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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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.                      :
                                              :
STEPHEN A. REMENTER,                          :           No. 2615 EDA 2019
                                              :
                             Appellant        :


             Appeal from the PCRA Order Entered August 9, 2019,
               in the Court of Common Pleas of Monroe County
               Criminal Division at No. CP-45-CR-0000028-2012


BEFORE: BOWES, J., McCAFFERY, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                         Filed: August 25, 2020

        Stephen A. Rementer appeals from the August 9, 2019 order entered

by the Court of Common Pleas of Monroe County dismissing his second petition

filed pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A.

§§ 9541-9546. After careful review, we affirm.

        On September 7, 2012, appellant entered a guilty plea to one count of

rape of a child.1          The trial court imposed a sentence of 20-40 years’

imprisonment on November 20, 2012. The trial court also ordered appellant

to comply with the registration requirements of Megan’s Law, 42 Pa.C.S.A.

§ 9795.1 (expired December 20, 2012). Appellant appealed his judgment of

sentence,     which        this   court   affirmed   on    September   20,    2013.




1   18 Pa.C.S.A. § 3121(c).
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Commonwealth v. Rementer, 87 A.3d 388 (Pa.Super. 2013) (unpublished

memorandum). Appellant did not file a petition for allowance of appeal with

our supreme court.

        On December 29, 2016, appellant filed his first PCRA petition. The PCRA

court denied appellant’s petition on August 8, 2017. Appellant filed a notice

of appeal, and this court affirmed the PCRA court’s denial of relief on June 8,

2018.     Commonwealth v. Rementer, 193 A.3d 1060 (Pa.Super. 2018)

(unpublished memorandum). Our supreme court denied appellant’s petition

for allowance of appeal on December 12, 2018.              Commonwealth v.

Rementer, 199 A.3d 335 (Pa. 2018).

        Appellant filed the instant PCRA petition on April 18, 2019. On May 15,

2019, the PCRA court entered a notice of its intent to dismiss appellant’s

petition without a hearing pursuant to Pa.R.Crim.P. 907. Appellant did not file

a response. The PCRA court dismissed appellant’s petition on August 9, 2019.

        Appellant filed a timely notice of appeal on September 4, 2019. The

PCRA court ordered appellant to file a concise statement of errors complained

of on appeal pursuant to Pa.R.A.P. 1925(b), and appellant timely complied.

The PCRA court filed an opinion pursuant to Pa.R.A.P. 1925(a) on October 24,

2019.

        Appellant raises the following issue for our review:

              Whether trial counsel [sic] erred and abused its
              discretion by denying [appellant’s] PCRA petition as
              being untimely filed?



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Appellant’s brief at 5 (full capitalization omitted).

      All PCRA petitions, including second and subsequent petitions, must be

filed within one year of when a defendant’s judgment of sentence becomes

final. 42 Pa.C.S.A. § 9545(b)(1). “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 of Pennsylvania, or at the expiration of

the time for seeking the review.” 42 Pa.C.S.A. § 9545(b)(3). The Supreme

Court of Pennsylvania has held that the PCRA’s time restriction is

constitutionally sound.   Commonwealth v. Cruz, 852 A.2d 287, 292 (Pa.

2004) (citations omitted).      In addition, our case law instructs that the

timeliness of a PCRA petition is jurisdictional. If a PCRA petition is untimely,

a court lacks jurisdiction over the petition. Commonwealth v. Callahan,

101 A.3d 118, 121-122 (Pa.Super. 2014) (holding courts do not have

jurisdiction over an untimely PCRA petition); see also Commonwealth v.

Wharton, 886 A.2d 1120, 1124 (Pa. 2005).

      Here, the trial court entered its judgment of sentence on November 20,

2012. This court affirmed appellant’s judgment of sentence on September 20,

2013, and appellant did not file a petition for allowance of appeal with our

supreme court. Consequently, appellant’s judgment of sentence became final

on October 20, 2013, thirty days after this court affirmed his judgment of

sentence and the time for filing a petition for allowance of appeal with our

supreme court expired. See 42 Pa.C.S.A. § 9545(b)(3); Pa.R.A.P. 1113(a).



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Therefore appellant’s petition, filed on April 18, 2019, is facially untimely. As

a result, the PCRA court lacked jurisdiction to review appellant’s petition,

unless appellant alleged and proved one of the statutory exceptions to the

PCRA time bar, as set forth in 42 Pa.C.S.A. § 9545(b)(1).

      Those three narrow exceptions to the one-year time bar are: when the

government has interfered with the petitioner’s ability to present his or her

claim; when the petitioner has recently discovered facts upon which his or her

PCRA claim is predicated; or when either the Supreme Court of Pennsylvania

or the Supreme Court of the United States has recognized a new constitutional

right and made that right retroactive.       42 Pa.C.S.A. § 9545(b)(1)(i-iii);

Commonwealth v. Brandon, 51 A.3d 231, 233-234 (Pa.Super. 2012). The

petitioner bears the burden of pleading and proving the applicability of any

exception.    Commonwealth v. Jones, 54 A.3d 14, 17 (Pa. 2012), citing

Commonwealth v. Bronshtein, 752 A.2d 868, 871 (Pa. 2002).                   If a

petitioner fails to invoke a valid exception to the PCRA time bar, this court

may not review the petition. See 42 Pa.C.S.A. § 9545(a).

      Here,   appellant   contends   that   our   supreme   court’s   holding   in

Commonwealth v. Muniz, 164 A.3d 1189 (Pa. 2017), recognized a new

constitutional right, thereby providing appellant with an exception to the PCRA

time-bar. (Appellant’s brief at 10.) The Muniz court held that the application




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of the registration requirements under SORNA2 to sexual offenders who

committed    their   crimes   before   SORNA’s   effective   date   violates   the

ex post facto clauses of the United States and Pennsylvania Constitutions.

Muniz, 164 A.3d at 1223.       Appellant, however, presents his claim in the

context of an untimely filed PCRA petition.

      In a case involving a timely filed PCRA petition, this court has held 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).     Because appellant’s PCRA petition is facially untimely,

however, he would be required to satisfy the jurisdiction requirement set forth

at 42 Pa.C.S.A. § 9545(b)(1)(iii). To do so, appellant would be required to

demonstrate that the Supreme Court of Pennsylvania has held that Muniz

applies retroactively to otherwise facially untimely PCRA petitions.           See

Commonwealth v. Murphy, 180 A.3d 402, 405-406 (Pa.Super. 2018)

(finding that when the PCRA petition is untimely filed, in order to satisfy the

timeliness exception set forth at 42 Pa.C.S.A. § 9545(b)(1)(iii), a petitioner

must demonstrate that the Supreme Court of Pennsylvania has expressly held

that Muniz applies retroactively).

      Here, appellant has failed to demonstrate that our supreme court has

expressly held that Muniz applies retroactively to facially untimely PCRA




2 Sexual Offender Registration Notification Act, 42 Pa.C.S.A. §§ 9799.10,
et seq.


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petitions. To the contrary, a recent panel of this court reaffirmed that Muniz

does not provide a petitioner with an avenue of relief in the context of an

untimely PCRA.    Commonwealth v. Hromek,                 A.3d    , 2020 WL

2391062 at *4 (Pa.Super. May 12, 2020), citing Murphy, 180 A.3d at

405-406.

     Appellant has failed to invoke a valid exception to the PCRA time-bar.

Consequently, the PCRA court lacked jurisdiction to review appellant’s

petition, and we may not review the petition on appeal.

     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary




Date: 8/25/20




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