Com. v. Bartone, G. ( 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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
GARY DANIEL BARTONE :
:
Appellant : No. 1345 MDA 2019
Appeal from the PCRA Order Entered July 26, 2019
In the Court of Common Pleas of Luzerne County Criminal Division at
No(s): CP-40-CR-0001521-2007
BEFORE: LAZARUS, J., DUBOW, J., and KING, J.
MEMORANDUM BY LAZARUS, J.: FILED: JUNE 1, 2020
Gary Daniel Bartone appeals pro se from the trial court’s order denying
his petition filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.
§§ 9541-9546. After careful review, we affirm.
In November of 2008, Bartone was convicted, by a jury, of five counts
of indecent assault, four counts each of involuntary deviate sexual intercourse
and aggravated indecent assault, two counts each of corruption of minors and
furnishing alcohol to minors, and one count of sexual assault. On March 30,
2009, Bartone was sentenced to 18-36 years of incarceration and deemed to
be a “sexually violent predator” (SVP).
Bartone filed a motion to modify sentence which was denied on April 9,
2009. Bartone filed a timely direct appeal; our Court affirmed his judgment
of sentence on April 2, 2012. Thereafter, the Pennsylvania Supreme Court
denied Bartone’s petition for allowance of appeal. Bartone filed a timely pro
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se PCRA petition on July 12, 2012, which was denied, following a hearing, on
June 3, 2013. Bartone filed a collateral appeal to this Court; we affirmed the
denial of his petition in October 2013. The Pennsylvania Supreme Court
denied Bartone’s petition for allowance of appeal in January 2015. As Bartone
acknowledges in his brief, the procedural history from January 2015 to August
2018 is “somewhat convoluted.” Appellant’s Brief at 5. What we are able to
discern, however, is that Bartone sought some form of state and federal
habeas corpus relief.1
Bartone’s most recent PCRA petition was filed on August 2, 2018. On
June 17, 2019, the trial court issued a Pa.R.Crim.P. 907 notice of intent to
dismiss Bartone’s petition without a hearing. Bartone filed pro se objections
to the court’s notice; however, on July 23, 2019, the court dismissed the PCRA
petition as untimely. This pro se appeal follows. Bartone raises the following
issue for our consideration:
[Did] the PCRA court err[] as a matter of law and abuse[] its
discretion when failing to correct a blatant injustice specifically
when having jurisdiction to do so and as it relates to an
‘unconstitutional/illegal’ sentence imposed in this instant criminal
matter when:
(1) Failing to correct an unconstitutional/illegal sentence
in violation of [Bartone’s] constitutional rights as
guaranteed by the United States Constitution,
specifically the Sixth and Fourteenth Amendments
when imposing a sentence which violates laws; and in
contravention of the Pennsylvania Sentencing
Guidelines; violating laws of “equal protection[;]”
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1 It is unclear if the trial court took any action on this filing. Bartone does
state that the federal court denied his habeas petition.
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“due process[;]” “adequate process[,]” and the “void-
ab-initio” doctrine;
(2) Failing to adopt it[]s inherent power pursuant to Title
42 Pa.C.S. given to a sitting Common Pleas Judge to
correct “sua sponte” a clear “manifest injustice’ such
as an unconstitutional and illegally imposed sentence.
Appellant’s Brief, at 2.
Before we address the merits of Bartone’s issues, we must begin by
examining the timeliness of his PCRA petition, as the PCRA time limitations
implicate a court’s jurisdiction and may not be altered or disregarded in order
to address the merits of a petition. Commonwealth v. Bennett, 930 A.2d
1264, 1267 (Pa. 2007). Under the PCRA, any petition for post-conviction
relief, including a second or subsequent one, must be filed within one year of
the date the judgment of sentence becomes final, unless one of the following
exceptions applies:
(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.
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42 Pa.C.S. § 9545(b)(1)(i)-(iii) (emphasis added). Any petition attempting to
invoke one of these exceptions “shall be filed within 60 days of the date the
claim could have been presented.” 42 Pa.C.S. § 9545(b)(2).2
Here, Bartone’s judgment of sentence became final in July 2012, when
the time expired for him to file a petition for certiorari with the United States
Supreme Court. See Sup. Ct. R. 13. Thus, he had one year from then, or
until July 2013, to file a timely PCRA petition. Because his present petition
was filed in August 2018, it is facially untimely. Consequently, in order for
the PCRA court to have jurisdiction to review the merits of his claims, Bartone
must prove that he meets one of the exceptions to the timeliness
requirements set forth in 42 Pa.C.S. §§ 9545(b)(1)(i-iii).
Although unclear, it appears that Bartone is claiming that his sentence
is “patently illegal”3 where his designation as an SVP “unconstitutional[ly]
enhance[ed and] increase[d]” his sentence. Appellant’s Brief, at 7a. As a
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2 We note that section 9545(b)(2) was amended on October 24, 2018,
effective in 60 days (Dec. 24, 2018), extending the time for filing from sixty
days of the date the claim could have been presented, to one year. The
amendment applies to claims arising on December 24, 2017, or thereafter.
See Act 2018, Oct. 24, P.L. 894, No. 146, § 3. Because Butler I was decided
on October 31, 2017, prior to the December 24, 2017 date articulated in
section 3 of Act 2018, Barone was still required to file his PCRA claim within
60 days of the date Butler I was filed to meet the timeliness exception. He
failed to meet this timeline.
3 To the extent that Bartone asserts illegal sentencing claims cannot be
waived, we note that “[a]lthough legality of sentence is always subject to
review within the PCRA, claims must still first satisfy the PCRA’s time limits or
one of the exceptions thereto.” Commonwealth v. Fahy, 737 A.2d 214, 223
(Pa. 1999) (citation omitted).
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result, Bartone asserts he will likely “die while incarcerated.” Id. To the
extent that Bartone is claiming a new constitutional right excuses his untimely
PCRA petition, we disagree.
In Commonwealth v. Muniz, 164 A.3d 1189 (Pa. 2017) (plurality),
our Supreme Court held that the Sexual Offenders Notification Act’s (SORNA)
registration provisions are punitive, and that retroactive application of
SORNA’s provisions violates the federal ex post facto clause, as well as the ex
post facto clause of the Pennsylvania Constitution. Moreover, in
Commonwealth v. Butler, 173 A.3d 1212 (Pa. Super. 2017) (Butler I), our
Court held that the provision of SORNA that requires the court to designate
defendant as an SVP by clear and convincing evidence violates federal and
state constitutions because it increases defendant’s criminal penalty without
fact-finder making necessary factual findings beyond reasonable doubt.4
Later, in Commonwealth v. Murphy, 180 A.3d 402 (Pa. Super. 2018), our
Court recognized that even though “Muniz created a substantive rule that
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4 Since Bartone filed his appeal, the Pennsylvania Supreme Court reversed
Butler I. In Commonwealth v. Butler, 2020 Pa. LEXIS 1692 (Pa. filed
March, 26, 2020) (Butler II), the Supreme Court recently held that SVP
lifetime registration, notification, and counseling requirements, pursuant to 42
Pa.C.S. §§ 9799.5, 9799.16, 9799.26, 9799.27 and 9799.36, do not constitute
criminal punishment and, thus, the procedure for designating individuals as
SVPs under section 9799.24(e)(3) is not subject to Apprendi v. New Jersey,
530 U.S. 466 (2000), and Alleyne v. United States, 570 U.S. 99 (2013),
and is constitutionally permissible. Thus, even if Bartone had timely filed his
PCRA petition, he would not be entitled to relief as his reliance on Butler I is
moot.
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retroactively applies in the collateral context[,]” where, as here, a “PCRA
petition is untimely[, the petitioner] must demonstrate that the
Pennsylvania Supreme Court has held that Muniz applies retroactively in
order to satisfy section 9545(b)(1)(iii).” Murphy, 180 at 405-06 (emphasis
in original). See Commonweatlh v. Greco, 203 A.3d 1120 (Pa. Super.
2019) (same); see also Commonwealth v. Hromek, 2020 PA Super 114(Pa. Super. filed May 12, 2020) (reaffirming Murphy and holding that trial
court lacked jurisdiction to reach merits of untimely PCRA petition; Muniz
decision does not allow petitioner to escape PCRA time-bar as it fails to satisfy
newly-recognized constitutional right exception under 42 Pa.C.S. §
9545(b)(1)(iii)).
Here, where Bartone’s petition is facially untimely and he failed to satisfy
any PCRA time-bar exception, we conclude that the trial court correctly
dismissed his PCRA petition.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 06/01/2020
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