J-S28019-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    CHARLES REISSER, JR.                       :
                                               :
                       Appellant               :   No. 1346 MDA 2018

               Appeal from the PCRA Order Entered July 23, 2018
      In the Court of Common Pleas of Luzerne County Criminal Division at
                        No(s): CP-40-CR-0003308-2010


BEFORE:      BOWES, J., McLAUGHLIN, J., and STRASSBURGER*, J.

MEMORANDUM BY McLAUGHLIN, J.:                      FILED SEPTEMBER 10, 2019

        Charles Reisser, Jr. appeals from the order denying his petition filed

under the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546.

Reisser’s petition is untimely and he fails to satisfy any of the PCRA time-bar

exceptions. We therefore affirm.

        In April 2011, Reisser pled guilty to one count of sexual assault and two

counts of indecent assault.1 On November 11, 2011, the trial court sentenced

Reisser to 60 to 120 months’ incarceration followed by seven years’ probation.

The trial court also found Reisser to be a sexually violent predator (“SVP”).

Reisser did not file a direct appeal.




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*    Retired Senior Judge assigned to the Superior Court.

1   18 Pa.C.S.A. §§ 3124.1, 3126(a)(7), and 3126(a)(8), respectively.
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       Reisser filed multiple PCRA petitions, which the PCRA court denied. In

August 2017, he filed the instant petition. The PCRA court appointed counsel,

who filed an amended petition and a supplemental petition, requesting relief

following Commonwealth v. Muniz, 164 A.3d 1189 (Pa. 2017). The

Commonwealth filed a response arguing, in part, that the PCRA petition was

moot following the enactment of 2018 Pa. Legis. Serv. Act 2018-10 (approved

February 21, 2018) (“Act 10”).2 The court ordered the parties to brief the

applicability of Act 10, and the parties complied with this order.

       In May 2018, the PCRA court issued notice of its intent to dismiss the

petition without a hearing pursuant to Pennsylvania Rule of Criminal Procedure

907. In July 2018, the court dismissed the petition. Reisser filed a timely

notice of appeal.

       Reisser raises the following issues:

          I. Did the [PCRA] court err in dismissing and denying
          [Reisser’s] PCRA, as [Reisser] is currently serving an
          unconstitutional sentence and registration requirement in
          the wake of Act 10, Muniz, and its progeny?

          II. Did the PCRA court err in denying and dismissing
          [Reisser’s] PCRA petition without a hearing when the
          reasoning of the dismissal was based on the timeliness of
          the petition and without the Commonwealth motioning to
          dismiss the petition?

          III. Did the PCRA court err in dismissing and denying
          [Reisser’s]   PCRA    despite   the    fact   that  under
          [Commonwealth v. Butler, 173 A.3d 1212 (Pa.Super.
          2017), pet. for allowance of appeal granted, 190 A.3d 581
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2 SORNA was further amended by 2018 Pa. Legis. Serv. Act 2018-29
(approved June 12, 2018) (“Act 29”).

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         (Pa. 2018), his status as a sexually violent predator is
         unconstitutional?

Reisser’s Br. at 6.

      We will first address Reisser’s first and third claims, which allege he is

entitled to PCRA relief following Muniz and Butler and that Act 10 is

unconstitutional.

      Our standard of review from the denial of post-conviction relief “is

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

the evidence of record and whether it is free of legal error.” Commonwealth

v. Ligon, 206 A.3d 515, 518 (Pa.Super. 2019) (quoting Commonwealth v.

Ousley, 21 A.3d 1238, 1242 (Pa.Super. 2011)).

      A PCRA petition “shall be filed within one year of the date the judgment

becomes final.” 42 Pa.C.S.A. § 9545(b)(1). A judgment is 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 time for seeking the review.” 42 Pa.C.S.A. § 9545(b)(3).

      The trial court sentenced Reisser on November 9, 2011, and he did not

file a notice of appeal. His conviction therefore became final on December 9,

2011, 30 days after entry of the judgment of sentence. See Pa.R.A.P. 903(a)

(“Except as otherwise prescribed by this rule, the notice of appeal required by

Rule 902 (manner of taking appeal) shall be filed within 30 days after the

entry of the order from which the appeal is taken.”). To be timely, Reisser was

required to file his PCRA petition by December 9, 2012. See 42 Pa.C.S.A. §



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9545(b)(1). His current petition, filed in August 2017, is therefore facially

untimely.

       To overcome the one-year time bar, Reisser bore the burden of pleading

and proving one of the three exceptions: (i) unconstitutional interference by

government officials; (ii) newly discovered facts that he could not have

previously ascertained with due diligence; or (iii) a newly recognized

constitutional right that has been held to apply retroactively. See 42 Pa.C.S.A.

§ 9545(b)(1)(i)-(iii). Further, the petition must have been “filed within 60 days

of the date the claim could have been presented.” See 42 Pa.C.S.A. §

9545(b)(2) (amended 2018).3

       Reisser claims that Muniz qualifies under the newly recognized

constitutional right found to be retroactive exception to the time-bar. This

Court has previously held that Muniz does not constitute a newly recognized

constitutional right that has been held to apply retroactively, such that a PCRA

petitioner can overcome the PCRA time-bar. See Commonwealth v. Greco,

203 A.3d 1120, 1124 (Pa.Super. 2019) (petition cannot rely on Muniz to




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3Effective December 24, 2018, the PCRA statute was amended to provide that
petitioners must file a claim “within one year of the date the claim could have
been presented.” See 42 Pa.C.S.A. § 9545(b)(2). This amendment, however,
applies to claims arising on or after December 24, 2017. Reisser, therefore,
was required to file his claim within 60 days of the date on which the claim
could have been presented.




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overcome PCRA time-bar as no court has held that the right applies

retroactively to those on collateral review).

       Reisser also relies on Butler, arguing the court erred in making an SVP

designation and his petition is timely based on Butler. The Pennsylvania

Supreme Court has not found that Butler created a new constitutional right

that applies retroactively and, therefore, Reisser cannot rely on it to establish

an exception to the time-bar.4

       Reisser also seeks relief based on an allegation that Act 10 is

unconstitutional, and claims that it entitles him to relief from the PCRA time-

bar. No court has found Act 10 unconstitutional, and therefore Reisser’s claims

challenging its constitutionality cannot overcome the PCRA time-bar.5

       Accordingly, Reisser has failed to plead and prove an exception to the

time-bar applies. Because his PCRA petition is untimely, and no exception

applies, we cannot review the merits of his claim.

       Reisser’s second claim—that the PCRA court erred in not holding an

evidentiary hearing—lacks merit. He claims that a hearing is required because


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4 We also note that Butler found that SVP hearings and designations made
under SORNA were unconstitutional. Commonwealth v. Butler, 173 A.3d
1212, 1218 (Pa.Super. 2017), pet. for allowance of appeal granted, 190 A.3d
581 (Pa. 2018). The case did not address SVP determinations made under any
prior statutes that required registration of sex offenders.

5 Reisser may be able to challenge his registration requirements by other
means, such as by filing a petition for review in the Commonwealth Court.
See, e.g., J.J. M. v. Pa. State Police, 183 A.3d 1109 (Pa.Cmwlth. 2018)
(applying Muniz and granting relief).

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the Commonwealth did not file a motion to dismiss the petition due to

untimeliness.

      We review a PCRA court’s decision to deny a request for an evidentiary

hearing for an abuse of discretion. Commonwealth v. Maddrey, 205 A.3d

323, 327 (Pa.Super. 2019). “There is no absolute right to an evidentiary

hearing on a PCRA petition, and if the PCRA court can determine from the

record that no genuine issues of material fact exist, then a hearing is not

necessary.” Id. at 328 (quoting Commonwealth v. Jones, 942 A.2d 903,

906 (Pa. Super. 2008)). “[T]o obtain reversal of a PCRA court’s decision to

dismiss a petition without a hearing, an appellant must show that he raised a

genuine issue of fact which, if resolved in his favor, would have entitled him

to relief, or that the court otherwise abused its discretion in denying a

hearing.” Id. (quoting Commonwealth v. Hanible, 30 A.3d 426, 452 (Pa.

2011)) (alternation in original).

      Contrary to Reisser’s claim, the PCRA court is not required to have a

hearing where the Commonwealth did not file a motion to dismiss based on

timeliness. Rather, as outlined above, a court must have a hearing only where

there is a genuine issue of material fact. Here, there was no genuine issue of

material fact as to the timeliness of the petition that, if resolved in Reisser’s

favor, would have entitled him to relief from the PCRA time-bar. Therefore,

the PCRA court did not abuse its discretion in dismissing the petition as

untimely without a hearing.




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     Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/10/2019




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