J-S81028-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA                  IN THE SUPERIOR COURT
                                                            OF
                                                       PENNSYLVANIA
                             Appellee

                        v.

    MATTHEW JAMES BONILLA

                             Appellant                No. 853 MDA 2017


                Appeal from the PCRA Order Entered May 9, 2017
              In the Court of Common Pleas of Lackawanna County
                Criminal Division at No: CP-35-CR-0003272-2009


BEFORE: PANELLA, STABILE, and PLATT,* JJ.

MEMORANDUM BY STABILE, J.                        FILED FEBRUARY 06, 2018

        Appellant, Matthew Bonilla, appeals pro se from the May 9, 2017 order

dismissing his petition pursuant to the Post Conviction Relief Act (“PCRA”), 42

Pa.C.S.A. §§ 9541-9546. We affirm.

        On March 24, 2011, the trial court imposed an aggregate 13 to 26 years

of incarceration for involuntary deviate sexual intercourse (IDSI), aggravated

indecent assault, incest, endangering the welfare of a minor, corruption of a

minor, and indecent assault. The court also required Appellant to register for

life as a sexual offender. The victim was Appellant’s daughter. She was 11

years old at the time of the offenses. This Court affirmed the judgment of

sentence on October 11 2012. Appellant did not seek allowance of appeal

____________________________________________


*   Retired Senior Judge assigned to the Superior Court.
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from our Supreme Court.          Appellant filed his first timely PCRA petition on

March 20, 2013. The PCRA court denied relief on August 15, 2013 and this

Court affirmed the denial of relief on March 14, 2014.

        Appellant filed the instant pro se petition, his second, on March 27,

2017.      In the order on appeal, the PCRA court dismissed the petition as

untimely. This timely appeal followed. Before we consider the merits, we

must consider whether Appellant’s petition is timely. The PCRA’s jurisdictional

time limits require that a petitioner file his petition within one year of the

finality   of   the   judgment    of   sentence.     42   Pa.C.S.A.   § 9545(b)(1);

Commonwealth v. Albrecht, 994 A.2d 1091, 1093 (Pa. 2010). Appellant’s

judgment of sentence became final on November 10, 2012, or thirty days after

this Court affirmed his judgment of sentence.             Therefore, he had until

November 10, 2013 to file a timely PCRA petition.            The instant petition is

therefore facially untimely.

        In order to avoid the PCRA time bar, Appellant must plead and prove

one of the PCRA’s timeliness exceptions.           42 Pa.C.S.A. § 9545(b)(1)(i-iii);

Albrecht, 994 A.2d at 1093.            The PCRA requires that any petition filed

pursuant to a timeliness exception be filed within 60 days of the first date on

which the petitioner could have raised the claim. 42 Pa.C.S.A. § 9545(b)(2).

Here, Appellant alleges, “the right asserted is a constitutional right that was

recognized by the Supreme Court of the United States or the Supreme Court




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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)(iii).

      Appellant cites Commonwealth v. Barnes, 151 A.3d 121 (Pa. 2016),

in which our Supreme Court held that a five-year mandatory minimum

sentence based on constructive possession is an illegal sentence under

Alleyne v. United States, 133 S. Ct. 2151 (2013). Barnes was decided on

December 28, 2016. Appellant’s March 27, 2017 petition does not meet the

60-day requirement of § 9545(b)(2).       In any event, Barnes was a direct

appeal and it is factually and legally inapposite.

      Appellant also relies on Commonwealth v. Burton, 158 A.3d 618 (Pa.

2017), decided on March 28, 2017, one day after Appellant filed his petition.

In Burton, the Supreme Court remanded for a determination of whether facts

of public record were unknown to a pro se petitioner, such that the petitioner

could avail himself of the timeliness exception of § 9545(b)(1)(ii). Appellant

fails to explain how Burton is relevant here.

      Finally, Appellant cites Commonwealth v. Muniz, 164 A.2d 1189 (Pa.

2017), in which our Supreme Court held that retroactive application of SORNA

registration requirements violated the ex post facto clauses of the federal and

state constitutions. Appellant’s sentence pre-dated SORNA, and SORNA did

not affect his lifetime registration requirement under then-extant Megan’s law.

Muniz therefore does not apply here.




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     Given the foregoing, Appellant has filed a facially untimely PCRA petition

and he has failed to plead and prove the applicability of any timeliness

exception. We therefore affirm the PCRA court’s order.

     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 02/06/2018




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