J-S54035-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
DAVID M. NORMAN :
:
Appellant : No. 360 WDA 2018
Appeal from the PCRA Order February 7, 2018
In the Court of Common Pleas of Erie County Criminal Division at No(s):
CP-25-CR-0002085-2015
BEFORE: PANELLA, J., LAZARUS, J., and MURRAY, J.
MEMORANDUM BY MURRAY, J.: FILED SEPTEMBER 20, 2018
David M. Norman (Appellant) appeals from the order dismissing as
untimely his petition filed pursuant to the Post Conviction Relief Act (PCRA),
42 Pa.C.S.A. §§ 9541-9546. We affirm.
The trial court summarized the facts and procedural history of this case
as follows:
On September 25th, 2015, the District Attorney’s Office filed a
Criminal Information [relating to conduct that occurred on or
around June 16, 2015], charging Appellant with Aggravated
Indecent Assault of a Child, in violation of 18 Pa.C.S.[A.] §
3125(b); three counts of Endangering Welfare of Children, in
violation of 18 Pa.C.S.[A.] § 4304(a)(1); three counts of
Corruption of Minors, in violation of 18 Pa.C.S.[A.] §
6301(a)(1)(ii); and three counts of Indecent Assault of a Person
less than 13 Years of Age, in violation of 18 Pa.C.S.[A.] §
3126(a)(7). On March 14th, 2016, Appellant, with the assistance
of his then-counsel . . . entered a No Contest plea to Count Two
(Endangering Welfare of Children), Count Five (Corruption of
Minors) and Counts Eight through Ten (Indecent Assault of a
Person less than 13 Years of Age), with all other counts nolle
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prossed by the Commonwealth. On June 27th, 2016, the [t]rial
[c]ourt sentenced Appellant as follows:
Count Eight (Indecent Assault of a Person less than 13
Years of Age): nine (9) months to twenty-four (24)
months of incarceration, with three hundred seventy-one
(371) days of credit for time served;
Count Nine (Indecent Assault of a Person less than 13
Years of Age): nine (9) months to twenty-four (24)
months of incarceration, consecutive to Count Eight;
Count Ten (Indecent Assault of a Person less than 13
Years of Age): nine (9) months to twenty-four (24)
months of incarceration, consecutive to Count Nine.
Count Two (Endangering Welfare of Children): five (5)
years of probation, consecutive to Count Ten; and
Count Five (Corruption of Minors): five (5) years of
probation, consecutive to Count Two.
On June 27th, 2016, th[e] [t]rial [c]ourt also directed Appellant
to register as a Sexual Offender for his lifetime. (See Notice to
Appellant of Duty to Register Pursuant to 42 Pa.C.S.A Chapter 97,
Subchapter H “Registration of Sexual Offenders,” filed June 27 th,
2017).
On September 15th, 2017, Appellant, pro se, filed his Motion
for Reconsideration of sentence, which th[e] [t]rial [c]ourt treated
as Appellant’s first PCRA Petition. By Order dated September 21st,
2017, th[e] [t]rial [c]ourt appointed . . . PCRA counsel and
directed [him] to supplement or amend Appellant’s first PCRA
Petition within thirty days. [PCRA counsel] filed a Supplement to
Motion for Post-Conviction Collateral Relief on October 18th, 2017.
By Order dated October 20th, 2017, th[e] [t]rial [c]ourt directed
the Commonwealth to respond to the Supplement to Motion for
Post-Conviction Collateral Relief within thirty days. The
Commonwealth . . . filed [its r]esponse . . . on November 16th,
2017.
On December 12th, 2017, th[e] [t]rial [c]ourt notified Appellant
of its intention to dismiss Appellant’s first PCRA Petition as
patently untimely and directed Appellant to submit his
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[o]bjections within twenty days. . . . Appellant did not file
[o]bjections to the . . . [n]otice. Thus, on February 7th, 2018,
th[e] [t]rial [c]ourt issued an Order dismissing Appellant’s PCRA
Petition as being patently untimely and stating no grounds for
relief under the Post[]Conviction Relief Act.
Appellant filed his Notice of Appeal on March 9th, 2018[.] By
Order dated March 9th, 2018, th[e] [t]rial [c]ourt directed
Appellant to file a concise statement of the matters complained of
on appeal within twenty-one days of the date of said Order.
Appellant . . . filed his Concise Statement of Matters Complained
of on Appeal on March 28th, 2018.
PCRA Court Opinion, 4/25/18, at 2-4.
On appeal, Appellant presents the following issues for review:
1. Whether the PCRA Court committed legal error and abused its
discretion in finding that [Appellant]’s Petition was untimely filed
and in thereby failing to entertain and adjudicate his claims on the
substantive merits?
2. Whether the PCRA Court committed legal error and abused its
discretion in failing to afford relief in the nature of reconsideration
and modification of sentence in accordance with the holding of
Commonwealth v. Muniz, 164 A.3d 1189 (Pa. 2017)?
Appellant’s Brief at 2.
Before addressing the merits of Appellant’s claims, we must determine
whether we have jurisdiction over this appeal. “Pennsylvania law makes clear
no court has jurisdiction to hear an untimely PCRA petition.” Commonwealth
v. Monaco, 996 A.2d 1076, 1079 (Pa. Super. 2010) (quoting
Commonwealth v. Robinson, 837 A.2d 1157, 1161 (Pa. 2003)). A
petitioner must file a PCRA petition within one year of the date on which the
petitioner’s judgment became final, unless one of the three statutory
exceptions apply:
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(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.A. § 9545(b)(1). A petitioner must file a petition invoking one of
these exceptions “within 60 days of the date the claim could have been
presented.” 42 Pa.C.S.A. § 9545(b)(2). If a petition is untimely, and the
petitioner has not pled and proven any exception, “neither this Court nor the
trial court has jurisdiction over the petition. Without jurisdiction, we simply
do not have the legal authority to address the substantive claims.”
Commonwealth v. Derrickson, 923 A.2d 466, 468 (Pa. Super. 2007)
(quoting Commonwealth v. Chester, 895 A.2d 520, 522 (Pa. 2006)).
In this case, Appellant concedes that his PCRA petition is untimely.
Appellant’s Brief at 3-4. Accordingly, we are without jurisdiction to decide
Appellant’s appeal unless he pled and proved a timeliness exception pursuant
to Section 9545(b)(1). See Derrickson, 923 A.2d at 468.
Appellant asserts that he has satisfied the timeliness exception of
Section 9545(b)(1)(iii) based on our Supreme Court’s decision in
Commonwealth v. Muniz, 164 A.3d 1189 (Pa. 2017). In Muniz, the
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Supreme Court held that retroactive application of the registration and
reporting requirements of the Pennsylvania Sex Offender Registration and
Notification Act (SORNA),1 violated the ex post facto clauses of the United
States and Pennsylvania Constitutions. Id. at 1223. Appellant asserts that
Muniz recognized a new constitutional right that applies retroactively to him
on collateral review because the trial court ordered him to register for his
lifetime as a sexual offender under SORNA. Appellant’s Brief at 3-4.
Recently, in Commonwealth v. Murphy, 180 A.3d 402 (Pa. Super.
2018), this Court rejected this exact claim. We explained:
Appellant’s reliance on Muniz cannot satisfy the [timeliness]
exception of [S]ection 9545(b)(1)(iii). In Commonwealth v.
Abdul-Salaam, [] 812 A.2d 497 ([Pa.] 2002), our Supreme Court
held that,
[s]ubsection (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.
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1 42 Pa.C.S.A. §§ 9799.10-9799.42.
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Id. at 501.
Here, we 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
[S]ection 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.
Id. at 405-06.
Because Appellant cannot rely upon Muniz to satisfy the timeliness
exception of Section 9545(b)(1)(iii), we are without jurisdiction to review the
merits of his PCRA claims.2
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/20/2018
____________________________________________
2 We note that even if we had jurisdiction to review Appellant’s claims, they
are patently meritless. The record reflects that the offenses to which Appellant
pled guilty, his guilty plea, and sentencing all occurred well after SORNA
became effective on December 20, 2012. Therefore, Muniz, which only
involved the retroactive application of SORNA’s registration and reporting
requirements, is inapplicable to Appellant’s case.
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