J-S05040-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

CLAYTON JAMES SROCK,

Appellant No. 286 MDA 2015

Appeal from the PCRA Order December 23, 2014

in the Court of Common Pleas of Luzerne County

Criminal Division at No.: CP-40-CR-0002214-2011

BEFORE: BENDER, P.J.E., SHOGAN, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.: FILED FEBRUARY 03, 2016

Appellant, Clayton James Srock, appeals from the order of December 

23, 2014, dismissing, following a hearing, his first counseled petition 

brought under the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-

9546. For the reasons discussed below, we affirm.

We take the underlying facts in this matter from our independent 

review of the certified record. On June 26, 2012, following a trial, a jury 

found Appellant guilty of failure to comply with registration of sexual 

offender requirements.1 On August 10, 2012, the trial court sentenced 

____________________________________________

* Retired Senior Judge assigned to the Superior Court.

1 18 Pa.C.S.A. § 4915(a)(1).
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Appellant to not less than three nor more than six years of incarceration. 

Appellant did not file a direct appeal.

On May 12, 2014, Appellant, through counsel, filed the instant PCRA 

petition challenging the legality of his sentence. A hearing on Appellant’s 

PCRA petition took place on December 23, 2014. Immediately following the 

hearing, the PCRA court denied the petition on the merits. On January 21, 

2015, Appellant filed the instant, timely appeal. On January 29, 2015, the 

PCRA court ordered Appellant to file a concise statement of errors 

complained of on appeal. See Pa.R.A.P. 1925(b). On February 13, 2015, 

Appellant filed a timely Rule 1925(b) statement. On May 7, 2015, the PCRA 

court issued an opinion. See Pa.R.A.P. 1925(a).

Appellant raises one question on appeal:

Whether the [PCRA] court erred in denying [Appellant’s] 

[p]etition for [p]ost-[c]onviction [r]elief where [Appellant] is 

currently serving an illegal sentence and is incarcerated in 

violation of the due process clauses of both the Constitution of 

the United States and the Constitution of the Commonwealth of 

Pennsylvania?

(Appellant’s Brief, at 2).

Our standard of review for an order denying PCRA relief is well-settled:

This Court’s standard of review regarding a PCRA court’s 

order is whether the determination of the PCRA court is 

supported by the evidence of record and is free of legal error. 

Great deference is granted to the findings of the PCRA court, and 

these findings will not be disturbed unless they have no support 

in the certified record. 
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Commonwealth v. Carter, 21 A.3d 680, 682 (Pa. Super. 2011) (citations 

and quotation marks omitted). However, “if a PCRA [p]etition is untimely, a 

trial court has no jurisdiction to entertain the petition.” Commonwealth v. 

Hutchins, 760 A.2d 50, 53 (Pa. Super. 2000) (citations omitted). 

Here, Appellant filed his first PCRA petition on May 12, 2014. The 

PCRA provides that “[a]ny petition under this subchapter, including a second 

or subsequent petition, shall be filed within one year of the date the 

judgment becomes final[.]” 42 Pa.C.S.A. § 9545(b)(1). Appellant’s 

judgment of sentence became final on September 10, 2012, thirty days2

after the trial court imposed sentence and Appellant did not file a direct 

appeal with this Court. Therefore, Appellant had one year, until September 

10, 2013, to file a timely PCRA petition. Because Appellant did not file his 

current petition until May 12, 2014, the petition is facially untimely. Thus, 

he must plead and prove that he falls under one of the exceptions at Section 

9545(b) of the PCRA. See 42 Pa.C.S.A. § 9545(b)(1).

Section 9545 provides that the court can still consider an untimely 

petition where the petitioner successfully proves that:

(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; 

____________________________________________

2 The thirtieth day, September 9, 2012, was a Sunday.
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(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. 

Id. at § 9545(b)(1)(i)-(iii). Further, a petitioner who wishes to invoke any 

of the above exceptions must file the petition “within [sixty] days of the date 

the claim could have been presented.” Id. at § 9545(b)(2). The 

Pennsylvania Supreme Court has repeatedly stated that it is an appellant’s 

burden to plead and prove that one of the above-enumerated exceptions 

applies. See, e.g., Commonwealth v. Abu-Jamal, 941 A.2d 1263, 1268 

(Pa. 2008), cert. denied, 555 U.S. 916 (2008). Here, Appellant contends 

that he falls under the third exception of Section 9545(b)(1). (See

Appellant’s Brief, at 7); see also 42 Pa.C.S.A. § 9545(b)(1)(iii) (providing 

relief where appellant proves newly-recognized constitutional right).

Here, Appellant claims that Megan’s Law III, under which the trial 

court sentenced him, is void ab initio, resulting in an unconstitutional 

sentence because it is as if the offense for which the jury convicted him 

never existed. (See Appellant’s Brief, at 4-12). Appellant bases his claim 

on the Pennsylvania Supreme Court’s decision in Commonwealth v. 

Neiman, 84 A.3d 603 (Pa. 2013), which declared Act 152, which included 
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the relevant Megan’s Law III provisions, unconstitutional. (See id.). 

Appellant’s claim does not merit relief.3

Appellant cannot claim an exception under § 9545(b)(1)(iii) unless he 

can prove a “constitutional right” recognized in Neiman “has been held by 

[our Supreme Court] to apply retroactively.” 42 Pa.C.S.A. § 9545(b)(1)(iii). 

In Commonwealth v. Abdul-Salaam, 812 A.2d 497 (Pa. 2002), our 

Supreme Court addressed the issue of whether a determination of 

retroactivity must have already occurred before a petitioner files a PCRA 

claiming a “constitutional right” exception pursuant to § 9545(b)(1)(iii). The 

Court stated:

In construing subsection (iii), as with any question of 

statutory construction, we must begin with the Rules of 

Statutory Construction. A statute’s words and phrases are to be 

construed according to their common and approved usage, and 

where the words of a statute are clear and free from ambiguity, 

the letter of the statute may not be disregarded. See 1 Pa.C.S. 

§§ 1903(a), 1921(b); Commonwealth v. MacPherson, 561 

Pa. 571, 752 A.2d 384, 391 (2000).

Subsection (iii) of Section 9545 has two requirements. 

First, it provides that the right asserted is a constitutional right 

____________________________________________

3 We briefly note that Appellant’s reliance on this Court’s decisions in 

Commonwealth v. Michuk, 686 A.2d 403, 407 (Pa. Super. 1996), appeal 

denied, 698 A.2d 593 (Pa. 1997) (vacating conviction under Motor Vehicle 

Code because, during pendency of direct appeal, Pennsylvania Supreme 

Court struck down subsection of Code under which defendant was convicted) 

and Commonwealth v. Muhammed, 992 A.2d 897, 903 (Pa. Super. 2010) 

(reversing conviction for trademark counterfeiting because Pennsylvania 

Supreme Court declared trademark counterfeiting statute unconstitutional) 

is misplaced because both cases, unlike the instant matter, were on direct 

appeal, not collateral review.
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that was recognized by the Supreme Court of the United States 

or this court 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. The Court concluded:

[W]e hold that the language “has been held” means that 

the ruling on retroactivity of the new constitutional law must 

have been made prior to the filing of the petition for collateral 

review.

We find further support for our conclusion today in a 

recent United States Supreme Court case. Tyler v. Cain, 533 

U.S. 656, 121 S.Ct. 2478, 150 L.Ed.2d 632 (2001). In Tyler, 

the [United States Supreme] Court looked at a similar provision 

of the Antiterrorism and Effective Death Penalty Act (“AEDPA”), 

which provided that the petitioner must make “a prima facie 

showing” that his “claim relies on a new rule of constitutional 

law, made retroactive to cases on collateral review by the 

Supreme Court, that was previously unavailable.” Tyler, 533 

U.S. at 660, 121 S.Ct. 2478 (quoting 28 U.S.C. § 2244(b)). 

Specifically, the [United States Supreme] Court was called upon 

to interpret the phrase “made retroactive to cases on collateral 

review by the Supreme Court.”

When reviewing the new constitutional rule in context, the 

[United States Supreme] Court explained that the only way a 

new rule becomes retroactive was simply by the action of the 

Supreme Court itself. Further, “the only way the Supreme Court 

can, by itself ‘lay out and construct’ a rule’s retroactive effect . . 

. is through a holding.” Id. at 663, 121 S.Ct. 2478. Thus, the 

Court determined that a new rule of constitutional law is not 

“made retroactive to cases on collateral review” unless the 

Supreme Court has held it to be retroactive. Id.
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Id. at 501-02. “After reviewing the plain language of the subsection and 

United States Supreme Court caselaw, we are persuaded that the language 

‘has been held’ in 42 Pa.C.S. § 9545(b)(1)(iii) means that a retroactivity 

determination must exist at the time that the petition is filed.” Id. at 502.

Here, as discussed above, Appellant bases his claim that his sentence 

is illegal on our Supreme Court’s decision in Neiman finding Act 152 

unconstitutional. It is unnecessary for us to consider whether in declaring 

Act 152 unconstitutional the Pennsylvania Supreme Court announced a new 

“constitutional right” because our review of Neiman confirms that our 

Supreme Court did not direct that the decision was to apply retroactively. 

Moreover, the Neiman decision did not discuss the effects of its ruling on 

cases that had become final before it was decided. Thus, it cannot be said 

that the right asserted by Appellant “has been held by [our Supreme Court] 

to apply retroactively.” 42 Pa.C.S.A. § 9545(b)(1)(iii). Therefore, Appellant 

has not met the requirements of § 9545(b)(1)(iii).

Moreover, the fact that Appellant challenges the legality of sentence 

does not change the result. In Commonwealth v. Fahy, 737 A.2d 214 (Pa. 

1999), the Pennsylvania Supreme Court rejected this contention. The Fahy 

Court stated, “[a]lthough legality of sentence is always subject to review 

within the PCRA, claims must still first satisfy the PCRA’s time limits or one 

of the exceptions thereto.” Fahy, supra at 223 (citation omitted). Thus, 
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Appellant cannot evade the PCRA timeliness requirements based on a claim 

of an illegal sentence. See id. 

Although the PCRA court did not dismiss Appellant’s PCRA petition as 

untimely, we conclude that Appellant did not file a timely PCRA petition and 

is not saved by any exception under § 9545(b)(1). “As an appellate court, 

we may affirm by reasoning different than that used by the trial court.” 

Commonwealth v. Miller, 787 A.2d 1036, 1038 (Pa. Super. 2001), appeal 

denied, 798 A.2d 1288 (Pa. 2002) (citation omitted). Because Appellant’s 

petition is untimely with no statutory exception to the time bar pleaded and 

proven, the PCRA court was without jurisdiction to address the merits of 

Appellant’s claims, and we are without jurisdiction to review them. See 

Hutchins, supra at 53.

Order affirmed.

 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 2/3/2016