Com. v. Clifford, H.

J-S41005-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
HOMER RICHARD CLIFFORD, SR. :
:
Appellant : No. 28 EDA 2018
Appeal from the PCRA Order November 21, 2017
In the Court of Common Pleas of Chester County Criminal Division at
No(s): CP-15-CR-00035622011
BEFORE: GANTMAN, P.J., OLSON, J., and STEVENS*, P.J.E.
MEMORANDUM BY STEVENS, P.J.E.: FILED AUGUST 01, 2018
Appellant Homer Richard Clifford, Sr. appeals from the order of the
Court of Common Pleas of Chester County dismissing his fourth petition
pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-
9546 as untimely filed. We affirm.
On April 30, 2012, Appellant pled guilty to two counts of Involuntary
Deviate Sexual Intercourse (IDSI, victim less than 13 years old), Corruption
of Minors, and Endangering the Welfare of Children. On October 11, 2012,
Appellant was sentenced to an aggregate term of ten to twenty years’
imprisonment and was determined to be a Sexually Violent Predator (SVP).
Appellant did not appeal, but instead attempted to file a post-sentence
motion on November 13, 2012. As this filing was submitted more than thirty
days after the judgment of sentence, the lower court treated the filing as a
PCRA petition and appointed Appellant counsel. Thereafter, counsel sought to
____________________________________
* Former Justice specially assigned to the Superior Court.
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withdraw under Commonwealth v. Turner, 518 Pa. 491, 544 A.2d 927(1988) and Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988). On
April 24, 2013, the PCRA court issued notice of its intent to dismiss the PCRA
petition pursuant to Pa.R.Crim.P. 907, but Appellant did not respond to the
Rule 907 notice. On June 21, 2013, the PCRA court dismissed Appellant’s
petition and on November 26, 2013, this Court dismissed Appellant’s appeal
for the failure to file a brief.
On October 10, 2014, Appellant filed his second PCRA petition and was
again appointed counsel, who ultimately sought to withdraw under Turner
and Finley. On March 10, 2015, the PCRA court allowed counsel to withdraw
and dismissed the petition. This Court affirmed the PCRA court’s decision on
November 30, 2015.
On February 8, 2016, Appellant filed a petition for writ of habeas corpus,
which was treated as Appellant’s third PCRA petition and subsequently
dismissed on April 11, 2016. This Court affirmed the PCRA court’s order on
November 23, 2016 and the Supreme Court denied Appellant’s petition for
allowance of appeal on July 17, 2017.
On September 19, 2017, Appellant filed the instant pro se PCRA petition,
arguing, inter alia, that the application of the lifetime registration requirement
under Pennsylvania’s Sex Offender Registration and Notification Act (SORNA)
violates his constitutional rights. Appellant relies on Commonwealth v.
Muniz, ___Pa.___, 164 A.3d 1189 (2017), in which the Supreme Court held
that certain provisions of SORNA are punitive and retroactive application of
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such requirements violates the ex post facto clauses of the federal and
Pennsylvania constitutions.
On September 29, 2017, the PCRA court issued a notice of intent to
dismiss, finding Appellant’s petition to be untimely filed. Moreover, the PCRA
court found the decision in Muniz is not applicable to Appellant who was
subject to a lifetime registration requirement under Megan’s Law II when he
was convicted and sentenced and this registration requirement did not change
with the enactment of SORNA. On October 23, 2017, Appellant filed a
response to the Rule 907 notice. On November 21, 2017, the PCRA court
dismissed the petition as untimely filed. This timely appeal followed.
Appellant contends that the PCRA court erred in finding the instant PCRA
petition to be untimely filed. It is well-established that “the PCRA's timeliness
requirements are jurisdictional in nature and must be strictly construed;
courts may not address the merits of the issues raised in a petition if it is not
timely filed.” Commonwealth v. Leggett, 16 A.3d 1144, 1145 (Pa.Super.
2011) (citations omitted). Generally, a PCRA petition “including a second or
subsequent petition, shall be filed within one year of the date the judgment of
sentence becomes final.” 42 Pa.C.S.A. § 9545(b)(1). A judgment of sentence
becomes final at the conclusion of direct review or the expiration of the time
for seeking the review. 42 Pa.C.S.A. § 9545(b)(3).
However, Pennsylvania courts may consider an untimely petition if the
appellant can explicitly plead and prove one of the three exceptions
enumerated in 42 Pa.C.S.A. § 9545(b)(1)(i)-(iii), which include: (1) the
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petitioner’s inability to raise a claim as a result of governmental interference;
(2) the discovery of previously unknown facts or evidence that would have
supported a claim; or (3) a newly-recognized constitutional right. 42
Pa.C.S.A. § 9545(b)(1)(i)-(iii). Any PCRA petition invoking one of these
exceptions “shall be filed within 60 days of the date the claim could have been
presented.” 42 Pa.C.S.A. § 9545(b)(2).
In this case, Appellant was sentenced on October 11, 2012 and did not
file a direct appeal. As a result, the judgment of sentence became final on
November 10, 2012, after the expiration of the thirty-day period to file a direct
appeal to this Court. See Pa.R.A.P. 903(c)(3). Appellant had until November
10, 2013 to file a timely PCRA petition. Thus, this petition, which was not filed
until September 19, 2017 is facially untimely.
Appellant’s petition suggests he is attempting to invoke the statutory
exception to the PCRA timeliness requirement in subsection 9545(b)(1)(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.A. § 9545(b)(1)(iii). Appellant argues that
the instant petition should have been deemed timely as he filed the petition
within sixty days of the decision in Muniz.
In a similar case, Commonwealth v. Murphy, 180 A.3d 402(Pa.Super. 2018), this Court found that an appellant could not rely on Muniz
to invoke the PCRA timeliness exception under subsection 9545(b)(1)(iii)
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when the appellant was convicted of sex-related offenses in 2007 and his
sentence became final in July 2009. Specifically, this Court provided:
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). Because at this time, no
such holding has been issued by our Supreme Court, [Murphy]
cannot rely on Muniz to meet that timeliness exception.
Murphy, 180 A.3d at 405–406 (emphasis in original, footnote and some
citations omitted).
Thus, this Court concluded in Murphy that the holding in Muniz is not
applicable at this point to untimely-filed PCRA petitions. The Murphy court
recognized that “if the Pennsylvania Supreme Court issues a decision holding
that Muniz applies retroactively, [Murphy] 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).” Id. at 406 n.1. Appellant may follow
the same procedure.
Accordingly, as Appellant’s petition is untimely and he has not pled and
proven that one of the PCRA timeliness exceptions applies, the PCRA court did
not err in dismissing his petition.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/1/18
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