J-S54035-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

DAVID M. NORMAN

Appellant

:

:

:

:

:

:

:

:

:

IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 360 WDA 2018

Appeal from the PCRA Order February 7, 2018

In the Court of Common Pleas of Erie County Criminal Division at No(s):

CP-25-CR-0002085-2015

BEFORE: PANELLA, J., LAZARUS, J., and MURRAY, J.

MEMORANDUM BY MURRAY, J.: FILED SEPTEMBER 20, 2018

David M. Norman (Appellant) appeals from the order dismissing as

untimely his petition filed pursuant to the Post Conviction Relief Act (PCRA),

42 Pa.C.S.A. §§ 9541-9546. We affirm.

The trial court summarized the facts and procedural history of this case

as follows:

On September 25th, 2015, the District Attorney’s Office filed a

Criminal Information [relating to conduct that occurred on or

around June 16, 2015], charging Appellant with Aggravated

Indecent Assault of a Child, in violation of 18 Pa.C.S.[A.] §

3125(b); three counts of Endangering Welfare of Children, in

violation of 18 Pa.C.S.[A.] § 4304(a)(1); three counts of

Corruption of Minors, in violation of 18 Pa.C.S.[A.] §

6301(a)(1)(ii); and three counts of Indecent Assault of a Person

less than 13 Years of Age, in violation of 18 Pa.C.S.[A.] §

3126(a)(7). On March 14th, 2016, Appellant, with the assistance

of his then-counsel . . . entered a No Contest plea to Count Two

(Endangering Welfare of Children), Count Five (Corruption of

Minors) and Counts Eight through Ten (Indecent Assault of a

Person less than 13 Years of Age), with all other counts nolle
J-S54035-18

- 2 -

prossed by the Commonwealth. On June 27th, 2016, the [t]rial

[c]ourt sentenced Appellant as follows:

 Count Eight (Indecent Assault of a Person less than 13

Years of Age): nine (9) months to twenty-four (24)

months of incarceration, with three hundred seventy-one

(371) days of credit for time served;

 Count Nine (Indecent Assault of a Person less than 13

Years of Age): nine (9) months to twenty-four (24)

months of incarceration, consecutive to Count Eight;

 Count Ten (Indecent Assault of a Person less than 13

Years of Age): nine (9) months to twenty-four (24)

months of incarceration, consecutive to Count Nine.

 Count Two (Endangering Welfare of Children): five (5)

years of probation, consecutive to Count Ten; and

 Count Five (Corruption of Minors): five (5) years of

probation, consecutive to Count Two.

On June 27th, 2016, th[e] [t]rial [c]ourt also directed Appellant

to register as a Sexual Offender for his lifetime. (See Notice to

Appellant of Duty to Register Pursuant to 42 Pa.C.S.A Chapter 97,

Subchapter H “Registration of Sexual Offenders,” filed June 27th, 2017).

On September 15th, 2017, Appellant, pro se, filed his Motion

for Reconsideration of sentence, which th[e] [t]rial [c]ourt treated

as Appellant’s first PCRA Petition. By Order dated September 21st, 2017, th[e] [t]rial [c]ourt appointed . . . PCRA counsel and

directed [him] to supplement or amend Appellant’s first PCRA

Petition within thirty days. [PCRA counsel] filed a Supplement to

Motion for Post-Conviction Collateral Relief on October 18th, 2017.

By Order dated October 20th, 2017, th[e] [t]rial [c]ourt directed

the Commonwealth to respond to the Supplement to Motion for

Post-Conviction Collateral Relief within thirty days. The

Commonwealth . . . filed [its r]esponse . . . on November 16th, 2017.

On December 12th, 2017, th[e] [t]rial [c]ourt notified Appellant

of its intention to dismiss Appellant’s first PCRA Petition as

patently untimely and directed Appellant to submit his
J-S54035-18

- 3 -

[o]bjections within twenty days. . . . Appellant did not file

[o]bjections to the . . . [n]otice. Thus, on February 7th, 2018,

th[e] [t]rial [c]ourt issued an Order dismissing Appellant’s PCRA

Petition as being patently untimely and stating no grounds for

relief under the Post[]Conviction Relief Act.

Appellant filed his Notice of Appeal on March 9th, 2018[.] By

Order dated March 9th, 2018, th[e] [t]rial [c]ourt directed

Appellant to file a concise statement of the matters complained of

on appeal within twenty-one days of the date of said Order.

Appellant . . . filed his Concise Statement of Matters Complained

of on Appeal on March 28th, 2018.

PCRA Court Opinion, 4/25/18, at 2-4.

On appeal, Appellant presents the following issues for review:

1. Whether the PCRA Court committed legal error and abused its

discretion in finding that [Appellant]’s Petition was untimely filed

and in thereby failing to entertain and adjudicate his claims on the

substantive merits?

2. Whether the PCRA Court committed legal error and abused its

discretion in failing to afford relief in the nature of reconsideration

and modification of sentence in accordance with the holding of

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

Appellant’s Brief at 2.

Before addressing the merits of Appellant’s claims, we must determine

whether we have jurisdiction over this appeal. “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:
J-S54035-18

- 4 -

(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 60 days 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.”

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.

Appellant’s Brief at 3-4. 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.

Appellant asserts that he has satisfied the timeliness exception of

Section 9545(b)(1)(iii) based on our Supreme Court’s decision in

Commonwealth v. Muniz, 164 A.3d 1189 (Pa. 2017). In Muniz, the
J-S54035-18

- 5 -

Supreme Court held that retroactive application of the registration and

reporting requirements of the Pennsylvania Sex Offender Registration and

Notification Act (SORNA),1 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 3-4.

Recently, in Commonwealth v. Murphy, 180 A.3d 402 (Pa. Super.

2018), this Court rejected this exact claim. We explained:

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.

____________________________________________

1 42 Pa.C.S.A. §§ 9799.10-9799.42.
J-S54035-18

- 6 -

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 Appellant’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, Appellant cannot rely on Muniz to meet that timeliness

exception.

Id. at 405-06.

Because Appellant cannot rely upon Muniz to satisfy the timeliness

exception of Section 9545(b)(1)(iii), we are without jurisdiction to review the

merits of his PCRA claims.2

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 9/20/2018

____________________________________________

2 We note that even if we had jurisdiction to review Appellant’s claims, they

are patently meritless. The record reflects that the offenses to which Appellant

pled guilty, his guilty plea, and sentencing all occurred well after SORNA

became effective on December 20, 2012. Therefore, Muniz, which only

involved the retroactive application of SORNA’s registration and reporting

requirements, is inapplicable to Appellant’s case.