Com. v. Rosenberger, D. ( 2020 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
DANA ROSENBERGER :
:
Appellant : No. 932 WDA 2019
Appeal from the PCRA Order Entered June 6, 2019
In the Court of Common Pleas of Washington County Criminal Division at
No(s): CP-63-CR-0001432-2009
BEFORE: STABILE, J., KUNSELMAN, J., and PELLEGRINI, J.*
MEMORANDUM BY PELLEGRINI, J.: FILED FEBRUARY 18, 2020
Dana Rosenberger (Rosenberger) appeals pro se from the order entered
denying his petition filed pursuant to the Post Conviction Relief Act (PCRA),
42 Pa.C.S. §§ 9541-9546, in the Court of Common Pleas of Washington
County (PCRA court). We affirm.
This case is a procedural quagmire due to Rosenberger’s myriad pro se
filings. We provide only the following pertinent factual background and
procedural history from the PCRA court’s March 27, 2019, and May 14, 2019
opinions and our independent review of the certified record. On February 5,
2010, Rosenberger pleaded guilty to Corruption of Minors, 18 Pa.C.S. §
6301(a)(1), and Indecent Assault of a Person Less Than 13 Years of Age, 18
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* Retired Senior Judge assigned to the Superior Court.
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Pa.C.S. § 3126(a)(7). That same day, the court sentenced Rosenberger to an
aggregate term of incarceration of not less than two and one-half nor more
than ten years. The sentencing order also informed Rosenberger that he was
required to comply with the registration requirements of Megan’s Law. The
court did not find him to be a sexually violent predator (SVP). No direct appeal
was filed at that time.
On December 3, 2012, Rosenberger was notified that he would be
subject to the registration requirements of the Sexual Offender’s Registration
and Notification Act (SORNA I), 42 Pa.C.S. §§ 9799.10-9799.41.
On April 25, 2014, the PCRA court reinstated Rosenberger’s direct
appeal rights after a hearing on his claim of ineffective assistance of counsel,
and, on May 21, 2014, Rosenberger appealed. On August 4, 2015, this Court
affirmed the judgment of sentence.1 (See Commonwealth v. Rosenberger,
2015 WL 6736772, at *1 (Pa. Super. filed Aug. 4, 2015)). Rosenberger did
not file a petition for allowance of appeal in our Supreme Court.
On May 9, 2016, Rosenberger filed a timely pro se first PCRA petition
and appointed counsel filed a Turner/Finley2 no-merit letter. The court filed
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1 Rosenberger raised five issues that challenged his guilty plea, the denial of
a Rule 600 motion, the failure to convene a grand jury, an amendment to the
information, and his right to a jury trial. (See Rosenberger, supra at *1).
2 See Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988);
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
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a notice of intent to dismiss the petition without a hearing and later dismissed
it. See Pa.R.Crim.P. 907(1). A panel of this Court affirmed the denial on
August 17, 2018. (See Commonwealth v. Rosenberger, 2018 WL
3946341, at *5 (Pa. Super. filed Aug. 17, 2018)).
Rosenberger filed his second PCRA petition pro se on November 27,
2018,3 challenging the application of SORNA to him. (See PCRA Petition,
11/27/19, at 3; Brief in Support of PCRA Relief, 11/20/19, at 1-6). On March
27, 2019, the PCRA court granted the petition and ordered that Rosenberger
“shall not be required to register with the [PSP] for a lifetime upon his release
from prison, rather only for a period of ten years[,]” because the retroactive
application of SORNA’s increased registration requirements violates the ex
post facto clause of the United States and Pennsylvania Constitutions pursuant
to Commonwealth v. Muniz, 164 A.3d 1189, 1223 (Pa. 2017). (Trial Court
Order, 3/27/19, at 1; see id. at 7).
On April 23, 2019, Rosenberger filed a Motion for Reconsideration in
which he argued that he should not be subject to any registration
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3 Rosenberger filed his second PCRA petition on January 9, 2018. The PCRA
court dismissed the petition for lack of jurisdiction because his appeal
involving his first PCRA petition was pending in this Court, and advised that
Rosenberger could filed a motion to reinstate the petition upon the appeal’s
resolution. (See Order, 2/13/18). After this Court decided the appeal,
Rosenberger filed a motion to reinstate his second PCRA petition on November
20, 2018. The court reinstated it on November 27, 2018.
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requirements because, since Megan’s Law and SORNA I had been declared
unconstitutional, there was no registration statute applicable to him. (See
Third PCRA Petition (Motion for Reconsideration), 4/23/19, at 1-2). On May
14, 2019, the PCRA court issued an Order and Notice in which it denied
reconsideration and treated Rosenberger’s April 23, 2019 filing as a third PCRA
petition.4 (See Order and Notice, 5/14/19, at 1-3). The court notified
Rosenberger of its intent to deny the third PCRA petition on the bases that it
was untimely and lacked merit since SORNA II5 applies to him. (See id.). On
June 6, 2019, the court denied the petition. Rosenberger timely appealed.6
(See Rosenberger’s Brief, at 1).
Before we reach the merits of Rosenberger’s appeal, we must consider
whether his PCRA petition was timely. “It is well-settled that the PCRA’s time
restrictions are jurisdictional in nature. As such, this statutory time-bar
implicates the [C]ourt’s very power to adjudicate a controversy and prohibits
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4 “We have repeatedly held that . . . any petition filed after the judgment of
sentence becomes final will be treated as a PCRA petition.” Commonwealth
v. Jackson, 30 A.3d 516, 521 (Pa. Super. 2011), appeal denied, 47 A.3d 845(Pa. 2012) (citation omitted).
5 42 Pa.C.S. §§ 9799.10-9799.75.
6 “Our standard of review regarding a PCRA court’s order is whether the
determination of the PCRA court is supported by the evidence of record and is
free of legal error. The PCRA court’s findings will not be disturbed unless there
is no support for the findings in the certified record.” Commonwealth v.
Saunders, ___ A.3d ___, 2020 WL 113401, at *2 (Pa. Super. filed Jan. 10,
2020) (citations and internal quotation marks omitted).
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a court from extending filing periods except as the statute permits.”
Commonwealth v. Robinson, 139 A.3d 178, 185 (Pa. 2016) (citations
omitted). Under the PCRA, any petition for relief must be filed within one year
of the date on which the judgment of sentence becomes final. See 42 Pa.C.S.
§ 9545(b)(1). “A judgment becomes final for purposes of the PCRA 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.” Robinson, supra at 185 (internal
quotation marks and citation omitted).
Here, Rosenberger’s judgment of sentence became final on September
4, 2015, after the thirty-day period to file a petition for review of this Court’s
order affirming his judgment of sentence expired. See 42 Pa.C.S. §
9545(b)(3). Therefore, he had until September 4, 2016, to file a timely PCRA
petition. See 42 Pa.C.S. § 9545(b)(1). Because Rosenberger filed the instant
petition on April 23, 2019, it is untimely on its face and the PCRA court lacked
jurisdiction to review it, unless he pleaded and proved one of the statutory
exceptions to the time-bar. See 42 Pa.C.S. § 9545(b)(1)(i)-(iii).7 “If the
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7 The three exceptions that allow for review of an untimely PCRA petition are
limited to: (1) the petitioner’s inability to raise a claim because of
governmental interference; (2) the discovery of previously unknown facts that
would have supported a claim; and (3) a newly recognized constitutional right.
See 42 Pa.C.S. § 9545(b)(1)(i)-(iii). Any petition attempting to invoke these
exceptions “shall be filed within 60 days of the date the claim could have been
presented.” 42 Pa.C.S. § 9545(b)(2).
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[PCRA] petition is determined to be untimely, and no exception has been pled
and proven, the petition must be dismissed . . . because Pennsylvania courts
are without jurisdiction to consider the merits of the petition.”
Commonwealth v. Jackson, 30 A.3d 516, 519 (Pa. Super. 2011), appeal
denied, 47 A.3d 845 (Pa. 2012) (citation omitted).
Here, Rosenberger does not raise any timeliness exceptions. (See
Rosenberger’s Brief, at 1-12). Hence, this Court lacks jurisdiction to consider
the merits of his appeal and we affirm the PCRA court’s order denying his third
petition.8
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/18/2020
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8 To the extent that Rosenberger’s argument can be interpreted as an attempt
to avail himself of the newly recognized right exception to the PCRA’s
timeliness requirements based on Muniz and its progeny, it would fail. (See
Rosenberger’s Brief, at 11). Although Muniz held that the retroactive
application of SORNA I violates the ex post facto clause, this Court has
expressly held that Muniz does not satisfy the newly recognized constitutional
right exception to the PCRA. See Commonwealth v. Murphy, 180 A.3d 402,
405-06 (Pa. Super. 2018).
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