Com. v. Deitz, D.

J-S36038-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
DENNIS LYNN DEITZ :
:
Appellant : No. 200 MDA 2019
Appeal from the PCRA Order Entered January 4, 2019
In the Court of Common Pleas of Mifflin County Criminal Division at
No(s): CP-44-CR-0000466-2006
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
DENNIS LYNN DEITZ :
:
Appellant : No. 201 MDA 2019
Appeal from the PCRA Order Entered January 4, 2019
In the Court of Common Pleas of Mifflin County Criminal Division at
No(s): CP-44-CR-0000038-2007
BEFORE: PANELLA, P.J., SHOGAN, J., and PELLEGRINI*, J.
MEMORANDUM BY PELLEGRINI, J.: FILED JULY 16, 2019
In these consolidated cases, Dennis Lynn Deitz (Deitz) appeals from the
order entered by the Court of Common Pleas of Mifflin County (PCRA court)
dismissing his second petition filed pursuant to the Post Conviction Relief Act
(PCRA), 42 Pa.C.S. §§ 9541-9546, as untimely. We affirm.
____________________________________
* Retired Senior Judge assigned to the Superior Court.
J-S36038-19
We derive the following relevant facts and procedural history from our
independent review of the record. On September 18, 2007, a jury convicted
Deitz of Sexual Assault, Statutory Sexual Assault, and Incest at Docket No.
CP-44-CR-0000466-2006, and Aggravated Indecent Assault, Statutory Sexual
Assault, Incest, Endangering the Welfare of a Child, Corruption of Minors, and
Indecent Assault at Docket No. CP-44-CR-0000038-2007.1 The charges stem
from Deitz’s long-term sexual abuse of his daughter, A.D., resulting in her
pregnancy and the birth of a daughter. The trial court sentenced Deitz to an
aggregate term of not less than fourteen nor more than twenty-eight years’
imprisonment, designated him a Sexually Violent Predator, and advised him
that he would be required to register under the then-existing sexual offender
registry law, Megan’s Law III. This Court affirmed the judgment of sentence
on September 8, 2009. Deitz thereafter unsuccessfully litigated his first PCRA
petition.
On September 13, 2017, Deitz, acting pro se, filed the instant untimely
PCRA petition. Appointed counsel filed a supplement thereto, seeking removal
of all Sex Offender Registration and Notification Act (SORNA I) 2 registration
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1 See 18 Pa.C.S. §§ 3124.1, 3122.1, 4302, 3125, 4304, 6301, and 3126.
2 42 Pa.C.S. §§ 9799.10-9799.41, amended and replaced by 2018, Feb. 21,
P.L. 27, No. 10, § 19, immediately effective. Reenacted 2018, June 12, P.L.
140, No. 29, § 14, immediately effective. 42 Pa.C.S. §§ 9799.51-9799.75
(SORNA II).
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requirements pursuant to Commonwealth v. Muniz, 164 A.3d 1189 (Pa.
2017) (Opinion Announcing the Judgment of the Court), cert. denied sub nom
Pennsylvania v. Muniz, 138 S. Ct. 925 (2018).3 While the PCRA petition was
pending, on February 21, 2018, the legislature amended and replaced SORNA
I with SORNA II. The PCRA court dismissed the petition as untimely on
January 4, 2019, following oral argument. This timely appeal followed. Deitz
and the PCRA court complied with Rule 1925. See Pa.R.A.P. 1925(a), (b).
On appeal, Deitz argues that the PCRA court erred in failing to amend
his sentence to strike all sexual offender registration requirements pursuant
to Muniz. (See Deitz’s Brief, at 7-12).4 However, “[b]efore we can address
the merits of the issues raised, we must determine whether Appellant has
established that his PCRA petition was timely filed, as the time-bar is
jurisdictional. 42 Pa.C.S. § 9545(b).” Commonwealth v. Graves, 197 A.3d
1182, 1185 (Pa. Super. 2018). “A PCRA petition, including a second or
subsequent petition, shall be filed within one year of the date the underlying
judgment becomes final.” Id. (citation omitted). “[A] judgment becomes
____________________________________________
3 The Muniz Court held that the registration requirements set forth under
SORNA I constitute punishment and, therefore, their retroactive application
violates the ex post facto clauses of the Pennsylvania and United States
Constitutions. See Muniz, supra at 1193.
4 When reviewing issues arising from the denial of PCRA relief, we must
determine whether the PCRA court’s ruling is supported by the record and free
of legal error. See Commonwealth v. Bush, 197 A.3d 285, 286–87 (Pa.
Super. 2018).
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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).
As noted above, the instant petition is patently untimely because Deitz
filed it approximately eight years after his judgment of sentence became final.
Therefore, we have no jurisdiction to consider it unless Deitz pled and proved
one of the three limited exceptions to the PCRA’s one-year time limitation set
forth in Section 9545:
(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); see also Graves, supra at 1186.
Deitz invokes the applicability of the newly-recognized constitutional
right exception at Section 9545(b)(1)(iii) by arguing a right to relief under
Muniz. (See Deitz’s Brief, at 7-8). However, this Court has recently held
that “the rule recognized in Muniz does not establish a timeliness exception
to the PCRA.” Commonwealth v. Greco, 203 A.3d 1120, 1125 (Pa. Super.
2019) (citation omitted). The Greco Court explained:
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Appellant’s reliance on Muniz cannot satisfy the ‘new retroactive
right’ exception of section 9545(b)(1)(iii). . . . [W]e 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, [571
Pa. 219, 812 A.2d 497, 501 (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.
Id. (quoting Commonwealth v. Murphy, 180 A.3d 402, 405 (Pa. Super.
2018), appeal denied, 195 A.3d 559 (Pa. 2018)).
Because Deitz’s PCRA petition is untimely and he has failed to establish
an exception to the PCRA’s timeliness requirements, we lack jurisdiction to
consider the merits of his claims. See Graves, supra at 1185. Accordingly,
we affirm the order of the PCRA court dismissing Deitz’s petition.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 07/16/2019
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