J-S33027-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    PHILLIP SIZEMORE                           :
                                               :
                       Appellant               :   No. 1815 MDA 2018

             Appeal from the PCRA Order Entered October 18, 2018
                In the Court of Common Pleas of Luzerne County
              Criminal Division at No(s): CP-40-CR-0002998-2009


BEFORE: LAZARUS, J., OTT, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY OTT, J.:                                FILED OCTOBER 04, 2019

       Philip Sizemore appeals from the order entered October 18, 2018, in the

Luzerne County Court of Common Pleas, dismissing, as untimely filed, his first

petition for post-conviction collateral relief filed pursuant to the Post

Conviction Relief Act (“PCRA”).1 Sizemore seeks relief from the judgment of

sentence of an aggregate term of 12 to 24 years’ imprisonment imposed on

May 11, 2010, following his December 2009 guilty plea to numerous offenses

involving the ongoing sexual abuse of his daughters.         Sizemore was also

classified as a sexually violent predator (“SVP”) under the then-applicable

version of Megan’s Law.2 Concomitant with this appeal, counsel has filed a
____________________________________________


1   See 42 Pa.C.S. §§ 9541-9546.

2See 42 Pa.C.S. 9791-9799.9 (Megan’s Law III). That statute was invalidated
by the Pennsylvania Supreme Court in Commonwealth v. Neiman, 84 A.3d
J-S33027-19



petition to withdraw and a Turner/Finley3 “no merit” letter.      Because we

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

petition to withdraw.

       The facts and procedural history underlying this appeal are well known

to the parties, and not pertinent to the issues raised herein. In summary, on

December 29, 2009, Sizemore entered a guilty plea to one count each of

aggravated indecent assault, involuntary deviate sexual intercourse with a

child, and indecent assault, and 50 counts of possession of child pornography,4

following the revelation that he sexually abused his minor daughters between

2001 and 2009. See Commonwealth v. Sizemore, 29 A.3d 844 (Pa. Super.

2011) (unpublished memorandum at 1-2). On May 11, 2010, in accordance

with the plea agreement, the trial court sentenced Sizemore to an aggregate

term of 12 to 24 years’ imprisonment. The court also determined Sizemore

met the requirements for classification as an SVP under Megan’s Law. See 42


____________________________________________


603 (Pa. 2013). Prior to that decision, the Pennsylvania legislature enacted
the Sexual Offender Registration and Notification Act (“SORNA”), effective
December 20, 2012. See 42 Pa.C.S. §§ 9799.10-9799.42. SORNA provided
for the expiration of Megan’s Law III at the time of its effective date. SORNA
II was enacted in 2018. See 2018, Feb. 21, P.L. 27, No. 10, § 5.2, imd.
effective (“Act 10”); Reenacted 2018, June 12, P.L. 140, No. 29, § 4, imd.
effective. (“Act 29”).

3 Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).

4 See 18 Pa.C.S. §§ 3125(b), 3123(b), 3126(a)(7), and 6312(d)(1),
respectively.


                                           -2-
J-S33027-19



Pa.C.S. § 9795.4 (expired). On April 25, 2011, a panel of this Court affirmed

Sizemore’s judgment of sentence on direct appeal. See Sizemore, supra.

As noted supra, on December 20, 2012, Megan’s Law III expired and was

replaced by SORNA.

       On August 7, 2017, Sizemore filed a pro se motion seeking to modify

his sentence in light of the Pennsylvania Supreme Court’s decision in

Commonwealth v. Muniz, 164 A.3d 1189, 1193 (Pa. 2017), cert. denied,

138 S.Ct. 925 (U.S. 2018).         Sizemore subsequently filed both a request for

the appointment of counsel, and an amended motion for post-conviction relief,

in which he alleged his SVP determination was illegal under Commonwealth

v. Butler, 173 A.3d 1212 (Pa. Super. 2017), appeal granted, 190 A.3d 581

(Pa. 2018).     Counsel was appointed and filed a supplemental petition and

accompanying brief on August 20, 2018. Following a hearing conducted on

October 4, 2018, the PCRA court dismissed Sizemore’s petition as untimely

filed. This timely appeal followed.5

       Before addressing the substantive issues on appeal, we must first

consider whether counsel has fulfilled the procedural requirements for

____________________________________________


5We note that following the denial of PCRA relief, appointed counsel filed the
notice of appeal, as well as a motion requesting the PCRA court appoint new
counsel for litigation of the appeal. See Motion for Appointment of Appellate
Counsel, 11/2/2018. The PCRA court granted the motion, and appointed
present counsel on November 5, 2018. Thereafter, on November 7, 2018, the
PCRA court ordered Sizemore to file a concise statement of errors complained
of on appeal pursuant to Pa.R.A.P. 1925(b). After requesting, and receiving
an extension of time, Sizemore filed a concise statement on December 10,
2018.

                                           -3-
J-S33027-19



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
      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 issues Sizemore wishes

to be reviewed. See Sizemore’s Brief at 1. Furthermore, counsel provided

Sizemore 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 Petition to

Withdraw as Counsel, 4/17/2019. Sizemore has not responded to counsel’s




                                      -4-
J-S33027-19



petition. Therefore, we proceed to a consideration of whether the PCRA court

erred in dismissing the petition. See Doty, supra.

        Sizemore raises three related claims on appeal, all of which challenge

his registration requirements under SORNA.         First, he argues that his

classification as an SVP under SORNA violates the ex post facto clauses of

both the Pennsylvania and United States Constitutions. See Sizemore’s Brief

at 1.    Second, he insists the requirement that he must register as a sex

offender for life constitutes an illegal sentence because it exceeds the

statutory maximum sentence for his crimes. See id. Lastly, Sizemore argues

the registration and notification requirements of SORNA II, enacted in 2018,

are also unconstitutional. See id.

        By way of background, on July 19, 2017, the Pennsylvania Supreme

Court filed its decision in Muniz, in which it held SORNA’s registration

provisions constitute punishment, and, therefore, the retroactive application

of those provisions to offenses committed prior to SORNA’s effective date

(December 20, 2012), violates the ex post facto clauses of the federal and

Pennsylvania constitutions.6 Muniz, supra, 164 A.3d at 1193. Following that
____________________________________________


6 Muniz was a plurality decision. Justice Dougherty authored the Opinion
Announcing the Judgment of the Court (“OAJC”), holding: (1) SORNA’s
registration requirements constitute punishment; (2) the retroactive
application of the registration requirements violates the ex post facto clauses
of the United States and Pennsylvania Constitutions; and (3) Pennsylvania’s
ex post facto clause provides greater protection than its federal counterpart.
See Muniz, 164 A.3d at 1193, 1223. Justices Baer and Donahue joined the
OAJC in full. Justice Wecht filed a Concurring Opinion, joined by Justice Todd,



                                           -5-
J-S33027-19



determination, in Commonwealth v. Butler, 173 A.3d 1212 (Pa. Super.

2017), appeal granted, 190 A.3d 581 (Pa. 2018),7 a panel of this Court

concluded SORNA’s statutory mechanism for designating a defendant as an

SVP, as set forth in 42 Pa.C.S. § 9799.24(e)(3), was “constitutionally flawed”

because it permitted a trial court to make the determination based upon clear

and convincing evidence. Id. at 1218. Accordingly, the Butler Court held

“trial courts may no longer designate convicted defendants as SVPs, nor may

they hold SVP hearings, until our General Assembly enacts a constitutional

designation mechanism.”         Id. In 2018, the Pennsylvania legislature enacted

SORNA II in an attempt to resolve the concerns expressed in Muniz and

Butler. See 42 Pa.C.S. 9799.11(b)(4). Subchapter H, enacted on February

____________________________________________


which joined those parts of the OAJC concluding the registration requirements
constitute punishment, and their retroactive application runs afoul of
Pennsylvania’s ex post facto clause. However, he disagreed with the OAJC’s
holding that the Pennsylvania Constitution provides greater protection than
the federal constitution, and, additionally, stated he would decline to address
the federal claim. See id. at 1224. Justice Saylor authored a Dissenting
Opinion in which he concluded SORNA is not punitive. Justice Mundy did not
participate in the decision.

7The Pennsylvania Supreme Court has granted allowance of appeal in Butler
on the following claim:

       Whether the Superior Court of Pennsylvania erred in vacating the
       trial court’s Order finding [Respondent] to be [a Sexually Violent
       Predator      (“SVP”)]    by   extrapolating  the   decision    in
       [Commonwealth v. Muniz, 640 Pa. 699, 164 A.3d 1189
       (2017),]     to   declare    SVP    hearings  and    designations
       unconstitutional under 42 Pa.C.S. § 9799.24(e)(3).

Commonwealth v. Butler, 190 A.3d 581, 582 (Pa. 2018).               At this time,
however, the Butler decision is controlling.

                                           -6-
J-S33027-19



21, 2018, applies to those offenders who committed a sexual offense on or

after December 20, 2012. 42 Pa.C.S. §§ 9799.10-9799.42. Subchapter I,

enacted on June 12, 2018, applies to those offenders, like Sizemore, who

committed a sexual offense on or after April 22, 1996, but before December

20, 2012. See 42 Pa.C.S. §§ 9799.51-9799.75.

       In the present case, however, the PCRA court did not consider

Sizemore’s underlying claims, but rather, concluded the petition was untimely

filed, and Sizemore failed to plead or prove the applicability of any of the

time-for-filing   exceptions.        See       PCRA   Court   Opinion,   3/4/2019,   at

unnumbered 5-6. We agree.

       “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.”

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

(internal punctuation and citation omitted).

       A PCRA petition must be filed within one year of the date the underlying

judgment becomes final.8 See 42 Pa.C.S. § 9545(b)(1).

       The PCRA timeliness requirement … 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,

____________________________________________


8 Sizemore does not dispute that his Motion to Modify Sentence, filed on
August 7, 2017, must be construed as a PCRA petition. See Motion of
Amended Post-Conviction Relief Petition, 12/20/2017, at 1 (“Since [filing the
motion to modify sentence] petitioner has discovered that such motion is to
be construed as a PCRA.”). See also Commonwealth v. Jackson, 30 A.3d
516 (Pa. Super. 2011).

                                           -7-
J-S33027-19


        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,

134 S.Ct. 2695 (U.S. 2014).

        Here, Sizemore’s judgment of sentence was final on May 25, 2011, 30

days after this Court affirmed the judgment of sentence on direct appeal, and

Sizemore failed to petition the Pennsylvania Supreme Court for allowance of

appeal. See 42 Pa.C.S. § 9454(b)(3). Therefore, he had until May 25, 2012,

to file a timely petition, and the one before us, filed on August 7, 2017, is

patently untimely.

        Nevertheless, an untimely PCRA petition may still be considered if one

of the three time-for-filing exceptions applies.9            See 42 Pa.C.S. §

____________________________________________


9   Section 9545(b) provides, in relevant part:

        (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;

           (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



                                           -8-
J-S33027-19


9545(b)(1)(i)-(iii).    A PCRA petition alleging any of the exceptions under

Section 9545(b)(1) must be filed within 60 days of when the PCRA claim could

have first been brought.        42 Pa.C.S. § 9545(b)(2).10   “The PCRA squarely

places upon the petitioner the burden of proving an untimely petition fits

within one of the three exceptions.” Commonwealth v. Jones, 54 A.3d 14,

17 (Pa. 2012).

       In his pro se amended petition, Sizemore argued his petition met both

the unknown facts exception set forth in Subsection 9545(b)(1)(ii), and the

newly recognized constitutional right exception set forth in Subsection

9545(b)(1)(iii).     See Motion of Amended Post-Conviction Relief Petition,

12/20/2017, at 7.       He asserted he was “not aware of the fact that being

designated an SVP requires the ‘beyond a reasonable doubt’ standard” and he

could not have ascertained that fact by the exercise of due diligence.       Id.

Further, he claimed Muniz created a “substantive rule that retroactively

applies in the collateral context.” Id. at 8. We find both arguments fail.




____________________________________________


          provided in this section and has been held by that court to
          apply retroactively.

42 Pa.C.S. § 9545(b)(1)(i)-(iii).

10 Subsection 9545(b)(2) was recently amended to extend the filing period to
one year from the date the claim could have been presented. See Section 3
of Act 2018, Oct. 24, P.L. 894, No. 146, effective in 60 days. However, the
extended time period applies only to claims arising on or after December 24,
2017. See id. Accordingly, it is inapplicable here.

                                           -9-
J-S33027-19


      First, Sizemore cannot establish the newly discovered facts exception

because his claim is based upon this Court’s decision in Butler, which

determined the mechanism for classifying an offender as an SVP was flawed.

“Our Supreme Court has held that subsequent decisional law does not amount

to a new fact under section 9545(b)(1)(iii) of the PCRA.” Commonwealth v.

Brandon, 51 A.3d 231 (Pa. Super. 2012) (internal punctuation omitted),

quoting Commonwealth v. Watts, 23 A.3d 980 (Pa. 2011).

      Second, while both Muniz and Butler arguably recognized a new

constitutional right, neither of those decisions have been held to apply

retroactively by either the Pennsylvania or United States Supreme Court. See

42 Pa.C.S. § 9545(b)(1)(iii). In Commonwealth v. Murphy, 180 A.3d 402

(Pa. Super. 2018), appeal denied, 195 A.3d 559 (Pa. 2018), we explained that

in order to satisfy the newly recognized constitutional right exception, the new

right must have been held to apply retroactively by either the Pennsylvania or

United States Supreme Court.     See id. at 405. The panel found “[b]ecause

at this time, no such holding has been issued by our Supreme Court, Appellant

cannot rely on Muniz to meet that timeliness exception.” Id. at 406 (footnote

omitted). Accord Commonwealth v. Johnson, 200 A.3d 964, 966-967 (Pa.

Super. 2018). The same is true of Butler, which was a decision of this Court.




                                     - 10 -
J-S33027-19


Accordingly, Sizemore is unable to demonstrate the applicability of one of the

time for filing exceptions to the PCRA.11

       Therefore, because we conclude Sizemore’s PCRA petition was untimely

filed, and he failed to satisfy any of the time-for-filing exceptions, we affirm

the order denying him PCRA relief. Moreover, because we agree with counsel’s

assessment that this appeal is without merit, we grant counsel’s petition to

withdraw.

       Order affirmed. Petition to withdraw granted.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/04/2019




____________________________________________


11 We note that PCRA counsel did not address the timeliness of Sizemore’s
petition in his supplemental petition and brief. Rather, he simply argued
Sizemore’s SVP determination was unconstitutional under Butler, and the
newly enacted statute, SORNA II, is unconstitutional as well.         See
Supplemental Brief, 8/20/2018, at 1-5.

                                          - 11 -
J-S33027-19




              - 12 -
