J-S34009-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    DAVID TERRELL,                             :
                                               :
                       Appellant               :   No. 988 WDA 2018

              Appeal from the PCRA Order Entered June 27, 2018
     In the Court of Common Pleas of Allegheny County Criminal Division at
                       No(s): CP-02-CR-0005474-2010


BEFORE:      DUBOW, J., McLAUGHLIN, J., and COLINS, J.*

MEMORANDUM BY DUBOW, J.:                               FILED OCTOBER 1, 2019

       Appellant, David Terrell, appeals from the Order dismissing his first

Petition filed pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.

§§ 9541-9546, as untimely. After careful review, we affirm.

       The relevant facts and procedural history are, briefly, as follows. On

September 25, 2011, Appellant entered a negotiated guilty plea to Rape of a

Person Under 13, Endangering the Welfare of a Child, Indecent Assault of a

Person Under 13, and Corruption of Minors.1, 2 That same day, the trial court


____________________________________________


1 See 18 Pa.C.S. §§ 3121(a)(6), 4304(a), 3126(a)(7), and 6301(a)(1),
respectively. Effective February 7, 2003, the legislature deleted 18 Pa.C.S. §
3121(a)(6) and replaced it with 18 Pa.C.S. § 3121(c). See Act of December
9, 2002, P.L. 1350, No. 162, § 2.
2The charges against Appellant arose from allegations that he had sexually
assaulted his stepdaughter over a seven-year period from 1999 to 2006.


____________________________________
* Retired Senior Judge assigned to the Superior Court.
J-S34009-19



sentenced him to an aggregate term of incarceration of 10 years and 30 days

to 30 years. Appellant’s conviction of Rape of a Person Under 13 subjected

him to a lifetime sex offender registration requirement under Megan’s Law I

and II.3

       Appellant filed a timely post-sentence motion, which the court denied

on September 29, 2011.           Appellant filed a timely direct appeal from his

Judgment of Sentence, but discontinued that appeal on December 7, 2011.

See Commonwealth v. Terrell, No. 1716 WDA 2011. Appellant’s Judgment

of Sentence, thus, became final that day.         See 42 Pa.C.S. § 9545(b)(3

Commonwealth v. McKeever, 947 A.2d 782, 785 (Pa. Super. 2008)

(explaining that a judgment of sentence is final for PCRA purposes on the date

that a defendant voluntarily discontinues his direct appeal).

       On September 21, 2017, Appellant pro se filed a PCRA Petition, alleging

that the requirement that he register as a sex offender for his lifetime is illegal

pursuant to Commonwealth v. Muniz, 164 A.3d 1189 (Pa. 2017).4                  The
____________________________________________


3 In 2012, the Sexual Offender Registration and Notification Act (“SORNA”)
took effect, replacing Megan’s Law II. See 42 Pa.C.S. §§ 9799.10-9799.41
(subsequently amended). Under SORNA, Appellant’s Rape conviction was
classified as a Tier III offense and carried a lifetime registration requirement.
See 42 Pa.C.S. §§ 9799.14(d), 9799.15(a)(3) (subsequently amended).
4 In Muniz, decided on July 19, 2017, the Pennsylvania Supreme Court

determined that retroactive application of SORNA’s registration requirements
violates the ex post facto clause of the Pennsylvania Constitution. Thus, the
Court declared SORNA unconstitutional when applied to defendants who were
convicted of crimes committed before SORNA’s effective date. In response,
the Legislature amended SORNA with Subchapter I (“Act 10”). “Subchapter I
sets forth the registration requirements that apply to all offenders convicted



                                           -2-
J-S34009-19



PCRA court appointed counsel who, on April 3, 2018, filed an Amended PCRA

Petition.   In his Amended Petition, Appellant reiterated and developed his

illegal sentence claim, asserting that “the new reporting and registration

requirements imposed by Subchapter I” are unconstitutional as applied to

Appellant. Amended Petition, 4/3/18, at ¶ 11 (emphasis in original).        He,

therefore, posited that he should be removed from the sexual offender

registry.

       Further, Appellant averred that he timely filed his initial Petition and

Amended Petition within 60 days of the issuance of the decisions in Muniz,

supra, and Commonwealth v. Derhammer, 173 A.3d 723 (Pa. 2017),5 and

the enactment of Subchapter I of Act 10. Amended Petition at ¶ 15.

       On May 5, 2018, the Commonwealth filed an Answer to Appellant’s

Amended Petition.6 On June 27, 2018, the PCRA court dismissed Appellant’s

Amended Petition without a hearing.7
____________________________________________


of committing offenses on or after Megan's Law I's effective date (April 22,
1996), but prior to SORNA's effective date.” Commonwealth v. Bricker,
198 A.3d 371, 375–76 (Pa. Super. 2018).

5In Derhammer, our Supreme Court held that the Commonwealth could not
prosecute a defendant for failing to timely register as a sex offender after the
Muniz Court had found the registration statute unconstitutional.

6 Because Appellant has challenged the constitutionality of a statute, the
Pennsylvania Office of the Attorney General filed a Motion to Intervene on
June 21, 2018.

7Generally, the PCRA court must provide notice of its intent to dismiss a PCRA
Petition and provide the petitioner with twenty days in which to respond.



                                           -3-
J-S34009-19



       This timely appeal followed.            Both Appellant and the PCRA court

complied with Pa.R.A.P. 1925.

       Appellant raises the following two issues on appeal:

              1. Whether the trial court erred in ruling that it lacked
                 jurisdiction to adjudicate the merits of the Amended
                 PCRA Petition and/or Petition for Writ of Habeas Corpus?

              2. Whether the trial court erred by not ruling that Act 10 of
                 2018 is unconstitutional under the federal and state ex
                 post facto and double jeopardy clauses?

Appellant’s Brief at 5.

       “Our standard of review of a PCRA court’s dismissal of a PCRA petition

is limited to examining whether the PCRA court’s determination is supported

by the record evidence and free of legal error.” Commonwealth v. Root,

179 A.3d 511, 515-16 (Pa. Super. 2018) (citation omitted). This Court grants

great deference to the findings of the PCRA court if they are supported by the

record. Commonwealth v. Boyd, 923 A.2d 513, 515 (Pa. Super. 2007). We

give no     such deference, however, to            the court’s   legal conclusions.

Commonwealth v. Ford, 44 A.3d 1190, 1194 (Pa. Super. 2012).

       In order to obtain relief under the PCRA, a petition must be timely filed.

See 42 Pa.C.S. § 9545 (providing jurisdictional requirements for the timely

filing of a petition for post-conviction relief). A petition must be filed within

one year from the date the judgment of sentence became final. Id. at Section
____________________________________________


Pa.R.Crim.P. 907(1). However, Appellant did not object to the PCRA court’s
failure to provide notice of intent to dismiss pursuant to Rule 907, rendering
any argument on this issue waived. Commonwealth v. Boyd, 923 A.2d 513,
514 n.1 (Pa. Super. 2007).

                                           -4-
J-S34009-19



9545(b)(1). Appellant’s Petition, filed almost 6 years after his Judgment of

Sentence became final, is facially untimely.

       The PCRA, however, provides exceptions to the timeliness requirement

in certain circumstances.        42 Pa.C.S. § 9545(b)(1)(i)-(iii).         In addition to

establishing the elements of a timeliness exception, a petitioner must also

establish that he filed his PCRA Petition within 60 days of the date he could

have presented his claim. 42 Pa.C.S. § 9545(b)(2).8 Here, Appellant attempts

to invoke Section 9545(b)(1)(iii) to overcome the PCRA’s time bar, pertaining

to a new constitutional right found to be retroactive. See Appellant’s Brief at

14, 23-24, 27(citing Muniz).9

       We note that as long as this Court has jurisdiction over the matter, a

legality   of   sentencing     issue   is      reviewable   and   cannot    be   waived.

Commonwealth v. Jones, 932 A.2d 179, 182 (Pa. Super. 2007). However,

a petitioner must raise a post-conviction legality of sentencing issue in a timely

filed PCRA Petition over which we have jurisdiction. See 42 Pa.C.S. § 9545(b);

____________________________________________


8 Effective December 24, 2018, Section 9545(b)(2) now provides that, for
claims arising on December 24, 2017, or after, “[a]ny petition invoking an
exception . . . shall be filed within one year of the date the claim could have
been presented.”

9Appellant alleged that he “found out [about] the decision of Commonwealth
v. Muniz on or around August 29, 2017 in the SCI-Albion prison law library.”
Petition, 9/21/17, at 4. Appellant’s pro se Petition is dated September 15,
2017, exactly 60 days after the Muniz decision. The lower court clerk
docketed and date-stamped Appellant’s pro se Petition on September 21,
2017, which is more than 60 days after our Supreme Court decided Muniz.
We agree with Appellant that “the Prisoner Mailbox Rule” applies. We, thus,
deem Appellant’s Petition as having been filed within 60 days of Muniz.

                                            -5-
J-S34009-19



Commonwealth v. Fahy, 737 A.2d 214, 223 (Pa. 1999) (“Although legality

of sentence is always subject to review within the PCRA, claims must still first

satisfy the PCRA’s time limits or one of the exceptions thereto.”).

      Appellant relies on Muniz, in arguing his timeliness exception.

However, the timeliness exception provided in Section 9545(b)(1)(iii) requires

that Appellant demonstrate that the Pennsylvania Supreme Court has held

that the holding in Muniz applies retroactively. Because our Supreme Court

has issued no such holding, Appellant cannot rely at this time on Muniz to

meet that timeliness exception. Commonwealth v. Murphy, 180 A.3d 402,

405-06 (Pa. Super. 2018), appeal denied, 195 A.3d 559 (Pa. 2018).

Accordingly, we are without jurisdiction to address this issue.

      With respect to Appellant’s claim that Derhammer, supra, also applies

to meet the timeliness exception of Section 9545(b)(1)(iii), we note that

Appellant did not, raise this claim within 60 days of that decision.        Our

Supreme Court decided Derhammer on November 22, 2017, but Appellant

did not file his Amended PCRA Petition until April 3, 2018.

      Moreover, even if Appellant had raised this claim within 60 days of the

Derhammer decision, it fails to meet the requirements of Subsection

(b)(1)(iii). Derhammer did not result in a new constitutional right found to

apply retroactively. See Commonwealth v. Pollard, 2019 WL 3764574 *2

(Pa. Super. filed August 9, 2019) (explaining that our Supreme Court has not

held that Derhammer applies retroactively in order to satisfy Section




                                     -6-
J-S34009-19



9545(b)(1)(iii)). Thus, Appellant cannot rely on Derhammer to satisfy the

timeliness exception provided in Section 9545(b)(1).10

       In his second issue, Appellant claims that the PCRA court erred when it

declined to find Act 10 unconstitutional. We are likewise without jurisdiction

to address this claim as Appellant has failed to plead and prove any exceptions

to the PCRA’s time-bar. See Commonwealth v. Turner, 80 A.3d 754, 767

(Pa. 2013) (internal citations omitted) (explaining that “in the context of the

jurisdictional timeliness restrictions on the right to bring a PCRA petition, the

constitutional nature of a collateral claim does not overcome the legislature’s

restrictions on collateral review.”).

       In conclusion, Appellant has not pleaded and proved the applicability of

any of the PCRA’s timeliness exceptions and, therefore, we are without

jurisdiction to consider the merits of this appeal. The PCRA court properly

dismissed Appellant’s Petition as untimely.      The record supports the PCRA

court’s findings and its Order is free of legal error. We, thus, affirm the denial

of PCRA relief.

       Order affirmed.




____________________________________________


10 Appellant’s alternate claim, that the PCRA court had jurisdiction to consider
his Petition as a habeas corpus petition, lacks merit. The PCRA is the “sole
means of obtaining collateral relief” for claims that can be brought under the
PCRA, including illegal sentence claims. 42 Pa.C.S. § 9542; Commonwealth
v. Haun, 32 A.3d 697 (Pa. 2011).

                                           -7-
J-S34009-19




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/1/2019




                          -8-
