Com. v. Shelton, J.

• Court: Superior Court of Pennsylvania
• Decided: January 17, 2020
• Docket: 941 WDA 2019
• Status: Unpublished

Opinion

J-S68035-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellee : : v. : : JESSE RAY SHELTON : : Appellant : No. 941 WDA 2019

Appeal from the PCRA Order Entered May 28, 2019 In the Court of Common Pleas of Lawrence County Criminal Division at No(s): CP-37-CR-0000781-2016

BEFORE: GANTMAN, P.J.E., LAZARUS, J., and PELLEGRINI, J.*

JUDGMENT ORDER BY GANTMAN, P.J.E.: FILED JANUARY 17, 2020

Appellant, Jesse Ray Shelton, appeals from the order entered in the

Lawrence County Court of Common Pleas, which dismissed as untimely his

first petition filed under the Post Conviction Relief Act (“PCRA”), at 42

Pa.C.S.A. §§ 9541-9546. On January 13, 2017, Appellant entered a

negotiated guilty plea to failure to register. The court sentenced Appellant on

January 30, 2017, to the negotiated 15 to 30 months’ imprisonment, plus one

year of probation. Appellant did not appeal. On March 12, 2019, Appellant

filed a counseled “motion to vacate sentence,” which the court treated as a

first PCRA petition. The court held a PCRA hearing on March 22, 2019, and

dismissed the petition as untimely on May 28, 2019. On June 24, 2019,

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* Retired Senior Judge assigned to the Superior Court. J-S68035-19

Appellant timely filed a counseled notice of appeal. The next day, the court

ordered Appellant to file a concise statement per Pa.R.A.P. 1925(b); Appellant

timely complied on July 2, 2019.

Preliminarily, the timeliness of a PCRA petition is a jurisdictional

requisite. Commonwealth v. Zeigler, 148 A.3d 849 (Pa.Super. 2016). A

PCRA petition, including a second or subsequent petition, shall be filed within

one year of the date the underlying judgment of sentence becomes final. 42

Pa.C.S.A. § 9545(b)(1). A judgment of sentence is 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.A. § 9545(b)(3). The statutory

exceptions to the PCRA time-bar allow very limited circumstances to excuse

the late filing of a petition; a petitioner must also assert the exception within

the time allowed under the statute. 42 Pa.C.S.A. § 9545(b)(1) and (b)(2).

Instantly, Appellant’s judgment of sentence became final on March 1,

2017, upon expiration of the time to file a notice of appeal in the Superior

Court. See Pa.R.A.P. 903(a) (allowing 30 days to file notice of appeal in

Superior Court). Appellant filed his petition on March 12, 2019, which is

patently untimely. See 42 Pa.C.S.A. § 9545(b)(1). Appellant tries to invoke

the “new constitutional right” exception at Section 9545(b)(1)(iii), relying on

Commonwealth v. Muniz, 640 Pa. 699, 164 A.3d 1189 (2017), cert. denied,

___ U.S. ___, 138 S.Ct. 925, 200 L.Ed.2d 213 (2018) (holding requirements

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of Sexual Offender Registration and Notification Act (“SORNA”) constitute

criminal punishment; SORNA is unconstitutional ex post facto law when

applied retroactively to those sex offenders convicted of applicable crimes

before SORNA’s effective date and subjected to increased registration

requirements under SORNA after its passage). Nevertheless, Appellant did

not file his PCRA petition within 60 days of Muniz, decided on July 19, 2017.

See 42 Pa.C.S.A. § 9545(b)(2) (providing statutory window in which PCRA

petitioner must assert time-bar exception);1 Commonwealth v. Leggett, 16

A.3d 1144 (Pa.Super. 2011) (holding statutory window to invoke new

constitutional right exception began to run on date of judicial decision

establishing alleged new constitutional right, and not on day when decision

became available to petitioner in prison law library; prisoner’s ignorance of

law does not excuse his failure to file PCRA petition within 60 days of judicial

decision on which he relies; neither court nor correctional system is obliged to

educate or update prisoners concerning changes in case law).2 Further,

1Section 9545(b)(2) now allows that any PCRA petition invoking a time-bar exception must be filed within one year of the date the claim first could have been presented. See Act 2018, Oct. 24, P.L. 894, No. 146, § 2, effective Dec. 24, 2018. This amendment applies to claims arising on or after December 24, 2017. Because our Supreme Court decided Muniz on July 19, 2017, the amendment does not apply here. Moreover, even if the amendment applied, Appellant filed the current petition more than one year after Muniz.

2In Commonwealth v. Burton, 121 A.3d 1063 (Pa.Super. 2015) (en banc), aff’d, 638 Pa. 687, 158 A.3d 618 (2017), this Court held that Pennsylvania courts shall no longer apply a public record presumption to pro se incarcerated

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Appellant has not established that Muniz applies retroactively to untimely

PCRA petitions. See 42 Pa.C.S.A. § 9545(b)(1)(iii); Commonwealth v.

Murphy, 180 A.3d 402 (Pa.Super. 2018), appeal denied, ___ Pa. ___, 195

A.3d 559 (2018) (holding petitioner cannot rely on Muniz to meet timeliness

exception under Section 9545(b)(1)(iii) until U.S. Supreme Court or

Pennsylvania Supreme Court holds that Muniz is retroactive in untimely PCRA

petitions). Thus, Appellant’s PCRA petition remains untimely.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 1/17/2020

PCRA petitioners asserting the “newly-discovered facts” time-bar exception at Section 9545(b)(1)(ii). Burton does not apply to the “new constitutional right” exception, so Appellant’s reliance on Burton is misplaced.

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