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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
AUSTIN JAMES UBINAS COLBURN :
:
Appellant : No. 1116 WDA 2020
Appeal from the PCRA Order Entered July 22, 2020
In the Court of Common Pleas of Venango County Criminal Division at
No(s): CP-61-CR-0000570-2014
BEFORE: DUBOW, J., KING, J., and STEVENS, P.J.E.*
MEMORANDUM BY DUBOW, J.: FILED: DECEMBER 3, 2021
Austin James Ubinas Colburn (“Appellant”) seeks review of the Order
dismissing his first PCRA Petition as untimely. He challenges his SORNA1
lifetime registration requirement and contends that the issuance of Muniz2
rendered his PCRA Petition timely-filed. After careful review, we affirm.
On June 22, 2015, Appellant pleaded guilty to one count each of
Aggravated Indecent Assault and Corruption of Minors in connection with his
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* Former Justice specially assigned to the Superior Court.
1Sex Offenders Registration and Notification Act (“SORNA”), 42 Pa.C.S. §§
9799.10-9799.41. The provision applicable to Appellant is subchapter H.
2 Commonwealth v. Muniz, 164 A.3d 1189 (Pa. 2017).
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2014 sexual assault of a seventeen-year-old girl.3 The court ordered an
evaluation by the Sexual Offender Assessment Board. After a hearing, the
court found Appellant to be a Sexually Violent Predator (“SVP”) subject to
lifetime registration with the Pennsylvania State Police.
On May 24, 2016, the court imposed an aggregate sentence of five to
ten years’ incarceration.4 Appellant did not file a direct appeal. His Judgment
of Sentence, thus, became final on June 24, 2016.
On July 5, 2018, Appellant filed a pro se PCRA Petition. He asserted
that because he committed his offense on July 3, 2014, SORNA “cannot apply
to [him] retroactively in light of . . . Commonwealth v. Muniz, 164 A.3d
1189 (Pa. 2017).”5 The PCRA court appointed counsel. After argument on
August 8, 2019, the court granted Appellant permission to file an Amended
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318 Pa.C.S. §§ 3125(a)(1), and 6301(a)(1)(ii), respectively. In exchange for
his guilty plea, the Commonwealth withdrew four additional sexual offense
charges. Appellant also agreed to lifetime registration as a sexual offender.
4 The court ordered that Appellant serve this sentence after a term of three to
six years’ incarceration imposed for violating the probation he had been
serving at the time of the offense for a prior sexual assault conviction.
5 In Commonwealth v. Muniz, supra, at 1193 (Pa. 2017), the Supreme
Court held that SORNA’s registration provisions are punitive, and retroactive
application of SORNA’s provisions violates the federal ex post facto clause, as
well as the ex post facto clause of Pennsylvania’s Constitution. Our Supreme
Court did not hold that Muniz applied retroactively. In response, the General
Assembly enacted SORNA II. See 42 Pa.C.S. § 9799.51(b)(4). Because
offender registration requirements evolve pursuant to the legislative decisions
of our General Assembly, registrants must comply with current law. See
generally Commonwealth v. Lacombe, 234 A.3d 602, 608-612 (Pa. 2020)
(tracing Lacombe’s evolving requirements from the then-applicable version
of Megan’s Law to SORNA I and, ultimately, subchapter I of SORNA II).
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PCRA Petition. On September 4, 2019, Appellant filed his Amended PCRA
Petition asserting that the application of SORNA’s registration requirements
violates his constitutional rights to due process and reputation, and that the
SVP designation is unconstitutional under Commonwealth v. Butler, 173
A.3d 1212 (Pa. Super. 2017), rev'd, 226 A.3d 972 (Pa. 2020) (“Butler I”).
On July 22, 2020, the PCRA court dismissed the petition as untimely
concluding that, it, therefore, did not have jurisdiction to address Appellant’s
claims.6
Appellant appealed. Both Appellant and the PCRA court complied with
Pa.R.A.P. 1925.
Appellant presents four issues, each contending that the trial court’s
imposition of SORNA registration requirements violated the Pennsylvania and
United States Constitutions. Specifically, he asserts that (1) he was denied
“due process to a right to hearing and a right to a jury determination before
having to register to a higher punishment when he was sentenced under
Megan’s Law which has expired[;]” (2) the registration requirement violates
the ex post facto clauses; (3) the registration requirement violates his right
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6 In dicta, the PCRA court observed that, pursuant to Commonwealth v.
Butler, 226 A.3d 972 (Pa. 2020) (“Butler II”), decided on March 26, 2020,
Appellant’s claim that the registration requirement constituted criminal
punishment was without merit. Opinion and Order, filed July 22, 2020, at 2-
3. See Butler II, 226 A.3d at 976 (holding that SVP adjudication is not a
criminal punishment and the procedure for designating an individual a SVP is
not subject to the requirements of Apprendi v. New Jersey, 530 U.S. 466
(2000) and Alleyne v. United States, 570 U.S. 99 (2013)).
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to reputation; and (4) the court violated ”Butler [I] when it failed to vacate
the finding that the appellant is a sexually violent predator.” Appellant’s Br.
at 5.
We review the denial of a PCRA petition to determine whether the record
supports the PCRA court’s findings and whether its order is otherwise free of
legal error. Commonwealth v. Fears, 86 A.3d 795, 803 (Pa. 2014). This
Court grants great deference to the findings of the PCRA court if they are
supported by the record. Commonwealth v. Boyd, 923 A.2d 513, 515 (Pa.
Super. 2007). We give no such deference, however, to the court’s legal
conclusions. Commonwealth v. Ford, 44 A.3d 1190, 1194 (Pa. Super.
2012).
Before addressing the merits of Appellant’s claims, we must first
determine whether we have jurisdiction to entertain the underlying PCRA
Petition. Under the PCRA, any petition “including a second or subsequent
petition, shall be filed within one year of the date the judgment becomes
final[.]” 42 Pa.C.S. § 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.” Id. at § 9545(b)(3). “The PCRA’s
time restrictions are jurisdictional in nature. Thus, if a PCRA petition is
untimely, neither [appellate courts] nor the trial court has jurisdiction over
the petition. Without jurisdiction, we simply do not have the legal authority to
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address the substantive claims.” Commonwealth v. Albrecht, 994 A.2d
1091, 1093 (Pa. 2010) (citation omitted).
Here, Appellant’s sentence became final on June 24, 2017. His PCRA
petition, filed July 5, 2018, is, thus, facially untimely. Pennsylvania courts
may consider an untimely PCRA petition, however, if the appellant pleads and
proves one of the three exceptions provided in 42 Pa.C.S. § 9545(b)(1)(i)-
(iii).
For claims arising prior to December 24, 2017, a PCRA petition asserting
the timeliness exception must have been filed within 60 days of the date the
claim could have been presented. 42 Pa.C.S. § 9545(b)(2).7
Here, Appellant asserted that his petition was “raising a new
constitutional issue,” and cited Muniz, supra, in support. Brief in Support of
amended PCRA Petition, filed 9/4/19, at (unpaginated) 2, 5. Appellant, thus,
appeared to assert that his claim fell within the third timeliness exception, i.e.,
“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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7 Effective December 24, 2018, a petitioner invoking one of the PCRA’s
timeliness exceptions has one year to file a PCRA petition for a claim arising
after December 24, 2017. Appellant’s claim arose prior to December 24, 2017,
therefore, the prior version of Section 9545(b)(2) providing 60 days to raise
the claim applies here.
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Muniz was decided July 19, 2017. If Muniz qualified under the third
timeliness exception, Appellant would have had until September 18, 2017, to
file a petition asserting his claim. Appellant’s PCRA petition, filed July 5, 2018,
failed to meet the 60-day requirement.8
Accordingly, this Court is without jurisdiction to consider the merits of
the issues raised.
Order affirmed.
President Judge Emeritus Stevens joins the memorandum.
Judge King concurs in result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/3/2021
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8 Moreover, even if Appellant had filed his PCRA within 60 days of Muniz, he
would not have been entitled to relief because at the time he filed his petition,
our Supreme Court had not held that its holding applied retroactively. Thus,
Muniz could not have been used to satisfy the third exception to the PCRA’s
jurisdictional time bar.
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