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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
MICHAEL LLOYD GEORGE :
:
Appellant : No. 1659 WDA 2018
Appeal from the PCRA Order Entered October 17, 2018
In the Court of Common Pleas of Lawrence County Criminal Division at
No(s): CP-37-CR-0000277-1996
BEFORE: OLSON, J., STABILE, J., and McLAUGHLIN, J.
MEMORANDUM BY McLAUGHLIN, J.: FILED SEPTEMBER 16, 2019
Michael Lloyd George appeals the denial of his request for relief under
the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. The PCRA
court granted George’s petition on the limited grounds that he was not subject
to the registration requirements of the Sexual Offender’s Registration and
Notification Act (“SORNA”), 42 Pa.C.S.A. §§ 9799.10-9799.41. Because the
petition for relief was untimely, the PCRA court should have denied relief. We
therefore vacate the order and remand.
In 1997, a jury convicted George of multiple sex offenses, including rape
of a child under the age of 13,1 and the trial court sentenced George to 15 to
30 years’ incarceration. This Court affirmed the judgment of sentence, and
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1 18 Pa.C.S.A. § 3121(c).
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our Supreme Court denied George’s petition for allowance of appeal on July
24, 1998.
After two unsuccessful PCRA petitions, George filed the instant petition
on October 10, 2017, seeking relief pursuant to Commonwealth v. Muniz,
135 A.3d 178 (Pa. 2016). The court appointed counsel who then filed an
amended petition raising an additional claim under Commonwealth v.
Butler, 173 A.3d 1212 (Pa.Super. 2017), appeal granted, 190 A.3d 581 (Pa.
2018), asserting that George should not have been designated as a Sexually
Violent Predator (SVP). See Amended PCRA Petition, filed 11/8/17, at 2. The
petition did not assert any exception to the PCRA’s one-year time-bar.
The court held an evidentiary hearing and granted the petition on the
limited ground that George was not subject to lifetime registration under
SORNA, but remained subject to the registration requirements of Megan’s Law
II. See Order of Court, filed 10/17/18 at 1. George filed this timely appeal,
and asks us to review one issue:
Whether the Court abused its discretion by failing to apply the law
to the facts in determining that [George] would be a lifetime
registrant under Megan’s Law II, rather than find that the ex post
facto determinations of the Appellate Courts in Butler and Muniz
clearly determined that all prior versions of the act were
superseded and replaced by current law, and that with an ex post
facto determination, [George] should not be determined a lifetime
registrant.
George’s Br. at 6.
When reviewing the denial or grant of relief under the PCRA, “[w]e must
determine whether the PCRA court’s ruling is supported by the record and free
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of legal error.” Commonwealth v. Presley, 193 A.3d 436, 442 (Pa.Super.
2018) (citations omitted).
We do not reach the merits of George’s claim because his petition was
untimely. See Commonwealth v. Pursell, 749 A.2d 911, 913-14 (Pa. 2000).
A criminal defendant has one year from the time the judgment of sentence
becomes final to file a timely PCRA petition, unless an exception applies. See
42 Pa.C.S.A. § 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.A. § 9545(b)(3). The
petitioner bears the burden of pleading and proving at least one of the time-
bar exceptions:
(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)(i)-(iii).
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Here, George’s judgment of sentence became final on October 22, 1998,
when the time to file a writ of certiorari to the Supreme Court of the United
States expired. See U.S. Sup. Ct. R. 13 (90 days to file writ of certiorari to US
Supreme Court following judgment entered by a state court of last resort).
Therefore, he had until October 22, 1999, to file a timely PCRA petition. Thus,
the instant petition, which he filed 18 years later, is patently untimely and the
PCRA court lacked jurisdiction over it unless George pled and proved at least
one of the time-bar exceptions. See Commonwealth v. Albrecht, 994 A.2d
1091, 1093 (Pa. 2010).
George did not plead, much less prove, at least one of the time-bar
exceptions. See Commonwealth v. Murphy, 180 A.3d 402, 406 (Pa.Super.
2018) (claiming relief under Muniz does not satisfy timeliness requirements
of PCRA for an untimely petition).2 Indeed, even his appellate brief fails to
address the timeliness of his petition. The PCRA court lacked jurisdiction over
the petition and we therefore vacate the October 17, 2018 order and remand.
See Commonwealth v. Greco, 203 A.3d 1120, 1125 (Pa.Super. 2019)
(vacating and remanding case where trial court entertained untimely PCRA
petition stating that defendant did not have to comply with SORNA
requirements).
Order vacated. Case remanded. Jurisdiction relinquished.
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2 Hereafter, if the Pennsylvania Supreme Court holds that Muniz applies
retroactively to untimely PCRA petitions, George may file a new petition within
one year of that decision. See 42 Pa.C.S.A. § 9545(b)(2).
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/16/2019
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