J-S40011-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA,                 IN THE SUPERIOR COURT
                                                     OF PENNSYLVANIA
                             Appellee

                        v.

    DOUGLAS TYLER GREENAWALT,

                             Appellant               No. 1674 WDA 2018


              Appeal from the PCRA Order Entered October 2, 2018
                In the Court of Common Pleas of Clarion County
                           Criminal Division at No(s):
                            CP-16-CR-0000357-2015
                            CP-16-CR-0000550-2014
                            CP-16-CR-0000551-2014

    COMMONWEALTH OF PENNSYLVANIA,                 IN THE SUPERIOR COURT
                                                     OF PENNSYLVANIA
                             Appellee

                        v.

    DOUGLAS TYLER GREENAWALT,

                             Appellant               No. 1702 WDA 2018


              Appeal from the PCRA Order Entered October 2, 2018
                In the Court of Common Pleas of Clarion County
                           Criminal Division at No(s):
                            CP-16-CR-0000357-2015
                            CP-16-CR-0000550-2014
                            CP-16-CR-0000551-2014

BEFORE: BENDER, P.J.E., MCLAUGHLIN, J., and PELLEGRINI, J.*

MEMORANDUM BY BENDER, P.J.E.:                   FILED SEPTEMBER 11, 2019

____________________________________________


*   Retired Senior Judge assigned to the Superior Court.
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        Appellant, Douglas Tyler Greenawalt, appeals pro se from the order

denying his Post Conviction Relief Act (“PCRA”)1 petition as untimely. After

careful review, we affirm.

        On September 9, 2015, Appellant entered a negotiated guilty plea to

numerous sexual offenses involving multiple victims at CP-16-CR-0000357-

2015 (“357-15”), CP-16-CR-0000550-2014 (“550-14”), and CP-16-CR-

0000551-2014 (“551-14”).           At 357-15, Appellant pled guilty to unlawful

contact with a minor,2 and ten counts of promoting prostitution.3 At 550-14,

he pled guilty to unlawful contact with a minor, corruption of minors,4 criminal

use of a communication facility,5 and indecent assault.6 At 551-14, he pled

guilty to statutory sexual assault.7 Following his plea, the trial court ordered

a Sexually Violent Predator (“SVP”) evaluation by the Sexual Offenders

Assessment Board. On December 1, 2015, the Sexual Offenders Assessment


____________________________________________


1   See 42 Pa.C.S. §§ 9541-9546.

2 18 Pa.C.S. § 6318(a)(1) (contacting a minor for the purpose of committing
a Chapter 31 offense).

318 Pa.C.S. § 5902(b)(3)(“encouraging, inducing, or otherwise intentionally
causing another to become or remain a prostitute”).

418 Pa.C.S. § 6301(a)(ii)(“by any course of conduct in violation of Chapter
31 … corrupts or tends to corrupt the morals of any minor”).

5   18 Pa.C.S. § 7512.

6   18 Pa.C.S. § 3126(a)(2) (by forcible compulsion).

7   18 Pa.C.S. § 3122.1(a)(1) (victim 4-8 years’ younger than defendant).

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Board recommended that Appellant be deemed an SVP by the trial court. An

SVP hearing was held on January 26, 2016, following which the trial court

determined by clear and convincing evidence that Appellant is an SVP.          A

sentencing hearing was then scheduled for March 9, 2016.

      On that date, the trial court rejected Appellant’s guilty plea on the basis

that the negotiated term of 4-8 years’ incarceration was “insufficient given the

number and serious nature of the crimes….”        Order, 3/17/16, at 1 (single

page). Appellant subsequently entered another guilty plea on April 6, 2016,

to indecent assault and unlawful contact with a minor at 550-14, statutory

sexual assault at 551-14, and two counts of unlawful contact with a minor,

one count of promoting prostitution, and two counts of unlawful contact with

a minor at 357-15. The court accepted Appellant’s second plea agreement,

noting that:

      The plea was entered pursuant to a plea agreement[,] the terms
      of which [Appellant] will receive an aggregate minimum sentence
      of incarceration on all charges of four years and a consecutive
      period of probation of five years. [Appellant] does not contest and
      will not request further hearing on the allegation and finding that
      he is a[n SVP].

Plea Order, 4/6/16, at 1 (single page) (docketed on April 14, 2016).

      By order dated April 6, 2016, the trial court sentenced Appellant to an

aggregate term of 4-11 years’ incarceration and 5 years’ consecutive

probation. Sentencing Order, 4/6/16, at 1 (docketed on April 15, 2016). The

sentencing order also restated the court’s finding that Appellant is an SVP.

Id. at 2. Appellant did not file a direct appeal from his judgment of sentence.


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       On June 25, 2018, Appellant filed a facially untimely, pro se PCRA

petition (“Petition”), his first. PCRA counsel was appointed to represent him

soon thereafter. However, PCRA counsel filed a no-merit letter and a petition

to withdrawal on August 15, 2018, indicating in the letter that the Petition was

untimely and, therefore, Appellant was not entitled to relief. On August 21,

2018, based on PCRA counsel’s no-merit letter, the PCRA court issued notice

of its intent to dismiss the Petition without a hearing pursuant to Pa.R.Crim.P.

907. The court also granted counsel’s petition to withdrawal on that date.

Appellant filed a response to the PCRA court’s Rule 907 notice on September

13, 2018.      On October 2, 2018, the court issued an opinion and order

dismissing the Petition.

       Appellant filed a notice of appeal on November 7, 2018,8 and a timely,

court-ordered, pro se Pa.R.A.P. 1925(b) statement on December 14, 2018.
____________________________________________


8  There are two major problems with Appellant’s notice of appeal. First, it is
untimely on its face. A notice of appeal must be filed “within 30 days after
the entry of the order from which the appeal is taken.” Pa.R.A.P. 903.
Appellant’s notice of appeal was filed with the clerk of courts six days late, on
November 7, 2018. Although the notice of appeal and the accompanying
certificate of service were both dated October 31, 2018, nothing in the
certified record indicates that Appellant actually delivered the notice of appeal
to prison authorities on that date, so as to render his notice of appeal timely
filed pursuant to the prisoner mailbox rule.           See Commonwealth v.
DiClaudio, 210 A.3d 1070, 1074 (Pa. Super. 2019) (“The prisoner mailbox
rule provides that a pro se prisoner’s document is deemed filed on the date
he delivers it to prison authorities for mailing.”) (cleaned up).

      Second, it is also immediately apparent that Appellant’s notice of appeal
runs afoul of our Supreme Court’s decision in Commonwealth v. Walker,
185 A.3d 969, 976 (Pa. 2018). In Walker, our Supreme Court construed



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The trial court issued a statement pursuant to Rule 1925(a) on December 17,

2018. Therein, the court indicated it would rely on its October 2, 2018 opinion

to address the claims raised in Appellant’s Rule 1925(b) statement. By order

dated December 26, 2018, this Court sua sponte consolidated Appellant’s

multiple notices of appeal.

       Appellant now presents the following question for our review:

       Whether this pro se appeal petition merits reinstatement of
       petitioner’s appeal rights is a question of exceptional
       circumstances and the law?

Appellant’s Brief at 2.

       Appellant’s statement of the question presented obscures his issue,

which centers on a single claim that his SVP determination constitutes an

illegal sentence pursuant to Commonwealth v. Butler, 173 A.3d 1212 (Pa.

Super. 2017). In Butler, this Court applied Commonwealth v. Muniz, 164

A.3d 1189 (Pa. 2017), in holding that “the Sexual Offender Registration and

____________________________________________


Pa.R.A.P. 341(a) as a “bright-line mandatory instruction to practitioners to file
separate notices of appeal” for each docket where one or more orders resolve
issues on multiple dockets. Id. at 976-77.       Here, Appellant filed a single
notice of appeal listing all three docket numbers at issue in this case, which
the clerk of courts apparently copied and filed separately in the three separate
dockets.     This does not constitute compliance with Walker.               See
Commonwealth v. Creese, 2019 PA Super 241, 2019 WL 3812232 (Pa.
Super. filed Aug. 14, 2019) (“We read our Supreme Court’s decision in Walker
as instructing that we may not accept a notice of appeal listing multiple docket
numbers, even if those notices are included in the records of each case.”).

      Nevertheless, as addressed infra, the court below lacked jurisdiction to
entertain the Petition, as it did not satisfy the timeliness requirements of the
PCRA statute. Accordingly, in disposing of Appellant’s claim presented herein,
we apply that jurisdictional bar first.

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Notification Act’s (“SORNA’s”) framework for designating a convicted

defendant a[n SVP] violates the federal and state constitutions.” Butler, 173

A.3d at 1213. Appellant further contends that the PCRA court erred when it

denied the Petition as untimely, arguing that the Petition met at least one

timeliness exception to the PCRA’s time bar.

       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) (cleaned

up).

       However, we must begin by addressing the timeliness of Appellant’s

petition, because the PCRA time limitations implicate our jurisdiction and may

not be altered or disregarded in order to address the merits of a petition.

Commonwealth v. Bennett, 930 A.2d 1264, 1267 (Pa. 2007). Under the

PCRA, any petition for post-conviction relief, including a second or subsequent

one, must be filed within one year of the date the judgment of sentence

becomes final, unless one of the following exceptions set forth in 42 Pa.C.S. §

9545(b)(1)(i)-(iii) applies:

       (b) Time for filing petition.--


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

42 Pa.C.S. § 9545(b)(1)(i)-(iii).        Any petition attempting to invoke one of

these exceptions “shall be filed within 60 days of the date the claim could have

been presented.” 42 Pa.C.S. § 9545(b)(2).9

       Appellant contends that he did not discover our Butler decision until

April 20, 2018. On that basis, he attempts to invoke the timeliness exception

set forth in Section 9545(b)(1)(ii), and further argues that an illegal

sentencing claim can be raised at any time.

       However, it is well-established that “a legality of sentencing issue must

be raised in a timely filed PCRA petition.” Commonwealth v. Whitehawk,
____________________________________________


9An amendment to Section 9545(b)(2), which became effective on December
24, 2018, changed the language to require that a petition “be filed within one
year of the date the claim could have been presented.” 42 Pa.C.S. §
9545(b)(2). Instantly, the Petition was filed on June 25, 2018, prior to the
effective date of that amendment and, thus, the Petition was subject to the
60-day rule.

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146 A.3d 266, 270 (Pa. Super. 2016). Furthermore, our Supreme Court has

held “that subsequent decisional law does not amount to a new ‘fact’ under

[S]ection 9545(b)(1)(ii) of the PCRA.” Commonwealth v. Watts, 23 A.3d

980, 987 (Pa. 2011).         Accordingly, Appellant cannot invoke Section

9545(b)(1)(ii) to bypass the timeliness requirements of the PCRA based on

this Court’s decision in Butler.

      Appellant also argues that the timeliness exception set forth in Section

9545(b)(1)(iii) applies to the Petition based on our decision in Butler and/or

our Supreme Court’s decision in Muniz.

      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 [the
      Supreme Court of Pennsylvania] 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 (Pa. 2002).

      Butler is not a decision issued by “the Supreme Court of the United

States or the Supreme Court of Pennsylvania[,]” and thus cannot be used to

invoke Section 9545(b)(1)(iii). 42 Pa.C.S. § 9545(b)(1)(iii). Furthermore, no

decision by our Supreme Court has indicated that Muniz applies retroactively

to cases on collateral review, including the Muniz decision itself. Accordingly,


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Appellant cannot invoke the timeliness exception set forth in Section

9545(b)(1)(iii).

      For these reasons, we agree with the PCRA court that the Petition is

untimely and that it does not satisfy any exception to that statute’s timeliness

requirements. See PCRA Court Opinion, 10/2/18, at 3. To the extent that

our reasoning differs from that of the PCRA court, we note that this “Court

may affirm a PCRA court’s decision on any grounds if the record supports it.”

Ford, 44 A.3d at 1194.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/11/2019




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