J-S15021-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    RYAN BRANT                                 :
                                               :
                       Appellant               :   No. 1061 WDA 2018

             Appeal from the PCRA Order Entered June 27, 2018
    In the Court of Common Pleas of Allegheny County Criminal Division at
                      No(s): CP-02-CR-0011316-2013


BEFORE:       GANTMAN, P.J.E., SHOGAN, J., and COLINS*, J.

MEMORANDUM BY SHOGAN, J.:                                 FILED JUNE 18, 2019

       Appellant, Ryan Brant, appeals from the order dismissing his petition

seeking habeas corpus relief, or alternatively, a remedy pursuant to the Post

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

review, we conclude that the PCRA court properly treated Appellant’s filing as

an untimely PCRA petition and correctly dismissed the petition. Accordingly,

we affirm.1


____________________________________________


1 Counsel for Appellant, Jacob C. McCrea, Esquire, has filed appeals involving
six defendants, all of whom are convicted sex offenders, at the following
Superior Court docket numbers: Commonwealth v. Robinson at 1057-1058
WDA 2018; Commonwealth v. Bres at 1060 WDA 2018; Commonwealth
v. Brant at 1061 WDA 2018; Commonwealth v. Preik at 1062-1063 WDA
2018; Commonwealth v. Pruitt at 1064-1066 WDA 2018; and
Commonwealth v. Jones at 1067 WDA 2018. The issues raised in all of
these appeals are identical; however, each defendant’s appeal is addressed in
a separate memorandum.
____________________________________
* Retired Senior Judge assigned to the Superior Court.
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       The PCRA court set forth the relevant facts and procedural history of

this case as follows:

              [Appellant] has appealed from this Court’s Order of June 27,
       2018, which dismissed his second Amended Post Conviction Relief
       Act Petition without a hearing. However, a review of the record
       reveals that because the Petition is untimely, this Court lacks the
       jurisdiction to address it. The Petition was, therefore, properly
       dismissed.

             [Appellant] was charged with one (1) count each of Unlawful
       Contact with a Minor,1 Sexual Assault,2 and Corruption of Minors,3
       two (2) counts each of Rape,4 Involuntary Deviate Sexual
       Intercourse5 and Aggravated Indecent Assault6 and three (3)
       counts of Indecent Assault.7 He appeared before this Court on
       April 7, 2014[2] when, pursuant to a plea agreement with the
       Commonwealth, he pled guilty to one (1) count each of Rape,
       Involuntary Deviate Sexual Intercourse, Unlawful Contact,
       Aggravated Indecent Assault, Corruption of Minors and Indecent
       Assault. The remaining charges were withdrawn. He was
       immediately sentenced to a term of imprisonment of four (4) to
       eight (8) years. A lifetime term of registration was also imposed.
       No Post-Sentence Motions were filed and no direct appeal was
       taken.

              1   18 Pa.C.S.A. §6318.1

              2   18 Pa.C.S.A. §3124.1

              3   18 Pa.C.S.A. §6301(a)(1)(i)

              4   18 Pa.C.S.A. §3121(a)(4) - 2 counts

              5   18 Pa.C.S.A. §3123(a)(1) and §3123(a)(4)

              6   18 Pa.C.S.A. §3125(a)(5) and §3125(a)(1)



____________________________________________


2 The criminal acts underlying Appellant’s convictions were committed
between March of 2009 and September of 2010. Criminal Information,
10/8/13.

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              7  18 Pa.C.S.A.        §3126(a)(1),   §3126(a)(5)   and
              §3126(a)(2)

              No further action was taken until December 3, 2014, when
       [Appellant] filed a pro se Post Conviction Relief Act Petition.
       Counsel was appointed to represent [Appellant], but he later filed
       a Turner[3] “No-Merit” Letter and sought and was granted
       permission to withdraw from the representation. After giving the
       appropriate notice of its intent to do so, this Court dismissed the
       Petition without a hearing on June 25, 2015. No direct appeal was
       taken.

              No further action was taken until August 29, 2017, when
       [Appellant] filed a pro se Post Conviction Relief Act Petition
       alleging that, pursuant to Commonwealth v. Muniz, 169 A.3d 1189
       (Pa. 2017), his lifetime registration was unconstitutional. Counsel
       was appointed to represent [Appellant] and an Amended Petition
       was filed. The Commonwealth, through the Office of the District
       Attorney filed a response to the Amended Petition. Thereafter, the
       Pennsylvania State Police, through the Office of the Attorney
       General, sought and was granted permission to intervene. After
       giving the appropriate notice of its intent to do so, this Court
       dismissed the Amended Petition on June 27, 2018 without a
       hearing. This appeal followed.

PCRA Court Opinion, 10/10/18, at 1-2. The PCRA court dismissed Appellant’s

PCRA petition because it was untimely filed. Id. at 4. Appellant filed a timely

notice of appeal, and both the PCRA court and Appellant complied with

Pa.R.A.P. 1925.

       On appeal, Appellant raises the following issues for this Court’s

consideration:



____________________________________________


3  See Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc)
(setting forth the requirements for counsel to withdraw in a collateral
proceeding).

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      1. Whether the trial court erred in ruling that it lacked
      jurisdic[ti]on to adjudicate the merits of the amended PCRA
      petition and/or petition for writ of habeas corpus?

      2. Whether the trial court erred by not ruling that Act 10 of 2018
      is unconstitutional under the federal and state ex post facto and
      double jeopardy clauses?

Appellant’s Brief at 5 (full capitalization omitted).

      At the outset, we must determine whether Appellant’s petition was

correctly deemed a PCRA petition or whether it should have been considered

a petition for habeas corpus relief. Appellant argues that his filing should have

been treated as a habeas corpus petition because the relief sought in the

petition falls outside of the strictures of the PCRA pursuant to the holding in

Commonwealth v. Bundy, 96 A.3d 390 (Pa. Super. 2014). Appellant’s Brief

at 10. We disagree.

      In Bundy, this Court held that the PCRA did not apply to challenges to

sex offender registration requirements under Megan’s Law because claims

under Megan’s Law did not implicate the conviction or sentence. Bundy, 96

A.3d at 394. However, due to substantial changes in the law of sex offender

registration, Bundy does not apply to Appellant’s petition.

      After the enactment of the Sex Offender Registration and Notification

Act (“SORNA”), 42 Pa.C.S. §§ 9799.10-9799.42, which replaced Megan’s Law,

our Supreme Court determined that the SORNA registration provisions are

punitive in nature and that retroactive application of SORNA’s requirements

violates   both   the   Pennsylvania   and   federal    ex   post   facto   clauses.


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Commonwealth v. Muniz, 164 A.3d 1189, 1193 (Pa. 2017). Furthermore,

the punitive nature of SORNA’s registration requirements impact the legality

of a sex offender’s sentence. Commonwealth v. Butler, 173 A.3d 1212,

1215 (Pa. Super. 2017), appeal granted, 190 A.3d 581 (Pa. 2018).4

Therefore,    Appellant’s     claims   challenging   the   application   of   SORNA’s

registration requirements, as opposed to the requirements under Megan’s

Law, are issues concerning the legality of a sentence and cognizable under the

PCRA. Commonwealth v. Greco, 203 A.3d 1120, 1123 (Pa. Super. 2019)

(citing Commonwealth v. Murphy, 180 A.3d 402, 405-406 (Pa. Super.

2018), appeal denied, 195 A.3d 559 (Pa. 2018)). Thus, because Appellant is

challenging the application of SORNA, the decision in Bundy is immaterial,

and the PCRA court properly considered Appellant’s claims under the PCRA.

See Commonwealth v. Montgomery, 181 A.3d 359, 367 (Pa. Super. 2018)


____________________________________________


4 Following the decisions in Muniz and Butler, our General Assembly passed
Acts 10 and 29 of 2018 in an effort to address SORNA’s constitutional defects.
42 Pa.C.S. § 9799.51(b)(4). Specifically, the General Assembly modified the
registration requirements for offenders convicted of committing offenses on
or after SORNA’s effective date, December 20, 2012. The General Assembly
also added Subchapter I to Title 42, Part VII, Chapter 97. Subchapter I sets
forth registration requirements for offenders convicted of committing offenses
on or after the effective date of Megan’s Law I, April 22, 1996, but prior to
SORNA’s effective date of December 20, 2012. Subchapter I applies to
offenders whose period of registration has not expired, and offenders required
to register under a prior sexual offender registration law on or after April 22,
1996, but before December 20, 2012, whose period of registration has not
expired. Recently, pursuant to 42 Pa.C.S. § 722(7), our Supreme Court
granted a direct appeal from a decision in the Montgomery County Court of
Common Pleas to determine whether Acts 10 and 29 are constitutional.
Commonwealth v. Lacombe, 35 MAP 2018 (Pa. 2018).

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(noting that the PCRA is the sole means of obtaining collateral relief, and it

encompasses all other common law and statutory remedies including habeas

corpus) (citing 42 Pa.C.S. § 9542)).

      When reviewing the propriety of an order denying PCRA relief, we

consider the record “in the light most favorable to the prevailing party at the

PCRA level.”   Commonwealth v. Stultz, 114 A.3d 865, 872 (Pa. Super.

2015) (quoting Commonwealth v. Henkel, 90 A.3d 16, 20 (Pa. Super. 2014)

(en banc)). We are limited to determining whether the evidence of record

supports the conclusions of the PCRA court and whether the ruling is free of

legal error. Commonwealth v. Robinson, 139 A.3d 178, 185 (Pa. 2016).

The PCRA court’s findings will not be disturbed unless there is no support for

them in the certified record.   Commonwealth v. Lippert, 85 A.3d 1095,

1100 (Pa. Super. 2014).

      A PCRA petition must be filed within one year of the date that the

judgment of sentence becomes final. 42 Pa.C.S. § 9545(b)(1). A judgment

of sentence “becomes 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. § 9545(b)(3). This time requirement is mandatory and

jurisdictional in nature, and the court may not ignore it in order to reach the

merits of the petition. Commonwealth v. Taylor, 67 A.3d 1245, 1248 (Pa.

2013).


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       However, an untimely petition may be received when the petition

alleges, and the petitioner proves, that any of the three limited exceptions to

the time for filing the petition, set forth at 42 Pa.C.S. § 9545(b)(1)(i), (ii), and

(iii), is met.5 A petition invoking one of these exceptions must be filed within

sixty days of the date the claim could first have been presented. 42 Pa.C.S.

§ 9545(b)(2).6

       Our review of the record reflects that the trial court imposed Appellant’s

judgment of sentence on April 7, 2014, and Appellant did not file a direct

____________________________________________


5   The exceptions to the timeliness requirement are:

       (i)    the failure to raise the claim previously was the result of
       interference by government officials with the presentation of the
       claim in violation of the Constitution or laws of this Commonwealth
       or the Constitution or laws 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 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. § 9545(b)(1)(i), (ii), and (iii).
6   We note that Section 9545(b)(2) was amended on October 24, 2018,
effective sixty days later on December 24, 2018, and extended the time for
filing from sixty days of the date the claim could have been presented to one
year. The amendment applies to claims arising on December 24, 2017, or
thereafter. See Act 2018, Oct. 24, P.L. 894, No. 146, § 3. Here, the sixty-day
time limit in section 9545(b)(2) applies to Appellant’s petition, as it was filed
prior to December 24, 2017.




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appeal. Therefore, Appellant’s judgment of sentence became final on May 7,

2014, thirty days after the trial court imposed the judgment of sentence and

Appellant failed to file a direct appeal with this Court.      See 42 Pa.C.S.

§ 9545(b)(3); Pa.R.A.P. 903(a). Thus, in order for a first or subsequent PCRA

petition to be timely, it had to be filed on or before May 7, 2015.

        The record reflects that Appellant filed a pro se petition for relief on

December 3, 2014.          The PCRA court treated it as a PCRA petition and

appointed counsel. The PCRA court denied relief on June 25, 2015. Appellant

did not file an appeal.

        Appellant filed his second PCRA petition, which underlies the current

appeal, on August 29, 2017.7 Because this petition was filed more than two

years after May 7, 2015, it is patently untimely.

        However, we reiterate, if a petitioner does not file a timely PCRA

petition, his petition nevertheless may be received under any of the three

limited exceptions to the timeliness requirements of the PCRA. 42 Pa.C.S.

§ 9545(b)(1). Here, Appellant has failed to plead and prove any exception to

the PCRA time bar. Thus, the PCRA court properly denied his petition.

        Furthermore, assuming Appellant presented the holding in Muniz as an

exception to the PCRA time bar under 42 Pa.C.S. § 9545(b)(1)(iii), we would

still conclude that no relief is due. As this Court recently explained:


____________________________________________


7   Appellant filed an amended petition on November 27, 2017.


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      [W]e acknowledge that this Court has declared that, “Muniz
      created a substantive rule that retroactively applies in the
      collateral context.” Commonwealth v. Rivera-Figueroa, 174
      A.3d 674, 678 (Pa. Super. 2017). However, because Appellant's
      PCRA petition is untimely (unlike the petition at issue in Rivera-
      Figueroa), he must demonstrate that the Pennsylvania Supreme
      Court has held that Muniz applies retroactively in order to satisfy
      section 9545(b)(1)(iii). See Abdul–Salaam, supra. Because at
      this time, no such holding has been issued by our Supreme Court,
      Appellant cannot rely on Muniz to meet that timeliness exception.

Murphy, 180 A.3d at 405-406 (emphasis in original).

      Because our Supreme Court has not held that Muniz applies

retroactively to untimely PCRA petitions, Appellant cannot satisfy his burden

to plead and prove applicability of one of the exceptions to the timeliness

requirement.   Accordingly, had this exception to the PCRA time bar been

properly raised, we would conclude that the PCRA court properly dismissed

Appellant’s petition as untimely.

      In sum, the PCRA court correctly treated Appellant’s filing as a PCRA

petition, concluded that the petition was untimely, and found that Appellant

failed to establish the applicability of any exception to the PCRA timing

requirements. PCRA Court Opinion, 10/10/18, at 4. As such, the PCRA court

lacked jurisdiction to address any claims presented. See Commonwealth v.

Fairiror, 809 A.2d 396, 398 (Pa. Super. 2002) (holding that PCRA court lacks

jurisdiction to hear an untimely petition).

      Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/18/2019




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