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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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. :
:
KEITH EDWARD NEWTON, : No. 3297 EDA 2018
:
Appellant :
Appeal from the PCRA Order Entered October 11, 2018,
in the Court of Common Pleas of Montgomery County
Criminal Division at No. CP-46-CR-0007945-2010
BEFORE: BENDER, P.J.E., LAZARUS, J., AND FORD ELLIOTT, P.J.E.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED SEPTEMBER 20, 2019
Keith Edward Newton appeals from the October 11, 2018 order entered
in the Court of Common Pleas of Montgomery County that denied his petition
filed pursuant to the Post Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-9546
(“PCRA”). We affirm.
The PCRA court set forth the following:
On March 15, 2012, [appellant] entered into an open
guilty plea to three counts of sexual abuse of children
(child pornography) (F3).[1] On June 19, 2012, he
was sentenced to an aggregate term of 8-20 years’.
He was also designated [a sexually violent predator
(“SVP”)], pursuant to 42 Pa.C.S.A[.] § 9799.24.
[Appellant] did not file a post[-]sentence motion or a
1 18 Pa.C.S.A. § 6312(c) and (d).
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direct appeal. On June 22, 2017,[2] [appellant] filed
a pro se PCRA petition claiming ineffective assistance
for failure to file a direct appeal and seeking to have
his appellate rights reinstated nunc pro tunc.
Erin Lentz-McMahon, Esq. was appointed to represent
[appellant] and filed an amended petition on
September 29, 2017. The Commonwealth filed a
Response on November 24, 2017. February 1, 2018,
scheduled hearing on issue of timeliness. [sic] At that
time, no hearing was held, but the parties agreed that
[appellant] could amend his petition. He filed a
Second Amended Petition on March 2, 2018. The
Commonwealth filed its response May 18, 2018. On
October 11, 2018, this Court held a hearing on the
issue of timeliness. Following the hearing, the Court
denied the Petition as untimely. This appeal followed.
[Appellant] was directed to file a concise statement
pursuant to Pa. R.A.P. 1925 (b). He has since
complied with that directive.
PCRA court opinion, 12/14/18 at 1-2.
Appellant raises the following issue for our review:
Whether the PCRA Court erred in finding that
appellant’s PCRA petition filed on June 22, 2017, was
untimely when appellant established that trial counsel
failed to file a requested direct appeal following the
finding by the trial court that he was [an SVP]
pursuant to clear and convincing evidence, and
argued that application of the Sexual Offender
Registration Notification Act[, 42 Pa.C.S.A. § 9799.10
et seq.] (hereinafter “SORNA”), violated his
constitutional rights protected by the United States
and Pennsylvania Constitutions against ex post facto
laws when appellant established the exceptions to the
one-year time bar pursuant to Section 9545(b)(1)(iii)
2We note that even though appellant’s pro se PCRA petition was docketed on
June 26, 2017, the record reflects that appellant deposited the petition in the
prison mailbox on June 22, 2017. (Appellant’s motion for post-conviction
collateral relief, 6/22/17 at attachment (copy of time-stamped envelope).) In
accordance with the prisoner mailbox rule, appellant’s petition is deemed filed
on June 22, 2017. See Commonwealth v. Jones, 700 A.2d 423 (Pa. 1997).
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and (ii) in that our Supreme Court has implicitly held
that Muniz should be retroactively applied to cases on
collateral review, and appellant was abandoned by his
attorney in pursuing his direct appeal?
Appellant’s brief at 4.
All PCRA petitions, including second and subsequent petitions, must be
filed within one year of when a defendant’s judgment of sentence becomes
final. 42 Pa.C.S.A. § 9545(b)(1). “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
the time for seeking the review.” 42 Pa.C.S.A. § 9545(b)(3). The Supreme
Court of Pennsylvania has held that the PCRA’s time restriction is
constitutionally sound. Commonwealth v. Cruz, 852 A.2d 287, 292 (Pa.
2004). In addition, our supreme court has instructed that the timeliness of a
PCRA petition is jurisdictional. If a PCRA petition is untimely, a court lacks
jurisdiction over the petition. Commonwealth v. Callahan, 101 A.3d 118,
120-121 (Pa.Super. 2014) (courts do not have jurisdiction over an untimely
PCRA); see also Commonwealth v. Wharton, 886 A.2d 1120 (Pa. 2005).
Here, the trial court sentenced appellant on June 19, 2012. Appellant
failed to file a direct appeal to this court. Consequently, appellant’s judgment
of sentence became final July 19, 2012, thirty days after imposition of
sentence and the time for filing a direct appeal expired. See 42 Pa.C.S.A.
§ 9545(b)(3); Pa.R.A.P. 903; Commonwealth v. Cintora, 69 A.3d 759, 763
(Pa.Super. 2013). Therefore, appellant’s petition, filed June 22, 2017, is
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facially untimely. As a result, the PCRA court lacked jurisdiction to review
appellant’s petition, unless appellant alleged and proved one of the statutory
exceptions to the time-bar, as set forth in 42 Pa.C.S.A. § 9545(b)(1).
Those three narrow exceptions to the one-year time-bar are: when the
government has interfered with the petitioner’s ability to present the claim,
when the appellant has recently discovered facts upon which his PCRA claim
is predicated, or when either the Supreme Court of Pennsylvania or the
Supreme Court of the United States has recognized a new constitutional right
and made that right retroactive. 42 Pa.C.S.A. § 9545(b)(1)(i-iii);
Commonwealth v. Brandon, 51 A.3d 231, 233-234 (Pa.Super. 2012). The
petitioner bears the burden of pleading and proving the applicability of any
exception. 42 Pa.C.S.A. § 9545(b)(1). If a petitioner fails to invoke a valid
exception to the PCRA time-bar, this court may not review the petition. See
42 Pa.C.S.A. § 9545(b)(1)(i-iii).
Here, appellant filed a counseled amended PCRA petition on
September 29, 2017.3 Appellant filed a second amended PCRA petition on
March 3, 2018. In that petition, appellant challenged the retroactive
3 We note that in his September 29, 2017 amended petition, appellant claimed
that (1) trial counsel was ineffective for failing to advise appellant that
appellant had the opportunity to be interviewed by the Commonwealth’s
psychologist for purposes of an SVP determination; (2) the trial court erred in
determining that appellant was an SVP as a result of insufficient evidence to
support the likelihood of recidivism; and (3) trial counsel was effective for
failing to litigate a Pa.R.Crim.P. 600 claim. (Appellant’s “amended petition for
[PCRA relief],” 9/29/17 at 8-9.)
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application of SORNA based upon the Supreme Court of Pennsylvania’s
decision in Commonwealth v. Muniz, 164 A.3d 1189 (Pa. 2017), wherein
our supreme court held that application of the registration requirements under
SORNA to sexual offenders who committed their crimes before SORNA’s
effective date violates the ex post facto clause of the Pennsylvania
Constitution. Appellant’s claim implicates the newly recognized constitutional
right exception to the PCRA’s time-bar under Section 9545(b)(1)(iii). With
that exception, appellant must satisfy the requirement that he filed his claim
within 60 days of the date the claim could have been presented. The 60-day
rule applicable to appellant’s claim was codified at 42 Pa.C.S.A. § 9545(b)(2)
and required that: “[a]ny petition invoking an exception . . . shall be filed
within 60 days of the date the claim could have been presented.” An
amendment to that section substituted “within one year” for “within 60 days.”
The effective date of the amendment is December 24, 2018, and the
amendment applies to claims arising one year before the effective date or
thereafter. See Act 2018-146, § 3. Appellant filed his PCRA petition on
June 19, 2017, which was prior to December 24, 2017. Therefore, the 60-day
rule applies, and appellant would have been required to raise his Muniz claim
in an amended petition within 60 days of its decision. Our supreme court filed
its decision in Muniz on July 19, 2017. Appellant filed his Muniz claim in his
second amended petition on March 3, 2018, which was in excess of 60 days
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of the decision. Therefore, appellant cannot satisfy the newly recognized
constitutional right exception to overcome the PCRA’s time-bar.
Even if appellant could satisfy the time-bar, he would not be entitled to
relief. In Muniz, our supreme court held that application of the registration
requirements under SORNA to sexual offenders who committed their crimes
before SORNA’s effective date violates the ex post facto clause of the
Pennsylvania Constitution. Muniz, 164 A.3d at 1218. Therefore, retroactive
application of SORNA would appear to violate the ex post facto clauses of
the United States Constitution and the Pennsylvania Constitution, as set forth
in Muniz. See Muniz, 164 A.3d at 1218-1219. Appellant, however, presents
his claim in the context of an untimely filed PCRA petition.
In a case involving a timely filed PCRA petition, this court has held 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). Because appellant’s PCRA petition is facially untimely,
however, he would be required to satisfy the jurisdiction requirement set forth
at 42 Pa.C.S.A. § 9545(b)(1)(iii). To do so, appellant would be required to
demonstrate that the Supreme Court of Pennsylvania has held that Muniz
applies retroactively. See Commonwealth v. Murphy, 180 A.3d 402,
406-407 (Pa.Super. 2018) (finding that when the PCRA petition is untimely
filed, in order to satisfy the timeliness exception set forth at 42 Pa.C.S.A.
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§ 9545(b)(1)(iii), a petitioner must demonstrate that the Supreme Court of
Pennsylvania has expressly held that Muniz applies retroactively).
In his brief to this court, appellant claims that our supreme court
“implicitly” found that Muniz applies retroactively to untimely PCRA petitions
in Commonwealth v. Polzer, 182 A.3d 431 (Pa. 2018). (Appellant’s brief at
15-16.) Notwithstanding the fact that appellant’s failure to raise this assertion
in his second amended PCRA petition results in waiver under Pa.R.A.P. 302(a),
appellant is mistaken. The citation that appellant provides for Polzer leads
to a February 23, 2018 order entered by our supreme court that vacated an
order of this court and remanded to this court for consideration of the following
issue in light of Muniz, supra:
Whether the appellate Superior Court erred in its
findings and conclusions, and the PCRA court
committed legal error in denying Petitioner’s claim
that [SORNA] under 42 Pa.C.S.A. § 9799, i.e.,
§§ 9799.15(e) and (e)(3) violate the due process
clause of the Fifth and the Fourteenth Amendments to
the United States Constitution, and the due process
rights under the Pennsylvania Constitution, Art. 1,
§ 1, and Art. 1, § 9, and, therefore, violate the
prohibition of the Ex Post Facto Clauses to the United
States Constitution, Art. 1, § 10, Clause 1, and the
Pennsylvania Constitution, Art. 1, § 17, where
Petitioner is clearly not designated as [an SVP] to
justify and warrant such progressively rigid conditions
and “quarterly in-person” reporting requirements
previously subject only to those deemed an SVP,
whereas, SORNA’S irrebuttable presumption that all
sexual offenders pose a high risk of reoffending
violates procedural and substantive due process under
the Pennsylvania Constitution, and as such, SORNA’s
Internet notification provision and quarterly
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verification requirements constitute an ex post facto
law under the Pennsylvania Constitution?
Polzer, 182 A.3d 431.
Clearly, the order remanding Polzer to this court for consideration of
the above issue in light of Muniz in no way constitutes a rule of law
promulgated by the Supreme Court of Pennsylvania that Muniz applies
retroactively to an untimely PCRA petition.
Finally, we note that in his brief to this court, appellant argues that the
new fact exception under Section 9545(b)(1)(ii) applies because appellant
“did not become aware that trial counsel failed to proceed with filing his direct
appeal as requested, until several years later when he retrieved a copy of his
dockets” which constitutes “a factual basis for the timeliness exception set
forth in Section 9545(b)((1)(ii)”; specifically, “attorney abandonment” under
Commonwealth v. Bennett, 930 A.2d 1264 (Pa. 2007). (Appellant’s brief
at 17.) In his Rule 1925(b) statement, however, appellant’s only claim other
than his Muniz claim is that appellant:
pled in his Amended Petition, and proved at the
evidentiary hearing held on October 11, 2018 that the
failure to raise the claim previously was the result of
interference by government when he did not learn
that trial counsel failed to pursue a requested direct
appeal until several years later for which he alleged
ineffective assistance of counsel and reinstatement of
his right to file an appeal nunc pro tunc[.]
Appellant’s Rule 1925(b) statement, 12/3/18 at 2 (emphasis added).
Therefore, appellant waives the new fact exception claim under
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Section 9545(b)(1)(ii). See Pa.R.A.P. 1925(b)(4)(vii) (issues not included in
a petitioner’s Rule 1925(b) statement are waived); see also Commonwealth
v. Hannibal, 156 A.3d 197, 211 (Pa. 2016); cert. denied, 138 S.Ct. 59
(2017) (reiterating that issues not raised in a petitioner’s Rule 1925(b)
statement will be deemed waived).
Appellant has failed to invoke a valid exception to the time-bar.
Consequently, the PCRA court lacked jurisdiction to review appellant’s
petition, and we may not review the petition on appeal.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/20/19
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