J-S30008-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

KEVIN EARL LAPE

Appellant

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IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 1535 WDA 2019

Appeal from the PCRA Order Entered September 17, 2019

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

No(s): CP-56-CR-0000612-2013

BEFORE: MURRAY, J., McLAUGHLIN, J., and STEVENS, P.J.E.* MEMORANDUM BY MURRAY, J.: FILED JULY 30, 2020

Kevin Earl Lape (Appellant) appeals from order denying his serial

petition seeking relief pursuant to the Post Conviction Relief Act (PCRA), 42

Pa.C.S.A. §§ 9541-9546. We affirm.

The facts underlying this case arise out of a series of sexual assaults

Appellant committed on a minor victim from sometime in 2009 until

approximately February 2013. The PCRA court set forth the procedural

history:

On March 25, 2015, [Appellant] was found guilty by jury verdict

of involuntary deviate sexual intercourse (“IDSI”) by forcible

compulsion, 18 Pa.C.S.[A.] § 3123(a)(1); IDSI with a child under

16, 18 Pa.C.S.[A.] § 3123(a)(7); indecent assault on a child under

16, defendant at least four years older, 18 Pa.C.S.[A.] §

3126(a)(8); aggravated indecent assault on a child under 16,

defendant at least four years older, 18 Pa.C.S.[A.] § 3125(a)(8);

and corruption of minors, 18 Pa.C.S.[A.] § 2706(a)(1). On July

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* Former Justice specially assigned to the Superior Court.
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21, 2015, [Appellant] was sentenced, inter alia, to an aggregate

ten to twenty years [of] incarceration in a State Correctional

Institution. As part of sentencing, [the trial court] held a Sexually

Violent Predator (“SVP”) hearing and found there to be clear and

convincing evidence establishing [Appellant] as a SVP.

[Appellant] did not file a post-sentence motion or direct appeal.

[Appellant] timely filed a pro se [PCRA] petition on March 28,

2016. It being [Appellant]’s first PCRA petition, [the PCRA court]

appointed [PCRA counsel] to represent [Appellant]. Through

PCRA counsel, [Appellant] filed an [a]mended [p]etition for

[p]ost-[c]onviction [r]elief on September 16, 2016. [The PCRA

court] held a hearing on September 21, 2016, at which time [the

court] dismissed the petition. [Appellant] filed a [n]otice of

[a]ppeal to the Superior Court on October 13, 2016, and the

Superior Court issued its decision on December 5, 2017 affirming

our dismissal of [Appellant]’s petition. A [p]etition for [a]llowance

of [a]ppeal was filed at the Pennsylvania Supreme Court. The

Pennsylvania Supreme Court issued an order denying

[Appellant]’s [p]etition for [a]llowance of [a]ppeal on May 23,

2018.

During the pendency of his appeal before the Supreme Court,

[Appellant] filed a pro se “Motion to be Removed from SORNA”

with [the PCRA c]ourt on March 28, 2018. The motion, which [the

PCRA court] treated as [Appellant]’s second PCRA petition, was

held in abeyance until the appeal pending on the first PCRA

petition reached a final disposition. On July 2, 2018, [the PCRA

court] [re]-appointed [PCRA counsel] to represent [Appellant] and

granted PCRA counsel leave to amend [Appellant]’s second

petition. Following several requests for continuance, an

[a]mended [p]etition for [p]ost-[c]onviction [r]elief was filed on

February 14, 2019. [The PCRA court] held a preliminary hearing

on February 20, 2019.

In his [a]mended PCRA [p]etition, [Appellant averred] that his

classification as a SVP and corresponding lifetime registration

requirement have been declared unconstitutional by

Commonwealth v. Muniz, 164 A.3d 1189 (Pa. 2017) and

Commonwealth v. Butler, 173 A.3d 1212 (Pa. Super. 2017).

See Def.’s PCRA Pet., Feb. 14, 2019, at ¶ 4. According to

[Appellant], both decisions established a new substantive rule of

constitutional law and must therefore be applied retroactively in

the collateral context. Id. [] ¶ 7. As a result, [Appellant] ask[ed]
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that [the PCRA court] vacate his SVP designation and lifetime

registration requirement as a sexual offender. Having filed his

second PCRA petition more than thirty-one months following the

date his judgment became final, [Appellant] invoke[d] the PCRA’s

timeliness exception regarding newly recognized constitutional

rights by claiming relief under Muniz and Butler. See 42

Pa.C.S.A. § 9545(b)(1)(iii).

PCRA Court Opinion, 7/12/19, at 1-3.

On February 20, 2019, the PCRA court held a hearing on Appellant’s

second PCRA petition. On July 12, 2019, the PCRA court issued notice of its

intent to dismiss Appellant’s PCRA petition as untimely pursuant to

Pennsylvania Rule of Criminal Procedure 907. By order dated September 17,

2019, the PCRA court formally dismissed Appellant’s petition. This timely

appeal followed.1

On appeal, Appellant presents the following issues for review:

I. Whether the [PCRA] court erred in dismissing Appellant’s

claim for post-conviction relief because Muniz and its progeny

confirmed United States and Pennsylvania substantive

constitutional rights that cannot be abrogated by any statute

including the jurisdictional grounds under the PCRA timeliness

exception at 42 Pa.C.S.A. §9545(b)(1)(iii)?

II. Whether the [PCRA] court erred in dismissing Appellant’s

claim requesting his Sexually Violent Predator classification be

vacated, because the statutory mechanism undertaking the

adjudication of the “SVP” status is flawed per the rulings in Muniz

and Butler?

Appellant’s Brief at 3.

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1 Both the PCRA court and Appellant have complied with Pennsylvania Rule

of Appellate Procedure 1925.
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The issues Appellant presents on appeal directly challenge the PCRA

court’s decision to dismiss his petition as untimely. “Pennsylvania law makes

clear no court has jurisdiction to hear an untimely PCRA petition.”

Commonwealth v. Monaco, 996 A.2d 1076, 1079 (Pa. Super. 2010)

(quoting Commonwealth v. Robinson, 837 A.2d 1157, 1161 (Pa. 2003)).

A petitioner must file a PCRA petition within one year of the date on which the

petitioner’s judgment became final, unless one of the three statutory

exceptions apply:

(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). A petitioner must file a petition invoking one of

these exceptions “within one year of the date the claim could have been

presented.” 42 Pa.C.S.A. § 9545(b)(2). If a petition is untimely, and the

petitioner has not pled and proven any 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.”
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Commonwealth v. Derrickson, 923 A.2d 466, 468 (Pa. Super. 2007)

(quoting Commonwealth v. Chester, 895 A.2d 520, 522 (Pa. 2006)).

In this case, Appellant concedes that his PCRA petition is untimely.2 See

Appellant’s Brief at 8-9. Accordingly, we are without jurisdiction to decide

Appellant’s appeal unless he pled and proved a timeliness exception pursuant

to Section 9545(b)(1). See Derrickson, 923 A.2d at 468.

For his first issue, Appellant attempts to establish on appeal the “new

retroactive right” exception of Section 9545(b)(1)(iii) based on our Supreme

Court’s decision in Muniz. In Muniz, the Supreme Court held that retroactive

application of the registration and reporting requirements of the Pennsylvania

Sex Offender Registration and Notification Act (SORNA),3 violated the ex post

facto clauses of the United States and Pennsylvania Constitutions. Id. at

1223. Appellant asserts that Muniz recognized a new constitutional right that

applies retroactively to him on collateral review because the trial court ordered

him to register for his lifetime as a sexual offender under SORNA. Appellant’s

Brief at 11-14.

In Commonwealth v. Murphy, 180 A.3d 402 (Pa. Super. 2018),

however, this Court rejected this exact claim. We explained:

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2 The record also supports a finding that Appellant’s petition is untimely. The

trial court sentenced Appellant on July 21, 2015, and Appellant did not file a

direct appeal. Therefore, his judgment of sentence became final 30 days later,

or August 20, 2015. See 42 Pa.C.S.A. § 9545(b)(3).

3 42 Pa.C.S.A. §§ 9799.10-9799.42.
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[The appellant]’s reliance on Muniz cannot satisfy the

[timeliness] exception of [S]ection 9545(b)(1)(iii). In

Commonwealth v. Abdul-Salaam, [] 812 A.2d 497 ([Pa.]

2002), our Supreme Court held that,

[s]ubsection (iii) of Section 9545 has two requirements.

First, it provides that the right asserted is a constitutional

right that was recognized by the Supreme Court of the

United States or this [C]ourt after the time provided in this

section. Second, it provides that the right “has been held”

by “that court” to apply retroactively. Thus, a petitioner

must prove that there is a “new” constitutional right and

that the right “has been held” by that court to apply

retroactively. The language “has been held” is in the past

tense. These words mean that the action has already

occurred, i.e., “that court” has already held the new

constitutional right to be retroactive to cases on collateral

review. By employing the past tense in writing this

provision, the legislature clearly intended that the right was

already recognized at the time the petition was filed.

Id. at 501.

Here, 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 [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

[S]ection 9545(b)(1)(iii). See Abdul-Salaam, supra. Because

at this time, no such holding has been issued by our Supreme

Court, [a]ppellant cannot rely on Muniz to meet that timeliness

exception.

Id. at 405-06.

Because Appellant cannot rely upon Muniz to satisfy any of the

timeliness exceptions of Section 9545(b)(1), we are without jurisdiction to

review the merits of his PCRA claims.
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For his second issue, Appellant argues that the PCRA court erred in

failing to vacate his SVP designation based on this Court’s decision in Butler. Notably, Appellant does not frame this issue within the context of any of the

PCRA timeliness exceptions set forth in Section 9545(b)(1). Thus, Appellant’s

second issue does not provide us a basis upon which we can exercise

jurisdiction over the merits of his claims. Nevertheless, even if we did have

jurisdiction over Appellant’s PCRA petition, Appellant would not be entitled to

relief.

In Butler, this Court held that Pennsylvania’s statutory mechanism from

designating sex offenders as SVPs was unconstitutional. Id. at 1217-18. This

Court explained that based on Muniz, “registration requirements under

SORNA constitute a form of criminal punishment” and consequently, the

procedure in Pennsylvania for designating individuals as SVPs is

unconstitutional because “it increases the criminal penalty to which a

defendant is exposed” on a showing of clear and convincing evidence, “without

the chosen fact-finder making the necessary factual findings beyond a

reasonable doubt.” Id. at 1217-18.

Recently, however, our Supreme Court reversed this Court’s Butler

decision. See Commonwealth v. Butler, 226 A.3d 972, 975 (Pa. 2020).

Specifically, our Supreme Court held that the registration, notification, and

reporting requirements “applicable to SVPs do not constitute criminal

punishment,” and therefore, the procedural mechanism in Pennsylvania for
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designating sex offenders as SVPs set forth in 42 Pa.C.S.A. § 9799.24 is

constitutional. Id. at 993. As our Supreme Court has declared Pennsylvania’s

statutory mechanism from designating sex offenders as SVPs to be

constitutional, Appellant’s claim does not warrant relief.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 7/30/2020