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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
JESSE RAY SHELTON :
:
Appellant : No. 941 WDA 2019
Appeal from the PCRA Order Entered May 28, 2019
In the Court of Common Pleas of Lawrence County
Criminal Division at No(s): CP-37-CR-0000781-2016
BEFORE: GANTMAN, P.J.E., LAZARUS, J., and PELLEGRINI, J.*
JUDGMENT ORDER BY GANTMAN, P.J.E.: FILED JANUARY 17, 2020
Appellant, Jesse Ray Shelton, appeals from the order entered in the
Lawrence County Court of Common Pleas, which dismissed as untimely his
first petition filed under the Post Conviction Relief Act (“PCRA”), at 42
Pa.C.S.A. §§ 9541-9546. On January 13, 2017, Appellant entered a
negotiated guilty plea to failure to register. The court sentenced Appellant on
January 30, 2017, to the negotiated 15 to 30 months’ imprisonment, plus one
year of probation. Appellant did not appeal. On March 12, 2019, Appellant
filed a counseled “motion to vacate sentence,” which the court treated as a
first PCRA petition. The court held a PCRA hearing on March 22, 2019, and
dismissed the petition as untimely on May 28, 2019. On June 24, 2019,
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* Retired Senior Judge assigned to the Superior Court.
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Appellant timely filed a counseled notice of appeal. The next day, the court
ordered Appellant to file a concise statement per Pa.R.A.P. 1925(b); Appellant
timely complied on July 2, 2019.
Preliminarily, the timeliness of a PCRA petition is a jurisdictional
requisite. Commonwealth v. Zeigler, 148 A.3d 849 (Pa.Super. 2016). A
PCRA petition, including a second or subsequent petition, shall be filed within
one year of the date the underlying judgment of sentence becomes final. 42
Pa.C.S.A. § 9545(b)(1). A judgment of sentence is 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 statutory
exceptions to the PCRA time-bar allow very limited circumstances to excuse
the late filing of a petition; a petitioner must also assert the exception within
the time allowed under the statute. 42 Pa.C.S.A. § 9545(b)(1) and (b)(2).
Instantly, Appellant’s judgment of sentence became final on March 1,
2017, upon expiration of the time to file a notice of appeal in the Superior
Court. See Pa.R.A.P. 903(a) (allowing 30 days to file notice of appeal in
Superior Court). Appellant filed his petition on March 12, 2019, which is
patently untimely. See 42 Pa.C.S.A. § 9545(b)(1). Appellant tries to invoke
the “new constitutional right” exception at Section 9545(b)(1)(iii), relying on
Commonwealth v. Muniz, 640 Pa. 699, 164 A.3d 1189 (2017), cert. denied,
___ U.S. ___, 138 S.Ct. 925, 200 L.Ed.2d 213 (2018) (holding requirements
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of Sexual Offender Registration and Notification Act (“SORNA”) constitute
criminal punishment; SORNA is unconstitutional ex post facto law when
applied retroactively to those sex offenders convicted of applicable crimes
before SORNA’s effective date and subjected to increased registration
requirements under SORNA after its passage). Nevertheless, Appellant did
not file his PCRA petition within 60 days of Muniz, decided on July 19, 2017.
See 42 Pa.C.S.A. § 9545(b)(2) (providing statutory window in which PCRA
petitioner must assert time-bar exception);1 Commonwealth v. Leggett, 16
A.3d 1144 (Pa.Super. 2011) (holding statutory window to invoke new
constitutional right exception began to run on date of judicial decision
establishing alleged new constitutional right, and not on day when decision
became available to petitioner in prison law library; prisoner’s ignorance of
law does not excuse his failure to file PCRA petition within 60 days of judicial
decision on which he relies; neither court nor correctional system is obliged to
educate or update prisoners concerning changes in case law).2 Further,
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1Section 9545(b)(2) now allows that any PCRA petition invoking a time-bar
exception must be filed within one year of the date the claim first could have
been presented. See Act 2018, Oct. 24, P.L. 894, No. 146, § 2, effective Dec.
24, 2018. This amendment applies to claims arising on or after December 24,
2017. Because our Supreme Court decided Muniz on July 19, 2017, the
amendment does not apply here. Moreover, even if the amendment applied,
Appellant filed the current petition more than one year after Muniz.
2In Commonwealth v. Burton, 121 A.3d 1063 (Pa.Super. 2015) (en banc),
aff’d, 638 Pa. 687, 158 A.3d 618 (2017), this Court held that Pennsylvania
courts shall no longer apply a public record presumption to pro se incarcerated
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Appellant has not established that Muniz applies retroactively to untimely
PCRA petitions. See 42 Pa.C.S.A. § 9545(b)(1)(iii); Commonwealth v.
Murphy, 180 A.3d 402 (Pa.Super. 2018), appeal denied, ___ Pa. ___, 195
A.3d 559 (2018) (holding petitioner cannot rely on Muniz to meet timeliness
exception under Section 9545(b)(1)(iii) until U.S. Supreme Court or
Pennsylvania Supreme Court holds that Muniz is retroactive in untimely PCRA
petitions). Thus, Appellant’s PCRA petition remains untimely.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/17/2020
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PCRA petitioners asserting the “newly-discovered facts” time-bar exception at
Section 9545(b)(1)(ii). Burton does not apply to the “new constitutional
right” exception, so Appellant’s reliance on Burton is misplaced.
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