Com. v. Turner, M. ( 2019 )

J -S15018-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
MARCUS TURNER
Appellant : No. 1028 WDA 2018
Appeal from the PCRA Order Entered June 13, 2018
In the Court of Common Pleas of Allegheny County Criminal Division at
No(s): CP-02-CR-0009765-2015
BEFORE: GANTMAN, P.J.E., SHOGAN, J., and COLINS*, J.
MEMORANDUM BY SHOGAN, J.: FILED JULY 22, 2019
Appellant, Marcus Turner, appeals from the order denying his petition
for relief filed pursuant to the Post Conviction Relief Act ("PCRA"), 42 Pa.C.S.
§§ 9541-9546. We affirm.
The PCRA court summarized the procedural history of this case as
follows:
On November 30, 2015, Appellant, Marcus Turner, pled
guilty to one count each of Rape of a Child, Involuntary Deviate
Sexual Intercourse ("IDSI") of a Child, Sexual Assault, and two
counts of Indecent Assault with a Person Less than 13 Years of
Age.' This [c]ourt sentenced Appellant to an aggregate sentence
of three to ten years of incarceration, with three years of
consecutive probation, and lifetime registration pursuant to
SORNA.2 Appellant did not file a Post -Sentence Motion or a direct
appeal.
Retired Senior Judge assigned to the Superior Court.
J -S15018-19
On September 26, 2017, Appellant field a pro se Post
Conviction Relief Act Petition.[1] Ultimately, this [c]ourt dismissed
the PCRA on June 1[3], 2018. Appellant filed a Notice of Appeal
on June 29, 2018 and a Concise Statement of Errors on July 19,
2018.
1 18 Pa.C.S §§ 3121 (C), 3123 (B), 3124.1, and 3126
(A) (7), respectively.
2 Sex Offender Registration Notification Act, 42
Pa.C.S. § 9799.10-9799.41.
PCRA Court Opinion, 10/10/18, at 2-3.
Our standard of review of an order denying PCRA relief is whether the
record supports the PCRA court's determination and whether the PCRA court's
determination is free of legal error. Commonwealth v. Phillips, 31 A.3d
317, 319 (Pa. Super. 2011). The PCRA court's findings will not be disturbed
unless there is no support for the findings in the certified record. Id.A PCRA petition must be filed within one year of the date that the
judgment of sentence becomes final. 42 Pa.C.S. § 9545(b)(1). This time
requirement is mandatory and jurisdictional in nature, and the court may not
ignore it in order to reach the merits of the petition. Commonwealth v.
Hernandez, 79 A.3d 649, 651 (Pa. Super. 2013). 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
1 Counsel was appointed by order of court entered September 28, 2017.
Counsel filed an amended PCRA petition on December 7, 2017.
-2-
J -S15018-19
Pennsylvania, or at the expiration of time for seeking the review." 42 Pa.C.S.
§ 9545(b)(3).
However, an untimely petition may be received when the petition
alleges, and the petitioner proves, that any of the three limited exceptions to
the time for filing the petition, set forth at 42 Pa.C.S. § 9545(b)(1)(i), (ii), and
(iii), is met.2 Until recently, a petition invoking one of these exceptions must
have been filed within sixty days of the date the claim could first have been
presented.3 42 Pa.C.S. § 9545(b)(2).
2 The exceptions to the timeliness requirement are:
(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), (ii), and (iii).
3 Act 146 of 2018 amended 42 Pa.C.S. § 9545(b)(2), and Section 9545(b)(2)
now provides that a PCRA petition invoking a timeliness exception must be
filed within one year of the date the claim could have been presented. See
2018 Pa.Legis.Serv.Act 2018-146 (S.B. 915), effective December 24, 2018, §
2 and § 3 ("[T]he amendment ... shall apply to claims arising on Dec. 24,
2017 or thereafter."). This change in the law is inapplicable to Appellant's
instant petition because the petition was filed September 26, 2017, and
amended on December 7, 2017.
-3
J -S15018-19
Our review of the record reflects that Appellant was sentenced on
November 30, 2015. Appellant did not file a direct appeal. Accordingly,
Appellant's judgment of sentence became final on December 30, 2015, when
the time allowed for filing a direct appeal expired. 42 Pa.C.S. § 9545(b)(3);
Pa.R.A.P. 903; Commonwealth v. Zuniga, 772 A.2d 1028, 1030 (Pa. Super.
2001). Therefore, Appellant had to file the current PCRA petition by December
30, 2016, in order for it to be timely. See 42 Pa.C.S. § 9545(b)(1) (a PCRA
petition must be filed within one year of the date that the judgment of
sentence becomes final). Appellant did not file the instant PCRA petition until
September 26, 2017. Thus, Appellant's instant PCRA petition is patently
untimely.
As previously stated, if a petitioner does not file a timely PCRA petition,
his petition may nevertheless be received under any of the three limited
exceptions to the timeliness requirements of the PCRA. 42 Pa.C.S.
§ 9545(b)(1). It is the petitioner's burden to allege and prove that one of the
exceptions exists. Commonwealth v. Whitehawk, 146 A.3d 266, 269-270
(Pa. Super. 2016).
Appellant argues that his case falls within the newly recognized
constitutional -right exception. Appellant's Brief at 12. Appellant asserts that
he filed his PCRA petition within sixty days of the Pennsylvania Supreme
Court's ruling in Commonwealth v. Muniz, 164 A.3d 1189 (Pa. 2017), that
Muniz "established a newly recognized constitutional right that applies
-4
J -S15018-19
retroactively," and the PCRA court therefore had jurisdiction to consider his
petition. Id. at 12-13.
Appellant's claim, however, fails to establish this exception to the PCRA
time bar. Collateral relief premised on Muniz is only available via a timely
PCRA petition. As this Court explained in Commonwealth v. Greco, 203
A.3d 1120, 1124 (Pa. Super. 2019), wherein the appellant attempted to
invoke Muniz as an exception to the PCRA time bar:
Appellant's reliance on Muniz cannot satisfy the 'new
retroactive right' exception of section 9545(b)(1)(iii).... 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 Appellant'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
section 9545(b)(1)(iii). See [Commonwealth v.] Abdul -
Salaam, [812 A.2d 497, 501 (Pa. 2002)]. Because at this time,
no such holding has been issued by our Supreme Court, Appellant
cannot rely on Muniz to meet that timeliness exception.
Greco, 203 A.3d at 1124 (quoting Commonwealth v. Murphy, 180 A.3d
402, 405-406 (Pa. Super. 2019)).
Consequently, because the instant PCRA petition was untimely and no
exceptions apply, the PCRA court lacked jurisdiction to address the claims
presented and grant relief. See Commonwealth v. Fairiror, 809 A.2d 396,
398 (Pa. Super. 2002) (holding that PCRA court lacks jurisdiction to hear
untimely petition). Likewise, we lack the authority to address the merits of
any substantive claims raised in the PCRA petition.
-5
J -S15018-19
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Es
Prothonotary
,
A2-10e.4J4a'7''/Aex--
Date: 7/22/2019
-6