J-S38028-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                            Appellee

                       v.

JAMES H. HERB, III

                            Appellant               No. 1569 MDA 2014


           Appeal from the PCRA Order entered September 11, 2014
               In the Court of Common Pleas of Luzerne County
              Criminal Division at No: CP-40-CR-0003100-2011


BEFORE: WECHT, STABILE, and MUSMANNO, JJ.

MEMORANDUM BY STABILE, J.:                     FILED DECEMBER 21, 2015

       Appellant, James H. Herb, III, appeals from the September 11, 2014

order entered in the Court of Common Pleas of Luzerne County, denying his

amended petition for collateral relief pursuant to the Post Conviction Relief

Act (PCRA), 42 Pa.C.S.A. §§ 9541-46. Following review, we affirm.1

       Appellant appeared before the Honorable Fred A. Pierantoni, III, on

July 30, 2012 and entered into a plea for failure to comply with Megan’s Law
____________________________________________


1
  The record reflects that on October 7, 2014, a motions panel of this Court
issued a Rule to Show Cause why this appeal should not be dismissed
pursuant to Pa.R.A.P. 301(a)(1), which provides that no order is appealable
until it has been entered upon the trial court docket. By subsequent order
entered December 17, 2014, the motions panel acknowledged receipt of
Appellant’s response to the rule; discharged the show cause rule; and noted
the issue would be referred to the merits panel. Our review of the trial court
docket confirms the entry of the September 11, 2014 order as required by
Rule 301(a)(1). Therefore, the appeal is properly before us.
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III, which included the sexual offender registration requirements in effect at

the time. On September 11, 2012, Judge Pierantoni sentenced Appellant to

a minimum of 36 months and maximum of 72 months in a state correctional

institution.   Appellant did not file a direct appeal from his judgment of

sentence.

        On December 16, 2013, our Supreme Court ruled that Megan’s Law III

was unconstitutional because Act 152 of 2004 (Act 152), which included the

provisions of Megan’s Law III, violated the Single Subject Rule of Article III,

Section 3, of the Pennsylvania Constitution. Commonwealth v. Neiman,

84 A.3d 603 (Pa. 2013). The Court directed that its decision be stayed for

90 days to afford the Legislature an opportunity “to consider appropriate

remedial measures, or to allow for a smooth transition period.” Id. at 616

(citation omitted).2      Therefore, the decision was effective on March 15,

2014.


____________________________________________


2
    The Court explained:

        [A]s we have observed previously in striking down other
        legislation which violated Article III, Section 3, nothing precludes
        the General Assembly from enacting similar provisions in a
        manner consistent with the Constitution. However, since we find
        merit in the General Assembly's suggestion that our decision
        abrogating the entirety of Act 152 will have a significant impact
        on a wide variety of individuals and entities which have ordered
        their affairs in reliance on its provisions, we will stay our
        decision, as we have done under similar circumstances, in order
        to provide a reasonable amount of time for the General
(Footnote Continued Next Page)


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      Fifty-eight days later, on May 12, 2014, the Luzerne County Public

Defender’s Officer filed a PCRA petition on Appellant’s behalf. The office filed

an amended petition on July 18, 2014 that included Appellant’s requisite

verification and consent. A hearing on the petition was held on September

11, 2014. At the conclusion of the hearing, Judge Pierantoni, who was also

the PCRA court judge, denied Appellant’s petition.         This timely appeal

followed in which Appellant presents one issue for our consideration:

      Whether the [PCRA] court erred in denying [Appellant’s] Petition
      for Post-Conviction Relief where [Appellant] is currently serving
      an illegal sentence and is incarcerated in violation of the due
      process clauses of both the Constitution of the United States and
      the Constitution of the Commonwealth of Pennsylvania?

Appellant’s Brief at 2.

      In essence, Appellant argues that the Megan’s Law III provisions under

which he was sentenced are void ab initio, rendering his sentence

unconstitutional because the offense for which he was sentenced never

existed.   Appellant does not dispute that he entered a guilty plea to a

violation of the reporting requirements of Megan’s Law III in effect when he

entered his plea and was sentenced. Simply stated, he is attempting to play

a “Get Out of Jail Free” card by claiming Neiman should be applied

retroactively.
                       _______________________
(Footnote Continued)

      Assembly to consider appropriate remedial measures, or to allow
      for a smooth transition period.

Id. at 616 (citations, quotations and ellipses omitted).



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       Appellant looks to this Court’s ruling in Commonwealth v. Michuck,

686 A.2d 403 (Pa. Super. 1996), in which we vacated a conviction under the

Vehicle Code because, while the appeal was pending, our Supreme Court

struck down a subsection of the Code under which Michuck was convicted.3

We recognized that “[a] court does not have power to enforce a law which is

no longer valid.” Id. at 407. Similarly, Appellant relies on Commonwealth

v. Muhammed, 992 A.2d 897 (Pa. Super. 2010), in which we affirmed

Muhammed’s conviction for unauthorized transfer of sounds on recording

devices but sua sponte reversed his conviction for trademark counterfeiting

because our Supreme Court declared the trademark counterfeiting statute

unconstitutional.4      “If no statutory authorization exists for a particular

sentence, that sentence is illegal and subject to correction. An illegal

sentence must be vacated.”             Id. at 903 (quoting Commonwealth v.

Stevenson, 850 A.2d 1268, 1271 (Pa. Super. 2004) (en banc)).

       Appellant’s reliance on Michuck and Muhammed is misplaced.

Unlike the case before us, which is a collateral proceeding under the PCRA,
____________________________________________


3
  Michuck had been convicted under 75 Pa.C.S.A. § 3731(a)(5), which
imposed criminal penalties on individuals with a certain blood alcohol content
within three hours of driving, a provision our Supreme Court determined to
violate both state and federal due process guarantees in Commonwealth v.
Barud, 681 A.2d 162 (1996). See Michuck, 686 A.2d at 407.
4
  In Commonwealth v. Omar, 981 A.2d 179 (Pa. 2009), our Supreme
Court struck down the criminal statute of trademark counterfeiting (18
Pa.C.S.A. § 4119) as unconstitutionally overbroad. See Muhammed, 992
A.2d at 903.



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both Michuck and Muhammed were pending on direct appeal when the

relevant statutes were declared unconstitutional.

     As noted above, Appellant did not file a direct appeal from his

September 11, 2012 judgment of sentence.            Therefore, his judgment

became final 30 days later, on October 11, 2012.      He filed his first PCRA

petition on May 12, 2014.

     It has been clearly established that the PCRA’s time limitations are

jurisdictional. See, e.g., Commonwealth v. Fahy, 737 A.2d 214, 223 (Pa.

1999). With that in mind, we find this Court’s pronouncement in a recent

PCRA case, Commonwealth v. Callahan, 101 A.3d 118 (Pa. Super. 2014),

instructive. In Callahan, this Court began its review by stating:

     “As a threshold jurisdictional matter, however, the timeliness of
     the PCRA petition must be addressed. Even where neither party
     nor the PCRA court have addressed the matter, it is well-settled
     that we may raise it sua sponte since a question of timeliness
     implicates the jurisdiction of our Court.” Commonwealth v.
     Gandy, 38 A.3d 899, 902 (Pa. Super. 2012), appeal denied, 616
     Pa. 651, 49 A.3d 442 (2012) (internal quotation marks and
     citation omitted). Thus, we shall forego assessment of the
     merits of the claim set forth in Appellant’s brief and, instead,
     concentrate our attention on whether Appellant timely filed his
     PCRA petition and, if not, whether he has raised a viable
     statutory exception to the PCRA’s timeliness requirement. As
     the timeliness of a PCRA petition is a question of law, our
     standard of review is de novo and our scope of review is plenary.
     See Commonwealth v. Taylor, 65 A.3d 462, 468 (Pa. Super.
     2013) (citations omitted).

Id. at 121.

     42 PaC.S.A. § 9545(b) provides, in relevant part:

     (b) Time for filing petition.—

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       (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).

       Appellant did not file a petition within one year of the time his

judgment became final. However, the petition was filed within 60 days of

the effective date of the Supreme Court’s decision in Neiman, satisfying the

requirement of § 9545(b)(2).           Nevertheless, Appellant may not claim an

exception under § 9545(b)(1)(iii) unless he can prove a “constitutional right”

recognized in Neiman “has been held by [our Supreme Court] to apply

retroactively.” 42 Pa.C.S.A. § 9545(b)(1)(iii).5

       In Commonwealth v. Abdul-Salaam, 812 A.2d 497 (Pa. 2002), our

Supreme Court considered whether a determination of retroactivity must

have already been made before a petitioner files a PCRA claiming a


____________________________________________


5
  We note that Neiman involved a direct appeal, not a collateral attack
under the PCRA.



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“constitutional   right”   exception   under   §   9545(b)(1)(iii).   The    Court

explained:

      In construing subsection (iii), as with any question of statutory
      construction, we must begin with the Rules of Statutory
      Construction. A statute’s words and phrases are to be construed
      according to their common and approved usage, and where the
      words of a statute are clear and free from ambiguity, the letter
      of the statute may not be disregarded. See 1 Pa.C.S. §§
      1903(a), 1921(b); Commonwealth v. MacPherson, 561 Pa.
      571, 752 A.2d 384, 391 (2000).

Id. at 501. The Court continued:

      Subsection (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
      court 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.

Id.   After considering limitations on serial state collateral review not at

issue in our case, the Court concluded:

      [W]e hold that the language “has been held” means that the
      ruling on retroactivity of the new constitutional law must have
      been made prior to the filing of the petition for collateral review.

      We find further support for our conclusion today in a recent
      United States Supreme Court case. Tyler v. Cain, 533 U.S.
      656, 121 S.Ct. 2478, 150 L.Ed.2d 632 (2001). In Tyler, the
      Court looked at a similar provision of the Antiterrorism and
      Effective Death Penalty Act (“AEDPA”), which provided that the
      petitioner must make “a prima facie showing” that his “claim

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      relies on a new rule of constitutional law, made retroactive to
      cases on collateral review by the Supreme Court, that was
      previously unavailable.” Tyler, 533 U.S. at 660, 121 S.Ct. 2478
      (quoting 28 U.S.C. § 2244(b)). Specifically, the Court was
      called upon to interpret the phrase “made retroactive to cases on
      collateral review by the Supreme Court.”

      When reviewing the new constitutional rule in context, the Court
      explained that the only way a new rule becomes retroactive was
      simply by the action of the Supreme Court itself. Further, “the
      only way the Supreme Court can, by itself ‘lay out and construct’
      a rule’s retroactive effect . . . is through a holding.” Id. at 663,
      121 S.Ct. 2478. Thus, the Court determined that a new rule of
      constitutional law is not “made retroactive to cases on collateral
      review” unless the Supreme Court has held it to be retroactive.
      Id.

Id. at 501-02.   “After reviewing the plain language of the subsection and

United States Supreme Court case law, we are persuaded that the language

‘has been held’ in 42 Pa.C.S. § 9545(b)(1)(iii) means that a retroactivity

determination must exist at the time that the petition is filed.” Id. at 502.

      Appellant claims he is serving an illegal sentence and is incarcerated in

violation of his due process rights.     His assertions are based upon our

Supreme Court’s ruling in Neiman, finding Act 152, which included the

Megan’s Law III provisions, unconstitutional.    It is not necessary for us to

consider whether declaring Act 152 unconstitutional gives rise to a new

“constitutional right” because our review of Neiman confirms that the

Supreme Court did not direct that its decision was to apply retroactively. In

fact, the Court did not even discuss the effect of its decision on cases that

had become final before Neiman was decided. It cannot be said that the

right asserted by Appellant “has been held by [our Supreme Court] to apply

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retroactively.” Therefore, Appellant does not qualify for an exception under

§ 9545(b)(1) that can save his PCRA petition from the time bar of the PCRA.

     The fact that Appellant is claiming an illegal sentence, based upon a

crime that does not exist, does not change the outcome. In Commonwealth

v. Miller, 102 A.3d 988 (Pa. Super. 2014), the appellant sought retroactive

application based on Alleyne v. United States, ___ U.S. ___, 133 S.Ct.

2151, 186 L.Ed.2d 314 (2013). This Court determined that the appellant did

not satisfy the new constitutional right exception to the PCRA’s time bar,

recognizing:

     Even assuming that Alleyne did announce a new constitutional
     right, neither our Supreme Court, nor the United States
     Supreme Court has held that Alleyne is to be applied
     retroactively to cases in which the judgment of sentence had
     become final. This is fatal to Appellant’s argument regarding the
     PCRA time-bar. This Court has recognized that a new rule of
     constitutional law is applied retroactively to cases on collateral
     review only if the United States Supreme Court or our Supreme
     Court specifically holds it to be retroactively applicable to those
     cases. Commonwealth v. Phillips, 31 A.3d 317, 320 (Pa.
     Super. 2011), appeal denied, 615 Pa. 784, 42 A.3d 1059 (2012),
     citing Tyler v. Cain, 533 U.S. 656, 663, 121 S.Ct. 2478, 150
     L.Ed.2d 632 (2001); see also, e.g., Commonwealth v.
     Taylor, 933 A.2d 1035, 1042 (Pa. Super. 2007) (stating, “for
     purposes of subsection (iii), the language ‘has been held by that
     court to apply retroactively’ means the court announcing the rule
     must have also ruled on the retroactivity of the new
     constitutional right, before the petitioner can assert retroactive
     application of the right in a PCRA petition[ ]”), appeal denied,
     597 Pa. 715, 951 A.2d 1163 (2008). Therefore, Appellant has
     failed to satisfy the new constitutional right exception to the
     time-bar.

     We are aware that an issue pertaining to Alleyne goes to the
     legality of the sentence. See Commonwealth v. Newman, 99
     A.3d 86, 90 (Pa. Super. 2014) (en banc) (stating, “a challenge

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         to a sentence premised upon Alleyne likewise implicates the
         legality of the sentence and cannot be waived on appeal[ ]”). It
         is generally true that “this Court is endowed with the ability to
         consider an issue of illegality of sentence sua sponte.”
         Commonwealth v. Orellana, 86 A.3d 877, [882] n. 7 (Pa.
         Super. 2014) (citation omitted). However, in order for this Court
         to review a legality of sentence claim, there must be a basis for
         our jurisdiction to engage in such review. See Commonwealth
         v. Borovichka, 18 A.3d 1242, 1254 [n.8] (Pa. Super. 2011)
         (stating, “[a] challenge to the legality of a sentence . . . may be
         entertained as long as the reviewing court has jurisdiction[ ]”)
         (citation omitted). As this Court recently noted, “[t]hough not
         technically waivable, a legality [of sentence] claim may
         nevertheless be lost should it be raised . . . in an untimely PCRA
         petition for which no time-bar exception applies, thus depriving
         the court of jurisdiction over the claim.” [Commonwealth v.
         Seskey, 86 A.3d 237, 241 (Pa. Super. 2014]. As a result, the
         PCRA court lacked jurisdiction to consider the merits of
         Appellant’s [] PCRA petition, as it was untimely filed and no
         exception was proven.

Id. at 995-96 (some citations omitted; footnote omitted).

         Although the PCRA court did not dismiss Appellant’s PCRA petition on

timeliness grounds, we conclude the petition was untimely filed and is not

save by any exception under § 9545(b)(1). “As an appellate court, we may

affirm     by   reasoning   different   than     that   used   by   the   trial   court.”

Commonwealth v. Miller, 787 A.2d 1036, 1038 (Pa. Super. 2001) (citation

omitted).       Therefore, we affirm the September 11, 2014 order denying

Appellant’s amended PCRA petition.




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     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/21/2015




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