J-S46014-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA            :    IN THE SUPERIOR COURT OF
                                         :         PENNSYLVANIA
                                         :
              v.                         :
                                         :
                                         :
 JEROME MCINTYRE,                        :
                                         :
                   Appellant             :    No. 3698 EDA 2016

               Appeal from the PCRA Order November 4, 2016
  In the Court of Common Pleas of Philadelphia County Criminal Division at
                      No(s): CP-51-CR-0009339-2010

BEFORE: BOWES, J., SHOGAN, J., and KUNSELMAN, J.

MEMORANDUM BY BOWES, J.:                        FILED DECEMBER 17, 2018

      Jerome McIntyre appeals pro se from the order that dismissed his

petition filed pursuant to the Post Conviction Relief Act (“PCRA”). We affirm.

      We glean the following history of the case from this Court’s

memorandum disposing of Appellant’s direct appeal. Appellant was convicted

of indecent assault in 2001, and, as a result, was required to register under

Megan’s Law for ten years, beginning in February 2003.         Appellant was

charged on two separate occasions for failing to comply with his registration

requirements: one resulting in a guilty plea for 2005 charges, and the instant

case, in which Appellant was sentenced to five to ten years imprisonment after

convicted by a jury of failing to register.   This Court affirmed Appellant’s

judgment of sentence, and Appellant did not seek review in our Supreme

Court.   Commonwealth v. McIntyre, 82 A.3d 1066 (Pa.Super. 2013)

(unpublished memorandum).
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      Appellant filed a timely pro se PCRA petition on April 22, 2014. Therein,

he raised several claims of ineffective assistance of counsel, as well as the

claim that he was innocent of the original charges that led to his registration

requirement.    PCRA Petition, 4/22/16, at Appendix B.        The PCRA court

appointed counsel, who was later removed and substitute counsel appointed.

The latter filed a motion to withdraw and a no-merit letter pursuant to

Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and Commonwealth

v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc). On September 23, 2016,

the PCRA court issued notice of its intent to dismiss Appellant’s petition

without a hearing for the reasons stated in counsel’s Finley letter. Appellant

responded with a motion to proceed pro se. On November 4, 2016, the PCRA

court entered an order dismissing Appellant’s PCRA petition, granting

counsel’s motion to withdraw, and indicating that Appellant thereafter could

represent himself. Appellant filed a timely notice of appeal, and both Appellant

and the PCRA court complied with Pa.R.A.P. 1925.

      Appellant presents three questions for this Court’s consideration, which

we have reordered for ease of disposition and paraphrase as follows:

      A.    Did the PCRA court err by not entering an order for Appellant
            to file an Pa.R.A.P. 1925(a) and (b) concise statement of
            errors complained on appeal?

      B.    Whether Appellant can raise a new decision in law when the
            appeal was already sent to the appellate court when
            Commonwealth v. Muniz, 164 A.3d 1189 (Pa. 2017), was
            not decided until July 19, 2017?




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       C.     Whether Appellant can raise actual innocence since the
              change in the Megan Law, SORNA, after being convicted for
              failure to register prior to the decision of Muniz and
              Commonwealth v. Derhammer, 173 A.3d 723 (Pa.
              2017)?

Appellant’s brief at 4.1

       We begin with our standard of review. “When reviewing the denial of a

PCRA petition, our standard of review is limited to examining whether the

PCRA court’s determination is supported by evidence of record and whether it

is free of legal error.”     Commonwealth v. Jordan, 182 A.3d 1046, 1049

(Pa.Super. 2018).

       Appellant first contends that the PCRA court erred in not ordering him

to file a concise statement of errors complained of on appeal pursuant to

Pa.R.A.P. 1925(b). Appellant’s brief at 9-10. However, the record shows that

the PCRA court did enter such an order, and that Appellant timely complied

by filing his statement. Moreover, a trial court is not required to order an

appellant to file such a statement; it may do so if it desires clarification of the

issues that will be pursued on appeal. See Pa.R.A.P. 1925(b). Appellant’s

first issue merits no relief from this Court.



____________________________________________


1 On October 26, 2018, Appellant filed in this Court a “Petition for Relief and
Extension of Time.” Therein, Appellant complains about Appellant’s receipt of
mail and his ability to file original documents with this Court. Appellant filed
his brief and, after the grant of an extension, a reply brief. As such, there are
no outstanding filings for Appellant to make with this Court, and thus no need
for an extension. Accordingly, Appellant’s October 26, 2018 petition is denied
as moot.

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       Appellant next contends that he “filed a praecipe to the lower court to

add the new cases to his PCRA to address the Megan[’s] Law which [he] was

deemed to have violated.”          Appellant’s brief at 8.   Specifically, Appellant

suggests that our Supreme Court’s decisions in Muniz and Derhammer

render his underlying conviction unconstitutional, and that this Court has the

ability to consider the claim sua sponte. Id.

       In Muniz, our High Court held that the Sexual Offender Registration and

Notification Act (“SORNA”) was an unconstitutional ex post facto law as

applied retroactively. Muniz, supra at 1193. In Derhammer, the Court held

that the defendant could not be prosecuted for violating the registration

requirements of Megan’s Law III, the precursor to SORNA, because, at the

time of the defendant’s trial, Megan’s Law III had been voided as

unconstitutional. Derhammer, supra at 729-30.

       As this is a timely PCRA petition, we are able to consider Appellant’s

claims although he did not raise them prior to appeal. 2          However, neither

Muniz nor Derhammer mandates the relief Appellant requests. Appellant was

convicted of failing to register under Megan’s Law III, not under SORNA.




____________________________________________


2 See Commonwealth v. Fernandez, ___ A.3d ___, 2018 PA Super 245
(Pa.Super. September 5, 2018) (en banc) (noting this Court can correct illegal
sentences sua sponte when we have jurisdiction); Commonwealth v.
Rivera-Figueroa, 174 A.3d 674, 678 (Pa.Super. 2017) (holding Muniz
applies retroactively to cases on collateral review).

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Indeed, Appellant’s underlying conviction in this case pre-dates the effective

date of SORNA.

       The Derhammer case is distinguishable from the instant case.

Derhammer was prosecuted for violating his Megan’s Law III registration

requirements after our Supreme Court invalidated Megan’s Law III in

Commonwealth v. Neiman, 84 A.3d 603, 605 (Pa. 2013). Here, Appellant

was convicted for failing to register under Megan’s Law III, and his judgment

of sentence became final before the Neiman decision. Appellant does not

discuss the Neiman decision, let alone present argument that it applies

retroactively to invalidate his conviction.

       Accordingly, Muniz’s holding regarding retroactive application of

SORNA is not applicable to Appellant’s conviction for failure to register under

Megan’s Law III,3 and Derhammer does not entitle Appellant to relief. As

such, Appellant’s second issue does not warrant reversal of the PCRA court’s

decision.

       With his final issue, Appellant maintains that he is innocent of the

underlying indecent assault for which he was convicted in 2001, and that

prejudicial comments by the district attorney and trial judge constituted

reversible error in that case. Appellant’s brief at 9. Appellant’s underlying



____________________________________________


3 We note that the registration obligations, if any, that will apply to Appellant
upon his release from incarceration will depend upon the statute in place at
that time.

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conviction was not at the instant docket number, but at docket CP-51-CR-

1007011-2000. Rather, this case relates only to his conviction for failing to

register.   Any collateral attack upon Appellant’s 2001 conviction must be

litigated at the docket number for that case.4

       Because Appellant has not convinced us that the PCRA court erred in

dismissing his 2014 PCRA petition and that relief is due, we affirm the PCRA

court’s November 4, 2016 order. See Commonwealth v. Miner, 44 A.3d

684, 688 (Pa.Super. 2012) (“It is an appellant’s burden to persuade us that

the PCRA court erred and that relief is due.”).

       Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/17/18




____________________________________________


4In fact, it appears from a review of that docket that Appellant also filed a
new PCRA petition in that case on October 10, 2017.

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