J-S77004-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    SHAWN RUDD                                 :
                                               :
                       Appellant               :   No. 1835 EDA 2018

               Appeal from the PCRA Order Entered May 23, 2018
               In the Court of Common Pleas of Delaware County
            Criminal Division at No(s): No. CP-23-CR-0002847-2009


BEFORE:      OTT, J., DUBOW, J., and STRASSBURGER, J.

MEMORANDUM BY OTT, J.:                                   FILED APRIL 18, 2019

        Shawn Rudd appeals from the order entered May 23, 2018, in the

Delaware County Court of Common Pleas, dismissing his second petition for

collateral relief filed pursuant to the Post Conviction Relief Act (“PCRA”).1

Rudd seeks relief from the judgment of sentence of an aggregate 15 to 30

years’ imprisonment, imposed following his negotiated guilty plea to three

counts of involuntary deviate sexual intercourse.2         Concomitant with this




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   Retired Senior Judge assigned to the Superior Court.

1   42 Pa.C.S.A. §§ 9541-9546.

2   18 Pa.C.S.A. § 3123.
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appeal, counsel has filed a petition to withdraw.3 Because we conclude the

PCRA petition was untimely filed, we affirm, and grant counsel’s petition to

withdraw.

       The parties are well aware of the facts underlying Rudd’s guilty plea,

and we need not recite them herein. In summary, on November 18, 2009,

Rudd entered a negotiated guilty plea to three counts of involuntary deviate

sexual intercourse.        Following an evaluation by the Sexual Offenders

Assessment Board, sentencing took place on March 22, 2010. The trial court

sentenced Rudd in accordance with the terms of the plea agreement and Rudd

conceded that he met the criteria of a sexually violent predator; thus, he is

subject to lifetime registration under Megan’s Law. Rudd did not file a direct

appeal.

       On June 20, 2016, Rudd filed a pro se PCRA petition.        The court

appointed counsel who subsequently sought leave to withdraw. On July 11,

2017, the PCRA court dismissed the petition. Rudd did not file an appeal.




____________________________________________


3Counsel mistakenly filed a brief pursuant to Anders v. California, 386 U.S.
738 (1967). However, a Turner/Finley no-merit letter is the correct filing.
See Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth
v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc). Because an Anders
brief provides greater protection to a defendant, this Court may accept an
Anders brief instead of a Turner/Finley letter.         Commonwealth v.
Widgins, 29 A.3d 816, 817 n.2 (Pa. Super. 2011).




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       Instead, on August 14, 2017, Rudd filed a pro se petition to modify his

sentence.4 The court issued a rule to show cause directing the Commonwealth

to respond to the petition. On September 5, 2017, Rudd filed his second pro

se PCRA petition.5      The PCRA court appointed counsel.     On May 8, 2018,

counsel filed an amended PCRA petition; a hearing on the petition took place

that same day. On May 23, 2018, the PCRA court dismissed the petition as

untimely. The instant, timely appeal followed.6

       Prior to addressing the merits of this appeal, we must first consider

whether counsel has fulfilled the procedural requirements for withdrawal.

Commonwealth v. Muzzy, 141 A.3d 509, 510 (Pa. Super. 2016). Pursuant

to Turner/Finley and their progeny:

       Counsel petitioning to withdraw from PCRA representation must .
       . . review the case zealously. Turner/Finley counsel must then
       submit a “no-merit” letter to the trial court, or brief on appeal to
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4 Rudd titled his pleading as a petition to correct sentence. Our review of the
record demonstrates that the court below correctly deemed the pleading to be
part of his subsequently filed PCRA petition, as his challenge to the legality of
the sentence is well within the ambit of the PCRA. See Commonwealth v.
Burkett, 5 A.3d 1260, 1274 (Pa. Super. 2010) (citations omitted) (“[I]t is
well established that pursuant to Pennsylvania law, the PCRA subsumes the
writ of habeas corpus unless the claim does not fall within the ambit of the
PCRA statute.”); 42 Pa.C.S.A. §§ 9543(a)(2)(vii); see also PCRA Court
Opinion, 7/31/2018, at 4 n.2.

5Both pleadings argued that Rudd’s sentence was unconstitutional under the
Pennsylvania Supreme Court’s decision in Commonwealth v. Muniz, 164
A.3d 1189 (Pa. 2017). See Rudd’s Brief, at 8.

6On July 10, 2018, Rudd filed a timely concise statement of errors complained
of on appeal in compliance with the PCRA court’s order. The court filed an
opinion on July 31, 2018.

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      this Court, detailing the nature and extent of counsel’s diligent
      review of the case, listing the issues which petitioner wants to
      have reviewed, explaining why and how those issues lack merit,
      and requesting permission to withdraw. Counsel must also send
      to the petitioner: (1) a copy of the “no merit” letter/brief; (2) a
      copy of counsel’s petition to withdraw; and (3) a statement
      advising petitioner of the right to proceed pro se or by new
      counsel.

                                    * * *

      [W]here counsel submits a petition and no-merit letter that . . .
      satisfy the technical demands of Turner/Finley, the court — trial
      court or this Court — must then conduct its own review of the
      merits of the case. If the court agrees with counsel that the claims
      are without merit, the court will permit counsel to withdraw and
      deny relief.

Commonwealth v. Doty, 48 A.3d 451, 454 (Pa. Super. 2012) (citation

omitted).

      Here, our review reveals counsel has substantially complied with the

procedural aspects of Turner/Finley. Although he filed a brief, as opposed

to a “no merit” letter, counsel’s brief properly lists the issue Rudd wishes us

to review and explains why it is meritless.       See Rudd’s Brief at 11-13.

Furthermore, counsel provided Rudd with a copy of the brief and the petition

to withdraw, and advised him of his right to proceed pro se or with private

counsel. See Application to Withdraw Appearance, 9/10/2018. Rudd has not

responded to counsel’s petition. Therefore, we proceed to a consideration of

whether the PCRA court erred in dismissing the petition. See Doty, supra.

      “In reviewing the denial of PCRA relief, we examine whether the PCRA

court's determination is supported by the record and free of legal error.”


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Commonwealth v. Mitchell, 141 A.3d 1277, 1283–1284 (Pa. 2016)

(internal punctuation and citation omitted). Here, the PCRA court determined,

inter alia, that Rudd’s petition was untimely. We agree. A petitioner must file

a PCRA within one year of the date the underlying judgment becomes final.

See 42 Pa.C.S. § 9545(b)(1).

         The PCRA timeliness requirement, however, is mandatory and
         jurisdictional in nature. Commonwealth v. Taylor, 933 A.2d
         1035, 1038 (Pa. Super.2007), appeal denied, 597 Pa. 715, 951
         A.2d 1163 (2008) (citing Commonwealth v. Murray, 562 Pa. 1,
         753 A.2d 201, 203 (2000)). The court cannot ignore a petition's
         untimeliness and reach the merits of the petition. Id.

Commonwealth v. Taylor, 67 A.3d 1245, 1248 (Pa. 2013), cert. denied,

572 U.S. 1151 (2014).

         Rudd’s judgment of sentence was final on April 25, 2010, 30 days after

the trial court imposed sentence and Rudd neglected to file a direct appeal.

See Pa.R.A.P. 903(a); 42 Pa.C.S. § 9545(b)(3). Therefore, he had until April

25, 2011, to file a timely PCRA petition. The one before us, filed August 14,

2017, is patently untimely.

         Nevertheless, we may still consider an untimely PCRA petition if one of

the three time-for-filing exceptions applies. See 42 Pa.C.S. § 9545(b)(1)(i)-

(iii).    Here, Rudd contends his petition meets the newly recognized

constitutional right exception, which provides an avenue for relief if the

petitioner pleads and proves:

         the right asserted is a constitutional right that was recognized by
         the Supreme Court of the United States or the Supreme Court of


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       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). For claims arising prior to December 24, 2017,

a petitioner invoking an exception must file his petition within 60 days of the

date he or she could have presented the claim.7 See Act 2018, Oct. 24, P.L.

894, No. 146, §2 and §3.

       In the present case, Rudd argues that his sentence is illegal under our

Supreme Court’s decision in Commonwealth v. Muniz, 164 A.3d 1189 (Pa.

2017), and that he timely filed his decision within sixty days of that date, thus

invoking properly the third exception to the time-for-filing requirement. We

disagree.

       This   Court     considered     whether   Muniz   applied   under   similar

circumstances in Commonwealth v. Murphy, 180 A.3d 402 (Pa. Super.

2018), appeal denied, 195 A.3d 559 (Pa. 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
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7 Effective December 24, 2018, Act 146 of 2018 amended 42 Pa.C.S.A. §
9545(b)(2), and now provides that a PCRA petitioner invoking a timeliness
exception must file the petition within one year of the date the claim could
have been presented, for all claims arising after December 24, 2017. See Act
2018, Oct. 24, P.L. 894, No. 146, §2 and §3.

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      issued by our Supreme Court, [Murphy] cannot rely on Muniz to
      meet th[e third] timeliness exception.

Murphy, 180 A.3d at 405–406 (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. Thus, we are constrained

to agree with the PCRA court’s determination that the instant petition is

untimely, that the petition does not satisfy any statutory exception, and that

there is no jurisdiction for any court to review the petition.

      Accordingly, we affirm.

      Order affirmed. Application to withdraw as counsel granted.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/18/19




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