Com. v. Sawyer, A.

J-S04017-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ALBERT SAWYER :
:
Appellant : No. 1122 MDA 2018
Appeal from the PCRA Order Entered June 27, 2018
In the Court of Common Pleas of Berks County Criminal Division at
No(s): CP-06-CR-0004210-2014
BEFORE: SHOGAN, J., OTT, J., and STEVENS*, P.J.E.
MEMORANDUM BY OTT, J.: FILED MARCH 07, 2019
Albert Sawyer appeals pro se from the order entered June 27, 2018, in
the Court of Common Pleas of Berks County, that dismissed as untimely his
second petition filed pursuant to the Pennsylvania Post Conviction Relief Act
(PCRA), 42 Pa.C.S. §§ 9541-9546. Sawyer seeks relief from the judgment of
sentence of five to 10 years’ imprisonment, imposed after he pleaded nolo
contendere to failure to comply with registration requirements, 18 Pa.C.S. §
4915.1(a)(2), pursuant to a negotiated plea agreement. Sawyer presents
three issues: (1) Does applying 18 Pa.C.S. § 4915.1(a)(2) retroactively violate
the Eighth Amendment of the United States Constitution and the Declaration
of Independence, (2) Does applying 18 Pa.C.S. § 4915.1(a)(2) retroactively
violate the Pennsylvania Constitution, Article 1, sections 13 and 17, and the
Declaration of Independence’s “Right to be free from the constraints of foreign
laws,” and (3) Did the trial court err in sentencing Sawyer for a felony minor
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* Former Justice specially assigned to the Superior Court.
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offense that violates both constitutions. See Sawyer’s Brief, at 1-2. Based
upon the following, we affirm.
The PCRA court summarized the background of this case, as follows:
On January 6, 2015, [Sawyer] entered into a nolo contendere plea
agreement. [Sawyer] plead[ed] [nolo contendere] to one count
of Failure to Comply with Registration Requirements.1 This was
charged as a felony of the second degree. In exchange for
[Sawyer’s] plea, the Commonwealth dismissed one count of
Failure to Comply with Registration Requirements2 that was
charged as a felony of the first degree. [Sawyer] was sentenced
to serve not less than five (5) years nor more than ten (10) years
of incarceration in a state correctional facility, with credit given of
one hundred and thirty-nine (139) days time served. [Sawyer] is
a lifetime SORNA [Sexual Offender Registration and Notification
Act, 42 Pa.C.S. §§ 9799.10-9799.42] registrant, due to previous
convictions of rape and attempted rape. There was no direct
appeal taken.
[Sawyer] filed his first pro se PCRA petition on May 27,
2015. Counsel was appointed, and this Court dismissed the
petition on January 15, 2016. [Sawyer] filed a second pro se
motion, titled “Amended Petition for Post Conviction Collateral
Relief” on March 22, 2018. This Court treated the motion as a
second PCRA petition. [On June 6, 2018, Pa.R.Crim.P. 907 notice
of intent to dismiss the PCRA petition was issued.] This Court
dismissed the petition on June 27, 2018.
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1 18 Pa.C.S.A. § 4915[.1](a)(2).
18 Pa.C.S.A. § 4915[.1](a)(3).
2
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On July 9, 2018, [Sawyer] filed a timely Notice of Appeal to
the Superior Court. On July 16, 2018, [Sawyer] filed a Statement
of Errors or Matters Complained of on Appeal, Pa.R.A.P. 1925(b)
[without being ordered to do so by the PCRA Court].
PRCA Court Opinion, 9/6/2018, at 1.
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The principles that guide our review are well settled. In reviewing an
order denying PCRA relief, “[w]e must determine whether the PCRA court’s
ruling is supported by the record and free of legal error.” Commonwealth
v. Spotz, 171 A.3d 675, 678 (Pa. 2017). A PCRA petition, including a second
or subsequent petition, must be filed within one year of the date the
underlying judgment becomes final. See 42 Pa.C.S. § 9545(b)(1). The
requirement that a PCRA petition must be filed within one year of the date the
underlying judgment becomes final “is mandatory and jurisdictional in
nature.” Commonwealth v. Taylor, 67 A.3d 1245, 1248 (Pa. 2013), cert.
denied, 572 U.S. 1151 (2014). “The court cannot ignore a petition’s
untimeliness and reach the merits of the petition.” Id.In the instant case, Sawyer’s judgment of sentence became final on
February 5, 2015, after the expiration of the 30-day period for filing an appeal
to this Court from the January 6, 2015 judgment of sentence. See 42 Pa.C.S.
§ 9545(b)(3) (“For purposes of this subchapter, a judgment 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.”); Pa.R.A.P. 903(a) (providing thirty
days to take an appeal). Therefore, the present petition, filed on March 22,
2018, is manifestly untimely, as it was filed more than three years after the
judgment of sentence became final.
Nevertheless, an untimely petition may still be considered if “the petition
alleges and the petitioner proves” one of the time-for-filing exceptions set
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forth in Section 9545(b)(1). See 42 Pa.C.S. § 9545(b)(1)(i)-(iii).1 Any
petition invoking an exception must be filed within 60 days of when the claim
could first be raised. 42 Pa.C.S. § 9545(b)(2). 2 It is important to point out
that “the PCRA confers no authority upon this Court to fashion ad hoc equitable
exceptions to the PCRA time-bar in addition to those exceptions expressly
delineated in the Act.” Commonwealth v. Robinson, 837 A.2d 1157, 1161
(Pa. 2003) (citations omitted).
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1 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-iii).
2Section 9545(b)(2) was recently amended so that a petitioner must file his
petition asserting a timeliness exception within one year of the date he could
have presented his claim. See Section 3 of Act 2018, Oct. 24, P.L. 894, No.
146, effective Dec. 24, 2018 (“The amendment of 42 Pa.C.S. § 9545(b)(2)
shall apply to claims arising one year before the effective date of this section
or thereafter.”).
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In the instant PCRA petition, Sawyer specially invoked the newly
discovered fact exception, 42 Pa.C.S. § 9545(b)(1)(ii), based upon the
Pennsylvania Supreme Court decision in Commonwealth v. Muniz, 164 A.3d
1189 (Pa. 2017). The PCRA court, in its Rule 907 notice, explained Sawyer’s
petition was untimely and that no statutory exception invoked or implicated
in Sawyer’s petition was satisfied. The PCRA court, in its Pa.R.A.P. 1925(b)
opinion, again determined Sawyer had not demonstrated how he was eligible
for one of the PCRA’s timeliness exceptions. See Order and Notice of Intent
to Dismiss, 6/6/2018; PCRA Court Opinion, 9/6/2018.
Here, however, Sawyer does not argue the applicability of any timing
exception in his appellate brief. Consequently, Sawyer has waived any claim
that his petition satisfies an exception to the PCRA’s timeliness requirements.
See Commonwealth v. Lewis, 63 A.3d 1274, 1279 (Pa. Super. 2013) (“The
PCRA squarely places upon the petitioner the burden of proving an untimely
petition fits within one of the three exceptions. Moreover, the Rules of
Appellate Procedure require that an appellant properly develop his arguments
on appeal.”) (quotations and citations omitted).
In any event, while Sawyer asserted in his petition that his Muniz claim
satisfies the newly discovered fact exception, 42 Pa.C.S. § 9545(b)(1)(ii), this
argument fails as this Court has held that a new judicial opinion does not
constitute an exception to the time bar under Section 9545(b)(1)(ii). See
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Commonwealth v. Watts, 23 A.3d 980, 987 (Pa. 2011); Commonwealth
v. Cintora, 69 A.3d 759 (Pa. Super. 2013).
Further, to the extent Sawyer’s Muniz claim implicates the newly
recognized constitutional right exception, 42 Pa.C.S. § 9545(b)(1)(iii), Sawyer
cannot rely on this exception because the Supreme Court of Pennsylvania has
not issued a holding that Muniz applies retroactively where the petition is
untimely. See Commonwealth v. Murphy, 180 A.3d 402, 405-406 (Pa.
Super. 2018) (“Because Appellant’s PCRA petition is untimely … he must
demonstrate that the Pennsylvania Supreme Court has held that Muniz
applies retroactively in order to satisfy section 9545(b)(1)(iii). Because at this
time, no such holding has been issued by our Supreme Court, Appellant cannot
rely on Muniz to meet that timeliness exception.” (citations and footnote
omitted).)
Therefore, even if Sawyer had preserved his timeliness argument, we
would agree with the PCRA court’s determination that the instant petition is
untimely, that the petition does not satisfy any statutory exception, and that
there is no jurisdiction for any court to review the petition.
Accordingly, we affirm.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 03/07/2019
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