J-S05025-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    STEPHEN KELLER                             :
                                               :
                       Appellant               :   No. 1047 WDA 2018

               Appeal from the PCRA Order Entered July 17, 2018
     In the Court of Common Pleas of Allegheny County Criminal Division at
                        No(s): CP-02-CR-0002847-2011


BEFORE:      PANELLA, P.J., NICHOLS, J., and STRASSBURGER, J.*

MEMORANDUM BY NICHOLS, J.:                              FILED MARCH 11, 2019

        Appellant Stephen Keller appeals from the order dismissing his petition

under the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546, as

untimely.      Appellant asserts that the PCRA timeliness provisions are

inapplicable to a motion challenging the retroactive application of the Sex

Offender Registration and Notification Act (SORNA), 42 Pa.C.S. 9799.10-

9799.75 (subsequently amended Feb. 21, 2018). Appellant’s counsel has filed

a petition to withdraw and a Turner/Finley brief.1         We affirm and grant

counsel’s petition to withdraw.


____________________________________________


*   Retired Senior Judge assigned to the Superior Court.

1 Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
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        The underlying facts of this matter need not be stated in detail.

Appellant was charged with rape of a child and indecent assault2 among other

offenses. On February 15, 2012, Appellant pled nolo contendere to one count

each of rape of a child and indecent assault. The remaining sixteen counts

against Appellant were withdrawn. The same day, the trial court sentenced

Appellant to six to twenty years’ incarceration for rape of a child and no further

penalty for indecent assault. Appellant did not file a direct appeal.

        On September 12, 2017, Appellant filed a pro se PCRA petition seeking

relief under Commonwealth v. Muniz, 164 A.3d 1189 (Pa. 2017). Counsel

was appointed, and after two extensions of time, counsel filed an amended

petition/motion seeking relief from the retroactive application of SORNA

provisions.    Counsel styled this petition as falling outside the scope of the

PCRA3 but also included argument that if the PCRA applied, the holding in

Muniz applied retroactively on collateral review. The PCRA court issued a

____________________________________________


2   18 Pa.C.S. §§ 3121(c) and 3126(a)(8), respectively.

3Appellant relied on Commonwealth v. Bundy, 96 A.3d 390 (Pa. Super.
2014), which stated that

        the statutory and rule-based requirements governing a PCRA
        petition do not apply to a challenge to the retroactive application
        of Megan’s Law, but that this Court has jurisdiction to review
        orders confirming or rejecting a retroactive registration
        requirement. . . . Accordingly, we conclude that the trial court’s
        determination that [the a]ppellant’s petition was untimely and/or
        meritless under the PCRA constituted error.

Br. in Support of Mot. to Preclude (Continued) Retroactive Application of
SORNA, at 3 (citing Bundy, 96 A.3d at 394).

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Pa.R.Crim.P. 907 notice of intent to dismiss the PCRA petition without a

hearing on April 16, 2018. The PCRA court dismissed the PCRA petition as

untimely on July 18, 2018.

      Appellant filed a timely notice of appeal and contemporaneously filed a

Pa.R.A.P. 1925(b) statement of errors complained of on appeal. The PCRA

court filed a responsive Pa.R.A.P. 1925(a) opinion, in which the court noted

that Appellant’s PCRA petition was untimely:

      Although[] Muniz has been held by the Superior Court to apply
      retroactively    to    cases   on    timely    collateral review,
      Commonwealth v. Rivera-Figueroa, 174 A.3d 674 (Pa. Super.
      2017, the Superior Court also held in Commonwealth v.
      Murphy, 180 A.3d 402 (Pa. Super. 2018)[,] that the Muniz
      decision did not meet the [requirements of the newly recognized
      constitutional right timeliness exception to the PCRA’s time-bar]
      because the Pennsylvania Supreme Court had not found that
      Muniz applies retroactively. As the time limitations of the PCRA
      were applied in Murphy, the instant Petition is untimely. To the
      extent that [Appellant] alleges that the decision in Muniz
      recognizes a new constitutional right which falls within the
      [timeliness exception], the decision in Murphy is also applicable.

PCRA Ct. Op., 11/7/18, at 3-4.

      Appellant raises the following issue for our review: “Whether the PCRA

statute of limitations is inapplicable to a motion/petition challenging the

retroactive application of SORNA[.]” Appellant’s Brief at 2.

      Before we address Appellant’s issue, we note that Appellant’s counsel

has filed an application to withdraw as counsel and a no-merit brief under

Turner/Finley.    Accordingly, we must first address whether counsel has

fulfilled the procedural requirements for withdrawing his representation.



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Commonwealth v. Muzzy, 141 A.3d 509, 510 (Pa. Super. 2016) (stating

that “[p]rior to addressing the merits of the appeal, we must review counsel’s

compliance with the procedural requirements for withdrawing as counsel”).

      As we have explained,

      [c]ounsel petitioning to withdraw from PCRA representation must
      proceed . . . under [Turner and Finley] and . . . 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.

                                     ***

         Where 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.

Id. at 510-11 (citations omitted).

      Here, counsel’s application to withdraw and brief to this Court detail his

diligent review of the case and include the issue Appellant wishes to have

reviewed. Counsel explains the reasons the issue lacks merit and requests

permission to withdraw. Additionally, counsel has provided Appellant with a

copy of the no-merit brief and application to withdraw, as well as a statement

advising Appellant of his right to proceed pro se or with privately retained



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counsel. Accordingly, we will permit counsel to withdraw if, after our review,

we conclude that the issues relevant to this appeal lack merit.

      In his sole issue, Appellant asserts that he is not required to meet the

timeliness requirements of the PCRA since he is challenging the retroactive

applicability of SORNA provisions.     Appellant’s Brief at 8-9.    In support,

Appellant references the holding in Bundy that appears to exempt challenges

to the retroactive application of SORNA provisions from the PCRA. Id. In the

event Appellant’s issue falls under the PCRA, Appellant attempts to assert a

timeliness   exception   to   the   PCRA’s   requirements   based    upon   the

announcement of a newly-recognized constitutional right in Muniz. Id. at 11.

      Despite an attempt to rely on Bundy, Appellant’s argument is

misplaced. The context of Bundy was the enforcement of a plea agreement

with respect to the period of registration for a sex offender. Bundy, 96 A.3d

at 391. In that specific context, the PCRA was deemed inapplicable. Id. at

394. Here, however, Appellant’s claim is cognizable under the PCRA. See

Commonwealth v. Greco, __ A.3d __, __, 2019 WL 510129, at *2 (Feb. 8,

2019) (holding that “claims challenging application of SORNA’s registration

provisions . . . are properly considered under the PCRA” (citation omitted)).

Accordingly, we analyze Appellant’s issue under the timeliness requirements

of the PCRA.

      The PCRA requires that a first or subsequent PCRA petition be filed

within one year of the date the judgment of sentence becomes final. 42

Pa.C.S. § 9545(b)(1). For purposes of the PCRA, the judgment of sentence

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“becomes final at the conclusion of direct review, including discretionary

review in the Supreme Court of the United States and the Supreme Court of

Pennsylvania, or at the expiration of time for seeking the review.” 42 Pa.C.S.

§ 9545(b)(3).

      Three exceptions to the above timeliness requirements exist, which

include the following:

      (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). Additionally, a PCRA petition invoking one of

the timeliness exceptions must be filed within sixty days of the date the claim

could have been presented.       See 42 Pa.C.S. § 9545(b)(2) (subsequently

amended October 24, 2018, to a one-year time-frame for claims arising on or

after December 24, 2017).

      Here, Appellant did not file a direct appeal, and the expiration of the

time for him to do so was thirty days after he was sentenced on February 15,

2012. See Pa.R.A.P. 903(a). Accordingly, Appellant’s instant PCRA petition,

filed on September 12, 2017, was facially untimely.          However, Appellant




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asserts that he meets the newly-recognized constitutional right in Section

9545(b)(1)(iii) based upon the holding in Muniz.

      Although Appellant filed the instant petition within sixty days of the

holding in Muniz, he is due no relief. The PCRA court correctly noted that

Murphy controls in the instant matter. In Murphy, we held that because the

Pennsylvania Supreme Court has not held that Muniz applies retroactively, it

cannot be invoked to meet the timeliness exception in Section 9545(b)(1)(iii).

See Murphy, 180 A.3d at 405-06. On this basis, Appellant’s PCRA petition

was untimely and does not meet a timeliness exception permitting us to

review his petition. As Appellant’s issue is without merit and counsel has met

the technical requirements of Turner/Finley, counsel is permitted to

withdraw.

     Order affirmed. Application to withdraw as counsel granted.
Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/11/2019




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