J-S60021-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT
                                                      OF PENNSYLVANIA
                             Appellee

                        v.

    JOHNNY RAY SUMNER, JR.

                             Appellant                No. 1107 MDA 2019


                Appeal from the PCRA Order Entered June 5, 2019
            In the Court of Common Pleas of the 39th Judicial District
                              Franklin County Branch
                Criminal Division at No.: CP-28-CR-0001019-2010


BEFORE: SHOGAN, STABILE, and PELLEGRINI,* JJ.

MEMORANDUM BY STABILE, J.:                         FILED JANUARY 21, 2020

        Appellant Johnny Ray Sumner Jr. appeals from the June 5, 2019 order

of the Court of Common Pleas of the 39th Judicial District, Franklin County

Branch (“PCRA court”), which dismissed as untimely his petition under the

Post Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-46. PCRA counsel has filed

a no-merit brief and petitioned to withdraw under Turner/Finley.1         Upon

review, we affirm and grant the petition to withdraw.

        The facts and procedural history of this case are undisputed and fully

summarized by a prior panel of this Court in connection with Appellant’s direct

appeal. See Commonwealth v. Sumner, 121 A.3d 1138 (Pa. Super. 2015)

____________________________________________


*   Retired Senior Judge assigned to the Superior Court.
1Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth v.
Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
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(unpublished memorandum). Briefly, Appellant was arrested in January 2010

and charged with, inter alia, involuntary deviate sexual intercourse with a

child, criminal attempt—aggravated indecent assault of a child, and indecent

assault.2    The charges against Appellant arose from two incidents that

occurred while the six-year-old victim and her family were living at a homeless

shelter where Appellant also was a resident. Following a jury trial, Appellant

was found guilty of the foregoing charges. On October 31, 2011, the trial

court sentenced Appellant to an aggregate term of 14 years and 3 months to

35 years’ imprisonment and designated him as a sexually violent predator.

Appellant timely appealed. Because of his previous counsels’ errors to perfect

his direct appeal, the trial court reinstated, for the third time, Appellant’s direct

appeal rights nunc pro tunc on May 12, 2014. A panel of this Court affirmed

Appellant’s judgment of sentence on April 22, 2015. Appellant did not seek

further review of his sentence.

        On December 18, 2018, Appellant pro se filed the instant, his first, PCRA

petition. The PCRA court appointed counsel, who filed an amended petition,

seeking relief under Commonwealth v. Muniz, 164 A.3d 1189 (Pa. 2017).3

On May 10, 2019, the PCRA court conducted a hearing on the petition. On

June 5, 2019, the PCRA court dismissed Appellant’s PCRA petition for want of
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2   18 Pa.C.S.A. §§ 3123(b), 901(a)/3125(b), and 3126(a)(7), respectively.
3In Muniz, our Supreme Court held that SORNA’s registration provisions are
punitive, and retroactive application of SORNA’s provisions violates the federal
ex post facto clause, as well as the ex post facto clause of the Pennsylvania
Constitution.

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jurisdiction. Appellant timely appealed. Both Appellant and the PCRA court

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

     On September 16, 2019, Appellant’s PCRA counsel filed in this Court an

application to withdraw as counsel and a no-merit letter, wherein counsel

repeats the claim under Muniz.

     Before we may consider this issue, we must address whether PCRA

counsel has met the requirements of Turner/Finley. For PCRA counsel to

withdraw under Turner/Finley in this Court:

     (1)   PCRA counsel must file a no-merit letter that details the
           nature and extent of counsel’s review of the record; lists the
           appellate issues; and explains why those issues are
           meritless.

     (2)   PCRA counsel must file an application to withdraw; serve the
           PCRA petitioner with the application and the no-merit letter;
           and advise the petitioner that if the Court grants the motion
           to withdraw, the petitioner can proceed pro se or hire his
           own lawyer.

     (3)   This Court must independently review the record and agree
           that the appeal is meritless.

See Commonwealth v. Widgins, 29 A.3d 816, 817-18 (Pa. Super. 2011)

(citing or quoting Turner, Finley, Commonwealth v. Pitts, 981 A.2d 875

(Pa. 2009), and Commonwealth v. Friend, 896 A.2d 607 (Pa. Super. 2008),

overruled in part by, Pitts).

     We find that PCRA counsel has complied with Turner/Finley.             PCRA

counsel has filed an application to withdraw and filed a Turner/Finley no-

merit letter. Finally, PCRA counsel informed Appellant of his right to hire a

new lawyer or proceed pro se.



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      We now address whether this appeal is indeed meritless. “On appeal

from the denial of PCRA relief, our standard of review requires us to determine

whether the ruling of the PCRA court is supported by the record and free of

legal error.” Widgins, 29 A.3d at 819. As this Court has explained:

      We review an order dismissing a petition under the PCRA in the
      light most favorable to the prevailing party at the PCRA level. This
      review is limited to the findings of the PCRA court and the evidence
      of record. We will not disturb a PCRA court’s ruling if it is
      supported by evidence of record and is free of legal error. This
      Court may affirm a PCRA court’s decision on any grounds if the
      record supports it. Further, we grant great deference to the
      factual findings of the PCRA court and will not disturb those
      findings unless they have no support in the record. However, we
      afford no such deference to its legal conclusions. Where the
      petitioner raises questions of law, our standard of review is de
      novo and our scope of review plenary.

Commonwealth v. Ford, 44 A.3d 1190, 1194 (Pa. Super. 2012) (citations

omitted).

      Before we may address the merits of this appeal, however, we must

determine whether the PCRA court had jurisdiction to entertain the underlying

PCRA petition.   The PCRA contains the following restrictions governing the

timeliness of any PCRA petition.

      (b) Time for filing petition.--

      (1) 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:

            (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;



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              (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.

       (2) Any petition invoking an exception provided in paragraph (1)
       shall be filed within one year of the date the claim could have been
       presented.[4]

       (3) For purposes of this subchapter, 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).        Section    9545’s   timeliness   provisions   are

jurisdictional.    Commonwealth v. Ali, 86 A.3d 173, 177 (Pa. 2014).

Additionally, we have emphasized repeatedly that “the PCRA confers no

authority upon this Court to fashion ad hoc equitable exceptions to the PCRA

time-bar in addition to those exceptions expressly delineated in the Act.”

Commonwealth v. Robinson, 837 A.2d 1157, 1161 (Pa. 2003) (citations

omitted).

       Here, the record reflects Appellant’s judgment of sentence became final

on May 22, 2015. See 42 Pa.C.S.A. § 9545(b)(3); Pa.R.A.P. 903(a). Because
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4 Section 9545(b)(2) was recently amended, effective December 24, 2018, to
extend the time for filing from sixty days of the date the claim could have
been presented to one year. The amendment applies only to claims arising
on or after December 24, 2017. As a result, this amendment does not apply
to Appellant’s PCRA petition because it was filed prior to the amendment’s
effective date.

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Appellant had one year from May 22, 2015, to file his PCRA petition, the

current filing raising the Muniz issue is facially untimely given it was filed on

December 18, 2018.

      The one-year time limitation, however, can be overcome if a petitioner

alleges and proves one of the three exceptions set forth in Section

9545(b)(1)(i)-(iii) of the PCRA.       Here, Appellant invokes the time-bar

exception of Section 9545(b)(1)(iii) of the PCRA in arguing, without citing any

legal authority, that that our Supreme Court’s decision in Muniz created a

new substantive right that applies retroactively. Our Supreme Court has set

forth a two-part test to determine the applicability of Section 9545(b)(1)(iii)

to a new decision:

      Subsection (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 this
      [C]ourt 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.

Commonwealth v. Abdul–Salaam, 812 A.2d 497, 501 (2002).

      We recently addressed a similar claim under Section 9545(b)(1)(iii) in

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

we explained:

      that this Court has declared that, “Muniz created a substantive
      rule that retroactively applies in the collateral context.”

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       Commonwealth v. Rivera–Figueroa, 174 A.3d 674, 678 (Pa.
       Super. 2017). However, because [the a]ppellant’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 [S]ection
       9545(b)(1)(iii). Because at this time, no such holding has been
       issued by our Supreme Court, Appellant cannot rely on Muniz to
       meet that timeliness exception.

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

Consistent with Murphy, Appellant obtains no relief here because, to date,

our Supreme Court has not held Muniz to apply retroactively to meet the

Section 9545(b)(1)(iii) exception.         Accordingly, we affirm the PCRA court’s

order, as Appellant’s petition is untimely.5

       Upon conducting our independent review of the record, we conclude that

this appeal is in fact meritless.

       Order affirmed. Petition to withdraw granted.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/21/2020




____________________________________________


5 Appellant’s PCRA petition invoking Muniz also is untimely because Appellant
failed to file it within sixty days of the July 19, 2017 Muniz decision.

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