment notwithstanding the General Assembly’s identification



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asserting the petition must be dismissed for failure to join an indispensable

party, the PSP.       Commonwealth Response, 10/20/17, at ¶¶ 5-8 (citing

Commonwealth v. Demora, 149 A.3d 330. 332-33 (Pa. Super. 2016)).4

Alternatively, the Commonwealth argued the petition was untimely filed and

could not be saved by reliance on Muniz because, while the petition was filed

within 60 days of the issuance of that decision, neither our Supreme Court nor

the United States Supreme Court had declared that Muniz was to be applied

retroactively. Id. at ¶¶ 9-19.

       On October 12, 2017, the PCRA court issued a notice under Pa.R.Crim.P.

907, advising Appellant of the court’s intention to dismiss the petition. The

court agreed with the Commonwealth’s assertion that the PSP was an

indispensable party, and that the failure to join the PSP deprived the court of

jurisdiction over Appellant’s claim. PCRA Court Rule 907 Notice, 10/12/17, at

2. The court explained that even absent the lack of jurisdiction for failure to

join the PSP, the court would not have jurisdiction over the petition because



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of the provisions as nonpunitive; 2) retroactive application of SORNA’s
registration provisions violates the federal ex post facto clause; and 3)
retroactive application of SORNA’s registration provisions also violates the ex
post facto clause of the Pennsylvania Constitution.” Id. at 1193 (Dougherty,
J., Opinion Announcing Judgment of the Court).

4 In light of our disposition of this appeal, there is no need to discuss the legal
ramifications of Appellant’s failure to join the PSP. However, we note that on
November 9, 2017, this Court “explicitly recognize[d] Muniz overrules
Demora.” Commonwealth v. McCullough, 174 A.3d 1094, 1095 (Pa.
Super. 2017) (en banc).

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it was time-barred under the PCRA. Id. at 2-5. The court advised Appellant

of his right to file a response showing good cause why the petition should not

be dismissed. Id. at 6.

      Appellant filed his objections to the notice on November 2, 2017. By

order entered the same day, the PCRA court denied Appellant’s petition, noting

Appellant’s response “does not contain anything new for the [c]ourt’s

consideration that would result in a change to the findings as detailed in the

Rule 907 Notice, which formed the basis for dismissal of [Appellant’s

petition].” PCRA Court Order, 11/2/17, at 1. This timely appeal followed.

Both Appellant and the trial court complied with Pa.R.A.P. 1925.

      Appellant presents four issues for our consideration:

      Whether the [PCRA] court erred when not standing by the decision
      in the Muniz case, and granting petitioner relief?

      Whether the [PSP] should [be] listed as a party when seeking
      relief from sex offender registration requirements?

      Whether the decision in Commonwealth v. Muniz, deeming
      retroactive application of S.O.R.N.A. punitive, made the issue
      something that could be raised through post-conviction relief via
      PCRA?

      Whether the decision in Commonwealth v. Muniz [established]
      a newly recognized constitutional right triggering retroactive
      application for the purpose of state collateral review?

Appellant’s Brief at 3 (some capitalization omitted).

      In Commonwealth v. Stokes, 959 A.2d 306 (Pa. 2008), our Supreme

Court stated:




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      Our standard of review of the denial of PCRA relief is clear: we
      are “limited to determining whether the PCRA court's findings are
      supported      by   the  record     and    without   legal  error.”
      Commonwealth v. Hawkins, 953 A.2d 1248, 1251 (Pa. 2006).
      We note that a second or subsequent petition must present a
      strong prima facie showing that a miscarriage of justice may have
      occurred. Commonwealth v. Carpenter, 555 Pa. 434, 725 A.2d
      154, 160 (1999). Finally, the petition must be timely, as the Act’s
      timeliness restrictions are jurisdictional in nature and are to be
      strictly construed. Commonwealth v. Abu–Jamal, 596 Pa. 219,
      941 A.2d 1263, 1267–68 (2008).

Id. at 309.

      As noted above, Appellant was sentenced on September 19, 2011,

following entry of a guilty plea to two counts of IDSI and one count of indecent

assault. He did not file a direct appeal. Therefore, his judgment of sentence

was final on October 19, 2011, at the expiration of the time for filing a direct

appeal to this Court, and he had until October 19, 2012 to file a timely petition

for collateral relief. See 42 Pa.C.S.A. § 9545(b).

      Appellant filed this petition on September 15, 2017, nearly five years

after his judgment of sentence became final. Therefore, the petition is facially

untimely and we may not consider it unless Appellant has presented and

proved an exception to the PCRA’s timeliness requirement.          42 Pa.C.S.A.

§ 9545(b)(1). “The PCRA’s time restrictions are jurisdictional in nature. Thus,

[i]f a PCRA petition is untimely, neither this Court nor the [PCRA] court has

jurisdiction over the petition. Without jurisdiction, we simply do not have the

legal authority to address the substantive claims.”        Commonwealth v.

Chester, 895 A.2d 520, 522 (Pa. 2006) (first alteration in original) (internal


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citations and quotation marks omitted). Because timeliness is separate and

distinct from the merits of Appellant’s underlying claims, we must first

determine whether this PCRA petition is timely filed. See Stokes, 959 A.2d

at 310 (consideration of Brady claim separate from consideration of its

timeliness).

       In his petition, Appellant alleged he was subject to an unconstitutional

application of SORNA in light of our Supreme Court’s decision in Muniz. “The

Muniz Court held that Pennsylvania's SORNA is an unconstitutional ex post

facto law when applied retroactively to those sexual offenders convicted of

applicable crimes before the act's effectiveness date and subjected to

increased registration requirements under SORNA after its passage.”

McCullough, 174 A.3d at 1095 (emphasis added).5

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

Court considered a Muniz timeliness exception claim in a case that also

involved a facially untimely serial PCRA petition. In Murphy, we explained:

       Appellant’s reliance on Muniz cannot satisfy the ‘new retroactive
       right’ exception of section 9545(b)(1)(iii). In Commonwealth v.
       Abdul-Salaam, 571 Pa. 219, 812 A.2d 497 (Pa. 2002), our
       Supreme Court held that,



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5We note that, like the defendants in Muniz and McCullough, Appellant was
convicted of an applicable crime before SORNA’s December 12, 2012 effective
date. However, unlike those two defendants, whose periods of registration
were lengthened under SORNA, Appellant’s lifetime registration under
Megan’s Law remained a lifetime registration under SORNA.


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         [s]ubsection (iii) of Section 9545 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 this court after the time provided in this
         section. Second, it provides that the right “has been held”
         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.

      Id. at 501.

      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 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 Abdul-Salaam,
      supra. Because at this time, no such holding has been issued by
      our Supreme Court, Appellant cannot rely on Muniz to meet that
      timeliness exception.1
         1
          Certainly, if the Pennsylvania Supreme Court issues a decision holding
         that Muniz applies retroactively, Appellant can then file a PCRA petition,
         within 60 days of that decision, attempting to invoke the 'new
         retroactive right' exception of section 9545(b)(1)(iii).

Id. at 405-06 (emphasis in original).

      Just as the “new retroactive right” exception did not save the otherwise

untimely petition in Murphy, it similarly fails to provide an exception to the

PCRA’s time bar that would save Appellant’s petition. Because his petition is




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untimely and he has failed to plead and prove that any timeliness exception

applies, this Court does not have the authority to hear Appellant’s claims.

       Order affirmed.6




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 09/18/2018




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6 To the extent the PCRA court denied Appellant’s petition based on lack of
jurisdiction for failure to join an indispensable party, we note that we may
affirm a PCRA court’s decision on other grounds. See, e.g., Commonwealth
v. Kunco, 173 A.3d 818, 823 (Pa. Super. 2017); Commonwealth v. Ford,
44 A.3d 1190, 1194 (Pa. Super. 2012).

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