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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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.                    :
                                           :
STANLEY OHLER,                             :         No. 1449 WDA 2017
                                           :
                          Appellant        :


               Appeal from the PCRA Order, September 20, 2017,
                in the Court of Common Pleas of Fayette County
                Criminal Division at No. CP-26-CR-0001649-2007


BEFORE: STABILE, J., MUSMANNO, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                        FILED MAY 25, 2018

        Appellant, Stanley Allan Ohler, appeals pro se from the September 20,

2017 order dismissing his third petition filed pursuant to the Post Conviction

Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546.        After careful review, we

affirm.

        A jury convicted appellant of involuntary deviate sexual intercourse

(“IDSI”), statutory sexual assault, and aggravated indecent assault 1 on

March 8, 2008. At sentencing on June 3, 2008, the trial court adjudicated

appellant as a sexually violent predator, required him to register as a

sex offender for life, and sentenced appellant to 6-12 years’ imprisonment.

We     affirmed   appellant’s   judgment   of   sentence   on   April   14,   2009.




1   18 Pa.C.S.A. §§ 3123(a)(2), 3122.1, and 3125(8), respectively.
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Commonwealth v. Ohler, 972 A.2d 559 (Pa.Super. 2009) (unpublished

memorandum).      Appellant did not file a petition for allocatur with our

supreme court on direct appeal.

      On September 8, 2009, appellant filed his first PCRA petition.        The

PCRA court denied appellant’s petition on May 27, 2010, and we affirmed the

PCRA court’s denial on June 16, 2011. Commonwealth v. Ohler, 31 A.3d

746 (Pa.Super. 2011) (unpublished memorandum).              Our supreme court

denied   appellant’s   petition    for   allocatur   on   November   22,   2011.

Commonwealth v. Ohler, 34 A.3d 82 (Pa. 2011).

      On August 4, 2016, appellant filed his second PCRA petition, which

was dismissed without a hearing on September 22, 2016. Appellant filed the

instant PCRA petition on August 23, 2017, and the PCRA court entered a

notice of intent to dismiss appellant’s PCRA petition pursuant to Pa.R.Crim.P.

907 on August 29, 2017.           The PCRA court dismissed appellant’s PCRA

petition on September 20, 2017.2

      Appellant filed a notice of appeal to this court on October 4, 2017. The

PCRA court ordered appellant to file a concise statement of errors

complained of on appeal pursuant to Pa.R.A.P. 1925(b) on October 20,

2017, and appellant filed a Rule 1925(b) statement on November 3, 2017.




2 While the instant PCRA petition was pending before the PCRA court,
appellant filed a fourth PCRA petition on September 8, 2017. The PCRA
court dismissed appellant’s fourth petition without prejudice on October 20,
2017.


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On November 28, 2017, the PCRA court filed a statement in lieu of an

opinion pursuant to Pa.R.A.P. 1925(a).

        In reviewing appellant’s seven-page brief, we note that appellant failed

to include a coherent statement of questions             involved pursuant to

Pa.R.A.P. 2116.3     The three issues appellant sets forth in his brief can be

condensed to the following issue for our review:         whether our supreme

court’s recent finding that the retroactive application of the registration

requirements pursuant to the Sex Offender Registration and Notification Act

(“SORNA”) is unconstitutional applies retroactively to appellant?

        Subsequent PCRA petitions beyond a petitioner’s first petition are

subject to the following standard:

              A second or subsequent petition for post-conviction
              relief will not be entertained unless a strong
              prima facie showing is offered to demonstrate that
              a miscarriage of justice may have occurred.
              Commonwealth v. Allen, 732 A.2d 582, 586 (Pa.
              1999). A prima facie showing of entitlement to
              relief is made only by demonstrating either that the
              proceedings which resulted in conviction were so
              unfair that a miscarriage of justice occurred which no

3   Appellant’s statement of questions involved is as follows:

              1.    Whether the lifetime registration        of   sex
                    offenders is unconstitutional[?]

              2.    Whether the registration should apply to the
                    appellant[?]

              3.    Being the appellant was sentenced before the
                    registration was made into law.

Appellant’s brief at 3 (full capitalization omitted).


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            civilized society could tolerate, or the defendant’s
            innocence of the crimes for which he was charged.
            Id. at 586. Our standard of review for an order
            denying post-conviction relief is limited to whether
            the trial court’s determination is supported by
            evidence of record and whether it is free of legal
            error. Commonwealth v. Jermyn, 709 A.2d 849,
            856 (Pa. 1998).

            A PCRA petition, including a second or subsequent
            petition, must be filed within one year of the date
            that     judgment   of    sentence   becomes     final.
            42 Pa.C.S.[A.] § 9545(b)(1). A judgment becomes
            final for purposes of the PCRA “at the conclusion of
            direct review, including discretionary review in the
            Supreme Court of the United States and the
            Supreme Court of Pennsylvania, or the expiration of
            time for seeking the review.”           42 Pa.C.S.A.
            § 9543(b)(3). PCRA time limits are jurisdictional in
            nature, implicating a court’s very power to
            adjudicate a controversy. Commonwealth v. Fahy,
            737 A.2d 214 (Pa. 1999). Accordingly, the “period
            for filing a PCRA petition can be extended only if the
            PCRA permits it to be extended, i.e., by operation of
            one of the statutorily enumerated exceptions to the
            PCRA time-bar. Id. at 222.

Commonwealth v. Ali, 86 A.3d 173, 176-177 (Pa. 2014), cert. denied,

135 S.Ct. 707 (2014).     Before we can address appellant’s issues on the

merits, we must first determine if we have jurisdiction to do so.

      As noted above, a PCRA petitioner has one year from the date his or

her judgment of sentence becomes final in which to file a PCRA petition.

This court has held the following regarding when a judgment becomes final:

            The plain language of the PCRA provides that a
            judgment of sentence becomes final at the
            conclusion of direct review or when the time seeking
            direct review expires.          See 42 Pa.C.S.A.
            § 9545(b)(3).    In fixing the date upon which a


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            judgment of sentence becomes final, the PCRA does
            not refer to the conclusion of collateral review or the
            time for appealing a collateral review determination.
            Thus, the plain language of the PCRA statute shows
            that a judgment of sentence becomes final
            immediately upon expiration of time for seeking
            direct review, even if other collateral proceedings are
            still ongoing.    As this result is not absurd or
            unreasonable, we may not look for further
            manifestations    of    legislative   intent.      See
            Commonwealth v. Hall, 80 A.3d 1204, 1211 (Pa.
            2013) (internal quotation marks omitted) (We may
            “look beyond the plain language of the statute only
            when words are unclear or ambiguous, or the plain
            meaning would lead to a result that is absurd,
            impossible of execution, or unreasonable.”).

Commonwealth v. Callahan, 101 A.3d 112, 118 (Pa.Super. 2014).

      In the instant case, this court affirmed appellant’s judgment of

sentence on April 14, 2009, and appellant did not file a petition for allocatur

with our supreme court.      Accordingly, appellant’s judgment of sentence

became final on May 14, 2009. See Pa.R.A.P. 903(a). Appellant filed the

instant petition on August 23, 2017—more than eight years after his

judgment of sentence became final and more than seven years after a PCRA

petition could be considered timely. See 42 Pa.C.S.A. § 9545(b)(1).

      As noted above, the PCRA does enumerate exceptions to the one-year

requirement. A petitioner may overcome the one-year time bar under the

PCRA after one year has passed from the final judgment of sentence if he or

she pleads and proves any of the following reasons:

            (i)   [T]he failure to raise the claim previously was
                  the result of interference by government
                  officials with the presentation of the claim in


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                        violation of the Constitution or laws of this
                        Commonwealth or the Constitution or laws of
                        the United States;

               (ii)     [T]he 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)    [T]he 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)-(iii).             Section 9545 also mandates that any

petition filed under these exceptions must be filed within 60 days of the date

the claim could have been presented. Id. at § 9545(b)(2).

       Here, appellant appears to rely on our supreme court’s recent holding

that     a   retroactive     application   of    SORNA’s   registration   provisions   is

unconstitutional, as it violates the ex post facto prohibitions contained

within       both      the   United   States       and   Pennsylvania     Constitutions.

Commonwealth v. Muniz, 164 A.3d 1189, 1223 (Pa. 2017). Shortly after

our supreme court announced its decision in Muniz, this court determined

that the holding in Muniz “should be retroactively applied in state collateral

courts to comply with the United States and Pennsylvania Constitutions.”

Commonwealth v. Rivera-Figueroa, 174 A.3d 674, 678 (Pa.Super.

2017), citing Montgomery v. Louisiana, 136 S.Ct. 718, 734 (2016).




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      Most recently, in Commonwealth v. Murphy,             A.3d      , 2018 WL

947156 (Pa.Super. 2018), a case involving an untimely PCRA petition, we

held that the defendant was required to demonstrate that the Supreme

Court of Pennsylvania has held Muniz applies retroactively in order to satisfy

the time-bar exception of 42 Pa.C.S.A. § 9454(b)(1)(iii) (new constitutional

right exception), and because, currently, no such holding has been issued by

our supreme court, appellant cannot rely on Muniz to meet that timeliness

exception.

      The Murphy court acknowledged the holding in Rivera-Figueroa and

distinguished the case before it from Rivera-Figueroa. Murphy, 2018 WL

947156 at *3. In Murphy, similar to the case before us, the defendant’s

petition was untimely. Id. To the contrary, the petition at issue in Rivera-

Figueroa was timely filed. Rivera-Figueroa, 174 A.3d at 677.

      Consequently, because appellant’s petition is untimely and our

supreme court has not held that Muniz applies retroactively to satisfy the

new constitutional right exception to the one-year time bar, appellant’s

petition is untimely and we do not have jurisdiction to consider appellant’s

appeal on its merits.4

      Order affirmed.




4 Even if appellant’s petition were timely filed in this case, his petition would
nevertheless fail on the merits, because he was subject to lifetime
registration requirements prior to SORNA; therefore, any retroactive effects
did not alter his sentence.


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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary


Date: 5/25/2018




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