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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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.                    :
                                           :
KEITH EDWARD NEWTON,                       :         No. 3297 EDA 2018
                                           :
                          Appellant        :


            Appeal from the PCRA Order Entered October 11, 2018,
             in the Court of Common Pleas of Montgomery County
               Criminal Division at No. CP-46-CR-0007945-2010


BEFORE: BENDER, P.J.E., LAZARUS, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:               FILED SEPTEMBER 20, 2019

        Keith Edward Newton appeals from the October 11, 2018 order entered

in the Court of Common Pleas of Montgomery County that denied his petition

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

(“PCRA”). We affirm.

        The PCRA court set forth the following:

              On March 15, 2012, [appellant] entered into an open
              guilty plea to three counts of sexual abuse of children
              (child pornography) (F3).[1] On June 19, 2012, he
              was sentenced to an aggregate term of 8-20 years’.
              He was also designated [a sexually violent predator
              (“SVP”)], pursuant to 42 Pa.C.S.A[.] § 9799.24.
              [Appellant] did not file a post[-]sentence motion or a




1   18 Pa.C.S.A. § 6312(c) and (d).
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            direct appeal. On June 22, 2017,[2] [appellant] filed
            a pro se PCRA petition claiming ineffective assistance
            for failure to file a direct appeal and seeking to have
            his appellate rights reinstated nunc pro tunc.
            Erin Lentz-McMahon, Esq. was appointed to represent
            [appellant] and filed an amended petition on
            September 29, 2017. The Commonwealth filed a
            Response on November 24, 2017. February 1, 2018,
            scheduled hearing on issue of timeliness. [sic] At that
            time, no hearing was held, but the parties agreed that
            [appellant] could amend his petition. He filed a
            Second Amended Petition on March 2, 2018. The
            Commonwealth filed its response May 18, 2018. On
            October 11, 2018, this Court held a hearing on the
            issue of timeliness. Following the hearing, the Court
            denied the Petition as untimely. This appeal followed.
            [Appellant] was directed to file a concise statement
            pursuant to Pa. R.A.P. 1925 (b).          He has since
            complied with that directive.

PCRA court opinion, 12/14/18 at 1-2.

      Appellant raises the following issue for our review:

            Whether the PCRA Court erred in finding that
            appellant’s PCRA petition filed on June 22, 2017, was
            untimely when appellant established that trial counsel
            failed to file a requested direct appeal following the
            finding by the trial court that he was [an SVP]
            pursuant to clear and convincing evidence, and
            argued that application of the Sexual Offender
            Registration Notification Act[, 42 Pa.C.S.A. § 9799.10
            et seq.]        (hereinafter “SORNA”), violated his
            constitutional rights protected by the United States
            and Pennsylvania Constitutions against ex post facto
            laws when appellant established the exceptions to the
            one-year time bar pursuant to Section 9545(b)(1)(iii)

2We note that even though appellant’s pro se PCRA petition was docketed on
June 26, 2017, the record reflects that appellant deposited the petition in the
prison mailbox on June 22, 2017. (Appellant’s motion for post-conviction
collateral relief, 6/22/17 at attachment (copy of time-stamped envelope).) In
accordance with the prisoner mailbox rule, appellant’s petition is deemed filed
on June 22, 2017. See Commonwealth v. Jones, 700 A.2d 423 (Pa. 1997).


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            and (ii) in that our Supreme Court has implicitly held
            that Muniz should be retroactively applied to cases on
            collateral review, and appellant was abandoned by his
            attorney in pursuing his direct appeal?

Appellant’s brief at 4.

      All PCRA petitions, including second and subsequent petitions, must be

filed within one year of when a defendant’s judgment of sentence becomes

final. 42 Pa.C.S.A. § 9545(b)(1). “A judgment becomes final at the conclusion

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

United States and the Supreme Court of Pennsylvania, or at the expiration of

the time for seeking the review.” 42 Pa.C.S.A. § 9545(b)(3). The Supreme

Court of Pennsylvania has held that the PCRA’s time restriction is

constitutionally sound.   Commonwealth v. Cruz, 852 A.2d 287, 292 (Pa.

2004). In addition, our supreme court has instructed that the timeliness of a

PCRA petition is jurisdictional. If a PCRA petition is untimely, a court lacks

jurisdiction over the petition. Commonwealth v. Callahan, 101 A.3d 118,

120-121 (Pa.Super. 2014) (courts do not have jurisdiction over an untimely

PCRA); see also Commonwealth v. Wharton, 886 A.2d 1120 (Pa. 2005).

      Here, the trial court sentenced appellant on June 19, 2012. Appellant

failed to file a direct appeal to this court. Consequently, appellant’s judgment

of sentence became final July 19, 2012, thirty days after imposition of

sentence and the time for filing a direct appeal expired. See 42 Pa.C.S.A.

§ 9545(b)(3); Pa.R.A.P. 903; Commonwealth v. Cintora, 69 A.3d 759, 763

(Pa.Super. 2013).     Therefore, appellant’s petition, filed June 22, 2017, is


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facially untimely. As a result, the PCRA court lacked jurisdiction to review

appellant’s petition, unless appellant alleged and proved one of the statutory

exceptions to the time-bar, as set forth in 42 Pa.C.S.A. § 9545(b)(1).

      Those three narrow exceptions to the one-year time-bar are: when the

government has interfered with the petitioner’s ability to present the claim,

when the appellant has recently discovered facts upon which his PCRA claim

is predicated, or when either the Supreme Court of Pennsylvania or the

Supreme Court of the United States has recognized a new constitutional right

and made      that right    retroactive.      42   Pa.C.S.A. §   9545(b)(1)(i-iii);

Commonwealth v. Brandon, 51 A.3d 231, 233-234 (Pa.Super. 2012). The

petitioner bears the burden of pleading and proving the applicability of any

exception. 42 Pa.C.S.A. § 9545(b)(1). If a petitioner fails to invoke a valid

exception to the PCRA time-bar, this court may not review the petition. See

42 Pa.C.S.A. § 9545(b)(1)(i-iii).

      Here,    appellant   filed   a   counseled   amended   PCRA     petition   on

September 29, 2017.3 Appellant filed a second amended PCRA petition on

March 3, 2018.       In that petition, appellant challenged the retroactive




3 We note that in his September 29, 2017 amended petition, appellant claimed
that (1) trial counsel was ineffective for failing to advise appellant that
appellant had the opportunity to be interviewed by the Commonwealth’s
psychologist for purposes of an SVP determination; (2) the trial court erred in
determining that appellant was an SVP as a result of insufficient evidence to
support the likelihood of recidivism; and (3) trial counsel was effective for
failing to litigate a Pa.R.Crim.P. 600 claim. (Appellant’s “amended petition for
[PCRA relief],” 9/29/17 at 8-9.)


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application of SORNA based upon the Supreme Court of Pennsylvania’s

decision in Commonwealth v. Muniz, 164 A.3d 1189 (Pa. 2017), wherein

our supreme court held that application of the registration requirements under

SORNA to sexual offenders who committed their crimes before SORNA’s

effective date violates the ex post facto clause of the Pennsylvania

Constitution. Appellant’s claim implicates the newly recognized constitutional

right exception to the PCRA’s time-bar under Section 9545(b)(1)(iii). With

that exception, appellant must satisfy the requirement that he filed his claim

within 60 days of the date the claim could have been presented. The 60-day

rule applicable to appellant’s claim was codified at 42 Pa.C.S.A. § 9545(b)(2)

and required that: “[a]ny petition invoking an exception . . . shall be filed

within 60 days of the date the claim could have been presented.”           An

amendment to that section substituted “within one year” for “within 60 days.”

The effective date of the amendment is December 24, 2018, and the

amendment applies to claims arising one year before the effective date or

thereafter.   See Act 2018-146, § 3.    Appellant filed his PCRA petition on

June 19, 2017, which was prior to December 24, 2017. Therefore, the 60-day

rule applies, and appellant would have been required to raise his Muniz claim

in an amended petition within 60 days of its decision. Our supreme court filed

its decision in Muniz on July 19, 2017. Appellant filed his Muniz claim in his

second amended petition on March 3, 2018, which was in excess of 60 days




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of the decision.   Therefore, appellant cannot satisfy the newly recognized

constitutional right exception to overcome the PCRA’s time-bar.

      Even if appellant could satisfy the time-bar, he would not be entitled to

relief. In Muniz, our supreme court held that application of the registration

requirements under SORNA to sexual offenders who committed their crimes

before SORNA’s effective date violates the ex post facto clause of the

Pennsylvania Constitution. Muniz, 164 A.3d at 1218. Therefore, retroactive

application of SORNA would appear to violate the ex post facto clauses of

the United States Constitution and the Pennsylvania Constitution, as set forth

in Muniz. See Muniz, 164 A.3d at 1218-1219. Appellant, however, presents

his claim in the context of an untimely filed PCRA petition.

      In a case involving a timely filed PCRA petition, this court has held 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).    Because appellant’s PCRA petition is facially untimely,

however, he would be required to satisfy the jurisdiction requirement set forth

at 42 Pa.C.S.A. § 9545(b)(1)(iii). To do so, appellant would be required to

demonstrate that the Supreme Court of Pennsylvania has held that Muniz

applies retroactively.   See Commonwealth v. Murphy, 180 A.3d 402,

406-407 (Pa.Super. 2018) (finding that when the PCRA petition is untimely

filed, in order to satisfy the timeliness exception set forth at 42 Pa.C.S.A.




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§ 9545(b)(1)(iii), a petitioner must demonstrate that the Supreme Court of

Pennsylvania has expressly held that Muniz applies retroactively).

      In his brief to this court, appellant claims that our supreme court

“implicitly” found that Muniz applies retroactively to untimely PCRA petitions

in Commonwealth v. Polzer, 182 A.3d 431 (Pa. 2018). (Appellant’s brief at

15-16.) Notwithstanding the fact that appellant’s failure to raise this assertion

in his second amended PCRA petition results in waiver under Pa.R.A.P. 302(a),

appellant is mistaken. The citation that appellant provides for Polzer leads

to a February 23, 2018 order entered by our supreme court that vacated an

order of this court and remanded to this court for consideration of the following

issue in light of Muniz, supra:

            Whether the appellate Superior Court erred in its
            findings and conclusions, and the PCRA court
            committed legal error in denying Petitioner’s claim
            that [SORNA] under 42 Pa.C.S.A. § 9799, i.e.,
            §§ 9799.15(e) and (e)(3) violate the due process
            clause of the Fifth and the Fourteenth Amendments to
            the United States Constitution, and the due process
            rights under the Pennsylvania Constitution, Art. 1,
            § 1, and Art. 1, § 9, and, therefore, violate the
            prohibition of the Ex Post Facto Clauses to the United
            States Constitution, Art. 1, § 10, Clause 1, and the
            Pennsylvania Constitution, Art. 1, § 17, where
            Petitioner is clearly not designated as [an SVP] to
            justify and warrant such progressively rigid conditions
            and “quarterly in-person” reporting requirements
            previously subject only to those deemed an SVP,
            whereas, SORNA’S irrebuttable presumption that all
            sexual offenders pose a high risk of reoffending
            violates procedural and substantive due process under
            the Pennsylvania Constitution, and as such, SORNA’s
            Internet    notification   provision   and    quarterly



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             verification requirements constitute an ex post facto
             law under the Pennsylvania Constitution?

Polzer, 182 A.3d 431.

      Clearly, the order remanding Polzer to this court for consideration of

the above issue in light of Muniz in no way constitutes a rule of law

promulgated by the Supreme Court of Pennsylvania that Muniz applies

retroactively to an untimely PCRA petition.

      Finally, we note that in his brief to this court, appellant argues that the

new fact exception under Section 9545(b)(1)(ii) applies because appellant

“did not become aware that trial counsel failed to proceed with filing his direct

appeal as requested, until several years later when he retrieved a copy of his

dockets” which constitutes “a factual basis for the timeliness exception set

forth in Section 9545(b)((1)(ii)”; specifically, “attorney abandonment” under

Commonwealth v. Bennett, 930 A.2d 1264 (Pa. 2007). (Appellant’s brief

at 17.) In his Rule 1925(b) statement, however, appellant’s only claim other

than his Muniz claim is that appellant:

             pled in his Amended Petition, and proved at the
             evidentiary hearing held on October 11, 2018 that the
             failure to raise the claim previously was the result of
             interference by government when he did not learn
             that trial counsel failed to pursue a requested direct
             appeal until several years later for which he alleged
             ineffective assistance of counsel and reinstatement of
             his right to file an appeal nunc pro tunc[.]

Appellant’s Rule 1925(b) statement, 12/3/18 at 2 (emphasis added).

Therefore,   appellant   waives    the    new   fact   exception   claim   under



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Section 9545(b)(1)(ii). See Pa.R.A.P. 1925(b)(4)(vii) (issues not included in

a petitioner’s Rule 1925(b) statement are waived); see also Commonwealth

v. Hannibal, 156 A.3d 197, 211 (Pa. 2016); cert. denied, 138 S.Ct. 59

(2017) (reiterating that issues not raised in a petitioner’s Rule 1925(b)

statement will be deemed waived).

     Appellant has failed to invoke a valid exception to the time-bar.

Consequently, the PCRA court lacked jurisdiction to review appellant’s

petition, and we may not review the petition on appeal.

     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary




Date: 9/20/19




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