Com. v. Webber, W. ( 2020 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
WAYNE MICHAEL WEBBER :
:
Appellant : No. 60 WDA 2020
Appeal from the PCRA Order Entered January 6, 2020
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0008249-2014
BEFORE: OLSON, J., KING, J., and PELLEGRINI, J.*
MEMORANDUM BY KING, J.: FILED AUGUST 18, 2020
Appellant, Wayne Michael Webber, appeals from the order entered in
the Allegheny County Court of Common Pleas, which denied his petition
brought under the Post-Conviction Relief Act (“PCRA”).1 We affirm.
The relevant facts and procedural history of this case are as follows. In
2004, Appellant entered a guilty plea to one count each of aggravated
indecent assault, indecent assault of a child less than 13, and corruption of
minors at Docket No. 4513-2003. The court sentenced Appellant to two and
one-half (2½) to five (5) years’ incarceration, plus seven (7) years’ probation.
Appellant’s convictions subjected him to mandatory lifetime sex offender
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* Retired Senior Judge assigned to the Superior Court.
1 42 Pa.C.S.A. §§ 9541-9546.
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registration under Megan’s Law II, which was in effect at that time.
In 2014, the Commonwealth charged Appellant at Docket No. 8249-
2014 for failing to comply with registration and reporting requirements under
the Sex Offender Registration and Notification Act (“SORNA I”). On December
4, 2014, Appellant entered a guilty plea to one count each of failure to register
and failure to verify an address/be photographed. The court sentenced
Appellant on February 24, 2015, to eleven and one-half (11½) to twenty-three
(23) months’ incarceration, plus five (5) years’ probation. Appellant did not
file post-sentence motions or a notice of appeal at Docket No. 8249-2014. In
March 2017, the trial court again convicted Appellant of failure to comply with
SORNA I’s registration requirements, at Docket No. 3911-2017.
On March 19, 2018, Appellant filed pro se the current PCRA petition at
Docket No. 8249-2014 (related to his 2014 failure to register and failure to
verify address/be photographed convictions), and the court subsequently
appointed counsel. On July 10, 2019, Appellant filed an amended PCRA
petition, challenging the validity of his 2014 convictions and resultant
sentences under 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).2
The PCRA court issued notice of its intent to dismiss without a hearing per
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2 In Muniz, the Supreme Court held that the registration, notification, and
counseling provisions of SORNA I were punitive, such that application of those
provisions to offenders who committed their crimes prior to SORNA I’s
effective date violated ex post facto principles. See Muniz, supra.
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Pa.R.Crim.P. 907 on December 6, 2019, and Appellant filed a response on
December 26, 2019. On January 6, 2020, the PCRA court dismissed
Appellant’s petition. Appellant filed a timely notice of appeal on January 10,
2020. The court did not order Appellant to file a concise statement of errors
complained of on appeal per Pa.R.A.P. 1925(b), and Appellant filed none.
While the current appeal was pending, this Court disposed of Appellant’s
direct appeal at Docket No. 3911-2017 related to his 2017 conviction for
failing to comply with SORNA I’s registration and reporting requirements. See
Commonwealth v. Webber, 217 A.3d 431 (Pa.Super. 2019) (unpublished
memorandum). This Court reversed the 2017 conviction and vacated the
judgment of sentence pursuant to Muniz, because Appellant committed the
underlying sex offenses prior to SORNA I’s effective date. See Webber,
supra.
Appellant raises the following issues for our review:
[Whether t]he PCRA [c]ourt had jurisdiction because
[Appellant]’s case falls within an exception to the timeliness
requirement of the statute[?]
[Whether Appellant]’s sentence must be vacated because
retroactive application of [42 Pa.C.S.A] § 9799.63 is
unconstitutional under Moore3[?]
[Whether t]he [Pennsylvania] Supreme Court’s decision in
Lacombe4 m[a]y positively impact the outcome of
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3 Commonwealth v. Moore, 222 A.3d 16 (Pa.Super. 2019).
4Commonwealth v. Lacombe, 35 & 64 MAP 2018, ___ Pa. ___, ___ A.3d
___, 2020 WL 4150283 (filed July 21, 2020).
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[Appellant]’s appeal[?]
(Appellant’s Brief at 5).
As a preliminary matter, the timeliness of a PCRA petition is a
jurisdictional requisite. Commonwealth v. Zeigler, 148 A.3d 849 (Pa.Super.
2016). A PCRA petition must be filed within one year of the date the
underlying judgment becomes final. 42 Pa.C.S.A. § 9545(b)(1). A judgment
is “final” at the conclusion of direct review or at the expiration of time for
seeking review. 42 Pa.C.S.A. § 9545(b)(3). The statutory exceptions to the
timeliness provisions in the PCRA allow for limited circumstances under which
the late filing of a petition will be excused. See 42 Pa.C.S.A. § 9545(b)(1).
A petitioner asserting a timeliness exception must file a petition within one
year of when the claim could have been presented. 42 Pa.C.S.A. §
9545(b)(2).5
The newly-discovered facts timeliness exception set forth in Section
9545(b)(1)(ii) requires a petitioner to demonstrate he did not know the facts
upon which he based his petition and could not have learned those facts earlier
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5 Previously, the PCRA required that a petition invoking a timeliness exception
be filed within sixty (60) days of the date the claim first could have been
raised. See Commonwealth v. Gamboa-Taylor, 562 Pa. 70, 753 A.2d 780
(2000). As of December 24, 2018, PCRA petitions invoking timeliness
exceptions 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 in
60 days [Dec. 24, 2018]. This amendment applies to claims arising on or
after December 24, 2017. Appellant filed the instant PCRA petition on March
19, 2018, so the amendment applies to him.
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by the exercise of due diligence. Commonwealth v. Bennett, 593 Pa. 382,
930 A.2d 1264 (2007); 42 Pa.C.S.A. § 9545(b)(1)(ii). Regarding the newly-
recognized constitutional right exception under Section 9545(b)(1)(iii), “a
petitioner must prove that there is a new constitutional right and that the right
has been held by [the Supreme Court of the United States or the Supreme
Court of Pennsylvania] to apply retroactively.” Commonwealth v.
Chambers, 35 A.3d 34, 41 (Pa.Super. 2011), appeal denied, 616 Pa. 625, 46
A.3d 715 (2012); 42 Pa.C.S.A. § 9545(b)(1)(iii).
Instantly, Appellant’s judgment of sentence at Docket No. 8249-2014
became final on March 26, 2015, upon expiration of the time to file a direct
appeal. See Pa.R.A.P. 903(a). Appellant filed the current PCRA petition on
March 19, 2018, which is patently untimely. See 42 Pa.C.S.A. § 9545(b)(1).
Appellant attempts to invoke the newly-discovered facts exception, relying on
this Court’s disposition in Webber, supra related to Appellant’s direct appeal
at a different docket number. Judicial decisions, however, do not constitute a
“new fact” for purposes of the time-bar exception. See Commonwealth v.
Watts, 611 Pa. 80, 23 A.3d 980 (2011) (explaining subsequent decisional law
does not constitute new “fact” per Section 9545(b)(1)(ii)).
Appellant also attempts to invoke the newly-recognized constitutional
right exception, relying on Muniz. Muniz, however, does not satisfy that
exception to the PCRA time-bar. See Commonwealth v. Murphy, 180 A.3d
402 (Pa.Super. 2018), appeal denied, 649 Pa. 148, 195 A.3d 559 (2018)
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(stating petitioner cannot rely on Muniz to meet timeliness exception under
Section 9545(b)(1)(iii) unless and until Supreme Court allows).
Additionally, Appellant claimed Lacombe might announce a newly-
recognized constitutional right on which Appellant could rely to satisfy the
time-bar exception. Our Supreme Court recently issued its decision in
Lacombe during the pendency of this appeal. In Lacombe, the Court held
that Subchapter I of SORNA II is non-punitive and does not violate the
constitutional prohibition against ex post facto laws, as applied retroactively
to sex offenders who committed their offenses on or after April 22, 1996, but
before December 20, 2012. Thus, Lacombe did not announce any newly-
recognized constitutional right on which Appellant can rely. 6 Accordingly,
Appellant’s current PCRA petition remains time-barred, and we affirm the
order denying PCRA relief.
Order affirmed.
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6 To the extent Appellant purports to challenge his current sex offender
reporting requirements, as opposed to the validity of his 2014 failure to
register conviction and resultant sentence, we observe that Appellant’s current
reporting requirements stem from his underlying 2004 convictions at Docket
No. 4513-2003. Appellant, however, filed the current PCRA petition only from
the judgment of sentence at Docket No. 8249-2014, which includes no
registration and reporting requirements. Therefore, any challenge to the
validity of Appellant’s current reporting requirements is not properly before
us, and we need not consider Appellant’s reliance on Moore, supra to attack
the validity of Appellant’s reporting requirements. . In any event, Lacombe
upheld the constitutionality of Subchapter I of SORNA II, under which
Appellant is currently registering.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/18/2020
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