J-S19044-19
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
SARKIS KUYUMJIAN, JR., :
:
Appellant : No. 2082 EDA 2018
Appeal from the PCRA Order Entered June 19, 2018
in the Court of Common Pleas of Delaware County
Criminal Division at No(s): CP-23-CR-0002079-1995
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
SARKIS KUYUMJIAN, JR., :
:
Appellant : No. 2084 EDA 2018
Appeal from the PCRA Order Entered June 19, 2018
in the Court of Common Pleas of Delaware County
Criminal Division at No(s): CP-23-CR-0002077-1995
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
SARKIS KUYUMJIAN, JR., :
:
Appellant : No. 2085 EDA 2018
Appeal from the PCRA Order Entered June 19, 2018
in the Court of Common Pleas of Delaware County
Criminal Division at No(s): CP-23-CR-0002298-1995
J-S19044-19
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
SARKIS KUYUMJIAN, JR., :
:
Appellant : No. 2089 EDA 2018
Appeal from the PCRA Order Entered June 19, 2018
in the Court of Common Pleas of Delaware County
Criminal Division at No(s): CP-23-CR-0002492-1995
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
SARKIS KUYUMJIAN, JR., :
:
Appellant : No. 2093 EDA 2018
Appeal from the PCRA Order Entered June 19, 2018
in the Court of Common Pleas of Delaware County
Criminal Division at No(s): CP-23-CR-0002495-1995
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
SARKIS KUYUMJIAN, JR., :
:
Appellant : No. 2094 EDA 2018
Appeal from the PCRA Order Entered June 19, 2018
in the Court of Common Pleas of Delaware County
Criminal Division at No(s): CP-23-CR-0002496-1995
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J-S19044-19
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
SARKIS KUYUMJIAN, JR., :
:
Appellant : No. 2097 EDA 2018
Appeal from the PCRA Order Entered June 19, 2018
in the Court of Common Pleas of Delaware County
Criminal Division at No(s): CP-23-CR-0002078-1995
BEFORE: LAZARUS, J., KUNSELMAN, J. and STRASSBURGER, J.*
MEMORANDUM BY STRASSBURGER, J.: FILED JUNE 07, 2019
Sarkis Kuyumjian, Jr. (Appellant) appeals from the order entered on
June 19, 2018, dismissing his petition filed under the Post Conviction Relief
Act (PCRA), 42 Pa.C.S. §§ 9541-9546. We affirm.
On February 8, 1996, Appellant entered a plea at seven cases,
pleading guilty to two counts each of involuntary deviate sexual intercourse
(IDSI), corrupting the morals of children, and indecent assault, and one
count each of obscene/sexual materials and sexual abuse of children. He
also pleaded nolo contendere to one count each of corrupting the morals of
children and indecent assault (collectively, the 1995 cases). On March 22,
1996, Appellant was sentenced to an aggregate term of 10 to 20 years of
imprisonment, to be followed by five years of probation. Appellant filed a
direct appeal to this Court, which he withdrew on August 19, 1996.
* Retired Senior Judge Assigned to the Superior Court.
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On May 12, 1999, Appellant filed his first PCRA petition. Counsel was
appointed, and the PCRA court dismissed that petition as untimely filed. On
June 13, 2003, this Court affirmed the order dismissing that petition.
Commonwealth v. Kuyumjian, 830 A.2d 1048 (Pa. Super. 2003)
(unpublished memorandum).
Appellant was released from prison on May 12, 2010. He was on
parole until June 13, 2015, after which time he began serving a sentence of
probation. His maximum date for that term of probation is June 13, 2020.
On July 13, 2017, Appellant was arrested and charged at a new case,
docket number CP-23-CR-0004975-2017, for failure to comply with
registration requirements imposed as a result of the 1995 cases. 1 In
addition, he was detained for violating the terms of his probation in the 1995
cases.2 Appellant waived his Gagnon I3 hearing and filed a petition for writ
of habeas corpus. Appellant’s detainer was lifted, and he withdrew the
petition for writ of habeas corpus. On January 16, 2018, Appellant filed a
1 This case was nolle prossed on February 26, 2018.
2 At this point, Appellant was serving a probationary sentence only, imposed
at docket numbers 2079 of 1995 (2082 EDA 2018) and 2496 of 1995 (2094
EDA 2018), relating to guilty pleas for corrupting the morals of children and
indecent assault, respectively. Appellant is no longer serving any other
sentence.
3 Gagnon v. Scarpelli, 411 U.S. 778 (1973).
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PCRA petition regarding the 1995 cases, which was followed by an amended
PCRA petition on March 8, 2018.4
In his amended PCRA petition, Appellant contended that when he
pleaded guilty in 1996, he was never “advised or informed … that he would
be subject to the punitive nature of” the registration provisions of
Pennsylvania’s Sex Offender Registration and Notification Act (SORNA). 5
Amended PCRA Petition, 3/8/2018, at ¶ 17. Appellant further contended his
petition was timely filed pursuant to Commonwealth v. Muniz, 164 A.3d
1189 (Pa. 2017)6 and Commonwealth v. Rivera-Figueroa, 174 A.3d 674
(Pa. Super. 2017). Amended PCRA Petition, 3/8/2018, at ¶¶ 24-25.
The Commonwealth filed answers to the petitions, and on May 16,
2018, the PCRA court issued notices of its intent to dismiss the petitions
without a hearing pursuant to Pa.R.Crim.P. 907. Appellant did not respond,
and the PCRA court dismissed the petitions on June 19, 2018.
4 Subsequently, on May 30, 2018, the revocation court held a Gagnon II
hearing. At that hearing, the revocation court found Appellant in violation of
the terms of his probation and sentenced Appellant to a new term of five
years of probation. See N.T., 5/30/2018.
5 It is worth noting that SORNA did not become law until 2012, so it is
unsurprising that Appellant was not informed of SORNA-related
requirements when he was sentenced in 1996.
6 In Muniz, our Supreme Court held that certain registration provisions of
SORNA are punitive and retroactive application of those provisions violates
the ex post facto clause of the Pennsylvania constitution.
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Appellant timely filed notices of appeal, and both Appellant and the
PCRA court complied with Pa.R.A.P. 1925.
On appeal, 7 Appellant argues these “ex post facto registration
requirements” have deprived him of the benefit of his bargain. Appellant’s
Brief at 11. However, we cannot reach this issue until we first determine
whether this petition was timely filed.
Any PCRA petition, including second and subsequent petitions, must
either (1) be filed within one year of the judgment of sentence becoming
final, or (2) plead and prove a timeliness exception. 42 Pa.C.S. § 9545(b).
Furthermore, the petition “shall be filed within 60 days of the date the claim
could have been presented.”8 42 Pa.C.S. § 9545(b)(2).
“For purposes of [the PCRA], 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). When a defendant voluntarily discontinues a direct appeal,
7 Appellant suggests that this appeal relates only to his cases where he
pleaded guilty to IDSI, 2077 of 1995 (2084 EDA 2018) and 2492 of 1995
(2089 EDA 2018). Appellant’s Brief at 11. However, as discussed infra,
Appellant is not eligible for PCRA relief on these cases because he is no
longer serving a sentence for either of them.
8 On October 24, 2018, the General Assembly amended subsection
9545(b)(2) in order to extend the time for filing a petition from 60 days to
one year from the date the claim could have been presented. See 2018
Pa.Legis.Serv.Act 2018-146 (S.B. 915), effective December 24, 2018.
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his judgment of sentence becomes final on the date of discontinuance. See
Commonwealth v. McKeever, 947 A.2d 782, 785 (Pa. Super. 2008)
(citation omitted).
Here, Appellant was sentenced on March 22, 1996. He filed a direct
appeal, which he discontinued on August 19, 1996. Thus, his judgment of
sentence became final on August 19, 1996, and he had one year, or until
August 19, 1997, to file timely a PCRA petition. As such, Appellant’s January
16, 2018 petition is facially untimely, and he was required to plead and
prove an exception to the timeliness requirements.
In his petition and on appeal, Appellant attempts to invoke the new-
retroactive-right exception 9 by invoking Muniz and Rivera-Figueroa.
Amended PCRA Petition, 3/8/2018, at ¶ 24; Appellant’s Brief at 12. This
Court considered whether Muniz applied under similar circumstances in
9 This exception provides as follows.
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:
***
(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)(iii).
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Commonwealth v. Murphy, 180 A.3d 402 (Pa. Super. 2018). In that
case, this Court acknowledged
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 [Murphy’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
[sub]section 9545(b)(1)(iii). Because at this time, no such
holding has been issued by our Supreme Court, [Murphy] cannot
rely on Muniz to meet th[e third] timeliness exception.
Murphy, 180 A.3d at 405-06 (emphasis in original; some citations omitted).
In other words, this Court concluded that the holding in Muniz does
not apply at this point to untimely-filed PCRA petitions. This Court
acknowledges that “if the Pennsylvania Supreme Court issues a decision
holding that Muniz applies retroactively, [Appellant] can then file a PCRA
petition, within [one year] of that decision, attempting to invoke the ‘new[-
]retroactive[-]right’ exception in [sub]section 9545(b)(1)(iii).” Murphy, 180
A.3d at 406 n.1.
Based on the foregoing, we conclude that Appellant’s petition was filed
untimely, and he has not proven an exception to the timeliness
requirements. Thus, he is not entitled to relief.10 See Commonwealth v.
10 We also point out that Appellant is not eligible for PCRA relief in any case
for which he has completed serving his sentence. See 42 Pa.C.S.
§ 9543(a)(1)(i) (“To be eligible for relief under [the PCRA], the petitioner
must plead and prove by a preponderance of the evidence … [t]hat the
(Footnote Continued Next Page)
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Albrecht, 994 A.2d 1091, 1095 (Pa. 2010) (affirming dismissal of PCRA
petition without a hearing because the appellant failed to meet burden of
establishing timeliness exception).
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/7/19
(Footnote Continued) _______________________
petitioner has been convicted of a crime under the laws of this
Commonwealth and at the time relief is granted[, he is] currently serving a
sentence of imprisonment, probation or parole for the crime[.]”). This
eligibility provision is not a jurisdictional requirement; therefore, because
Appellant’s petition was filed untimely, we affirm the order of the PCRA court
on the jurisdictional basis. See Commonwealth v. Fields, 197 A.3d 1217,
1223 (Pa. Super. 2018)(en banc) (holding “that the requirements set forth
in section 9543 establish only a petitioner’s eligibility for post-conviction
relief, and do not implicate the PCRA court’s jurisdiction to act on a
petition”).
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