Com. v. Grover, D. ( 2019 )

J-S18027-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
DAVID LEE GROVER JR. :
:
Appellant : No. 2042 MDA 2018
Appeal from the PCRA Order Entered November 27, 2018
In the Court of Common Pleas of Huntingdon County Criminal Division at
No(s): CP-31-CR-0000054-2010
BEFORE: BOWES, J., NICHOLS, J., and STEVENS, P.J.E.*
MEMORANDUM BY NICHOLS, J.: FILED: MAY 23, 2019
Appellant David Lee Grover Jr. appeals from the order dismissing as
untimely his serial Post Conviction Relief Act1 (PCRA) petition challenging the
applicability of the Sex Offender Registration and Notification Act (SORNA),
42 Pa.C.S. §§ 9799.10-9799.75 (subsequently amended Feb. 21, 2018).2
Appellant contends that this Court may consider the merits of his petition
because the Pennsylvania Supreme Court has not yet ruled on the retroactive
application of Commonwealth v. Muniz, 164 A.3d 1189 (Pa. 2017). We
affirm.
____________________________________________
* Former Justice specially assigned to the Superior Court.
1 42 Pa.C.S. §§ 9541-9546.
2Appellant does not raise any arguments based on Subchapter I of the
amended version of SORNA. See 42 Pa.C.S. §§ 9799.51-9799.75.
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The PCRA court summarized the procedural history of this appeal as
follows:
[Appellant] was convicted by a Huntingdon County jury on
January 12, 2011, of involuntary deviate sexual intercourse,[fn1]
statutory sexual assault,[fn2] aggravated indecent assault,[fn3]
corruption of minors[fn4] and indecent assault.[fn5] He was
sentenced on May 19, 2011, to an aggregate term of incarceration
of not less than ten (10) years or more than twenty (20) years.
The judgment of sentence was affirmed by the Superior Court of
Pennsylvania on April 9, 2012. Commonwealth v. Grover, [998
MDA 2011 (Pa. Super. filed Apr. 9, 2012) (unpublished mem.)].
[Appellant did not seek allowance of appeal in the Pennsylvania
Supreme Court. Appellant timely filed a first PCRA petition in
October 2012.] [Appellant’s] first PCRA petition was denied [on]
January 21, 2015. That decision was affirmed by the Superior
Court on November 24, 2015. Commonwealth v. Grover, [622
MDA 2015 (Pa. Super. filed Nov. 24, 2015) (unpublished mem.)].
A second PCRA petition was dismissed by this [c]ourt on April 28,
2016. That decision was affirmed by the Superior Court [on]
October 24, 2016. Commonwealth v. Grover, [784 MDA 2016
(Pa. Super filed Oct. 24, 2016) (unpublished mem.)]. A third
PCRA petition was dismissed by this [c]ourt without [a] hearing
on November 2, 2017.[3] No appeal was taken from [that]
decision.
18 Pa.C.S. [§] 3123(7). [All charges related to conduct
[fn1]
that occurred between August 2009 and January 2010.
Appellant was subject to a lifetime registration requirement
under 42 Pa.C.S. §§ 9791-9799.9 (expired December 20,
2012), also known as Megan’s Law III.]
[fn2] 18 Pa.C.S.[§] 3122.1.
____________________________________________
3 The Pennsylvania Supreme Court decided Muniz on July 19, 2017. Appellant
initially raised Muniz in his third PCRA petition, which was postmarked on
September 11, 2017. The PCRA court denied relief based on its conclusion
that SORNA did not increase the length of Appellant’s registration
requirement. That issue is not before this Court.
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[fn3] 18 Pa.C.S.[ §] 3125(8).
[fn4] 18 Pa.C.S.[ §] 6303(a)(1).
The petition sub judice was filed [in January 2018.4] Counsel was
appointed, and an amended petition was filed [on] March 29,
2018. A supplemental amendment was docketed on July 17,
2018. A hearing was held [on] September 25, 2018.
PCRA Ct. Order & Mem., 11/27/18, at 2-3 (unpaginated) (some capitalization
omitted). On November 27, 2018, the PCRA court dismissed Appellant’s
petition as untimely based on this Court’s decision in Commonwealth v.
Murphy, 180 A.3d 402 (Pa. Super. 2018), appeal denied, 195 A.3d 559 (Pa.
2018). Id. at 6.
Appellant timely appealed and complied with the PCRA court’s order to
file and serve a Pa.R.A.P. 1925(b) statement. This appeal followed.
Appellant concedes that Murphy remains the controlling authority on
the question of whether the instant PCRA petition was timely filed. Appellant,
however, continues:
The key to the [Murphy] Court’s analysis is that to date, the
Pennsylvania Supreme Court has remained silent on the
retroactive application. As such, Appellant believes that the
instant matter is ripe for consideration as a matter of unsettled
law in this Commonwealth and proffers the within appeal.
Appellant’s Brief at 4.
When reviewing the dismissal of a PCRA petition on timeliness grounds,
our review is limited to “whether the record supports the PCRA court’s
____________________________________________
4Appellant’s petition was postmarked January 29, 2018, and was received
and docketed by the PCRA court on January 31, 2018.
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determination and whether the PCRA court’s decision is free of legal error.”
Commonwealth v. Lawson, 90 A.3d 1, 4 (Pa. Super. 2014) (citation
omitted).
It is well settled that “the timeliness of a PCRA petition is a jurisdictional
requisite.” Commonwealth v. Brown, 111 A.3d 171, 175 (Pa. Super. 2015)
(citation omitted). A PCRA petition, “including a second or subsequent
petition, shall be filed within one year of the date the judgment becomes final.”
42 Pa.C.S. § 9545(b)(1). A judgment 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. § 9545(b)(3). Courts may consider a
PCRA petition filed more than one year after a judgment of sentence becomes
final only if the petitioner pleads and proves one of the following three
statutory 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 provided in this section and
has been held by that court to apply retroactively.
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42 Pa.C.S. § 9545(b)(1)(i)-(iii). Moreover, a petitioner must file his petition
within sixty days of the date the claim could have been presented. See 42
Pa.C.S. § 9545(b)(2) (subsequently amended eff. Dec. 24, 2018).
Instantly, there is no dispute that Appellant’s PCRA petition was
untimely on its face. Appellant instead seeks to invoke the exception set forth
in Section 9545(b)(1)(iii).
However, as emphasized in Murphy, the Pennsylvania Supreme Court’s
silence is dispositive of Appellant’s claim. As the Murphy Court noted,
[s]ubsection (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 th[e Pennsylvania Supreme 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.
Here, we acknowledge that this Court has declared that, “Muniz
created a substantive rule that retroactively applies in the
collateral context.” Commonwealth v. Rivera-Figueroa, 174
A.3d 674, 678 (Pa. Super. 2017). However, because [the
petitioner]’s PCRA petition is untimely (unlike the petition at issue
in Rivera-Figueroa), he must demonstrate that the Pennsylvania
Supreme Court has held that Muniz applies retroactively in order
to satisfy section 9545(b)(1)(iii). Because at this time, no such
holding has been issued by our Supreme Court, [the petitioner]
cannot rely on Muniz to meet that timeliness exception.[fn1]
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[fn1]Certainly, if the Pennsylvania Supreme Court issues a
decision holding that Muniz applies retroactively, [the
petitioner] can then file a PCRA petition . . . attempting to
invoke the ‘new retroactive right’ exception of section
9545(b)(1)(iii).
Murphy, 180 A.3d at 405-06 (citation omitted).
Here, the Pennsylvania Supreme Court has yet to hold that Muniz
applies retroactively. Accordingly, like the petitioner in Murphy, Appellant
cannot rely on Muniz to excuse the facial untimeliness of the instant PCRA
petition. See id. Therefore, the PCRA court properly dismissed Appellant’s
petition as untimely.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/23/2019
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