Com. v. Boyer, J. ( 2019 )

J-S72021-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JOSHUA RONALD BOYER :
:
Appellant : No. 861 MDA 2018
Appeal from the PCRA Order May 2, 2018
In the Court of Common Pleas of Dauphin County Criminal Division at
No(s): CP-22-CR-0005187-2013
BEFORE: BOWES, J., SHOGAN, J., and KUNSELMAN, J.
MEMORANDUM BY SHOGAN, J.: FILED FEBRUARY 11, 2019
Appellant, Joshua Ronald Boyer, appeals from the order denying his
petition filed pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.
§§ 9541–9546. We affirm.
The PCRA court summarized the facts and procedural history as follows:
In this matter, the Commonwealth charged that Appellant
engaged in sexual behavior with an alleged victim on various
occasions between 2004 and 2006, when the victim was between
12 and 14 years of age. (See Police Criminal Complaint, 9/16/13).
On August 19, 2014, Appellant pleaded nolo contendere to two
counts (Counts I and II) of Involuntary Deviate Sexual Intercourse
with a Child, in violation of 18 Pa.C.S. § 3123(b); one count
(Count III) of Aggravated Indecent Assault of a Child, in violation
of 18 Pa.C.S. § 3125(b); and one count (Count V) of Aggravated
Indecent Assault of a Complainant Less Than 16 Years of Age, in
violation of 18 Pa.C.S. § 3125(a)(8). Appellant was sentenced on
January 20, 2015. At Count I, Appellant was sentenced to 3.5 to
7 years of state incarceration, and at Count II, he was sentenced
to 3.5 to 7 years of state incarceration to run consecutive with
Count I. On Count III, Appellant was sentenced to 5 years state
probation to run consecutive with Counts I and II, and on Count
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V, he was sentenced to an additional 5 years of state probation to
run consecutively with Counts I, II, and III. This [c]ourt also
deemed Appellant to be a sexually violent predator (“SVP”). (See
Notes of Testimony, SVP Hearing dated January 20, 2015,
hereinafter “N.T.,” at 30). Pursuant to provisions of the Sex
Offenders Registration and Notification Act (“SORNA”), 42 Pa.C.S.
§§ 9799.10-9799.41, in effect at the time of Appellant’s
sentencing, Appellant’s designation as an SVP, as well as the
nature of his offenses, required him to register for life with the
Pennsylvania State Police to notify of his places of residence,
work, and school attendance. (See N.T. 32-33, 36).
On September 19, 2017, Appellant filed a pro se petition
pursuant to the Pennsylvania Post-Conviction Relief Act (“PCRA”),
and on October 2, 2017, this [c]ourt issued an Order
appointing . . . PCRA counsel. Ultimately, on February 13, 2018,
PCRA counsel filed an amended PCRA petition on Appellant’s
behalf. Appellant argued in his petition that based upon the
Supreme Court of Pennsylvania’s recent decision in
Commonwealth v. Muniz, 164 A.3d 1189 (Pa. 2017), his
designation as an SVP should be revoked, and he should be
relieved from the lifetime requirement of registration with the
Pennsylvania State Police.
On February 21, 2018, the Commonwealth filed a response
to Appellant’s PCRA petition, and on May 2, 2018, this [c]ourt held
a hearing on the petition. Appellant’s petition for PCRA relief was
denied from the bench, and a formal Order of denial was issued
on the same date. On May 24, 2018, this [c]ourt received a timely
Notice of Appeal filed with the Superior Court of Pennsylvania . . .
PCRA Court Opinion, 7/18/18, at 1–2. Both Appellant and the PCRA court
complied with Pa.R.A.P. 1925.
Appellant raises the following issue in his brief on appeal:
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1. Whether the trial court erred in disimssing [sic] Appellant’s
PCRA petition as HB 631 (which was recently signed into law) is
unconstitutional and punitive?[1]
Appellant’s Brief at 4.
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. Staton, 184 A.3d
949 (Pa. 2018). We consider the record in the light most favorable to the
prevailing party in the PCRA court. Commonwealth v. Mason, 130 A.3d
601, 617 (Pa. 2015). We grant great deference to the PCRA court’s findings
that are supported in the record and will not disturb them unless they have
no support in the certified record. Commonwealth v. Rigg, 84 A.3d 1080,
1084 (Pa. Super. 2014).
The PCRA court concluded that Appellant’s PCRA petition was untimely.
PCRA Court Opinion, 7/18/18, at 3. Appellant acknowledges that the petition
was untimely filed but asserts applicability of one of the timeliness exceptions,
discussed infra. The timeliness of a PCRA petition is a jurisdictional threshold
that may not be disregarded in order to reach the merits of the claims raised
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1 Appellant makes no argument concerning HB 631. Appellant’s Brief at 11,
8–14. Significantly, Appellant did not reference HB 631 in either his pro se
PCRA petition or the counseled amended petition. PCRA Petition, 9/19/17;
Amended PCRA Petition, 2/13/18. “Issues not raised in the lower court are
waived and cannot be raised for the first time on appeal.” Pa.R.A.P. 302(a);
see also Commonwealth v. Washington, 927 A.2d 586, 601 (Pa. 2007)
(holding that claims not raised in a PCRA petition are “waived and not
cognizable on appeal”).
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in a PCRA petition that is untimely. Commonwealth v. Lawson, 90 A.3d 1,
4 (Pa. Super. 2014) (citing Commonwealth v. Murray, 753 A.2d 201, 203
(Pa. 2000)). 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. § 9545(b)(3).
Appellant was sentenced on January 20, 2015. He did not file post-
sentence motions or a direct appeal. Therefore, his judgment of sentence
became final on February 19, 2015, thirty days after the time for filing a direct
appeal expired. 42 Pa.C.S. § 9545(b)(3); Pa.R.A.P. 903(a). Accordingly,
Appellant had to file a PCRA petition by February 19, 2016, in order for it to
be timely. Appellant filed the instant PCRA petition on September 19, 2017.
Thus, as acknowledged by Appellant, his PCRA petition is patently untimely.
An untimely petition nevertheless 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 A petition invoking one of these exceptions must be filed within
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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;
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sixty days of the date the claim could first have been presented. 42 Pa.C.S.
§ 9545(b)(2). The PCRA petitioner bears the burden of proving the
applicability of one of the exceptions. Commonwealth v. Edmiston, 65 A.3d
339, 346 (Pa. 2013).
In Commonwealth v. Muniz, 164 A.3d 1189 (Pa. 2017), our Supreme
Court held that retroactive application of the registration and reporting
requirements of SORNA, 42 Pa.C.S. §§ 9799.10-9799.42, violated the ex post
facto clauses of the United States and Pennsylvania Constitutions. Muniz,
164 A.3d at 1223. Appellant contends that the decision in Muniz satisfies the
newly recognized constitutional right exception to the PCRA’s time bar.
Appellant’s Brief at 9; 42 Pa.C.S. § 9545(b)(1)(iii). This Court rejected this
argument in Commonwealth v. Murphy, 180 A.3d 402 (Pa. Super. 2018):
Appellant’s reliance on Muniz cannot satisfy the timeliness
exception of Section 9545(b)(1)(iii). In Commonwealth v.
Abdul-Salaam, 812 A.2d 497 (Pa. 2002), our Supreme Court
held that,
subsection (iii) of Section 9545 has two requirements.
First, it provides that the right asserted is a
constitutional right that was recognized by the
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(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).
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Supreme Court of the United States or this Court after
the time provided in this section. Second, it provides
that the right “has been held” by “that court” to apply
retroactively. Thus, a petitioner must prove that there
is a “new” constitutional right and that the right “has
been held” by that court to apply retroactively. The
language “has been held” is in the past tense. These
words mean that the action has already occurred, i.e.,
“that court” has already held the new constitutional
right to be retroactive to cases on collateral review.
By employing the past tense in writing this provision,
the legislature clearly intended that the right was
already recognized at the time the petition was filed.
Id. at 501.
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 (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.
Murphy, 180 A.3d at 405-406.3 Accordingly, Appellant has failed to satisfy
an exception to the PCRA’s time bar. Therefore, we affirm the PCRA court’s
order denying Appellant’s untimely PCRA petition.
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3 As we noted in Murphy, “if the Pennsylvania Supreme Court issues a
decision holding that Muniz applies retroactively, [an a]ppellant can then file
a PCRA petition, within 60 days of that decision, attempting to invoke the ‘new
retroactive right’ exception of section 9545(b)(1)(iii).” Murphy, 180 A.3d at
406 n.1.
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Because Appellant’s PCRA petition was untimely and no exceptions
apply, the PCRA court lacked jurisdiction to address the issues 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. See Commonwealth v. Bennett, 930 A.2d
1264, 1267 (Pa. 2007) (“[J]urisdictional time limits go to a court’s right or
competency to adjudicate a controversy.”).
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 02/11/2019
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