J-S73036-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                                          :
              v.                          :
                                          :
                                          :
 ANDREW PATRICK KILLIAN                   :
                                          :
                   Appellant              :   No. 771 WDA 2018

                 Appeal from the PCRA Order April 24, 2018
   In the Court of Common Pleas of Clearfield County Criminal Division at
                     No(s): CP-17-CR-0000641-2009


BEFORE: GANTMAN, P.J., BENDER, P.J.E., and OLSON, J.

MEMORANDUM BY OLSON, J.:                          FILED JANUARY 03, 2019

      Appellant, Andrew Patrick Killian, appeals from an order entered on April

24, 2018 in the Criminal Division of the Court of Common Pleas of Clearfield

County that dismissed, as untimely, his petition filed pursuant to the

Post-Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9542-9546. We affirm.

      The relevant facts are as follows. On October 26, 2010, Appellant pled

guilty to statutory sexual assault, 18 Pa.C.S.A. § 3122.1. On the same day,

the trial court sentenced Appellant to serve six to 12 months’ incarceration,

followed by nine years’ probation.    Among other things, as a condition to

Appellant’s probationary sentence, the trial court ordered that Appellant

successfully complete the Project Point of Light Program.     When Appellant

received his sentence, statutory sexual assault did not trigger registration

obligations and none were ordered by the trial court. Appellant served his

incarceration and was released to the supervision of probation authorities.
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       On or around February 3, 2012, probation authorities filed a violation

report alleging that Appellant failed to report to probation as directed and

failed to complete the Project Point of Light Program. After determining that

Appellant violated his probation, the court, on October 27, 2015,1 revoked

Appellant’s probationary punishment and re-sentenced him to serve a term of

incarceration of two to eight years. Appellant filed a post-sentence motion to

modify his revocation sentence, which the trial court denied on November 20,

2015. No direct appeal from the revocation sentence was filed.

       Appellant filed a pro se PCRA petition on September 15, 2017.       On

October 17, 2017, the PCRA court appointed counsel who filed an amended

petition on February 8, 2018.2

       The PCRA court convened a PCRA hearing on February 26, 2018 and, on

April 24, 2018, dismissed Appellant’s petition as untimely. Appellant filed a

timely notice of appeal on May 22, 2018.         Upon order of the PCRA court,

Appellant thereafter filed a concise statement of errors complained of on



____________________________________________


1The record reveals that Appellant absconded between February 2012 and
October 2015.

2 Among other things, counsel’s amended petition alleges that, following the
revocation of his probation, Appellant was re-sentenced on October 27, 2015
to serve two to eight years’ incarceration for his statutory sexual assault
conviction. The petition, however, does not allege that Appellant’s revocation
sentence required him to register with authorities pursuant to Pennsylvania’s
Sex Offender Registration and Notification Act (SORNA), 42 Pa.C.S.A.
§§ 9799.10-9799.41. Our own review of Appellant’s revocation sentence
reveals that no registration requirements were ordered by the court.

                                           -2-
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appeal pursuant to Pa.R.A.P. 1925(b).         The PCRA court issued its Rule

1925(a) opinion on July 6, 2018.

      Appellant’s brief raises a single question for our review:

      Whether the [PCRA] court erred in dismissing Appellant’s [PCRA
      petition] as untimely?

Appellant’s Brief at 3.

      “[W]e review a denial of PCRA relief to determine whether the findings

of the PCRA court are supported by the record and free of legal error.”

Commonwealth v. Eichinger, 108 A.3d 821, 830 (Pa. 2014). Appellant’s

sole claim is that the PCRA court erred in concluding that his petition was

untimely and that he did not properly invoke an exception to the PCRA’s

jurisdictional timeliness requirements.


        [The PCRA requires] a petitioner to file any PCRA petition
        within one year of the date the judgment of sentence
        becomes final. A judgment of sentence becomes final at the
        conclusion of direct review . . . or at the expiration of time
        for seeking review.

                                      ...

        However, an untimely petition may be received when the
        petition alleges, and the petitioner proves, that any of the
        three limited exceptions to the time for filing the petition, set
        forth at 42 Pa.C.S.A. § 9545(b)(1)(i), (ii), and (iii), are met.
        A petition invoking one of these exceptions must be filed
        within [60] days of the date the claim could first have been
        presented. In order to be entitled to the exceptions to the
        PCRA’s one-year filing deadline, the petitioner must plead
        and prove specific facts that demonstrate his claim was raised
        within the [60]-day timeframe.



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Commonwealth v. Lawson, 90 A.3d 1, 4-5 (Pa. Super. 2014) (some internal

citations omitted) (internal quotations omitted).

       Appellant’s revocation sentence became final at the end of the day on

November 26, 2015, which was 30 days3 after the revocation court entered

its sentence and the time for filing an appeal to this Court expired. See 42

Pa.C.S.A. § 9545(b)(3) (“A judgment becomes final at the conclusion of direct

review, including discretionary review in the Supreme Court of the United

States . . . , or at the expiration of time for seeking the review”). The PCRA

explicitly requires that a petition be filed “within one year of the date the

judgment becomes final.” 42 Pa.C.S.A. § 9545(b)(1). As such, Appellant had

until November 26, 2016 to file a timely PCRA petition. Since Appellant filed

his current petition on September 15, 2017, the current petition is patently

untimely and the burden thus fell upon Appellant to plead and prove that one

of the enumerated exceptions to the one-year time-bar applied to his case.

See 42 Pa.C.S.A. § 9545(b)(1); Commonwealth v. Perrin, 947 A.2d 1284,

1286 (Pa. Super. 2008) (to properly invoke a statutory exception to the

one-year time-bar, the PCRA demands that the petitioner properly plead and

prove all required elements of the relied-upon exception).


____________________________________________


3 Appellant’s motion to modify his revocation sentence did not toll the appeal
period. Pa.R.Crim.P. 708(E) (“A motion to modify a sentence imposed after a
revocation [of probation] shall be filed within 10 days of the date of imposition.
The filing of a motion to modify sentence will not toll the 30–day appeal
period.”); Commonwealth v. Burks, 102 A.3d 497, 499-500 (Pa. Super.
2014).

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     Here, Appellant purports to invoke the “newly recognized constitutional

right” exception to the time-bar. This statutory exception provides:


        (1) Any petition under this subchapter, including a second or
        subsequent petition, shall be filed within one year of the date
        the judgment becomes final, unless the petition alleges and
        the petitioner proves that:

                                     ...

           (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.

                                     ...

        (2) Any petition invoking an exception provided in paragraph
        (1) shall be filed within 60 days of the date the claim could
        have been presented.

42 Pa.C.S.A. § 9545(b).

     As our Supreme Court explained:

        Subsection (iii) of Section 9545(b)(1) 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 the Supreme Court of Pennsylvania 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.


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Commonwealth v. Copenhefer, 941 A.2d 646, 649-650 (Pa. 2007)

(emphasis added), quoting Commonwealth v. Abdul-Salaam, 812 A.2d

497, 501 (Pa. 2002) (internal corrections omitted). Moreover, since the plain

statutory language of section 9545 demands that the PCRA petition “allege”

all elements of the statutory exception, it is clear that – to properly invoke the

“newly recognized constitutional right” exception – the petitioner must plead

and prove each of the above-stated elements in the petition. 42 Pa.C.S.A.

§ 9545(b)(1).

       Appellant seeks to invoke the timeliness exception at § 9545(b)(1)(iii)

by citing our Supreme Court's recent decision in Commonwealth v. Muniz,

164 A.3d 1189 (Pa. 2017), which held that SORNA's registration provisions

are punitive and that retroactive application of SORNA's registration provisions

violates the federal ex post facto clause, as well as the ex post facto clause of

Pennsylvania's Constitution.4 Appellant relies upon the decision of this Court

in Commonwealth v. Rivera–Figueroa, 174 A.3d 674 (Pa. Super. 2017),

in which we vacated an order dismissing a collateral relief petition and

remanded to allow the petitioner to raise a Muniz claim where the collateral

relief petition was timely filed but the petitioner’s judgment of sentence had

become final before the issuance of Muniz. See Rivera–Figueroa, 174 A.3d

at 678. Appellant points out that the courts should assert jurisdiction over his

____________________________________________


4 Again, it does not appear that Appellant has been subjected to any
registration requirements that run afoul of Muniz’s rule against retroactive
application.

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claims because he is similarly situated to petitioners such as Rivera-Figueroa

who filed timely PCRA petitions.

       We have previously rejected the precise arguments raised by Appellant.

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

       Here, we acknowledge that this Court has declared that, “Muniz
       created a substantive rule that retroactively applies in the
       collateral context.”    [Rivera–Figueroa, 174 A.3d at 678].
       However, because [Murphy’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, [Murphy] cannot rely on
       Muniz to meet that timeliness exception.

Murphy, 180 A.3d at 405-406.5

       Appellant's petition is untimely and no timeliness exception has been

established since our Supreme Court has not expressly held that Muniz

applies retroactively to cases in which the judgment of sentence had already

become final as of July 19, 2017, the date Muniz was issued.               See

Abdul-Salaam, 812 A.2d at 501-502 (“[a] ruling concerning the retroactive

application of [a] new constitutional right must be made prior to the filing of




____________________________________________


5 Our decision in Murphy also observed that: “[I]f the Pennsylvania Supreme
Court issues a decision holding that Muniz applies retroactively, [Murphy] 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).” Murphy, 180
A.3d at 405-406 n.1.



                                           -7-
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the petition for collateral relief”).   Accordingly, we affirm the PCRA court's

dismissal order.

      Order affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/3/2019




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