J-S23045-18

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* Former Justice specially assigned to the Superior Court.

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

JORDAN ANDREW GEBHARD 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 119 EDA 2018

Appeal from the PCRA Order November 15, 2017

In the Court of Common Pleas of Northampton County Criminal Division 

at No(s): CP-48-CR-0004143-2009

BEFORE: SHOGAN, J., NICHOLS, J., and STEVENS*, P.J.E.

MEMORANDUM BY STEVENS, P.J.E.: FILED SEPTEMBER 24, 2018

Appellant Jordan Andrew Gebhard appeals from the Order entered in the 

Court of Common Pleas of Northampton County on November 15, 2017, 

denying as untimely his first petition filed under the Post Conviction Relief Act 

(PCRA).1 For the following reasons, we affirm. 

On January 14, 2010, Appellant entered a negotiated guilty plea to 

attempted rape of a child (F1), indecent assault of a person less than thirteen 

years of age (M1), and indecent exposure (M1).

2

 Pursuant to the plea, 

numerous other serious charges were withdrawn. N.T. Guilty Plea, 1/14/10, 

at 12. Appellant’s plea arose following his contact with his eleven (11) year 

old stepsister between September and November of 2009, at which time 

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1 42 Pa.C.S.A. §§ 9541-9546. 

2 18 Pa.C.S.A. §§ 901, 3121(c); 3126(a)(7); 3127(a), respectively. 
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Appellant exposed himself to the child, touched her vagina, and attempted to 

engage in sexual intercourse with her. Id. at 9-12. 

On April 15, 2010, Appellant was sentenced to an aggregate term of 

seven and one-half (7 1⁄2) years to forty (40) years in prison. Following a 

Megan’s Law Assessment, he was not found to be a sexually violent predator. 

At the time Appellant pled guilty, as well as at the time of sentencing, the 

third iteration of Megan's Law (Megan's Law lll) was in effect, which required 

a ten–year registration period for a conviction under 18 Pa.C.S.A. § 3126 

(relating to indecent assault) and a lifetime registration for convictions under 

18 Pa.C.S.A. § 3121 (relating to rape). See 42 Pa.C.S.A. § 9795.1 (expired).

3

These registration requirements are marked as Applicable to Appellant’s case 

on the signed, “Written Addendum to the Sentencing Colloquy Registration of 

Sexual Offenders” form. See Written Addendum to Sentencing Colloquy, 

dated 1/14/10, at 2. 

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3

In November 2004, the General Assembly enacted Megan's Law lll. On 

December 20, 2011, the General Assembly enacted the Sexual Offender 

Registration and Notification Act (“SORNA”), which is the fourth iteration of 

Megan's Law. SORNA took effect one year later on December 20, 2012. Under 

SORNA, the General Assembly required lifetime registration for individuals 

convicted of two or more offenses requiring 10–year registration. 42 Pa. C.S. 

§ 9799.15(a)(3). SORNA is the sexual offender registration law currently in 

effect; its purpose was to strengthen registration requirements for sex 

offenders and to bring Pennsylvania into compliance with the Adam Walsh 

Child Protection and Safety Act, 42 U.S.C.A. § 16901 et seq.
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Appellant did not file a post sentence motion or a direct appeal following 

the imposition of his sentence. Accordingly, his sentence became final on May 

17, 2010. See 42 Pa.C.S.A. § 9545(b)(3) (stating a judgment of sentence 

becomes final at the conclusion of direct review or the expiration of the time 

for seeking review).

4

 

On August 21, 2017, Appellant filed pro se a document titled “Motion to 

Modify Sentence Pursuant to 557 U.S. 2016 & 774 A.2d 1280.” Therein, 

Appellant maintained his lifetime registration requirement under SORNA had 

been rendered illegal by the Pennsylvania Supreme Court’s decision in 

Commonweath v. Muniz, ___ Pa. ____, 164 A.3d 1189 (2017)(Opinion 

Announcing the Judgment of the Court), cert. denied, 138 S.Ct. 925 (Jan. 22, 

2018).5 

The PCRA court treated the Motion as Appellant’s first PCRA petition and 

appointed counsel to represent him. On September 29, 2017, the PCRA court 

held a conference on the matter, and it heard argument from the parties on 

October 26, 2017, at which Appellant participated via video conferencing. 

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4 The thirtieth day following the entry of the judgment of sentence, May 15, 

2010, was a Saturday; therefore, Appellant had until the following Monday to 

file a timely notice of appeal. See 1 Pa.C.S.A. § 1908. 

5 On July 19, 2017, our Supreme Court filed its decision in Muniz holding that 

the enhanced registration requirements of SORNA are punitive and, therefore, 

applying SORNA retroactively is a violation of the ex post facto clauses of the 

U.S. Constitution and Pennsylvania Constitutions. Muniz at ____, 164 A.3d 

at 1223.
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Thereafter, on November 15, 2017, the PCRA court entered its Order and 

Opinion denying Appellant’s PCRA petition. 

Appellant filed a timely appeal with this Court on December 8, 2017. On 

December 11, 2017, the PCRA court directed Appellant to file a concise 

statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). 

Appellant complied and filed his “Statement of Matters Complained of” on 

December 12, 2017. 

In his brief, Appellant presents the following Statement of the Question 

Involved:

Whether the PCRA [c]ourt erred and abused its discretion in 

denying Appellant’s Motion to Modify Sentence, treated as a PCRA 

petition, for failing to address the merits of Appellant’s claim since 

it had the jurisdiction to vacate the SORNA lifetime registration 

and to resentence him to a 10 year registration upon his release 

from prison since it never relinquishes its jurisdiction to correct an 

illegal sentence? 

Brief for Appellant at 3. 

“Initially, we note that when a defendant enters a guilty plea, he or she 

waives all defects and defenses except those concerning the validity of the 

plea, the jurisdiction of the trial court, and the legality of the sentence 

imposed.” Commonwealth v. Stradley, 50 A.3d 769, 771 (Pa.Super. 2012)

(citation omitted). In addition, it is well-established that the PCRA subsumes 

all common law remedies for collateral relief, and challenges to the legality of 

one’s sentence are cognizable under the PCRA. See 42 Pa.C.S.A. § 9542; 

Commonwealth v. Infante, 63 A.3d 358, 365 (Pa.Super. 1997); therefore, 
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we find that the PCRA court properly treated Appellant’s Motion to Modify 

Sentence as a PCRA petition. 

When reviewing the propriety of an order denying PCRA relief, this Court 

is limited to a determination of whether the evidence of record supports the 

PCRA court’s conclusions and whether its ruling is free of legal error. 

Commonwealth v. Robinson, 635 Pa. 592, 603, 139 A.3d 178, 185 (2016). 

This Court will not disturb the PCRA court’s findings unless there is no support 

for them in the certified record. Commonwealth v. Lippert, 85 A.3d 1095, 

1100 (Pa.Super. 2014). 

At the outset, we consider whether this appeal is properly before us. 

The question of whether a petition is timely raises a question of law, and where 

a petitioner raises questions of law, our standard of review is de novo and our 

scope of review is plenary. Commonwealth v. Callahan, 101 A.3d 118, 121 

(Pa.Super. 2014). 

All PCRA petitions must be filed within one year of the date upon which 

the judgment of sentence became final, unless one of the statutory exceptions 

set forth in 42 Pa.C.S.A. § 9545(b)(1)(i)-(iii) applies. The petitioner bears the 

burden of pleading and proving an applicable statutory exception. If the 

petition is untimely and the petitioner has not pled and proven an exception, 

the petition must be dismissed without a hearing because Pennsylvania courts 

are without jurisdiction to consider the merits of the petition. 

Commonwealth v. Taylor, 65 A.3d 462, 468 (Pa.Super. 2013). This is true 
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even where, as herein, the appellant challenges the legality of his sentence. 

42 Pa.C.S.A. § 9545(b); Commonwealth v. Fahy, 558 Pa. 313, 331, 737 

A.2d 214, 223 (1999) (holding “Although legality of sentence is always subject 

to review within the PCRA, claims must still first satisfy the PCRA’s time limits 

or one of the exceptions thereto.”); thus, this Court is without jurisdiction to 

consider the legality of sentence claim Appellant raises herein unless he can 

satisfy one of the timeliness exceptions to the PCRA time-bar. 

42 Pa.C.S.A. § 9545(b)(1)(i)-(iii) states: 

(b) Time for filing petition.--

(1) Any petition under this subchapter, including a second or 

subsequent petition, shall be filed within one year of the 

date the judgment of sentence becomes final, unless the 

petition alleges and the petitioner proves that:

(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.A. § 9545(b)(1). In addition, any petition attempting to invoke 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). 
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Herein, as stated previously Appellant’s judgment of sentence became 

final on May 17, 2010. As such, a timely PCRA petition had to be filed by 

May 17, 2011; therefore, the instant PCRA petition filed over six years later 

on August 21, 2017, is patently untimely, and the burden fell upon Appellant 

to plead and prove that one of the enumerated exceptions to the one-year

time-bar applied to his case. See 42 Pa.C.S.A. § 9545(b)(1); 

Commonwealth v. Perrin, 947 A.2d 1284, 1286 (Pa.Super. 2008) (to invoke 

a statutory exception to the PCRA time-bar, a petitioner must properly plead 

and prove all required elements of the exception). 

Appellant concedes his Motion to Modify sentence was filed untimely and 

properly treated as a PCRA petition. See Brief of Appellant at 8. Nevertheless, 

he does not allege specifically that he satisfies any exception to the PCRA 

time-bar. Rather, Appellant simply posits that “the PCRA [c]ourt erred and 

abused its discretion in denying his Motion to Modify Sentence treated as a 

PCRA petition for failing to address the merits of Appellant’s claim since it had 

jurisdiction to vacate the SORNA lifetime registration and to resentence him 

to a 10 year registration upon his release from prison since it never 

relinquishes jurisdiction to correct an illegal sentence.” Id. at 7 (citing 

Commonweallth v. Vasquez, 744 A.2d 1280, 1284 (Pa. 2000)). This is 

incorrect, for as we have already explained, although the legality of one’s 

sentence is always subject to review within the PCRA, claims still must first 
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satisfy the PCRA’s time limits or one of the exceptions thereto.” See 42 

Pa.C.S.A. § 9545(b); Fahy, supra, 558 Pa. at 330-31, 737 A.2d at 223. 

To the extent that in setting forth his claim Appellant attempts to satisfy 

the timeliness exception of Section 9545(b)(1)(iii), by arguing that a lifetime 

registration requirement imposed upon him pursuant to SORNA is 

unconstitutional under Muniz,

6 because Appellant’s PCRA petition is untimely, 

see infra, he was required to demonstrate that Muniz applies retroactively in 

order to satisfy the exception to the PCRA one-year time bar at section 

9545(b)(1)(iii). See Commonwealth v. Abdul-Salaam, 812 A.2d 497, 501 

(Pa. 2002); Commonwealth v. Olson, 2018 WL 847859, at *4 (Pa.Super. 

Feb. 14, 2018) (stating that new rule of law does not automatically render 

illegal a final pre-existing sentence). 

However, in light of this Court’s recent holding in Commonwealth v. 

Murphy, 2018 WL 947156 (Pa.Super. Feb. 20, 2018) Appellant’s reliance on 

Muniz cannot satisfy the “new retroactive right” exception of Section 

9545(b)(1)(ii). As we stated in Murphy: 

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 

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6 The Muniz decision was filed on July 19, 2017, and Appellant filed the instant 

PCRA petition on August 21, 2017, thereby satisfying the requirement that his 

petition invoking the exception must be filed within sixty days of the date the 

claim first could have been presented. 42 Pa.C.S.A. § 9545(b)(2). 
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Court has held that Muniz applies retroactively in order to satisfy 

section 9545(b)(1)(iii). See Abdul–Salaam, supra. 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. at *3. Once again, our Supreme Court has not issued such a holding at 

this time. 

Moreover, instructive herein is Commonwealth v. Hilliard, 2018 WL 

1062414 at *4 (Pa.Super. Feb. 27, 2018) (unpublished memorandum), appeal 

denied, 189 A.3d 989 (Pa. July 29, 2018). There, this Court held Muniz was 

inapplicable where the appellant had failed to challenge a specific portion of 

his sentence imposed under the then-extant Megan’s Law, had not been 

designated as an SVP at sentencing, his sentence predated SORNA, and 

SORNA did not affect his lifetime registration requirement under Megan’s Law. 

Similarly, Appellant herein does not challenge specifically any portion of his 

sentence imposed under the then-extant Megan’s Law. Indeed, Appellant was 

not designated as an SVP at sentencing. See Sentence Sheet, 4/15/10, at 1 

“General Remarks.” In addition, his sentence predated SORNA, and 

Appellant’s argument to the contrary, it appears that SORNA did not affect his 

lifetime registration requirement under then-extant Megan’s Law. Thus, 

Muniz does not apply here. 

 In light of the foregoing, Appellant has filed a facially untimely PCRA 

petition and has failed to plead and prove the applicability of any exception to 

the PCRA time-bar. We, therefore, affirm the PCRA court’s Order.

 Order affirmed. 
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 Judge Nichols joins the memorandum.

 Judge Shogan concurs in the result.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 9/24/18