Com. v. Payne, J. ( 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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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
:
v. :
:
:
JOHN ROBERT PAYNE, SR. :
:
Appellant : No. 196 WDA 2019
Appeal from the PCRA Order Entered January 11, 2019
In the Court of Common Pleas of Erie County Criminal Division at No(s):
CP-25-CR-0001639-2006
BEFORE: McLAUGHLIN, J., McCAFFERY, J., and PELLEGRINI, J.*
MEMORANDUM BY McLAUGHLIN, J.: FILED APRIL 30, 2020
John Robert Payne, Sr. appeals from the order dismissing his petition
filed under the Post Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-9546. We
conclude that Payne’s PCRA petition is untimely and he fails to satisfy any
time-bar exception. We therefore affirm.
In January 2007, a jury found Payne guilty of aggravated indecent
assault of a child, indecent assault, corruption of minors, and endangering
welfare of children.1 In May 2007, the trial court sentenced Payne to five to
10 years’ imprisonment for aggravated assault of a child, nine to 24 months’
imprisonment for corruption of minors, and five years’ probation for
endangering the welfare of children. The court ordered that the sentences
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* Retired Senior Judge assigned to the Superior Court.
1 18 Pa.C.S.A. § 3125(b), 3126(a), 6301, and 4304(a), respectively.
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were to be served consecutive to each other and found that the indecent
assault conviction merged for sentencing purposes. On October 16, 2008, this
Court affirmed the judgment of sentence. Payne did not file a petition for
allowance of appeal with the Pennsylvania Supreme Court.
Payne filed several unsuccessful PCRA petitions. In September 2017,
Payne filed the instant PCRA petition asserting he is entitled to relief under
Commonwealth v. Muniz, 164 A.3d 1189 (Pa. 2017). The PCRA court
appointed counsel, who filed an amended petition, alleging “[p]ursuant to
Muniz, [Payne] was never constitutionally subject to registration under
SORNA and thus, could not be prosecuted for failure to comply with
registration” under SORNA. Amended Petition for Post-Conviction Relief Under
the PCRA and/or Habeas Corpus Relief, filed Jan. 9, 2018, ¶ 9. Payne claimed
that the petition was timely because Muniz established a constitutional right
that the Pennsylvania Supreme Court recognized to apply retroactively.
The PCRA court issued notice of intent to dismiss the petition without a
hearing pursuant to Pennsylvania Rule of Criminal Procedure 907. The court
reasoned that Payne had not been convicted of violating any enhanced
registration requirement and therefore there was no case or controversy. In
January 2019, the court dismissed the petition. Payne filed a timely notice of
appeal.
Payne raises the following issue:
1. Did the Court below commit reversible error by failing to
grant [Payne’s] PCRA Petition which argued that requiring
[Payne] to register under SORNA, which essentially was an
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unconstitutional retroactive registration statute, was in
violation of Commonwealth v. Muniz?
Payne’s Br. at 1.
When reviewing the denial or grant of relief under the PCRA, “[w]e must
determine whether the PCRA court’s ruling is supported by the record and free
of legal error.” Commonwealth v. Presley, 193 A.3d 436, 442 (Pa.Super.
2018) (citation omitted).
We do not reach the merits of Payne’s claim because his petition was
untimely. See Commonwealth v. Pursell, 749 A.2d 911, 913-14 (Pa. 2000).
A criminal defendant has one year from the time the judgment of sentence
becomes final to file a timely PCRA petition, unless an exception applies. See
42 Pa.C.S.A. § 9545(b)(1). A judgment of sentence becomes 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
petitioner bears the burden of pleading and proving at least one of the time-
bar exceptions:
(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
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provided in this section and has been held by that court to
apply retroactively.
42 Pa.C.S.A. § 9545(b)(1)(i)-(iii).
Here, Payne’s judgment of sentence became final on November 17,
2008, when the time to file a petition for allowance of appeal with the
Pennsylvania Supreme Court expired. Pa.R.A.P. 1113(a) (providing that a
petition for allowance of appeal shall be filed within 30 days of the entry of
the Superior Court order).2 Payne thus had until November 17, 2009, to file a
timely PCRA petition. Therefore, the instant petition, which he filed in January
2017, is untimely and the PCRA court lacked jurisdiction over it unless Payne
pled and proved at least one of the time-bar exceptions. See Commonwealth
v. Albrecht, 994 A.2d 1091, 1093 (Pa. 2010).
In his PCRA petition, Payne claimed he satisfied the new retroactive
constitutional right exception to the PCRA time bar, that is, he claimed that
Muniz established a constitutional right which was found to apply
retroactively. We have concluded that Muniz does not satisfy the new
retroactive constitutional right exception to the time bar because the
Pennsylvania Supreme Court has not held that the right applies retroactively.
Commonwealth v. Murphy, 180 A.3d 402, 406 (Pa.Super. 2018).
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2 Thirty days from October 16, 2008 was Saturday, November 15, 2008.
Therefore, Payne had until Monday, November 17, 2008 to file a timely
petition for allowance of appeal. 1 Pa.C.S.A. § 1908 (excluding weekends and
holidays from the computation of time when the last day of the time period
falls on a weekend or holiday).
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Accordingly, Payne did not establish that an exception to the time bar applies,
and the PCRA court lacked jurisdiction over the petition. We therefore affirm
the order dismissing the PCRA petition.3
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/30/2020
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3We may affirm an order on any basis. See Commonwealth v. Clouser,
998 A.2d 656, 661 n.3 (Pa.Super. 2010).
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