J-S31038-19

                                   2019 PA Super 285

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    DONALD T. KNECHT                           :
                                               :
                       Appellant               :   No. 1746 WDA 2018

               Appeal from the Order Entered November 7, 2018
    In the Court of Common Pleas of Westmoreland County Criminal Division
                      at No(s): CP-65-CR-0002804-2011,
                           CP-65-CR-0002805-2011


BEFORE: OLSON, J., STABILE, J., and McLAUGHLIN, J.

OPINION BY McLAUGHLIN, J.:                         FILED SEPTEMBER 18, 2019

        Donald Knecht appeals from an order denying his Post Conviction Relief

Act (“PCRA”) petition. See 42 Pa.C.S.A. §§ 9541-9546. His counsel has filed

Turner/Finley1 brief and a petition to withdraw. We affirm the denial of the

PCRA petition and grant counsel’s request to withdraw.

        Knecht pleaded guilty in February 2012 to multiple felonies, including

involuntary deviate sexual intercourse with a child, indecent assault of a

person less than 13 years of age, and 50 counts of possession of child

pornography.2 The court determined Knecht to be a sexually violent predator

(“SVP”) and sentenced Knecht in all to 12½ to 25 years in prison followed by

five years of probation.

____________________________________________


1Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth v.
Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).

2   See 18 Pa.C.S.A. §§ 3123(b), 3126(a)(7), and 6312(d), respectively.
J-S31038-19



         Five years after sentencing, Knecht filed a pro se PCRA petition. The

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

ultimately dismissed the petition as untimely, and Knecht appealed.

         Knecht’s counsel subsequently filed a brief pursuant to Turner/Finley

and an application to withdraw as counsel. The brief identifies the following

issue:

           Whether the holding in Commonwealth v. Muniz[, 164
           A.3d 1189 (Pa. 2017),] finding SORNA to be violative of the
           constitutional right to be free of penal ex post facto laws[,]
           creates a constitutional right held to apply retroactively,
           thereby vesting a trial court with jurisdiction to rule on the
           merits of a PCRA petition filed as an exception under 42
           P[a.]C.S.A. § 9545(b)(1)(iii)?

Turner/Finley Br. at 7.

         When presented with a brief pursuant to Turner/Finley, we first

determine      whether   the   brief   meets   the   procedural   requirements   of

Turner/Finley. See Commonwealth v. Wrecks, 931 A.2d 717, 721

(Pa.Super. 2007). A Turner/Finley brief must: (1) detail the nature and

extent of counsel’s review of the case; (2) list each issue the petitioner wishes

to have reviewed; and (3) explain counsel’s reasoning for concluding that the

petitioner’s issues are meritless. Commonwealth v. Pitts, 981 A.2d 875,

876 n.1 (Pa. 2009). Counsel must also send a copy of the brief to the

petitioner, along with a copy of the petition to withdraw, and inform the

petitioner of the right to proceed pro se or to retain new counsel. Wrecks,

931 A.2d at 721. If the brief meets these requirements, we then conduct an



                                        -2-
J-S31038-19



independent review of the petitioner’s issues. Commonwealth v. Muzzy,

141 A.3d 509, 511 (Pa.Super. 2016).

       Here, counsel has substantially complied with the requirements of

Turner/Finley. The brief contains counsel’s certification that he conducted a

“zealous and diligent review” and found no meritorious issues. Counsel

explains the issue that Knecht desires to raise on appeal and explains that he

considers Knecht’s issue to be meritless because neither the Pennsylvania nor

the United States Supreme Court has declared Muniz to apply retroactively.

PCRA counsel filed a copy of the letter he sent to Knecht, explaining why he

finds that Knecht’s issue is meritless, and advising Knecht that he may

proceed pro se or retain private counsel.

       We now proceed to an independent review of Knecht’s issue. Knecht

contends that the PCRA court had jurisdiction because Muniz applies

retroactively. We agree with PCRA counsel that this issue is meritless.

       The “retroactive right” timeliness exception applies only if either the

Supreme Court of the United States or the Supreme Court of Pennsylvania has

held   that   the   right   at   issue   applies   retroactively.   42   Pa.C.S.A.   §

9545(b)(1)(iii); Commonwealth v. Abdul-Salaam, 812 A.2d 497, 501 (Pa.

2002). Knecht contends that we held Muniz to apply retroactively in

Commonwealth v. Rivera-Figueroa, 174 A.3d 674, 678 (Pa.Super. 2017).

However, Rivera-Figueroa did not involve the “retroactive right” timeliness

exception. The PCRA petition in that case was timely, and all we said in that




                                         -3-
J-S31038-19



case was that a timely PCRA petition could access the right announced in

Muniz.

      Here, unlike the petitioner in Rivera-Figueroa, Knecht seeks to invoke

the “retroactive right” timeliness exception. Because neither the United States

Supreme Court nor the Pennsylvania Supreme Court has held that Muniz

applies retroactively, Knecht is not eligible for this timeliness exception. See

Commonwealth v. Murphy, 180 A.3d 402, 405-06 (Pa.Super. 2018).

      Order affirmed. Counsel’s application to withdraw granted.

Judge Stabile joins the Opinion.

Judge Olson notes dissent.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/18/2019




                                     -4-
