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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA            :   IN THE SUPERIOR COURT OF
                                         :        PENNSYLVANIA
                                         :
              v.                         :
                                         :
                                         :
 WILLIAM E. WEBSTER, III,                :
                                         :
                    Appellant.           :   No. 1003 EDA 2018


               Appeal from the PCRA Order, March 15, 2018,
              in the Court of Common Pleas of Lehigh County,
           Criminal Division at No(s): CP-39-CR-0002085-2006.


BEFORE: GANTMAN, P.J.E., KUNSELMAN, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY KUNSELMAN, J.:                        FILED APRIL 09, 2019

     William E. Webster, III appeals pro se from the order denying as

untimely his first petition filed pursuant to the Post Conviction Relief Act

(“PCRA”). 42 Pa.C.S.A. §§ 9541-46. We affirm.

     The pertinent facts and procedural history are as follows: On October

31, 2006, a jury convicted Webster of rape and indecent assault. On February

20, 2007, the trial court sentenced him to an aggregate term of ten to twenty

years of imprisonment. Although Webster filed a timely notice of appeal, he

subsequently withdrew it on May 9, 2007.

     More than ten years later, on September 21, 2017, Webster filed a pro

se PCRA petition.    Within this petition, Webster sought to preclude the

application of the registration requirements of the Sex Offender Registration

and Notification (“SORNA”), 42 Pa.C.S.A. sections 9799.10-9799.41, based
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upon our Supreme Court’s decision in Commonwealth v. Muniz, 164 A.3d

1189 (Pa. 2017). According to Webster, the Muniz court recognized a new

constitutional right that applied to him retroactively.      The PCRA court

appointed counsel and, on December 18, 2017, PCRA counsel filed a no-merit

letter and motion to withdraw as counsel pursuant to the dictates of

Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and Commonwealth

v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc). On January 3, 2018,

the PCRA court granted PCRA counsel’s motion to withdraw. On February 13,

2018, the PCRA court issued Pa.R.Crim.P. 907 notice of its intention to dismiss

Webster’s PCRA petition as being untimely filed. Rather than filing a response,

Webster filed a premature appeal to this Court.1 By order entered March 15,

2018, the PCRA court dismissed the petition. This timely appeal follows. Both

Webster and the PCRA court have complied with Pa.R.A.P. 1925.

       Webster raises five issues on appeal. See Webster’s Brief at 4. Before

addressing these issues, however, we must first determine if the PCRA court

correctly concluded that Webster’s PCRA petition was untimely.

       This Court’s standard of review regarding an order dismissing a petition

under the PCRA is whether the determination of the PCRA court is supported

by the evidence of record and is free of legal error.     Commonwealth v.

Halley, 870 A.2d 795, 799 n.2 (Pa. 2005). The PCRA court’s findings will not

____________________________________________


1By order dated April 2, 2018, this Court dismissed the appeal as duplicative
and denied Webster’s pro se motion to withdraw the appeal as moot.


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be disturbed unless there is no support for the findings in the certified record.

Commonwealth v. Carr, 768 A.2d 1164, 1166 (Pa. Super. 2001).

        The   timeliness     of   a   post-conviction   petition   is   jurisdictional.

Commonwealth v. Hernandez, 79 A.3d 649, 651 (Pa. Super. 2013).

Generally, a petition for relief under the PCRA, including a second or

subsequent petition, must be filed within one year of the date the judgment

becomes final unless the petition alleges, and the petitioner proves, that an

exception to the time for filing the petition, set forth at 42 Pa.C.S.A. sections

9545(b)(1)(i), (ii), and (iii), is met.2 42 Pa.C.S.A. § 9545. A PCRA petition

invoking one of these statutory exceptions must “be filed within 60 days of

the date the claims could have been presented.” See Hernandez, 79 A.3d


____________________________________________


2   The exceptions to the timeliness requirement are:

        (i) the failure to raise the claim previously was the result of
        interference of 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)(i), (ii), and (iii).




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651-52 (citations omitted); see also 42 Pa.C.S.A. § 9545(b)(2).3        Finally,

exceptions to the PCRA’s time bar must be pled in the petition, and may not

be raised for the first time on appeal. Commonwealth v. Burton, 936 A.2d

521, 525 (Pa. Super. 2007); 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).

       Here, Webster’s judgment of sentence became final on May 9, 2007,

when he withdrew his direct appeal to this Court. See Commonwealth v.

McKeever, 847 A.2d 782 (Pa. Super. 2008) (explaining that, for purposes of

the PCRA, PCRA petitioner’s judgment of sentence became final on the date

he discontinued his direct appeal). Thus, in order to be timely, Webster had

to file his PCRA petition by May 9, 2008. As he filed the petition at issue in

2017, it is untimely, unless Webster satisfied his burden of pleading and

proving that one of the enumerated exceptions applies.       See Hernandez,

supra.

       Webster has failed to establish any exception to the PCRA’s time bar.

Initially, we note that the PCRA court found that the 2017 petition was

untimely because he did not file it within sixty days of the Muniz decision.

See Rule 907 Notice, 2/12/18, at 1-2 n.1.        Although Webster attempts to

justify the untimely filing due to the lack of access to the prison law library

____________________________________________


3Section 9545(b)(2) has since been amended to enlarge this period from sixty
days to one year. See infra. The sixty-day time period applies in this appeal.


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and application of the “prisoner mailbox rule,” he is still not entitled to post-

conviction relief. See Commonwealth v. Brandon, 51 A.3d 231, 234 n.5

(Pa. Super. 2012) (defining “prisoner mailbox rule”).

      In Muniz, the Pennsylvania Supreme Court held that SORNA’s

registration provisions constituted criminal punishment that cannot be

retroactively applied to a defendant whose crimes were committed prior to

SORNA’s enactment. This Court has held that “the recent holding in 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 Webster’s PCRA petition was untimely, unlike the timely

PCRA petition at issue in Rivera-Figueroa, he must demonstrate that the

Pennsylvania Supreme Court has held Muniz applies retroactively to untimely

PCRA petitions in order to satisfy Section 9545(b)(1)(iii).        Because our

Supreme Court has yet to reach this conclusion, he cannot rely on Muniz to

establish that time-bar exception.    See Commonwealth v. Murphy, 180

A.3d 402, 405-06 (Pa. Super. 2018).

      However, if our Supreme Court issues a decision holding that Muniz

applies retroactively, Webster may file another PCRA petition within one year

of that decision, attempting to invoke a time-bar exception in subsection

9545(b)(1)(iii). See Act of 2018, October 24, P.L. 894, No. 146, §§ 2 and 3

(recent amendment to the PCRA); see also Commonwealth v. Murphy, 180

A.3d at 406 n.1.



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     In light of the foregoing, we conclude that Webster’s PCRA petition was

untimely filed, and he has not pled and proven an exception to the PCRA’s

timeliness requirements.   As such, the PCRA court lacked jurisdiction to

address the underlying merits of Webster’s claims, and we affirm the court’s

order denying Webster post-conviction relief.


     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/9/19




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