Com. v. Bonilla, M. ( 2018 )

J-S81028-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT
OF
PENNSYLVANIA
Appellee
v.
MATTHEW JAMES BONILLA
Appellant No. 853 MDA 2017
Appeal from the PCRA Order Entered May 9, 2017
In the Court of Common Pleas of Lackawanna County
Criminal Division at No: CP-35-CR-0003272-2009
BEFORE: PANELLA, STABILE, and PLATT,* JJ.
MEMORANDUM BY STABILE, J. FILED FEBRUARY 06, 2018
Appellant, Matthew Bonilla, appeals pro se from the May 9, 2017 order
dismissing his petition pursuant to the Post Conviction Relief Act (“PCRA”), 42
Pa.C.S.A. §§ 9541-9546. We affirm.
On March 24, 2011, the trial court imposed an aggregate 13 to 26 years
of incarceration for involuntary deviate sexual intercourse (IDSI), aggravated
indecent assault, incest, endangering the welfare of a minor, corruption of a
minor, and indecent assault. The court also required Appellant to register for
life as a sexual offender. The victim was Appellant’s daughter. She was 11
years old at the time of the offenses. This Court affirmed the judgment of
sentence on October 11 2012. Appellant did not seek allowance of appeal
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* Retired Senior Judge assigned to the Superior Court.
J-S81028-17
from our Supreme Court. Appellant filed his first timely PCRA petition on
March 20, 2013. The PCRA court denied relief on August 15, 2013 and this
Court affirmed the denial of relief on March 14, 2014.
Appellant filed the instant pro se petition, his second, on March 27,
2017. In the order on appeal, the PCRA court dismissed the petition as
untimely. This timely appeal followed. Before we consider the merits, we
must consider whether Appellant’s petition is timely. The PCRA’s jurisdictional
time limits require that a petitioner file his petition within one year of the
finality of the judgment of sentence. 42 Pa.C.S.A. § 9545(b)(1);
Commonwealth v. Albrecht, 994 A.2d 1091, 1093 (Pa. 2010). Appellant’s
judgment of sentence became final on November 10, 2012, or thirty days after
this Court affirmed his judgment of sentence. Therefore, he had until
November 10, 2013 to file a timely PCRA petition. The instant petition is
therefore facially untimely.
In order to avoid the PCRA time bar, Appellant must plead and prove
one of the PCRA’s timeliness exceptions. 42 Pa.C.S.A. § 9545(b)(1)(i-iii);
Albrecht, 994 A.2d at 1093. The PCRA requires that any petition filed
pursuant to a timeliness exception be filed within 60 days of the first date on
which the petitioner could have raised the claim. 42 Pa.C.S.A. § 9545(b)(2).
Here, Appellant alleges, “the right asserted is a constitutional right that was
recognized by the Supreme Court of the United States or the Supreme Court
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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)(iii).
Appellant cites Commonwealth v. Barnes, 151 A.3d 121 (Pa. 2016),
in which our Supreme Court held that a five-year mandatory minimum
sentence based on constructive possession is an illegal sentence under
Alleyne v. United States, 133 S. Ct. 2151 (2013). Barnes was decided on
December 28, 2016. Appellant’s March 27, 2017 petition does not meet the
60-day requirement of § 9545(b)(2). In any event, Barnes was a direct
appeal and it is factually and legally inapposite.
Appellant also relies on Commonwealth v. Burton, 158 A.3d 618 (Pa.
2017), decided on March 28, 2017, one day after Appellant filed his petition.
In Burton, the Supreme Court remanded for a determination of whether facts
of public record were unknown to a pro se petitioner, such that the petitioner
could avail himself of the timeliness exception of § 9545(b)(1)(ii). Appellant
fails to explain how Burton is relevant here.
Finally, Appellant cites Commonwealth v. Muniz, 164 A.2d 1189 (Pa.
2017), in which our Supreme Court held that retroactive application of SORNA
registration requirements violated the ex post facto clauses of the federal and
state constitutions. Appellant’s sentence pre-dated SORNA, and SORNA did
not affect his lifetime registration requirement under then-extant Megan’s law.
Muniz therefore does not apply here.
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Given the foregoing, Appellant has filed a facially untimely PCRA petition
and he has failed to plead and prove the applicability of any timeliness
exception. We therefore affirm the PCRA court’s order.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 02/06/2018
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