J-S36015-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA                 :      IN THE SUPERIOR COURT OF
                                                 :           PENNSYLVANIA
                                                 :
                  v.                             :
                                                 :
                                                 :
    CHRISTOPHER J. COLAIZZI                      :
                                                 :
                         Appellant               :      No. 186 WDA 2020

            Appeal from the PCRA Order Entered December 20, 2019
    In the Court of Common Pleas of Westmoreland County Criminal Division
                      at No(s): CP-65-CR-0001453-2013


BEFORE:      OLSON, J., KING, J., and PELLEGRINI, J.*

MEMORANDUM BY OLSON, J.:                                      FILED AUGUST 14, 2020

        Appellant, Christopher J. Colaizzi, appeals from the order entered

December 20, 2019, which dismissed his petition for collateral relief filed

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

§§ 9541-9546. We affirm and grant PCRA counsel’s motion to withdraw.

        The PCRA court accurately summarized the relevant factual and

procedural history of this case as follows.

        On April [30], 2013, [Appellant] was charged [with various crimes
        related to his sexual abuse of a juvenile victim.]

        On October 29, 2013, [Appellant] entered a non-negotiated guilty
        plea to [aggravated indecent assault–complainant less than
        13-years-old; aggravated indecent assault of a child; indecent
        assault without the consent of other; indecent assault–person less
        than 13-years-old; corruption of a minor; and endangering the

____________________________________________


*   Retired Senior Judge assigned to the Superior Court.
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     welfare of a child.] On October 28, 2014, [the trial court]
     sentenced [Appellant] to an aggregate sentence of five [] to ten
     [] years[’] incarceration at the Department of Corrections, followed
     by ten [] years[’] consecutive probation. Additionally, . . .
     [Appellant] was found to be a Sexually Violent Predator and was
     classified as a Tier III sex offender under the Sexual Offender
     Registration and Notification Act (“SORNA”), which included a
     lifetime registration requirement.

PCRA Court Order and Opinion, 12/20/19, at 1-2.

     Appellant did not seek further review.        On September 18, 2017,

however, Appellant filed a pro se PCRA petition. The PCRA court subsequently

appointed counsel, who, on January 8, 2018, filed an amended PCRA petition

on Appellant’s behalf. In his amended PCRA petition, Appellant claimed that

“the separate registration and requirements imposed under SORNA [were]

deemed      unconstitutional   by   the   Pennsylvania   Supreme    Court   in

Commonwealth v. Muniz, 135 A.3d 178 (Pa. 2016), and[, as such, he] was

entitled to relief.” PCRA Court Opinion and Order, 12/20/19, at 3. The PCRA

court held an evidentiary hearing on October 15, 2019, but ultimately

dismissed Appellant’s petition on December 20, 2019.        Id.    This appeal

followed.

     As a prefatory matter, we must address the timeliness of this appeal.

Timeliness of an appeal concerns our appellate jurisdiction, which we may

raise sua sponte. Commonwealth v. Andre, 17 A.3d 951, 957–958 (Pa.

Super. 2011). As stated above, the PCRA court entered an order dismissing

Appellant’s PCRA petition on December 20, 2019. Appellant, however, filed




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his notice of appeal on January 21, 2020. Because this is more than 30 days

after December 20, 2019, this appeal appears untimely.

      A notice of appeal must be “filed within 30 days after entry of the order

from which the appeal is taken.” Pa.R.A.P. 903(a). Our Rules of Criminal

Procedure dictate that if, after an evidentiary hearing a judge dismisses a

PCRA petition, the judge must “promptly issue an order denying relief” and

that “order shall be filed and served as provided in Rule 114.” Pa.R.Crim.Pro.

908(D)(1). Rule 114 requires that all orders and court notices be docketed,

and that the docket entries contain the date the clerk’s office received the

order, the date of the order, and the date in which the clerk served the order

to the party’s attorney or the party if unrepresented.       See Pa.R.Crim.Pro.

114(B) and 114(C)(2). “The comment to this Rule suggests that the notice

and   recording    procedures     are    mandatory     and    not   modifiable.”

Commonwealth v. Davis, 867 A.2d 585, 587 (Pa. Super. 2005). Thus, if

the docket fails to reflect that the clerk furnished a copy of an order to the

parties, we “assume [that] the period for taking an appeal was never

triggered.”   Commonwealth v. Jerman, 762 A.2d 366, 368 (Pa. Super.

2000); see also Fraizer v. City of Philadelphia, 735 A.2d 113, 115 (Pa.

1999) (explaining that, although the parties received a copy of the order, “the

appeal period was not triggered” due to the clerks failure to make a “formal

entry” regarding notice on the docket). Herein, while the docket includes an

entry of the dismissal order, there is no indication that the clerk served a copy




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of the order to Appellant. As such, Appellant’s appeal is not untimely and is

not subject to quashal.1

       On May 13, 2020, Appellant’s court-appointed counsel filed a motion to

withdraw as counsel and brief pursuant to Anders v. California, 386 U.S.

738 (1967), and Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009). In

the context of a PCRA petition and request to withdraw, however, the

appropriate filing is a Turner/Finley “no-merit” letter. See Commonwealth

v. Turner, 544 A.2d 927 (1988); Commonwealth v. Finley, 550 A.2d 213

(Pa. Super. 1988) (en banc). Nonetheless, this Court generally accepts an

Anders brief as         it   “provides   greater   protection   to   the   defendant.”

Commonwealth v. Fusselman, 866 A.2d 1109, 1110-1111 n.3 (Pa. Super.

2004). Thus, “[b]efore we may review the merits of Appellant’s claim, we

must determine if PCRA [c]ounsel [] satisfied the requirements to be

permitted to withdraw from further representation.”             Commonwealth v.

Tirado, 2020 WL 1066074, at *3 (Pa. Super. Mar. 5, 2020).

       Pursuant to Turner/Finley, an “[i]ndependent review of the record by

competent counsel is required before withdrawal [on collateral review] is



____________________________________________


1 On February 7, 2020, the PCRA court entered an order directing Appellant
to file a concise statement of errors complained of on appeal pursuant to
Pa.R.A.P. 1925(b)(1). Appellant timely complied. On March 3, 2020, the
PCRA court issued a statement pursuant to Pa.R.A.P. 1925(a), in which it
expressly incorporated the opinion that accompanied its December 20, 2019
order.


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permitted.” Commonwealth v. Pitts, 981 A.2d 875, 876 n.1 (Pa. 2009).

Our Supreme Court noted that independent review must reveal the following:

       I.   A “no merit” letter by PC[R]A counsel detailing the nature and
            extent of his review;

      II.   The “no merit” letter by PC[R]A counsel listing each issue the
            petitioner wished to have reviewed;

     III.   The PC[R]A counsel's “explanation”, in the “no merit” letter, of
            why the petitioner’s issues were meritless;

      IV.   The PC[R]A court conducting its own independent review of the
            record; and

      V.    The PC[R]A court agreeing with counsel that the petition was
            meritless.


Id. (citation and brackets omitted).

      Additionally:

      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.

      If counsel fails to satisfy the foregoing technical prerequisites of
      Turner/Finley, the court will not reach the merits of the
      underlying claims but, rather, will merely deny counsel’s request
      to withdraw. Upon doing so, the court will then take appropriate
      steps, such as directing counsel to file a proper Turner/Finley
      request or an advocate’s brief.

      However, where counsel submits a petition and no-merit letter
      that do satisfy the technical demands of Turner/Finley, the
      [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.




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Commonwealth v. Wrecks, 931 A.2d 717, 721 (Pa. Super. 2007) (citations

omitted).

      Instantly, while PCRA counsel filed an Anders brief on appeal, he

substantially complied with the aforementioned requirements. Indeed, in his

appellate brief, PCRA counsel identified Appellant’s claim, noted that he

reviewed the merits of his claim and explained why Appellant’s claim lacked

merit. Furthermore, in PCRA counsel’s motion to withdraw, he represented to

this Court that he notified Appellant of his intention to withdraw from

representation, provided Appellant with a copy of the appellate brief, and

specifically advised Appellant that he may proceed on appeal with privately

retained counsel or pro se. Motion to Withdraw as Counsel, 5/13/20, Exhibit

A.   As such, PCRA counsel substantially complied with Turner/Finley’s

technical requirements. We therefore proceed in our independent evaluation.

      PCRA counsel raised one issue in his Turner/Finley brief:

      Whether the [PCRA] court erred when it [determined] that
      [Appellant] was not entitled to [PCRA] relief . . . even though the
      lifetime registration [requirement of SORNA] is an ex post facto
      law [because] the illegal conduct occurred between May 2012 and
      October 2012?

Turner/Finley Brief at 6.

      As a general matter, we “review a denial of PCRA relief to determine

whether the PCRA court’s findings are supported by the record and free of

legal error.” Commonwealth v. Albrecht, 994 A.2d 1091, 1093 (Pa. 2010).

“The court's scope of review is limited to the findings of the PCRA court and



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the evidence on the record of the PCRA court's hearing, viewed in the light

most favorable to the prevailing party.” Commonwealth v. Hammond, 953

A.2d 544, 556 (Pa. Super. 2008).

      Prior to reaching the merits of Appellant’s claims, however, “we must []

determine    whether    the   instant    PCRA   petition   was   timely   filed.”

Commonwealth v. Smith, 35 A.3d 766, 768 (Pa. Super. 2001), appeal

denied 53A.3d 757 (Pa. 2012). The timeliness requirement for PCRA petitions

“is mandatory and jurisdictional in nature.” Commonwealth v. Taylor, 67

A.3d 1245, 1248 (Pa. 2013) (citation omitted). A PCRA petition is timely if it

is “filed within one year of the date the 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

time for seeking the review.” 42 Pa.C.S.A. §§ 9545(b)(3). Here, Appellant’s

judgment of sentence became final on November 27, 2014: nearly three years

before he filed the instant petition. Hence, Appellant’s petition is manifestly

untimely. Therefore, unless one of the statutory exceptions to the time-bar

applies, no court may exercise jurisdiction to consider this petition.

      Pursuant to 42 Pa.C.S.A. §9545(b), there are three statutory exceptions

to the timeliness provision that allow for very limited circumstances under

which the untimely filing of a PCRA petition will be excused. To invoke an

exception, a petitioner must allege and prove one of the following:




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       (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.

42 Pa.C.S.A. § 9545(b)(1)(i)-(iii). If an exception applies, a PCRA petition

may be considered if it is filed “within 60 days of the date the claim could have

been presented.” 42 Pa.C.S.A. § 9545(b)(2).2

       Appellant’s PCRA petition claimed that he was entitled to relief under

Muniz, supra, which held that the retroactive application of SORNA’s

registration scheme violated the ex post facto clauses of the United States and

Pennsylvania’s constitutions. Appellant’s Amended PCRA Petition, 1/8/18, at

1-4. As such, we read Appellant’s petition as invoking section 9545(b)(1)(iii),

the newly-recognized constitutional right exception to the PCRA time-bar.

Muniz, however, “cannot satisfy the ‘new retroactive right’ exception of



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2 Effective December 24, 2018, the legislature amended Section 9545(b)(2)
to read: “Any petition invoking an exception provided in paragraph (1) shall
be filed within one year of the date the claim could have been presented.” See
42 Pa.C.S.A. §9545(b)(2) (effective December 24, 2018). However, the
amendment to Section 9545(b)(2) only applies to “claims arising on
[December] 24, 2017 or thereafter. See id. at Comment. Appellant filed his
current petition on September 18, 2017; thus, the amended Section
9545(b)(2) does not apply to Appellant’s claim.

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section 9545(b)(1)(iii).”    Commonwealth v. Murphy, 180 A.3d 402, 405

(Pa. Super. 2018) (citation omitted). Previously, this Court explained:

      [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 Appellant'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). See [Commonwealth v.]
      Abdul-Salaam, [812 A.2d 497, 501 (Pa. 2002)]. Because at this
      time, no such holding has been issued by our Supreme Court,
      Appellant cannot rely on Muniz to meet that timeliness exception.

Commonwealth v. Greco, 203 A.3d 1120, 1124 (Pa. Super. 2019), quoting

Murphy, 180 A.3d at 405-406.           Hence, Appellant’s reliance on Muniz is

insufficient   to   invoke   the   timeliness   exception   set   forth   at   section

9545(b)(1)(iii).     Because no exception to the PCRA's one-year time-bar

applies, we conclude that Appellant’s petition is untimely and any appeal from

the dismissal of the petition would be entirely without merit.

      We have also conducted an independent review of the entire record as

required by Turner/Finley and have not discerned any other potentially

meritorious issues.

      Order affirmed. Motion to withdraw as counsel granted.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/14/2020




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