Com. v. Rementer, S.

J. A17042/20
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
STEPHEN A. REMENTER, : No. 2615 EDA 2019
:
Appellant :
Appeal from the PCRA Order Entered August 9, 2019,
in the Court of Common Pleas of Monroe County
Criminal Division at No. CP-45-CR-0000028-2012
BEFORE: BOWES, J., McCAFFERY, J., AND FORD ELLIOTT, P.J.E.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: Filed: August 25, 2020
Stephen A. Rementer appeals from the August 9, 2019 order entered
by the Court of Common Pleas of Monroe County dismissing his second petition
filed pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A.
§§ 9541-9546. After careful review, we affirm.
On September 7, 2012, appellant entered a guilty plea to one count of
rape of a child.1 The trial court imposed a sentence of 20-40 years’
imprisonment on November 20, 2012. The trial court also ordered appellant
to comply with the registration requirements of Megan’s Law, 42 Pa.C.S.A.
§ 9795.1 (expired December 20, 2012). Appellant appealed his judgment of
sentence, which this court affirmed on September 20, 2013.
1 18 Pa.C.S.A. § 3121(c).
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Commonwealth v. Rementer, 87 A.3d 388 (Pa.Super. 2013) (unpublished
memorandum). Appellant did not file a petition for allowance of appeal with
our supreme court.
On December 29, 2016, appellant filed his first PCRA petition. The PCRA
court denied appellant’s petition on August 8, 2017. Appellant filed a notice
of appeal, and this court affirmed the PCRA court’s denial of relief on June 8,
2018. Commonwealth v. Rementer, 193 A.3d 1060 (Pa.Super. 2018)
(unpublished memorandum). Our supreme court denied appellant’s petition
for allowance of appeal on December 12, 2018. Commonwealth v.
Rementer, 199 A.3d 335 (Pa. 2018).
Appellant filed the instant PCRA petition on April 18, 2019. On May 15,
2019, the PCRA court entered a notice of its intent to dismiss appellant’s
petition without a hearing pursuant to Pa.R.Crim.P. 907. Appellant did not file
a response. The PCRA court dismissed appellant’s petition on August 9, 2019.
Appellant filed a timely notice of appeal on September 4, 2019. The
PCRA court ordered appellant to file a concise statement of errors complained
of on appeal pursuant to Pa.R.A.P. 1925(b), and appellant timely complied.
The PCRA court filed an opinion pursuant to Pa.R.A.P. 1925(a) on October 24,
2019.
Appellant raises the following issue for our review:
Whether trial counsel [sic] erred and abused its
discretion by denying [appellant’s] PCRA petition as
being untimely filed?
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Appellant’s brief at 5 (full capitalization omitted).
All PCRA petitions, including second and subsequent petitions, must be
filed within one year of when a defendant’s judgment of sentence becomes
final. 42 Pa.C.S.A. § 9545(b)(1). “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
the time for seeking the review.” 42 Pa.C.S.A. § 9545(b)(3). The Supreme
Court of Pennsylvania has held that the PCRA’s time restriction is
constitutionally sound. Commonwealth v. Cruz, 852 A.2d 287, 292 (Pa.
2004) (citations omitted). In addition, our case law instructs that the
timeliness of a PCRA petition is jurisdictional. If a PCRA petition is untimely,
a court lacks jurisdiction over the petition. Commonwealth v. Callahan,
101 A.3d 118, 121-122 (Pa.Super. 2014) (holding courts do not have
jurisdiction over an untimely PCRA petition); see also Commonwealth v.
Wharton, 886 A.2d 1120, 1124 (Pa. 2005).
Here, the trial court entered its judgment of sentence on November 20,
2012. This court affirmed appellant’s judgment of sentence on September 20,
2013, and appellant did not file a petition for allowance of appeal with our
supreme court. Consequently, appellant’s judgment of sentence became final
on October 20, 2013, thirty days after this court affirmed his judgment of
sentence and the time for filing a petition for allowance of appeal with our
supreme court expired. See 42 Pa.C.S.A. § 9545(b)(3); Pa.R.A.P. 1113(a).
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Therefore appellant’s petition, filed on April 18, 2019, is facially untimely. As
a result, the PCRA court lacked jurisdiction to review appellant’s petition,
unless appellant alleged and proved one of the statutory exceptions to the
PCRA time bar, as set forth in 42 Pa.C.S.A. § 9545(b)(1).
Those three narrow exceptions to the one-year time bar are: when the
government has interfered with the petitioner’s ability to present his or her
claim; when the petitioner has recently discovered facts upon which his or her
PCRA claim is predicated; or when either the Supreme Court of Pennsylvania
or the Supreme Court of the United States has recognized a new constitutional
right and made that right retroactive. 42 Pa.C.S.A. § 9545(b)(1)(i-iii);
Commonwealth v. Brandon, 51 A.3d 231, 233-234 (Pa.Super. 2012). The
petitioner bears the burden of pleading and proving the applicability of any
exception. Commonwealth v. Jones, 54 A.3d 14, 17 (Pa. 2012), citing
Commonwealth v. Bronshtein, 752 A.2d 868, 871 (Pa. 2002). If a
petitioner fails to invoke a valid exception to the PCRA time bar, this court
may not review the petition. See 42 Pa.C.S.A. § 9545(a).
Here, appellant contends that our supreme court’s holding in
Commonwealth v. Muniz, 164 A.3d 1189 (Pa. 2017), recognized a new
constitutional right, thereby providing appellant with an exception to the PCRA
time-bar. (Appellant’s brief at 10.) The Muniz court held that the application
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of the registration requirements under SORNA2 to sexual offenders who
committed their crimes before SORNA’s effective date violates the
ex post facto clauses of the United States and Pennsylvania Constitutions.
Muniz, 164 A.3d at 1223. Appellant, however, presents his claim in the
context of an untimely filed PCRA petition.
In a case involving a timely filed PCRA petition, this court has held 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). Because appellant’s PCRA petition is facially untimely,
however, he would be required to satisfy the jurisdiction requirement set forth
at 42 Pa.C.S.A. § 9545(b)(1)(iii). To do so, appellant would be required to
demonstrate that the Supreme Court of Pennsylvania has held that Muniz
applies retroactively to otherwise facially untimely PCRA petitions. See
Commonwealth v. Murphy, 180 A.3d 402, 405-406 (Pa.Super. 2018)
(finding that when the PCRA petition is untimely filed, in order to satisfy the
timeliness exception set forth at 42 Pa.C.S.A. § 9545(b)(1)(iii), a petitioner
must demonstrate that the Supreme Court of Pennsylvania has expressly held
that Muniz applies retroactively).
Here, appellant has failed to demonstrate that our supreme court has
expressly held that Muniz applies retroactively to facially untimely PCRA
2 Sexual Offender Registration Notification Act, 42 Pa.C.S.A. §§ 9799.10,
et seq.
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petitions. To the contrary, a recent panel of this court reaffirmed that Muniz
does not provide a petitioner with an avenue of relief in the context of an
untimely PCRA. Commonwealth v. Hromek, A.3d , 2020 WL
2391062 at *4 (Pa.Super. May 12, 2020), citing Murphy, 180 A.3d at
405-406.
Appellant has failed to invoke a valid exception to the PCRA time-bar.
Consequently, the PCRA court lacked jurisdiction to review appellant’s
petition, and we may not review the petition on appeal.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/25/20
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