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____________________________________ * Retired Senior Judge assigned to the Superior Court. NON
- PRECEDENTIAL DECISION
- SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

SHANE NELSON BUNTING

Appellant : : : : : : : : : IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 1450 M DA 2018 Appeal from the PCRA Order Entered August 17 , 2018 In the Court of Common Pleas of Lancaster County Criminal Division at

No(s): CP

- 36

- CR

- 000 2591

- 2016

BEFORE: SHOGAN , J., DUBOW , J., and PELLEGRINI*, J.
MEMORANDUM BY PELLEGRINI, J.: FILED: MAY 2 0, 201 9

Shane Nelson Bun ting (Bunting) appeals from an order the Court of
Common Pleas of Lancaster County (PCRA court) denying his petition filed
pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541

- 9546.

We af firm.
We take the following pertinent factual and procedural background from

the PCRA court ’ s December 13, 2018 opinion and our independent review of

the cer tified record. O n January 31, 2017 , Bunting pled guilty to Solicitation

Rape of a Child, 18 Pa.C.S. § 902(a), pursuant to a negotiated plea

. The same
day, t he court sentenced him according to the agreement ’ s terms , to not less

than five

- and

- one - half nor more than eleven years

. Consistent with the
registration signed by Bunting, the sentencing c ourt informed him that he was
a lifetime registrant pursuant to the Sex Offender Registration and NotificationJ

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- 2

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Act (SORNA) , 42 Pa.C.S. §§ 9799.10

- 9799.41

. 1 Bunting did not file a direct
appeal.
On June 20, 2018, he filed a pro se “ Motion to be Removed from SORNA

as it is Pun itive,” which the court treated as a PCRA petition. The PCRA court
appointed counsel, who filed a Turner / Finley 2 “no merit” letter and petition
to withdraw, which the PCRA court granted. The PCRA court denied Bunting ’ s
petition as untimely, with no exception to the one

- year time bar ple d or
proven. Bunting timely appealed. 3 ( See PCRA Court Opinion, 12/13/18, at

3

- 4). He and the court complied with the requirements of Rule 1925. See

Pa.R.A.P. 1925.

A PCRA petition “shall be filed within one year of the date th e judgment
becomes final[.] ” 42 Pa.C.S. § 9545(b)(1). A judgment becomes final at the

_________________ __________ ______ ____ _______

1 Under SORNA, the sentencing judge is to inform the offender that he or she has to register under SORNA. 42 Pa.C.S. § 9799.20. However, the sentencing court’s failure to do so is irrelevant: “Failure by the court to prov ide the information . . . to correctly inform . . . or to require a sexual offender to register shall not relieve the sexual offender from the requirements of this subchapter.” 42 Pa.C.S. § 9799.23(b)(1). In fact, with limited exceptions, a court has “no authority to relieve a sexual offender from the duty to register . . . or to modify the requirements[.]” 42 Pa.C.S. § 9799.23(b)(2).

2 Commonwealth v. Turner , 544 A.2d 927 (Pa. 1988); Commonwealth v. Finley , 550 A.2d 213 (Pa. Super. 1988) ( en banc ).

3 “ Our review of a PCRA court ’ s decision is limited to e xamining 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. Mason , 130 A.3d 601, 617 (Pa. 2015) (cita tion omitted).J

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conclusion of direct review by this Court or the United States Supreme Court
or at the expiration of the ti me for seeking such review. See 42 Pa.C.S. §
9545(b)(3). “The PCRA ’ s timeliness requirements are jurisdictional ; therefore, a court may not address the merits of the issues raised if the
petition was not timely filed[ , ]” unless an appellant pleads and pr oves a timeliness exception. Commonwealth v. Jones , 54 A.3d 14, 17 (Pa. 2012)
( citations omitted); see also 42 Pa.C.S. § 9545 (b)(1)(i)

- (iii). 4 “The PCRA
squarely places upon the petitioner the burden of proving an untimely petition
fits within one of the three exceptions.” Jones , supra at 17 (citation
omitted). The timeliness requirements apply to all PCRA petitions, regardless

of the nature of the individual claims raised therein. See Jones , supra at 17
(citation omitted).
In this case, Bunting ’ s judgment of sentence became final on March 2,

2017. Therefore, he had one year from that date to file a petition for collateral
relief unless he ple aded and proved that a timeliness exception applied. See
42 Pa.C.S. §§ 9545(b)(1)(i)

- (iii). Because Bunting ’ s petition was filed on June

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4 The three exceptions that allow for review of an untimely PCRA petition are limited to: (1) the petitioner ’ s inability to raise a claim because of governmental interference; (2) the discovery of previously unknown facts that would have supported a claim; and (3) a newly recognized constitutional right. See 42 Pa.C.S. § 9545 (b) (1)(i)

- (iii). Any petition attemp ting to invoke these exceptions “shall be filed within 60 days of the date the claim could have been presented.” 42 Pa.C.S. § 9545(b)(2) ; see also Commonwealth v. Gamboa
- Taylor , 753 A.2d 780, 783 (Pa. 2000).J

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20, 201 8, it is untimely on its face and we lack juri sdiction to consider its merit

unless he pleads and proves one of the statutory exceptions to the time bar.
Although Bunting argues that the court erred in denying his PCRA
petition because SORNA is unconstitutionally punitive, ( see Bunting ’ s Brief, at
v), we lack jurisdiction to consider this issue where he failed to either
acknowledge the untimeliness of his petition or argue the applicability of a
timeliness exception. ( See id. at 1

- 15). Because he has failed to meet his
burden of pleading and pro ving a timeliness exception, we lack jurisdiction to

review the meri ts of his claim. See Jones , supra at 17.
Additionally, even if we were to ignore that his reliance on

Commonwealth v. Muniz , 164 A.3d 1189 (Pa. 2017) , cert. denied , 138 S.
Ct. 925 (2018) is misplaced 5 because it s holding does not apply to him , Bunting still is not due any relief

. 6 ( See PCRA Ct. Op., at 3). In fact, this

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5 I n Muniz , the Pennsylvania Supreme Court held that the retroactive application of SORNA ’ s registration scheme to sexual offenders who committed their crimes before the SORNA ’ s effective date violates Pennsylvania ’ s ex post facto clause because of the scheme ’ s punitive nature

. See Muniz , supra at 1217. Muniz does not hold that SORNA is unconstitutional nor does it invalidate SORNA’s registration requirements. It holds only that SORNA violates the ex post facto clause of the Pennsylvania Constitution when its provisions are applied retroactively. See Commonwealth v. Hart , 174 A.3d 660, 667 n.9 (Pa. Super. 2017).

6 Muniz was decided on July 19, 2017. Therefore, Bunting failed to comply with the requirement that he file his petition within sixty days of the date when the claim could have been presented. See 42 Pa.C.S. § 9545(b)(2) ; Gamboa
- Taylor , supra a t 783.J

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Court has expressly held that Muniz does n ot satisfy the requirements of

S ection 9545 (b)(1)(iii). See Commonwealth v. Greco , ___ A.3d ___, 2019
WL 510129, at *4 (P a. Super. filed Feb. 8, 2019).

There are two requirements for the applicability of the newly recognized
constitutional right exception to the PCRA. “First, [42 Pa.C.S. § 9545(b)(1)(iii)
requires] that the right asserted is a constitutional right that was recognized
by the Supreme Court of the United States or [the Pennsylvania Supreme
Court] after the time provided in this section. Second, it provides that the
right “h as been held” by “tha t court” to apply “ retroactively.”
Commonwealth v. Murphy , 180 A.3d 402, 405 (Pa. Super. 2018) (citation
omitted).

I n Greco , like Bunting, the appellant challenged the application of

SORNA ’ s registration provision on the basis of Muniz in an untimely PCRA
petition

. In considering the issue, “ we acknowledge[d] that this Court has

declared that ‘ Muniz created a substantive rule that retroactively applies in

the collateral context. ’ ” Greco , supra at *4 (citing Commonwealth v.
Rivera
- Figueroa , 174 A.3d 674, 678 (Pa. Super. 2017) )

. We found,
however, that

because [a] ppellant ’ 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 bee n issued by our Supreme Court, [a] ppellant c annot rely on Muniz to meet that timeliness exception.J

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Greco , supra at *4 ( citations omitted ).
Based on the foregoing , Bunting failed to plead and prove the
applicability of the newly discovered constitutional right exception by relying

on Muniz

. 7 Additionally, he has failed to establish any other timeliness
exception . Therefore, we lack jurisdiction to consider the merits of his
petition

. See Jones , supra at 16

- 17. W e affirm the PCRA court ’ s order
dismissing Bunting ’ s petition as untimely

. Order affirmed.
Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 5 /20/2019

_________________ __________ ______ ____ _______

7 Moreover, as we noted previously, Bunting would be due no relief based on Muniz , even if it did satisfy the requireme nts of the timeliness exception, because Muniz is inapplicable to him. In Muniz , the Pennsylvania Supreme Court held that the retroactive application of SORNA ’ s registration scheme to sexual offenders who committed their crimes before the SORNA ’ s effective date violates Pennsylvania ’ s ex post facto clause . SORNA ’ s effective date was December 12, 2012. Bunting committed his crimes in 2015. Hence, the holding of Muniz does not apply to him because SORNA was not retroactively applied to him in violation of ex post facto provisions

. See Commonwealth v. Horning , 193 A.3d 411, 417 (Pa. Super. 2018) (holding that critical inquiry for determining whether application of SORNA to a convicted sex offender violates ex post facto prohibitions is the date of the offense).