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

v.

RICHARD W. GIBBS

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

PENNSYLVANIA

No. 507 MDA 2018 Appeal from the PCRA Order February 2 8 , 2018 In the Court of Common Pleas of Cumberland County Criminal Division at No(s): CP

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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 wer e made to run concurrent to each other but consecutive to the sentence Appellant was serving in Ohio. 2 No direct appeal was filed.

_________________ __________ ______ ____ _______ 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.J

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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 repre sent 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
P CRA 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 filed August 22, 2014) (unpublished memorandum).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 Registr ation 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 F ebruary 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 A pril 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? App ellant’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 theJ

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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 fr ee 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

me rits 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), andJ

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(iii), is met. 3 A petition invoking one of these exceptions must be fil ed 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 one

year filing deadline, “the petitioner must plead and prove specific facts that demonstrate hi s 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 P a.C.S. §

_________________ __________ ______ ____ _______ 3 The exceptions t o 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 l aws 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 th e 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).J

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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 petiti on 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 retroactivel y.” 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.J

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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 constitutiona l right exception), and because no such holding has been issue d 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 ha s 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. According ly, the PCRA court did not commit any error in dismissing Appellant’s petition as untimely.J

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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 Commonw

ealth 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 Commonwealt h 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: 0 1/11/20 19