J-S19044-19

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,        :    IN THE SUPERIOR COURT OF
                                     :          PENNSYLVANIA
               Appellee              :
                                     :
                 v.                  :
                                     :
SARKIS KUYUMJIAN, JR.,               :
                                     :
               Appellant             :    No. 2082 EDA 2018

          Appeal from the PCRA Order Entered June 19, 2018
           in the Court of Common Pleas of Delaware County
          Criminal Division at No(s): CP-23-CR-0002079-1995

COMMONWEALTH OF PENNSYLVANIA,        :    IN THE SUPERIOR COURT OF
                                     :          PENNSYLVANIA
               Appellee              :
                                     :
                 v.                  :
                                     :
SARKIS KUYUMJIAN, JR.,               :
                                     :
               Appellant             :    No. 2084 EDA 2018

          Appeal from the PCRA Order Entered June 19, 2018
           in the Court of Common Pleas of Delaware County
          Criminal Division at No(s): CP-23-CR-0002077-1995

COMMONWEALTH OF PENNSYLVANIA,        :    IN THE SUPERIOR COURT OF
                                     :          PENNSYLVANIA
               Appellee              :
                                     :
                 v.                  :
                                     :
SARKIS KUYUMJIAN, JR.,               :
                                     :
               Appellant             :    No. 2085 EDA 2018

          Appeal from the PCRA Order Entered June 19, 2018
           in the Court of Common Pleas of Delaware County
          Criminal Division at No(s): CP-23-CR-0002298-1995
J-S19044-19


COMMONWEALTH OF PENNSYLVANIA,         :   IN THE SUPERIOR COURT OF
                                      :         PENNSYLVANIA
               Appellee               :
                                      :
                 v.                   :
                                      :
SARKIS KUYUMJIAN, JR.,                :
                                      :
               Appellant              :   No. 2089 EDA 2018

          Appeal from the PCRA Order Entered June 19, 2018
           in the Court of Common Pleas of Delaware County
          Criminal Division at No(s): CP-23-CR-0002492-1995

COMMONWEALTH OF PENNSYLVANIA,         :   IN THE SUPERIOR COURT OF
                                      :         PENNSYLVANIA
               Appellee               :
                                      :
                 v.                   :
                                      :
SARKIS KUYUMJIAN, JR.,                :
                                      :
               Appellant              :   No. 2093 EDA 2018

          Appeal from the PCRA Order Entered June 19, 2018
           in the Court of Common Pleas of Delaware County
          Criminal Division at No(s): CP-23-CR-0002495-1995

COMMONWEALTH OF PENNSYLVANIA,         :   IN THE SUPERIOR COURT OF
                                      :         PENNSYLVANIA
               Appellee               :
                                      :
                 v.                   :
                                      :
SARKIS KUYUMJIAN, JR.,                :
                                      :
               Appellant              :   No. 2094 EDA 2018

          Appeal from the PCRA Order Entered June 19, 2018
           in the Court of Common Pleas of Delaware County
          Criminal Division at No(s): CP-23-CR-0002496-1995




                                -2-
J-S19044-19


COMMONWEALTH OF PENNSYLVANIA,             :    IN THE SUPERIOR COURT OF
                                          :          PENNSYLVANIA
                 Appellee                 :
                                          :
                    v.                    :
                                          :
SARKIS KUYUMJIAN, JR.,                    :
                                          :
                 Appellant                :    No. 2097 EDA 2018

            Appeal from the PCRA Order Entered June 19, 2018
             in the Court of Common Pleas of Delaware County
            Criminal Division at No(s): CP-23-CR-0002078-1995

BEFORE:    LAZARUS, J., KUNSELMAN, J. and STRASSBURGER, J.*

MEMORANDUM BY STRASSBURGER, J.:                    FILED JUNE 07, 2019

     Sarkis Kuyumjian, Jr. (Appellant) appeals from the order entered on

June 19, 2018, dismissing his petition filed under the Post Conviction Relief

Act (PCRA), 42 Pa.C.S. §§ 9541-9546. We affirm.

     On February 8, 1996, Appellant entered a plea at seven cases,

pleading guilty to two counts each of involuntary deviate sexual intercourse

(IDSI), corrupting the morals of children, and indecent assault, and one

count each of obscene/sexual materials and sexual abuse of children.      He

also pleaded nolo contendere to one count each of corrupting the morals of

children and indecent assault (collectively, the 1995 cases). On March 22,

1996, Appellant was sentenced to an aggregate term of 10 to 20 years of

imprisonment, to be followed by five years of probation.    Appellant filed a

direct appeal to this Court, which he withdrew on August 19, 1996.


* Retired Senior Judge Assigned to the Superior Court.

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J-S19044-19

        On May 12, 1999, Appellant filed his first PCRA petition. Counsel was

appointed, and the PCRA court dismissed that petition as untimely filed. On

June 13, 2003, this Court affirmed the order dismissing that petition.

Commonwealth         v.    Kuyumjian, 830 A.2d 1048 (Pa. Super. 2003)

(unpublished memorandum).

        Appellant was released from prison on May 12, 2010.            He was on

parole until June 13, 2015, after which time he began serving a sentence of

probation. His maximum date for that term of probation is June 13, 2020.

        On July 13, 2017, Appellant was arrested and charged at a new case,

docket    number    CP-23-CR-0004975-2017,       for   failure   to   comply   with

registration requirements imposed as a result of the 1995 cases. 1               In

addition, he was detained for violating the terms of his probation in the 1995

cases.2 Appellant waived his Gagnon I3 hearing and filed a petition for writ

of habeas corpus.         Appellant’s detainer was lifted, and he withdrew the

petition for writ of habeas corpus. On January 16, 2018, Appellant filed a




1   This case was nolle prossed on February 26, 2018.

2 At this point, Appellant was serving a probationary sentence only, imposed
at docket numbers 2079 of 1995 (2082 EDA 2018) and 2496 of 1995 (2094
EDA 2018), relating to guilty pleas for corrupting the morals of children and
indecent assault, respectively. Appellant is no longer serving any other
sentence.

3   Gagnon v. Scarpelli, 411 U.S. 778 (1973).




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J-S19044-19

PCRA petition regarding the 1995 cases, which was followed by an amended

PCRA petition on March 8, 2018.4

     In his amended PCRA petition, Appellant contended that when he

pleaded guilty in 1996, he was never “advised or informed … that he would

be subject to the punitive nature of” the registration provisions of

Pennsylvania’s Sex Offender Registration and Notification Act (SORNA). 5

Amended PCRA Petition, 3/8/2018, at ¶ 17. Appellant further contended his

petition was timely filed pursuant to Commonwealth v. Muniz, 164 A.3d

1189 (Pa. 2017)6 and Commonwealth v. Rivera-Figueroa, 174 A.3d 674

(Pa. Super. 2017). Amended PCRA Petition, 3/8/2018, at ¶¶ 24-25.

     The Commonwealth filed answers to the petitions, and on May 16,

2018, the PCRA court issued notices of its intent to dismiss the petitions

without a hearing pursuant to Pa.R.Crim.P. 907. Appellant did not respond,

and the PCRA court dismissed the petitions on June 19, 2018.



4 Subsequently, on May 30, 2018, the revocation court held a Gagnon II
hearing. At that hearing, the revocation court found Appellant in violation of
the terms of his probation and sentenced Appellant to a new term of five
years of probation. See N.T., 5/30/2018.

5 It is worth noting that SORNA did not become law until 2012, so it is
unsurprising that Appellant was not informed of SORNA-related
requirements when he was sentenced in 1996.

6 In Muniz, our Supreme Court held that certain registration provisions of
SORNA are punitive and retroactive application of those provisions violates
the ex post facto clause of the Pennsylvania constitution.




                                    -5-
J-S19044-19

      Appellant timely filed notices of appeal, and both Appellant and the

PCRA court complied with Pa.R.A.P. 1925.

      On appeal,    7   Appellant argues these “ex post facto registration

requirements” have deprived him of the benefit of his bargain. Appellant’s

Brief at 11.    However, we cannot reach this issue until we first determine

whether this petition was timely filed.

      Any PCRA petition, including second and subsequent petitions, must

either (1) be filed within one year of the judgment of sentence becoming

final, or (2) plead and prove a timeliness exception. 42 Pa.C.S. § 9545(b).

Furthermore, the petition “shall be filed within 60 days of the date the claim

could have been presented.”8 42 Pa.C.S. § 9545(b)(2).

      “For purposes of [the PCRA], 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.

§ 9545(b)(3).    When a defendant voluntarily discontinues a direct appeal,


7 Appellant suggests that this appeal relates only to his cases where he
pleaded guilty to IDSI, 2077 of 1995 (2084 EDA 2018) and 2492 of 1995
(2089 EDA 2018). Appellant’s Brief at 11. However, as discussed infra,
Appellant is not eligible for PCRA relief on these cases because he is no
longer serving a sentence for either of them.

8 On October 24, 2018, the General Assembly amended subsection
9545(b)(2) in order to extend the time for filing a petition from 60 days to
one year from the date the claim could have been presented. See 2018
Pa.Legis.Serv.Act 2018-146 (S.B. 915), effective December 24, 2018.



                                     -6-
J-S19044-19

his judgment of sentence becomes final on the date of discontinuance. See

Commonwealth v. McKeever, 947 A.2d 782, 785 (Pa. Super. 2008)

(citation omitted).

        Here, Appellant was sentenced on March 22, 1996. He filed a direct

appeal, which he discontinued on August 19, 1996. Thus, his judgment of

sentence became final on August 19, 1996, and he had one year, or until

August 19, 1997, to file timely a PCRA petition. As such, Appellant’s January

16, 2018 petition is facially untimely, and he was required to plead and

prove an exception to the timeliness requirements.

        In his petition and on appeal, Appellant attempts to invoke the new-

retroactive-right exception    9   by invoking Muniz and Rivera-Figueroa.

Amended PCRA Petition, 3/8/2018, at ¶ 24; Appellant’s Brief at 12.            This

Court considered whether Muniz applied under similar circumstances in


9   This exception provides as follows.

        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:

                                          ***

              (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.

42 Pa.C.S. § 9545(b)(1)(iii).



                                          -7-
J-S19044-19

Commonwealth v. Murphy, 180 A.3d 402 (Pa. Super. 2018).                        In that

case, this Court acknowledged

      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 [Murphy’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
      [sub]section 9545(b)(1)(iii). Because at this time, no such
      holding has been issued by our Supreme Court, [Murphy] cannot
      rely on Muniz to meet th[e third] timeliness exception.

Murphy, 180 A.3d at 405-06 (emphasis in original; some citations omitted).

      In other words, this Court concluded that the holding in Muniz does

not apply at this point to untimely-filed PCRA petitions.                   This Court

acknowledges that “if the Pennsylvania Supreme Court issues a decision

holding that Muniz applies retroactively, [Appellant] can then file a PCRA

petition, within [one year] of that decision, attempting to invoke the ‘new[-

]retroactive[-]right’ exception in [sub]section 9545(b)(1)(iii).” Murphy, 180

A.3d at 406 n.1.

      Based on the foregoing, we conclude that Appellant’s petition was filed

untimely,   and    he   has      not   proven   an   exception   to   the    timeliness

requirements. Thus, he is not entitled to relief.10 See Commonwealth v.



10 We also point out that Appellant is not eligible for PCRA relief in any case
for which he has completed serving his sentence. See 42 Pa.C.S.
§ 9543(a)(1)(i) (“To be eligible for relief under [the PCRA], the petitioner
must plead and prove by a preponderance of the evidence … [t]hat the
(Footnote Continued Next Page)


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J-S19044-19

Albrecht, 994 A.2d 1091, 1095 (Pa. 2010) (affirming dismissal of PCRA

petition without a hearing because the appellant failed to meet burden of

establishing timeliness exception).

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.

Prothonotary


Date: 6/7/19




(Footnote Continued)   _______________________



petitioner has been convicted of a crime under the laws of this
Commonwealth and at the time relief is granted[, he is] currently serving a
sentence of imprisonment, probation or parole for the crime[.]”). This
eligibility provision is not a jurisdictional requirement; therefore, because
Appellant’s petition was filed untimely, we affirm the order of the PCRA court
on the jurisdictional basis. See Commonwealth v. Fields, 197 A.3d 1217,
1223 (Pa. Super. 2018)(en banc) (holding “that the requirements set forth
in section 9543 establish only a petitioner’s eligibility for post-conviction
relief, and do not implicate the PCRA court’s jurisdiction to act on a
petition”).



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