J-S25020-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA                 :   IN THE SUPERIOR COURT OF
                                                 :        PENNSYLVANIA
                                                 :
                v.                               :
                                                 :
                                                 :
    JUAN ORTIZ                                   :
                                                 :
                       Appellant                 :   No. 1708 MDA 2018

            Appeal from the PCRA Order Entered September 18, 2018
      In the Court of Common Pleas of Dauphin County Criminal Division at
                        No(s): CP-22-CR-0003492-2015

BEFORE: STABILE, J., MURRAY, J., and MUSMANNO, J.

MEMORANDUM BY MURRAY, J.:                        FILED: MAY 21, 2019

        Juan Ortiz (Appellant) appeals from the order denying his petition

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

as untimely. We affirm.

        Appellant’s criminal history predating the filing of the instant PCRA

petition is unclear from the record.           Neither the trial court nor the parties

provide any details relating to Appellant’s underlying convictions. Based on

the record before us, we know that on some date prior to January 1, 1999,

Appellant committed a sex offense of which he was convicted and later

subjected to sex offender registration under the Pennsylvania Sex Offender

Registration     and   Notification    Act,    (SORNA).1      See   42   Pa.C.S.A.   §

9799.13(3)(i).

____________________________________________


1   42 Pa.C.S.A. §§ 9799.10-9799.42.
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      On February 8, 2016, Appellant pled guilty to failure to comply with his

registration requirements, 18 Pa.C.S.A. § 4915.1(a)(1). The same day, the

trial court ordered Appellant to serve five years of intermediate punishment.

Appellant did not file post-sentence motions or a direct appeal. Therefore,

Appellant’s judgment of sentence became final 30 days later on March 9,

2016, when the 30-day period for filing an appeal with this Court expired.

See Pa.R.A.P. 903(a).

      On June 11, 2018, Appellant filed the instant PCRA petition. Appellant

asserted that his conviction and sentence under Section 4915.1(a)(1) was

illegal based on our Supreme Court’s decision in Commonwealth v. Muniz,

164 A.3d 1189 (Pa. 2017). In Muniz, our Supreme Court held that retroactive

application of the registration and reporting requirements of the Pennsylvania

SORNA violated the ex post facto clauses of the United States and

Pennsylvania Constitutions. Id. at 1223. On August 8, 2018, the PCRA court

issued notice of its intent to dismiss Appellant’s PCRA petition as untimely. On

September 18, 2018, the PCRA court formally dismissed Appellant’s PCRA

petition. This timely appeal followed.

      On appeal, Appellant presents the following issue for review:

      IS NOT [APPELLANT]’S CONVICTION FOR FAILURE TO COMPLY
      WITH REGISTRATION REQUIREMENTS UNDER 18 Pa.C.S. §
      4915.1 RENDERED INVALID BY THE PENNSYLVANIA SUPREME
      COURT’S MUNIZ DECISION AND IS NOT [APPELLANT] ENTITLED
      TO CONTEST THAT CONVICTION UNDER THE PCRA BECAUSE THE
      SUPREME COURT IN COMMONWEALTH v. POLZER RULED THAT
      MUNIZ IS APPLICABLE RETROACTIVELY ON COLLATERAL
      REVIEW?

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Appellant’s Brief at 4.

      The sole issue Appellant presents on appeal directly challenges the PCRA

court’s decision to dismiss his petition as untimely. “Pennsylvania law makes

clear no court has jurisdiction to hear an untimely PCRA petition.”

Commonwealth v. Monaco, 996 A.2d 1076, 1079 (Pa. Super. 2010)

(quoting Commonwealth v. Robinson, 837 A.2d 1157, 1161 (Pa. 2003)).

A petitioner must file a PCRA petition within one year of the date on which the

petitioner’s judgment became final, unless one of the three statutory

exceptions apply:

      (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
      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). Until recently, a petition invoking an exception

had to be filed within 60 days of the date the claim could have been presented.

However, effective December 2017, Act 146 of 2018 amended 42 Pa.C.S.A. §

9545(b)(2), and now provides that a PCRA petition invoking a timeliness

exception must be filed within one year of the date the claim could have been

presented. See Act 2018, Oct. 24, P.L. 894, No. 146, §2 and §3. Although

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we note the change in the law from 60 days to one year, it does not impact

our disposition of this appeal. If a petition is untimely, and the petitioner has

not pled and proven any exception, “‘neither this Court nor the trial court has

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

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

Derrickson, 923 A.2d 466, 468 (Pa. Super. 2007) (quoting Commonwealth

v. Chester, 895 A.2d 520, 522 (Pa. 2006)).

      In this case, there is no dispute that Appellant did not file his PCRA

petition within one year of the date his judgment of sentence became final.

As stated above, Appellant’s judgment of sentence became final on March 9,

2016, and he filed his PCRA petition on June 11, 2018. Instead, Appellant

asserts that Muniz is applicable to both timely and untimely PCRA petitions.

Appellant argues that Muniz satisfies the newly recognized constitutional right

exception of Section 9545(b)(1)(iii).

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

Court rejected this exact claim. We explained:

         Appellant’s reliance on Muniz cannot satisfy the [timeliness]
      exception of [S]ection 9545(b)(1)(iii). In Commonwealth v.
      Abdul-Salaam, [] 812 A.2d 497 ([Pa.] 2002), our Supreme Court
      held that,

         [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 [C]ourt 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

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         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
      [S]ection 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.

Id. at 405-06.

      Appellant     contends   that   our   Supreme     Court’s    decision   in

Commonwealth v. Polzer, 457 WAL 2016 (Pa. Feb. 23, 2018) (per curiam),

held that Muniz applies even to untimely PCRA petitions and satisfies the

newly recognized constitutional right exception to the PCRA. In Polzer, this

Court, prior to the Supreme Court’s decision in Muniz, declined to find that

application of SORNA to the appellant, who had committed sex offenses prior

to SORNA’s enactment, violated the ex post facto clause of the United States

and Pennsylvania Constitutions. See Commonwealth v. Polzer, 575 WDA

2013 at 9 (Pa. Super. June 22, 2016) (unpublished memorandum).                We

therefore affirmed the denial of the timely PCRA petition in which the appellant

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raised the ex post facto claim.      See id.    Our Supreme Court, however,

following its Muniz decision, issued a per curiam order vacating our decision

affirming the denial of appellant’s PCRA petition, and remanded the case to

this Court for reconsideration of the appellant’s ex post facto claim in light of

Muniz.   See Commonwealth v. Polzer, 457 WAL 2016 (Pa. 2018).                 On

remand, this Court determined that Muniz did apply to the appellant’s timely

PCRA petition, and granted him relief. See Commonwealth v. Polzer, 298

WDA 2015, 2018 WL 5317647 at *4 (Pa. Super. Oct. 29, 2018) (unpublished

memorandum).

      Polzer has no application to this case. Our Supreme Court vacated our

first Polzer decision by per curiam order.       Nowhere in that order, either

expressly or implicitly, did the Supreme Court state that Muniz satisfied the

newly recognized constitutional right exception, or either of the other

exceptions, to the PCRA’s one year time limitation. See Commonwealth v.

Polzer, 457 WAL 2016 (Pa. 2018). Moreover, given that the appeal in Polzer

was from an order denying a timely PCRA petition, Polzer’s application to

this case, which is an appeal from an order denying an untimely PCRA

petition, is not tenable.     The only precedent on the issue of Muniz’s

applicability in the context of an untimely PCRA petition is this Court’s decision

in Murphy, which clearly rejected the notion that PCRA petitioners can invoke

Muniz to satisfy the newly recognized constitutional right exception to the




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PCRA. See Murphy, 180 A.3d at 405-06. Unless and until the Supreme Court

says otherwise, Appellant’s argument is devoid of merit.

     Therefore, because Appellant’s PCRA petition is untimely he has not

successfully pled or proven an exception to the PCRA’s one year time

limitation, we are without jurisdiction to address the merits of Appellant’s

claims. See Derrickson, 923 A.2d at 468.

     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/21/2019




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