Com. v. Novak, J. ( 2018 )

J-S47038-18
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
JOSHUA MICHAEL NOVAK, :
:
Appellant : No. 201 WDA 2018
Appeal from the PCRA Order January 9, 2018
in the Court of Common Pleas of Erie County
Criminal Division at No(s): CP-25-CR-0001557-2013
BEFORE: OLSON, MCLAUGHLIN, and STRASSBURGER,* JJ.
MEMORANDUM BY STRASSBURGER, J.: FILED SEPTEMBER 06, 2018
Joshua Michael Novak (Appellant) appeals from the January 9, 2018
order dismissing his petition filed under the Post Conviction Relief Act
(PCRA), 42 Pa.C.S. §§ 9541-9546. We affirm.
The PCRA court provided the following background.
On July 28[], 2004, [Appellant] pled guilty to and was
sentenced on criminal attempt to commit involuntary deviate
sexual intercourse in Schuylkill County, Pennsylvania. As a
result of Appellant’s conviction of said offense, Appellant was
required to register as a sexual offender for his lifetime pursuant
to Megan’s Law.
On June 20[], 2013, the District Attorney’s Office of Erie
County filed a criminal information, charging Appellant with
failure to comply with registration requirements-verify address
or be photographed under 18 Pa.C.S. § 4915.1(a)(2). Following
a criminal jury trial on November 21[], 2013, the jury found
Appellant guilty…. On December 31[], 2013, Judge Ernest J.
DiSantis Jr. sentenced Appellant to [36] to [72] months of
incarceration, with [240] days of credit for time served.
* Retired Senior Judge assigned to the Superior Court.
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On October 30[], 2014, Appellant, pro se, filed his first
PCRA petition. By order dated October 31[], 2014, Judge
DiSantis appointed William J. Hathaway, Esq., as Appellant’s
counsel and directed Attorney Hathaway to supplement or
amend Appellant’s pro se PCRA petition within thirty days.
Attorney Hathaway filed a supplement to Appellant’s first PCRA
petition on December 12[], 2014. Judge DiSantis scheduled an
evidentiary hearing on January 26[], 2015. At said hearing,
Appellant made an oral motion to withdraw his first PCRA
petition, which Judge DiSantis granted.
***
Appellant, pro se, filed the instant PCRA petition on August
9[], 2017, which th[e PCRA] court [considered] as Appellant’s
proper second PCRA petition. By order dated August 16[], 2017,
th[e PCRA] court appointed and directed Attorney Hathaway to
supplement or amend Appellant’s second PCRA petition within
thirty days. Attorney Hathaway filed a supplement to motion for
[PCRA] relief on September 13[], 2017. By order dated
September 13[], 2017, th[e PCRA] court directed the
Commonwealth to respond … within thirty days. The
Commonwealth… filed the Commonwealth’s response … on
October 20[], 2017.
On December 12[], 2017, th[e PCRA] court issued a notice
to Appellant of th[e PCRA] court’s intention to dismiss
Appellant’s second PCRA petition, [pursuant to Pa.R.Crim.P. 907,
because it] was patently untimely under the [PCRA]. Said notice
further advised Appellant of his right to file objections to said
proposed dismissal within twenty days of the date said notice
was issued. However, Appellant did not file any objections to
th[e PCRA] court’s notice of intent to dismiss Appellant’s second
PCRA petition. Thus, by order dated January 8[], 2018, th[e
PCRA] court dismissed Appellant’s second PCRA petition since
Appellant failed to allege and prove that his petition satisfied one
of the three exceptions under 42 Pa.C.S. § 9545(b)(1)(i)-(iii).
PCRA Court Opinion, 3/16/2018, at 1-3 (unnecessary capitalization and
citations omitted).
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This timely-filed appeal followed.1 On appeal, Appellant raises two
issues for our review: (1) whether the PCRA court erred in failing to grant
collateral relief under Commonwealth v. Muniz, 164 A.3d 1189 (Pa.
2017);2 and (2) whether the PCRA court erred in finding that the PCRA
petition was filed untimely. Appellant’s Brief at 2. Before reaching the
merits of Appellant’s claims, we must first consider whether Appellant has
filed timely his petition, as neither this Court nor the PCRA court has
jurisdiction to address the merits of an untimely-filed petition.
Commonwealth v. Leggett, 16 A.3d 1144, 1145 (Pa. Super. 2011).
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.” 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.
1 Both Appellant and the trial court have complied with Pa.R.A.P. 1925.
2 In Muniz, our Supreme Court held that certain registration provisions of
Pennsylvania’s Sex Offender Registration and Notification Act (SORNA) are
punitive and retroactive application of those provisions violates the ex post
facto clause of the Pennsylvania constitution.
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§ 9545(b)(3). Here, Appellant was sentenced on December 31, 2013. He
did not file a direct appeal. Thus, his judgment of sentence became final 30
days later, on January 30, 2014, and he had one year, or until January 30,
2015, to file timely a PCRA petition. Thus, Appellant’s August 9, 2017
petition is facially untimely, and he was required to plead and prove an
exception to the timeliness requirements.
In his pro se petition, Appellant attempts to plead all three exceptions 3
by invoking Muniz. Appellant’s PCRA Petition, 8/9/2017, at ¶¶ 14-18.
While Appellant attempts to invoke all three exceptions, his Muniz argument
3 The PCRA provides the following three exceptions to its timeliness
requirements.
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:
(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. § 9545(b)(1)(i)-(iii).
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is not appropriate as to the first two exceptions (governmental interference
and newly-discovered facts), but could potentially support the third
exception (new retroactive right). This Court considered whether Muniz
applies under similar circumstances to establish the third timeliness
exception in Commonwealth v. Murphy, 180 A.3d 402 (Pa. Super. 2018).
In that case, Murphy was convicted of a number of sex-related crimes in
2007, and after review, his judgment of sentence became final on July 28,
2009. On October 18, 2017, while a serial PCRA petition was pending in this
Court, Murphy filed a motion asserting that Muniz rendered portions of his
sentence unconstitutional. This Court considered that argument and offered
the following.
Here, we acknowledge 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, Murphy can then file a PCRA
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petition, within 60 days 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. The same holds true for Appellant.
Based on the foregoing, we conclude that Appellant’s petition was filed
untimely, and he has not asserted an exception to the timeliness
requirements. Thus, he is not entitled to relief. See Commonwealth v.
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: 9/6/2018
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