Com. v. Vela, A. ( 2018 )

J-S34023-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT
OF PENNSYLVANIA
Appellee
v.
ALLEN W. VELA
Appellant No. 1709 WDA 2017
Appeal from the PCRA Order Entered October 12, 2017
In the Court of Common Pleas of Jefferson County
Criminal Division at No.: CP-33-CR-0000021-2004
BEFORE: BOWES, STABILE, and STRASSBURGER,* JJ.
MEMORANDUM BY STABILE, J.: FILED AUGUST 23, 2018
Appellant Allen W. Vela pro se appeals from the October 12, 2017 order
of the Court of Common Pleas of Jefferson County, which dismissed as
untimely his fourth request for collateral relief under the Post Conviction Relief
Act, 42 Pa.C.S.A. §§ 9541-46. Upon review, we affirm.
The facts and procedural history of this case are undisputed. As
summarized by a prior panel of this Court:
[Appellant] was convicted of six counts of involuntary
deviate sexual intercourse [(18 Pa.C.S.A. § 3123(a)(6))], four
counts of statutory sexual assault [(18 Pa.C.S.A. § 3122.1)], four
counts of sexual assault [(18 Pa.C.S.A. § 3124.1)], six counts of
aggravated indecent assault [(18 Pa.C.S.A. § 3125)], and six
counts of endangering the welfare of children [(18 Pa.C.S.A. §
4304(a))]. The convictions arose from [Appellant’s] sexual acts
with his girlfriend’s daughter from the time the child was four
years old until she was six years old. The trial court sentenced
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
J-S34023-18
[Appellant] to an aggregate sentence of thirty-four to eighty years
in prison.[1] [Appellant] appealed his judgment of sentence and
this Court affirmed the sentence on May 3, 2006. See
Commonwealth v. Vela, 903 A.2d 54 (Pa. Super. 2006)
(unpublished memorandum).
Commonwealth v. Vela, No. 2032 WDA 2007, at 1-2 (Pa. Super. Filed
January 30, 2009), appeal denied, 983 A.2d 728 (Pa. 2009).
On September 5, 2017, Appellant filed the instant, his fourth, PCRA
petition, asserting relief under Commonwealth v. Muniz, 164 A.3d 1189
(Pa. 2017),2 which was decided on July 19, 2017. Following its issuance of a
Pa.R.Crim.P. 907 notice of its intent to dismiss the petition without a hearing,
the PCRA court denied Appellant PCRA relief on October 12, 2017. Appellant
appealed to this Court. The PCRA court directed Appellant to file a Pa.R.A.P.
1925(b) statement. Appellant complied. In response, the PCRA court issued
a Pa.R.A.P. 1925(a) opinion.
On appeal,3 Appellant argues only that “the sentencing court erred by
not reversing its order determining Appellant to be a sexually violent predator
requiring him to register for life as a sex offender.” Appellant’s Brief at 4
____________________________________________
1On December 8, 2004, the trial designated Appellant to be sexually violent
predator (“SVP”) under Megan’s Law II, 42 Pa.C.S.A. § 9795.4.
2In Muniz, our Supreme Court held that SORNA’s registration provisions are
punitive, and retroactive application of SORNA’s provisions violates the federal
ex post facto clause, as well as the ex post facto clause of the Pennsylvania
Constitution.
3“In PCRA proceedings, an appellate court’s scope of review is limited by the
PCRA’s parameters; since most PCRA appeals involve mixed questions of fact
and law, the standard of review is whether the PCRA court’s findings are
supported by the record and free of legal error.” Commonwealth v. Pitts,
981 A.2d 875, 878 (Pa. 2009) (citation omitted).
-2-
J-S34023-18
(unnecessary capitalization omitted). Essentially, Appellant argues that
Muniz renders his SVP designation and the resultant lifetime registration
unconstitutional.
Before we may address the merits of this appeal, we must determine
whether the PCRA court had jurisdiction to entertain the underlying PCRA
petition. The PCRA contains the following restrictions governing the timeliness
of any PCRA petition.
(b) Time for filing petition.--
(1) Any petition under this subchapter, including a second or
subsequent petition, shall be filed within one year of the date the
judgment becomes final, unless the petition alleges and the
petitioner 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;
(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.
(2) Any petition invoking an exception provided in paragraph (1)
shall be filed within 60 days of the date the claim could have been
presented.
(3) For purposes of this subchapter, a judgment becomes final at
the conclusion of direct review, including discretionary review in
the Supreme Court of the United States and the Supreme Court
-3-
J-S34023-18
of Pennsylvania, or at the expiration of time for seeking the
review.
42 Pa.C.S.A. § 9545(b) (emphasis added). Section 9545’s timeliness
provisions are jurisdictional. Commonwealth v. Ali, 86 A.3d 173, 177 (Pa.
2014). Additionally, we have emphasized repeatedly that “the PCRA confers
no authority upon this Court to fashion ad hoc equitable exceptions to the
PCRA time-bar in addition to those exceptions expressly delineated in the Act.”
Commonwealth v. Robinson, 837 A.2d 1157, 1161 (Pa. 2003) (citations
omitted).
Here, the record reflects Appellant’s judgment of sentence became final
on May 3, 2006. See 42 Pa.C.S.A. § 9545(b)(3); Pa.R.A.P. 903(a). Because
Appellant had one year from May 3, 2006, to file his PCRA petition, the current
filing is facially untimely given it was filed on September 5, 2017.
The one-year time limitation, however, can be overcome if a petitioner
alleges and proves one of the three exceptions set forth in Section
9545(b)(1)(i)-(iii) of the PCRA. Here, Appellant invokes the time-bar
exception of Section 9545(b)(1)(iii) of the PCRA in arguing that that our
Supreme Court’s decision in Muniz created a new substantive right that
applies retroactively. Our Supreme Court has set forth a two-part test to
determine the applicability of Section 9545(b)(1)(iii) to a new decision:
Subsection (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
-4-
J-S34023-18
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.
Commonwealth v. Abdul–Salaam, 571 Pa. 219, 812 A.2d 497, 501 (2002).
To date, our Supreme Court has not recognized a new constitutional
right in Muniz to be applied retroactively under Section 9545(b)(1)(iii).
Appellant, therefore, is not entitled to relief under his untimely filed petition.
Additionally, Appellant, for the first time on appeal, raises an argument
under Commonwealth v. Butler, 173 A.3d 1212 (Pa. Super. 2017) to
challenge his SVP designation. Under Pennsylvania Rule of Appellate
Procedure 302(a), however, his argument is waived because he failed to
preserve it for our review. See Pa.R.A.P. 302(a) (“Issues not raised in the
lower court are waived and cannot be raised for the first time on appeal.”).
Even if his Butler argument is not waived, he still is not entitled to relief. In
Butler, this Court concluded that, in light of our Supreme Court’s decision in
Muniz, “Section 9799.24(e)(3) of SORNA [regarding SVP designation]
violates the federal and state constitutions because it increases the criminal
penalty to which a defendant is exposed without the chosen fact-finder making
the necessary factual findings beyond a reasonable doubt.” Butler, 173 A.3d
at 1218. This Court’s reasoning in Butler was based on the United States
Supreme Court’s decision in Alleyne v. United States, 570 U.S. 99 (2013)
(holding that “[a]ny fact that, by law, increases the penalty for a crime is an
‘element’ that must be submitted to the jury and found beyond a reasonable
-5-
J-S34023-18
doubt”), which our Supreme Court has held does not apply retroactively
where, as here, the judgment of sentence is final. See Commonwealth v.
Washington, 142 A.3d 810, 820 (Pa. 2016) (holding that “Alleyne does not
apply retroactively to cases pending on collateral review”). Moreover, as
noted earlier, to overcome the PCRA’s one-year time-bar, Section
9545(b)(1)(iii) provides that the United States Supreme Court or our Supreme
Court must have recognized a new constitutional right and have held it to
apply retroactively. Here, we do not construe Butler, which has not been
adopted by our Supreme Court, to apply retroactively to cases pending on
collateral review, including the instant case. Accordingly, Appellant would not
obtain relief.
In sum, the PCRA court did not err in dismissing as untimely his PCRA
petition.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/23/2018
-6-