J-S68037-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA            :   IN THE SUPERIOR COURT OF
                                         :        PENNSYLVANIA
                                         :
              v.                         :
                                         :
                                         :
 RICHARD MICHAEL WOY                     :
                                         :
                    Appellant            :   No. 723 WDA 2018

                  Appeal from the PCRA Order May 8, 2018
   In the Court of Common Pleas of Somerset County Criminal Division at
                     No(s): CP-56-CR-0000163-2012,
                          CP-56-CR-0000728-2011


BEFORE:    SHOGAN, J., DUBOW, J., and STEVENS*, P.J.E.

MEMORANDUM BY STEVENS, P.J.E.:                FILED NOVEMBER 28, 2018

      Appellant Richard Michael Woy appeals from the order entered in the

Court of Common Pleas of Somerset County denying his second petition filed

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

a careful review, we affirm.

      The relevant facts and procedural history have been set forth, in part,

by the PCRA court as follows:

            The charges in these cases originate from an investigation
      conducted by the Attorney General’s Bureau of Criminal
      Investigations. The investigation involved using an undercover
      agent to pose as a 13-year-old female communicating in an online
      chat room. Between February 20, 2011, and March 24, 2011,
      [Appellant] sent the undercover agent explicit sexual and obscene
      messages, and granted the agent access to observe webcam
      footage of [Appellant] masturbating.
            On September 12, 2011, a criminal complaint was filed
      against [Appellant] charging him with one count of criminal

____________________________________
* Former Justice specially assigned to the Superior Court.
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     attempt/unlawful contact with a minor, four counts of unlawful
     contact with a minor, and one count of criminal use of a
     communication facility, all felonies of the third degree. The court
     records pertaining to this criminal complaint are docketed to No.
     728 Criminal 2011.
           On February 8, 2012, after a forensic examination
     uncovered images of child pornography on [Appellant’s] computer
     hard drive, [Appellant] was charged in a second case with
     nineteen counts of sexual abuse of children, and one count of
     criminal use of a communication facility, a third degree felony.
     The court records pertaining to this criminal complaint are
     docketed to No. 163 Criminal 2012.
            On July 25, 2012, [Appellant] pled guilty in No. 728 Criminal
     2011 to two counts of unlawful contact with a minor, and one
     count of criminal use of a communication facility; and in No. 163
     Criminal 2012 to twelve counts of sexual abuse of children, and
     one count of criminal use of a communication facility. At the guilty
     plea hearing, the prosecuting attorney stated on the record, and
     [Appellant] acknowledged, that [Appellant] would be subject to
     lifetime registration as a sexual offender pursuant to Megan’s Law
     III, 42 Pa.C.S. § 9795.1(b)(1) (expired). On November 15, 2012,
     [Appellant] was sentenced to serve two years to ten years in a
     State Correctional Institution. [Appellant] was also ordered to
     comply with the lifetime registration requirements under Megan’s
     Law III, supra. [Appellant did not file a direct appeal from his
     judgment of sentence.]
           [Appellant] filed his first PCRA petition on November 7,
     2013, alleging ineffective assistance of counsel and the imposition
     of a sentence greater than the lawful maximum. By order dated
     December 3, 2013, Megan Will, Esquire was appointed to
     represent [Appellant]. A preliminary PCRA hearing was conducted
     on January 10, 2014. The petition was dismissed by the PCRA
     court on February 4, 2014, the court finding no genuine issues of
     material fact which entitled [Appellant] to relief. [Appellant] did
     not appeal the PCRA court’s order.
            [Appellant] filed [a second] PCRA petition pro se on [or
     about] August 21, 2017….A copy of the petition was forwarded by
     the Clerk of Courts to Megan Will, Esq. ([Appellant’s] PCRA
     counsel from his first petition), who promptly filed a scheduling
     praecipe on behalf of [Appellant]….Preliminary argument on the
     petition was held on October 26, 2017.



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PCRA Court’s Order, filed 3/14/18, at 1-3 (citations omitted).

       On March 14, 2018, the PCRA court provided Appellant with notice of its

intent to dismiss his second PCRA petition, and by order entered on May 8,

2018, the PCRA court dismissed the petition.          Appellant filed a timely

counseled appeal to this Court, and all Pa.R.A.P. 1925 requirements have been

met.

       Initially, we note that “[o]ur standard of review of the denial of PCRA

relief is clear; we are limited to determining whether the PCRA court’s findings

are supported by the record and without legal error.” Commonwealth v.

Wojtaszek, 951 A.2d 1169, 1170 (Pa.Super. 2008) (quotation and quotation

marks omitted).

       Pennsylvania law makes it clear that no court has jurisdiction to hear an

untimely PCRA petition. Commonwealth v. Robinson, 575 Pa. 500, 837

A.2d 1157 (2003).      The most recent amendments to the PCRA, effective

January 19, 1996, provide that a PCRA petition, including a second or

subsequent petition, shall be filed within one year of the date the underlying

judgment becomes final. 42 Pa.C.S.A. § 9545(b)(1). A judgment is deemed

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 review.”          42 Pa.C.S.A. §

9545(b)(3).




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      Three statutory exceptions to the timeliness provisions in the PCRA allow

for very limited circumstances under which the late filing of a petition will be

excused. 42 Pa.C.S.A. § 9545(b)(1). To invoke an exception, a petition must

allege and the petitioner must prove:

      (i)      the failure to raise a claim previously was the result of
               interference    by    government     officials with    the
               presentation of the claim in violation of the Constitution
               or the law of this Commonwealth or the Constitution or
               law of the United States;

      (ii)     the 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)    the right asserted is a constitutional right that was
               recognized by 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).

      “We emphasize that it is the petitioner who bears the burden to allege

and prove that one of the timeliness exceptions applies.” Commonwealth

v. Marshall, 596 Pa. 587, 596, 947 A.2d 714, 719 (2008) (citation omitted).

      Here, Appellant’s judgment of sentence became final on or about

December 15, 2012, upon expiration of the time to file a direct appeal to this

Court. See 42 Pa.C.S.A. § 9545(b)(3); Pa.R.A.P. 903(a). Appellant’s current

petition, filed on or about August 21, 2017, was clearly filed more than one

year of the date the underlying judgment became final. Thus, the petition is

facially untimely.




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      Appellant does not recognize that his instant PCRA petition is untimely;

but rather, he asserts that his petition has merit since his sentence is illegal

under Commonwealth v. Muniz, 640 Pa. 699, 164 A.3d 1189 (2017).

Although a legality of sentence claim cannot be waived, it must be raised in a

timely PCRA petition. Commonwealth v. Jones, 932 A.2d 179, 182

(Pa.Super. 2007); 42 Pa.C.S.A. § 9545(b)(2); Commonwealth v. Fahy, 558

Pa. 313, 737 A.2d 214, 223 (1999) (“Although legality of sentence is always

subject to review within the PCRA, claims must still first satisfy the PCRA’s

time limits or one of the exceptions thereto.”) (citation omitted)).

      Moreover, assuming, arguendo, Appellant intended to invoke the third

timeliness exception, that the decision in Muniz satisfies the newly recognized

constitutional right exception to the PCRA’s time bar under Subsection

9545(b)(1)(iii), such reliance would not satisfy the timeliness exception.

      As this Court held in Commonwealth v. Murphy, 180 A.3d 402

(Pa.Super. 2018):

             [W]e acknowledge that this Court has declared that “Muniz
      created a substantive rule that retroactively applies in the
      collateral context.” However, because [the petitioner’s] PCRA
      petition is untimely[,…] he must demonstrate that the
      Pennsylvania Supreme Court has held that Muniz applies
      retroactively in order to satisfy [sub]section 9545(b)(1)(iii).
      Because at this time, no such holding has been issued by our
      Supreme Court, [the petitioner] cannot rely on Muniz to meet
      th[e third] timeliness exception.

Murphy, 180 A.3d at 405-06 (quotation and citation omitted).




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      In other words, this Court concluded that the holding in Muniz does not

apply at this point to untimely-filed PCRA petitions. See Murphy, supra.

      Accordingly, we conclude Appellant’s second PCRA petition was untimely

filed, and he has not demonstrated his entitlement to one of the timeliness

exceptions. Thus, he is not entitled to relief.

      Affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/28/2018




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