J-S05012-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    LEE ALAN CHEW                              :
                                               :
                       Appellant               :   No. 894 WDA 2018

               Appeal from the PCRA Order Entered May 9, 2018
               In the Court of Common Pleas of Jefferson County
              Criminal Division at No(s): CP-33-CR-0000214-2016


BEFORE:      PANELLA, P.J., NICHOLS, J., and STRASSBURGER, J.

MEMORANDUM BY PANELLA, P.J.:                           FILED AUGUST 15, 2019

       Appellant, Lee Alan Chew, appeals pro se from the order entered in the

Jefferson County Court of Common Pleas, dismissing his untimely petition filed

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

9546. After careful review, we affirm.

       We briefly recount the relevant facts and procedural history of this case.

Though the certified record in this matter is imprecise as to the date and

details of Appellant’s underlying conviction, we are able to glean that Appellant

was convicted of involuntary deviate sexual intercourse in 2006. He was later

subject to sex offender registration under the Sexual Offender Registration

and Notification Act (“SORNA”), 42 Pa.C.S.A. §§ 9799.14, 9799.15.

       On June 15, 2016, Appellant pled guilty to one count of failure to comply

____________________________________________



    Retired Senior Judge assigned to the Superior Court.
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with sexual offender registration requirements. The court imposed a sentence

of four to ten years’ incarceration. Appellant did not file a direct appeal;

instead, he filed a timely pro se PCRA petition on February 8, 2017. The PCRA

court appointed counsel, who filed a Turner/Finley1 no-merit letter and was

permitted to withdraw. The court issued notice of its intent to dismiss the

petition without a hearing pursuant to Pa.R.Crim.P. 907, and later dismissed

it. Appellant did not appeal that ruling.

       Appellant then filed the instant pro se petition, his second, on July 31,

2017. In it, Appellant claimed the Pennsylvania Supreme Court’s decision in

Commonwealth v. Muniz, 164 A.3d 1189 (Pa. 2017), determined

retroactive application of sexual offender registration requirements under

SORNA to be unconstitutionally punitive. Appellant averred his recent

discovery of the Muniz case constituted newly-discovered evidence, and thus

an exception to the PCRA’s time-bar. The PCRA court issued Rule 907 notice.

Appellant objected to the notice, but the court ultimately dismissed his

petition. Appellant filed a timely notice of appeal.2 This case is now properly

before us.

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

2 The PCRA court’s order dismissing Appellant’s petition was entered on May
9, 2018. Appellant filed a notice of appeal on Monday, June 11, 2018. See
Pa.R.A.P. 903(a) (timely notice of appeal must be filed within thirty days);
see also 1 Pa.C.S.A. § 1908 (when the thirtieth day of an appeal period falls
on Saturday or Sunday, that day shall be omitted from the timeliness
computation). Thus, his notice of appeal was timely filed.

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      Before we may review the merits of Appellant’s argument, we must first

consider the timeliness of his PCRA petition. See Commonwealth v. Miller,

102 A.3d 988, 992 (Pa. Super. 2014). The PCRA’s timeliness requirements are

jurisdictional; we may not address the merits of issues raised in untimely

petitions. See id.

      “A PCRA petition, including a second or subsequent one, must be filed

within one year of the date the petitioner’s judgment of sentence became final,

unless he pleads and proves one of the three exceptions outlined in 42

Pa.C.S.[A.] § 9545(b)(1).” Commonwealth v. Jones, 54 A.3d 14, 16 (Pa.

2012) (citation and footnote omitted). A judgment of sentence becomes final

at the conclusion of direct review, or at the expiration of time for seeking such

review. See id., at 17.

      Here, Appellant’s judgment of sentence became final on July 15, 2016,

at the expiration of time for seeking direct review with this Court. See

Pa.R.A.P. 903(a). Thus, he had until July 15, 2017 to timely file his PCRA

petition. Appellant filed the instant petition on July 31, 2017. As it is facially

untimely, the PCRA court lacked jurisdiction to review Appellant’s claims

unless he successfully pled and proved one of the following statutory

exceptions to the PCRA’s time-bar:

      (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


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       the petitioner and could not have been ascertained by the exercise
       of due diligence; or

       (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)-(iii). A petitioner asserting one of these

exceptions must file a petition within 60 days of the date the claim could have

first been presented. See 42 Pa.C.S.A. § 9545(b)(2).3 “Exceptions to the time-

bar must be pled in the petition, and may not be raised for the first time on

appeal.” See Commonwealth v. Burton, 936 A.2d 521, 525 (Pa. Super.

2007) (citation omitted); see also Pa.R.A.P. 302(a) (providing that issues not

raised before the lower court are waived and cannot be raised for the first

time on appeal).

       In his PCRA petition, Appellant claimed Muniz amounted to newly-

discovered evidence in his case. However, this Court has repeatedly held that

“judicial decisions do not constitute new ‘facts’ for purposes of the newly-

discovered     evidence     exception     set    forth   in   Section   9545(b)(1)(ii).”

Commonwealth v. Kretchmar, 189 A.3d 459, 467 (Pa. Super. 2018)


____________________________________________


3 On October 24, 2018, the General Assembly amended section 9545(b)(2) in
order to extend the time for filing a petition from 60 days to one year from
the date the claim could have been presented. See 2018 Pa.Legis.Serv.Act
2018-146 (S.B. 915), effective December 24, 2018. However, this
amendment applies only to claims arising one year before the effective date
of this section, i.e., December 24, 2017, or thereafter. Appellant’s claim of
“newly-discovered evidence” arose on July 19, 2017, when he received
information regarding the Pennsylvania Supreme Court’s decision in Muniz.
Therefore, the amendment is inapplicable to Appellant’s claim.

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(citation omitted); see also Commonwealth v. Brandon, 51 A.3d 231, 235

(Pa. Super. 2012). “New legal decisions can only overcome the PCRA’s

timeliness requirements in the context of Section 9545(b)(1)(iii)[,]” the

PCRA’s provision for new, retroactive constitutional rights. Kretchmar, 189

A.3d at 467.

      And even if Appellant had presented his Muniz claim under the new

constitutional right framework, as he does in his appellate brief, he would still

be due no relief. “Because Appellant’s PCRA petition is untimely … he must

demonstrate that the Pennsylvania Supreme Court has held that Muniz

applies   retroactively   in   order   to   satisfy   [S]ection   9545(b)(1)(iii).”

Commonwealth v. Murphy, 180 A.3d 402, 405-406 (Pa. Super. 2018)

(citation and emphasis omitted). The Pennsylvania Supreme Court has yet to

issue such a holding. Therefore, Appellant cannot rely on Muniz to meet the

new constitutional right timeliness exception. Accordingly, as Appellant has

failed to present an issue for relief, we affirm the PCRA court’s order dismissing

his untimely petition.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/15/2019

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