J-S65008-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

RICHARD W. GIBBS 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 507 MDA 2018

Appeal from the PCRA Order February 28, 2018

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

No(s): CP-21-CR-0002421-2007

BEFORE: SHOGAN, J., STABILE, J., and McLAUGHLIN, J.

MEMORANDUM BY SHOGAN, J.: FILED: JANUARY 11, 2019

Appellant, Richard W. Gibbs, appeals from the order denying his second 

petition filed pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. 

§§ 9541-9546. We affirm.

On March 13, 2008 Appellant pled guilty to fourteen counts of 

possessing sexually explicit computer images of children under the age of 

eighteen.1 On July 22, 2008, the trial court sentenced Appellant to serve a 

term of incarceration of one to seven years on each of the fourteen counts. 

The sentences were made to run concurrent to each other but consecutive to 

the sentence Appellant was serving in Ohio.2 No direct appeal was filed.

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1 18 Pa.C.S. § 6312(d)(1).

2 Appellant has averred that he began serving the instant sentence on 

November 30, 2016. PCRA Petition, 9/19/17, at 1.
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Appellant filed his first PCRA petition, pro se, on June 13, 2012, and the 

PCRA court appointed the public defender to represent him. The PCRA court 

held an evidentiary hearing on November 5, 2012. On September 12, 2013, 

the PCRA court entered an order denying Appellant’s PCRA petition. Appellant 

filed an appeal, and on August 22, 2014, this Court affirmed the order of the 

PCRA court. Commonwealth v. Gibbs, 106 A.3d 173, 1808 MDA 2013 (Pa. 

Super. filed August 22, 2014) (unpublished memorandum).

Appellant filed the instant PCRA petition, pro se, on September 19, 

2017, in which he sought removal of all Sexual Offender Registration and 

Notification Act (“SORNA”) registration requirements pursuant to 

Commonwealth v. Muniz, 164 A.3d 1189 (Pa. 2017). The PCRA court 

appointed counsel. On January 16, 2018, counsel filed an amended PCRA 

petition. Ultimately, in an order filed on February 28, 2018, the PCRA court 

denied relief due to a lack of jurisdiction. This timely appeal followed. The 

PCRA court did not direct Appellant to file a Pa.R.A.P. 1925(b) statement. The 

PCRA court filed its opinion pursuant to Pa.R.A.P. 1925(a) on April 10, 2018.

Appellant sets forth the following issue for our consideration:

I. Was [Appellant’s] petition pursuant to the [PCRA] timely filed, 

providing the Cumberland County Court of Common Pleas 

jurisdiction to decide the merits of his petition?

Appellant’s Brief at 4 (full capitalization omitted).

When reviewing the propriety of an order denying PCRA relief, we 

consider the record “in the light most favorable to the prevailing party at the 
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PCRA level.” Commonwealth v. Stultz, 114 A.3d 865, 872 (Pa. Super. 

2015) (quoting Commonwealth v. Henkel, 90 A.3d 16, 20 (Pa. Super. 2014) 

(en banc)). This Court is limited to determining whether the evidence of 

record supports the conclusions of the PCRA court and whether the ruling is 

free of legal error. Commonwealth v. Robinson, 139 A.3d 178, 185 (Pa. 

2016). The PCRA court’s findings will not be disturbed unless there is no 

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

1095, 1100 (Pa. Super. 2014).

A PCRA petition must be filed within one year of the date that the 

judgment of sentence becomes final. 42 Pa.C.S. § 9545(b)(1). A judgment 

of sentence “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 time for seeking the 

review.” 42 Pa.C.S. § 9545(b)(3). This time requirement is mandatory and 

jurisdictional in nature, and the court may not ignore it in order to reach the 

merits of the petition. Commonwealth v. Cintora, 69 A.3d 759, 762 (Pa. 

Super. 2013).

However, an untimely petition may be received when the petition 

alleges, and the petitioner proves, that any of the three limited exceptions to 

the time for filing the petition, set forth at 42 Pa.C.S. § 9545(b)(1)(i), (ii), and 
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(iii), is met.3 A petition invoking one of these exceptions must be filed within 

sixty days of the date the claim could first have been presented. 42 Pa.C.S. 

§ 9545(b)(2). In order to be entitled to the exceptions to the PCRA’s oneyear filing deadline, “the petitioner must plead and prove specific facts that 

demonstrate his claim was raised within the sixty-day time frame” under 

section 9545(b)(2). Commonwealth v. Carr, 768 A.2d 1164, 1167 (Pa. 

Super. 2001).

Our review of the record reflects that the trial court imposed Appellant’s 

judgment of sentence on July 22, 2008. Appellant did not file a direct appeal. 

Therefore, Appellant’s judgment of sentence became final on August 21, 2008, 

thirty days after the trial court imposed the judgment of sentence and 

Appellant failed to file a direct appeal with this Court. See 42 Pa.C.S. § 

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 The exceptions to the timeliness requirement are:

(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), (ii), and (iii).
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9545(b)(3); Pa.R.A.P. 903(a). Thus, in order to be timely, Appellant needed 

to file this PCRA petition on or before August 21, 2009. Appellant did not file 

the instant PCRA petition until September 19, 2017. Accordingly, Appellant’s 

PCRA petition is patently untimely.

As previously stated, if a petitioner does not file a timely PCRA petition, 

his petition nevertheless may be received under any of the three limited 

exceptions to the timeliness requirements of the PCRA. 42 Pa.C.S. 

§ 9545(b)(1). If a petitioner asserts one of these exceptions, he must file his 

petition within sixty days of the date that the exception could be asserted. 42 

Pa.C.S. § 9545(b)(2).

Appellant attempts to invoke the third exception to the PCRA timeliness 

requirements, that being “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)(iii). In 

essence, Appellant relies upon the Pennsylvania Supreme Court’s decision in 

Muniz, for the proposition that he should not be compelled to register 

pursuant to SORNA. The Muniz Court held that the registration requirements 

set forth under SORNA constitute criminal punishment as opposed to a mere 

civil penalty, and therefore, their retroactive application violates the ex post 

facto clauses of the Pennsylvania Constitution. Muniz, 164 A.3d at 1193. 
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Shortly after our Supreme Court announced its decision in Muniz, this 

Court determined that the holding in Muniz should be applied in state 

collateral courts to comply with the United States and Pennsylvania 

Constitutions. Commonwealth v. Rivera-Figueroa, 174 A.3d 674, 678 (Pa. 

Super. 2017), citing Montgomery v. Louisiana, 136 S.Ct. 718, 734 (2016). 

However, in Commonwealth v. Murphy, 180 A.3d 402 (Pa. Super. 2018), a 

case involving an untimely PCRA petition, we held that the appellant was

required to demonstrate that the Supreme Court of Pennsylvania has held 

Muniz applies retroactively in order to satisfy the time-bar exception of 42 

Pa.C.S. § 9454(b)(1)(iii) (new constitutional right exception), and because no 

such holding has been issued by our Supreme Court, a petitioner cannot rely 

on Muniz to meet that timeliness exception. Murphy, 180 A.3d at 405-406.

The Court in Murphy acknowledged the holding in Rivera-Figueroa

and distinguished the case before it from Rivera-Figueroa. Murphy, 180 

A.3d at 405-406. In Murphy, similar to the instant case, the appellant’s PCRA 

petition was untimely. Id. at 405. However, in Rivera-Figueroa, the PCRA 

petition was timely filed. Rivera-Figueroa, 174 A.3d at 677. Hence, because 

our Supreme Court has not held that Muniz applies retroactively to satisfy 

the new constitutional right exception to the one-year time-bar, Appellant has 

not carried his burden to plead and prove applicability of one of the exceptions 

to the timeliness requirement. Accordingly, the PCRA court did not commit 

any error in dismissing Appellant’s petition as untimely.
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In conclusion, the PCRA petition was untimely and no exceptions apply. 

Therefore, the PCRA court lacked jurisdiction to address any claims presented. 

See Commonwealth v. Fairiror, 809 A.2d 396, 398 (Pa. Super. 2002) 

(holding that PCRA court lacks jurisdiction to hear an untimely petition). 

Likewise, we lack the authority to address the merits of any substantive claims 

raised in the PCRA petition. See Commonwealth v. Bennett, 930 A.2d 

1264, 1267 (Pa. 2007) (“[J]urisdictional time limits go to a court’s right or 

competency to adjudicate a controversy.”).

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 01/11/2019