J-S36003-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    MARK KEVIN WISE                            :
                                               :
                       Appellant               :   No. 2095 MDA 2018

              Appeal from the Order Entered November 27, 2018
      In the Court of Common Pleas of Adams County Criminal Division at
                        No(s): CP-01-CR-0001349-2015


BEFORE:      PANELLA, P.J., SHOGAN, J., and PELLEGRINI, J.*

MEMORANDUM BY PANELLA, P.J.:                        FILED NOVEMBER 15, 2019

        Mark Kevin Wise appeals from the Order of the Court of Common Pleas

of Adams County, Pennsylvania, dated November 27, 2018. That order denied

Wise’s handwritten “Application to Preclude Mark Kevin Wise From Lifetime

Sex Offender Registration (SORNA II)” which Wise filed pro se on November

21, 2018. Wise’s appointed counsel has also filed a petition to withdraw as

counsel on the basis of frivolity.

        The issue raised herein by the pro se application dated November 21,

2018, clearly fell within the ambit of the Post Conviction Relief Act, 42

Pa.C.S.A. §§ 9541-46 (“PCRA”), and as such was untimely.          We therefore




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*   Retired Senior Judge assigned to the Superior Court.
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affirm and grant counsel permission to withdraw. A short summary of the

factual and procedural history of this case will suffice for our review.

        On October 24, 2016, Wise agreed to plead guilty to solicitation to

commit statutory sexual assault, 18 Pa.C.S.A. §§ 902(a) & 3122.1(b), in

exchange for an agreed sentence of twelve months to thirty-six months’

incarceration in a state correctional institution. The crime was graded as a

felony of the first degree.1 He was sentenced pursuant to the agreement on

February 6, 2017. At sentencing, the court advised Wise that he would be

subject to the registration and reporting requirements under the Sexual

Offender Registration and Notification Act (SORNA), 42 Pa.C.S.A. § 9799.14.

Wise did not object.

        Wise did not file a direct appeal. He also did not file a timely petition

under the PCRA.

        As stated above, Wise filed the application in issue on November 21,

2018.    The Honorable Thomas R. Campbell of the Adams County Court of

Common Pleas denied the application on November 27, 2018, finding that the

court had no jurisdiction to address the application. Following the filing of the




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1 As an inchoate crime, the solicitation charge carried the same grading and
degree of the underlying offense, i.e., statutory sexual assault. Therefore, the
solicitation charge to which Wise pled guilty was graded as a felony of the first
degree.


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appeal, Judge Campbell filed a comprehensive and thorough opinion on

January 28, 2019, pursuant to Pa.R.A.P. 1925(a).

      As a preliminary matter, counsel seeks to withdraw her representation

pursuant   to   Anders    v.   California,   386   U.S.   738   (1967)    and

Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009).

      Anders and Santiago require counsel to: (1) petition the Court for

leave to withdraw, certifying that after a thorough review of the record,

counsel has concluded the issues to be raised are wholly frivolous; (2) file a

brief referring to anything in the record that might arguably support the

appeal; and (3) furnish a copy of the brief to the appellant and advise him of

his right to obtain new counsel or file a pro se brief to raise any additional

points the appellant deems worthy of review.        Santiago, supra at 173-

79, 978 A.2d at 358-61. After confirming that counsel has met the antecedent

requirements to withdraw, this Court must make an independent review of

the record to confirm that the appeal is wholly frivolous. Commonwealth v.

Palm, 903 A.2d 1244, 1246 (Pa. Super. 2006). See also Commonwealth v.

Dempster, 187 A.3d 266 (Pa. Super. 2018) (en banc).




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       Technically, because the application filed by Wise fell within the PCRA,2

counsel should have filed a Turner/Finley3 no merit letter instead of an

Anders brief. However, counsel’s brief serves the same purpose and we find

no reason to remand for a no merit letter. See, e.g., Commonwealth v.

Daniels, 947 A.2d 795, 798 (Pa. Super. 2008).

       The sole issue raised by Wise on appeal is whether he is required to

register under SORNA. Specifically, he contends that his conviction for the

inchoate crime of solicitation is not subject to SORNA reporting requirements.

       His claim, challenging the application of SORNA’s registration provisions,

must be considered under the PCRA. See Commonwealth v. Greco, 203

A.3d 1120, 1123 (Pa. Super. 2019).               Claims challenging application of

SORNA’s registration provisions are cognizable under the PCRA, as they

implicate the legality of a petitioner's sentence, but they remain subject to the

PCRA's timeliness requirements. See id. at 1123-24.

       It is well-settled that the PCRA is intended to be the sole means of

achieving post-conviction relief.          See 42 Pa.C.S.A. § 9542; see also



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2In his petition, Wise explicitly denies that he is seeking relief pursuant to the
PCRA. Further, the court acknowledged Wise’s disclaimer, and refused to treat
his petition as a PCRA petition. Due to these circumstances, we can
understand the court’s and counsel’s hesitancy to classify the proceedings as
PCRA proceedings. Nevertheless, Wise’s disclaimers are insufficient to
overcome the legal classification of the claims in his petition.

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

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Commonwealth v. Haun, 32 A.3d 697, 705 (Pa. 2011). Unless the PCRA

could not provide for a potential remedy, the PCRA subsumes an application

such as the one filed by Wise. A defendant cannot escape the PCRA time-bar

by   titling   his   petition   as   something   other   than   a   PCRA   petition.

Commonwealth v. Taylor, 65 A.3d 462, 466 (Pa. Super. 2013).

      Since Wise’s application is properly classified as a PCRA petition, he

must satisfy the jurisdictional requirements of the PCRA. Therefore, we must

first consider the timeliness of his PCRA petition. See Commonwealth v.

Miller, 102 A.3d 988, 992 (Pa. Super. 2014).

      A PCRA petition, including a second or subsequent one, must be
      filed within one year of the date the petitioner’s judgment of
      sentence becomes final, unless he pleads and proves one of the
      three exceptions outlined in 42 Pa.C.S.[A.] § 9545(b)(1). A
      judgment becomes final at the conclusion of direct review by this
      Court or the United States Supreme Court, or at the expiration of
      the time for seeking such review. 42 Pa.C.S.[A.] § 9545(b)(3).
      The PCRA’s timeliness requirements are jurisdictional; therefore,
      a court may not address the merits of the issues raised if the
      petition was not timely filed. The timeliness requirements apply to
      all PCRA petitions, regardless of the nature of the individual claims
      raised therein. 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, 16-17 (Pa. 2012) (some internal

citations and footnote omitted).

      Since Panzer did not file a post-sentence motion or a direct appeal, his

judgment of sentence became final on March 8, 2017, when his time for

seeking direct review with this Court expired. See 42 Pa.C.S.A. § 9545(b)(3)

(judgment of sentence becomes final “at the conclusion of direct review … or


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at the expiration of time for seeking the review”). Hence, to be timely, his

petition was required to be filed by March 8, 2018. The instant petition – filed

November 21, 2018 – is patently untimely. Thus, the PCRA court lacked

jurisdiction to review Wise’s petition unless he was able to successfully plead

and prove one of the statutory exceptions to the PCRA’s time-bar. See 42

Pa.C.S.A. § 9545(b)(1)(i)-(iii).

      Because Wise contends his petition is not a PCRA petition, he makes no

effort to establish an exception to the PCRA’s deadlines. As a result, his PCRA

petition is untimely. Under these circumstances, we agree with counsel that

the appeal is wholly frivolous.    Accordingly, we grant counsel’s petition to

withdraw and affirm the order dismissing Wise’s petition.

      Order affirmed. Application to withdraw as counsel granted.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/15/2019




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