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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT
OF
PENNSYLVANIA
Appellee
v.
DARYL TARPLEY
Appellant No. 3236 EDA 2017
Appeal from the PCRA Order Entered September 13, 2017
In the Court of Common Pleas of Chester County
Criminal Division at No.: CP-15-CR-0004155-2014
BEFORE: STABILE, DUBOW, JJ., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY STABILE, J.: Filed July 20, 2018
Appellant Daryl Tarpley pro se appeals from the September 13, 2017
order of the Court of Common Pleas of Chester County, which denied his
request for collateral relief pursuant to the Post Conviction Relief Act (“PCRA”),
42 Pa.C.S.A. §§ 9541-56. Upon review, we affirm.
The facts and procedural history underlying this case are undisputed.
On June 23, 2015, Appellant entered into a negotiated guilty plea to one count
of failure to comply with registration requirements under the Sexual Offender
Registration and Notification Act (“SORNA”), 18 Pa.C.S.A. § 4915.1(a)(2).
Consistent with the plea agreement, the trial court sentenced Appellant to four
to eight years’ imprisonment. Appellant did not file a direct appeal.
On April 11, 2017, Appellant pro se filed his first PCRA petition, arguing
that “[h]e is being held illegally under a statute enacted years after his
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conviction in violation of [Pennsylvania’s] ex post facto laws.” PCRA Petition,
4/11/17, at 3. In support of his argument, Appellant pointed out that “[his]
conviction for an offense that now carries registration requirements under
Megan’s Law occurred in 1991 over 9 years prior to the instituting of the
registration requirements he is said to have violated.” Id.
The PCRA court appointed counsel, who eventually filed a no-merit letter
and a motion to withdraw under Turner/Finley.1 On June 19, 2017, the PCRA
court granted counsel’s motion to withdraw. On July 31, 2017, the PCRA court
issued a notice of its intention to dismiss Appellant’s petition without a hearing
under Pa.R.Crim.P. 907. On September 13, 2017, the PCRA court dismissed
as untimely Appellant’s petition. Appellant pro se appealed to this Court.
Following Appellant’s compliance with the PCRA court’s order to file a Pa.R.A.P.
1925(b) statement of errors complained of on appeal, the court issued a
Pa.R.A.P. 1925(a) opinion.
On appeal,2 Appellant raises a single issue for our review: “Was the
lower court’s dismissal of appellant PCRA in light of recent Courts decision in
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1 See Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988) and
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
2“In PCRA proceedings, an appellate court’s scope of review is limited by the
PCRA’s parameters; since most PCRA appeals involve mixed questions of fact
and law, the standard of review is whether the PCRA court’s findings are
supported by the record and free of legal error.” Commonwealth v. Pitts,
981 A.2d 875, 878 (Pa. 2009) (citation omitted).
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Commonwealth v. Muniz,[3] 164 A.3d 1189 (Pa. 2017) in error?”
Appellant’s Brief at 2 (unpaginated) (sic).
Before we may address the merits of this appeal, we must determine
whether the PCRA court had jurisdiction to entertain the underlying PCRA
petition. The PCRA contains the following restrictions governing the timeliness
of any PCRA petition.
(b) Time for filing petition.--
(1) Any petition under this subchapter, including a second or
subsequent petition, shall be filed within one year of the date the
judgment becomes final, unless the petition alleges and the
petitioner proves that:
(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.
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3 Our Supreme Court issued Muniz on July 19, 2017, after Appellant had filed
the instant PCRA petition, but prior to the PCRA court’s dismissal of the same.
In Muniz, our Supreme Court held that SORNA’s registration provisions are
punitive, and retroactive application of SORNA’s provisions violates the federal
ex post facto clause, as well as the ex post facto clause of the Pennsylvania
Constitution.
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(2) Any petition invoking an exception provided in paragraph (1)
shall be filed within 60 days of the date the claim could have been
presented.
(3) For purposes of this subchapter, a judgment 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.A. § 9545(b). Section 9545’s timeliness provisions are
jurisdictional. Commonwealth v. Ali, 86 A.3d 173, 177 (Pa. 2014).
Additionally, we have emphasized repeatedly that “the PCRA confers no
authority upon this Court to fashion ad hoc equitable exceptions to the PCRA
time-bar in addition to those exceptions expressly delineated in the Act.”
Commonwealth v. Robinson, 837 A.2d 1157, 1161 (Pa. 2003) (citations
omitted).
Here, the record reflects Appellant’s judgment of sentence became final
on July 23, 2015. See 42 Pa.C.S.A. § 9545(b)(3); Pa.R.A.P. 903(a). Because
Appellant had one year from July 23, 2015, to file his PCRA petition, the
current filing is facially untimely given it was filed on April 11, 2017.
The one-year time limitation, however, can be overcome if a petitioner
alleges and proves one of the three exceptions set forth in Section
9545(b)(1)(i)-(iii) of the PCRA. Here, Appellant invokes the time-bar
exception of Section 9545(b)(1)(iii) of the PCRA in arguing that that our
Supreme Court’s decision in Muniz created a new substantive right that
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applies retroactively.4 Our Supreme Court has set forth a two-part test to
determine the applicability of Section 9545(b)(1)(iii) to a new decision:
Subsection (iii) of Section 9545 has two requirements. First, it
provides that the right asserted is a constitutional right that was
recognized by the Supreme Court of the United States or this
[C]ourt after the time provided in this section. Second, it provides
that the right “has been held” by “that court” to apply
retroactively. Thus, a petitioner must prove that there is a “new”
constitutional right and that the right “has been held” by that court
to apply retroactively. The language “has been held” is in the past
tense. These words mean that the action has already occurred,
i.e., “that court” has already held the new constitutional right to
be retroactive to cases on collateral review. By employing the
past tense in writing this provision, the legislature clearly intended
that the right was already recognized at the time the petition was
filed.
Commonwealth v. Abdul–Salaam, 571 Pa. 219, 812 A.2d 497, 501 (2002).
To date, our Supreme Court has not recognized a new constitutional
right in Muniz to be applied retroactively under Section 9545(b)(1)(iii).
Appellant, therefore, is not entitled to relief under his untimely filed petition.
Accordingly, the PCRA court did not err in dismissing as untimely his PCRA
petition.
Order affirmed.
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4 We observe that Appellant raised the Muniz argument for the first time in
his Rule 1925(b) statement. We need not address that defect as a
jurisdictional issue, since his PCRA petition also raised another jurisdictional
issue that we find dispositive here.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/20/2018
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