J-S45035-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

BRIAN HUNTER 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 3064 EDA 2019

Appeal from the PCRA Order Entered September 30, 2019

In the Court of Common Pleas of Philadelphia County Criminal Division at 

No(s): CP-51-CR-0208781-2004

BEFORE: BOWES, J., KUNSELMAN, J., and MURRAY, J.

MEMORANDUM BY MURRAY, J.: FILED: JANUARY 11, 2021

Brian Hunter (Appellant) appeals from the order dismissing as untimely 

his petition filed pursuant to the Post Conviction Relief Act (PCRA), 42 

Pa.C.S.A. §§ 9541-9546. Upon review, we vacate and remand.

The PCRA court summarized the procedural history of this case as 

follows:

On November 22, 2003, [Appellant] was arrested and charged 

with involuntary deviant sexual intercourse and related offenses 

for having sexual contact with [the seven-year-old victim] in 

1995. On April 4, 2005, [Appellant] entered into an open guilty 

plea before the Honorable Rose Marie DeFino-Nastasi. [Appellant] 

was subsequently sentenced to seven to fourteen years of 

imprisonment for involuntary deviant sexual intercourse plus five 

years of probation. He also received a concurrent sentence of five 

years of probation for corruption of a minor.

On September 23, 2005[, Appellant] filed a Notice of Appeal to 

the Superior Court. On August 8, 2006, the Superior Court 

affirmed his judgment of sentence. On January 9, 2007, the 

Pennsylvania Supreme Court denied allocatur. [Appellant]’s 
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judgment of sentence became final on April 9, 2007, ninety days 

after the Pennsylvania Supreme Court denied allocatur.

PCRA Court Opinion, 12/20/19, at 1-2 (footnotes omitted).

On September 11, 2017, Appellant filed a pro se PCRA petition. The 

PCRA court appointed counsel. In his petition, Appellant sought relief from 

the requirement that he register as a sex offender under Pennsylvania’s

Sexual Offender Registration and Notification Act (SORNA).

1

 See PCRA 

Petition, 9/11/17, ¶ 20-27.2 Appellant argued that because he committed his 

underlying offenses in 1995, prior to the effective dates of both SORNA and 

Megan’s Law,3 his SORNA registration requirement is an ex post facto violation 

of the United States and Pennsylvania Constitutions pursuant to our Supreme 

Court’s decision in Commonwealth v. Muniz, 164 A.3d 1189 (Pa. 2017), 

cert. denied sub nom., Pennsylvania v. Muniz, (2018). See PCRA Petition, 

9/11/17, ¶ 20-27. In Muniz, the Supreme Court held the registration and 

reporting requirements of SORNA constitute criminal punishment, and their 

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1 42 Pa.C.S.A. §§ 9799.10–9799.41.

2 The PCRA provides “the action established in this subchapter shall be the 

sole means of obtaining collateral relief and encompassing all other common 

law remedies for the same purpose that exists when this subchapter takes 

effect . . . .” 42 Pa.C.S.A. § 9542. Our Supreme Court has held “the PCRA 

subsumes all forms of collateral relief, including habeas corpus, to the extent 

a remedy is available under such enactment.” Commonwealth v. 

West, 938 A.2d 1034, 1043 (Pa. 2007) (emphasis in original). 

3

 42 Pa.C.S.A §§ 9791–9799.9.
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retroactive application violated the ex post facto clauses of the United States 

and Pennsylvania Constitutions. Id. at 1223.

On April 11, 2019, the PCRA court issued notice of its intent to dismiss 

Appellant’s PCRA petition pursuant to Pennsylvania Rule of Criminal Procedure

907. On September 30, 2019, the PCRA court dismissed Appellant’s petition

as untimely. Appellant timely appealed.4

Appellant presents the following issue for our review:

Did the [PCRA] court err in failing to grant PCRA relief where the 

retroactive application of the registration requirements of SORNA 

and Megan’s Law to criminal acts which predated the enactment 

of the original Megan’s Law constituted an illegal sentence which 

violated the ex post facto clauses of the United States and 

Pennsylvania Constitutions?

Appellant’s Brief at 3.

We review the denial of PCRA relief by “examining whether the PCRA 

court’s findings of fact are supported by the record, and whether its 

conclusions of law are free from legal error.” Commonwealth v. Busanet, 

54 A.3d 35, 45 (Pa. 2012). “Our scope of review is limited to the findings of 

the PCRA court and the evidence of record, viewed in the light most favorable 

to the party who prevailed in the PCRA court proceeding.” Id.

Further, “Pennsylvania law makes clear no court has jurisdiction to hear 

an untimely PCRA petition.” Commonwealth v. Monaco, 996 A.2d 1076, 

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4

 Both the PCRA court and Appellant have complied with Pennsylvania Rule 

of Appellate Procedure 1925.
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1079 (Pa. Super. 2010) (citation omitted). A petitioner must file a PCRA 

petition within one year of the date on which the petitioner’s judgment of 

sentence became final, unless one of the three statutory exceptions 

enumerated at 42 Pa.C.S.A. § 9545(b)(1) applies. If a petition is untimely, 

and the petitioner has not pled and proven an exception, “neither this Court 

nor the trial court has jurisdiction over the petition. Without jurisdiction, we 

simply do not have the legal authority to address the substantive claims.” 

Commonwealth v. Derrickson, 923 A.2d 466, 468 (Pa. Super. 2007) 

(citation omitted).

Appellant filed his petition on September 11, 2017, more than ten years 

after his judgment of sentence became final. Thus, the PCRA court treated it 

as a facially untimely PCRA petition. 

Recently, in Commonwealth v. Lacombe, 234 A.3d 602 (Pa. 2020), 

our Supreme Court discussed the correct way to challenge sex offender 

registration status, and concluded there was no one mechanism. Lacombe, 

234 A.3d at 617. The Court noted that frequent changes to the relevant 

statutes, along with complicated requirements and retroactive applications, 

made it difficult to establish a single means to challenge requirements which 

are imposed years after the judgment of sentence becomes final. Id. at 617-

18. The Court stated, “we decline to find the PCRA, or any other procedural 

mechanism, is the exclusive method for challenging sexual offender 

registration statutes and we thus conclude the trial court had jurisdiction to 
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consider Lacombe’s ‘Petition to Terminate His Sexual Offender Registration 

Requirements.’” Id. at 618.

This Court recently interpreted Lacombe, and held that the trial court 

erred in treating a pleading seeking removal from SORNA registry 

requirements as an untimely PCRA petition. Commonwealth v. Smith, ---

A.3d ---, 2020 WL 5755494, at *2 (Pa. Super. Sep. 28, 2020). We stated:

[T]he Lacombe Court expressly declined “to find the PCRA, or any 

other procedural mechanism is the exclusive method for 

challenging sexual offender registration statutes[.]” Lacombe

[234 A.3d at 618]. According to the Court, an offender’s 

requirements change frequently and may be retroactively 

applicable. See id. Thus, the strict jurisdictional requirements of 

the PCRA render it unsuitable, because many registrants will be 

ineligible for relief on timeliness grounds or because their criminal 

sentence has expired while their registration requirements 

continue. See id.

For these reasons, we conclude that Appellant’s Motion for 

Removal was not an untimely PCRA petition. His substantive 

claims challenging the application of Subchapter I of SORNA II’s 

lifetime registration requirements are not cognizable under the 

PCRA and, thus, not subject to its time-bar. We therefore vacate 

the lower court’s Order and remand for the court to consider his 

claims in the first instance.

Id. at *3.

Instantly, Appellant filed a facially untimely PCRA petition challenging 

his SORNA registration requirements. This Court, in three recent 

memorandums, has relied on Lacombe and Smith to conclude that PCRA 

petitions challenging sex offender registration requirements should be 

addressed on the merits and not dismissed as untimely. See 

Commonwealth v. Richards, 2020 WL 6581196, at *4 (123 8 WDA 2020) 
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(Pa. Super. Nov. 10, 2020); Commonwealth v. King, 2020 WL 6581194, 

**4-5 (2636 EDA 2019) (Pa. Super. Nov. 10, 2020); Commonwealth v. 

Puterbaugh, 2020 WL 6581308, at *8 (1388 MDA 2020) (Pa. Super. Nov. 

10, 2020).5

 Consistent with the foregoing, and because the PCRA court in this case

did not address the merits of Appellant’s claim, we vacate the order and 

remand for the PCRA court to address the merits.

Order vacated. Case remanded. Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 1/11/21

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5 Pennsylvania Rule of Appellate Procedure 126 was amended to allow citation 

of non-precedential unpublished memorandum decisions of this Court for their 

persuasive value, so long as the decisions were filed after May 1, 2019. See 

Order Amending Rule 126 of the Pennsylvania Rules of Appellate Procedure, 

No. 278 (Pa. 2019).