J-S39029-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT
                                                      OF PENNSYLVANIA
                             Appellee

                        v.

    DAVID MCCOMB

                             Appellant                No. 2129 EDA 2018


               Appeal from the PCRA Order Entered June 22, 2018
                 In the Court of Common Pleas of Bucks County
                Criminal Division at No.: CP-09-CR-0001953-2014


BEFORE: GANTMAN, P.J.E., STABILE, J., and STEVENS, P.J.E.*

MEMORANDUM BY STABILE, J.:                         FILED OCTOBER 02, 2019

        Appellant David McComb appeals from the June 22, 2018 order entered

in the Court of Common Pleas of Bucks County (“PCRA court”), which

dismissed as untimely his petition under the Post Conviction Relief Act, 42

Pa.C.S.A. §§ 9541-46. PCRA counsel has filed a no-merit brief and petitioned

to withdraw under Turner/Finley.1 Upon review, we affirm and grant the

petition to withdraw.

        The facts and procedural history of this case are undisputed.      As

recounted by the PCRA court:

             Appellant was convicted of rape, kidnapping, and
        aggravated assault in 1983. While serving his sentence, Megan’s
        Law I was enacted on October 24, 1995 which applied
____________________________________________


*   Former Justice specially assigned to the Superior Court.
1Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth v.
Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
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        retroactively to sexual offenders who were convicted before the
        effective date of the statute and were still serving sentences at
        the time the law was enacted. As a result of the conviction, the
        Petitioner has been required to register under Megan's Law and
        subsequent versions for life.

              On February 19, 2014, Appellant voluntarily arrived at the
        Pennsylvania State Police Trevose Barracks to update his
        information for Megan’s Law Registration. He told the State
        Trooper that he had lost his job, car, and moved three days prior.
        Upon exiting the barracks, the Trooper saw Appellant drive away
        in a car Appellant did not mention and there was a woman with
        him. When the Trooper stopped Appellant in the parking lot, the
        woman identified herself as Appellant’s sister but then admitted
        she was his wife. In addition, the registered owner of the vehicle
        was Appellant. The wife informed the Trooper that Appellant had
        been residing at his new address and lost his job earlier than three
        days ago.

              On June 10, 2014, Appellant pleaded guilty to Failure to
        Provide Accurate Registration Information [(18 Pa.C.S.A. §
        4915.1(a)(3))] and Failure to Register with Pennsylvania State
        Police [(18 Pa.C.S.A. § 4915.1(a)(1))]. He was sentenced to not
        less than five years imprisonment nor more than twenty years.
        Appellant filed his Motion for Reconsideration of Sentence on June
        16, 2014. Appellant then withdrew his motion on July 31, 2014.[2]

               On January 24, 2018, Appellant filed a pro se [PCRA]
        Petition. Appointed counsel filed an amended PCRA petition on
        May 2, 2018. [Appellant] argued that he was entitled to relief
        under Commonwealth v. Muniz, 164 A.3d 1189 (Pa. 2017),[3]
        because a retroactive application of SORNA violates the ex post
        facto clauses of the United States and Pennsylvania Constitutions.

               After reviewing the matter in its entirety, this Court issued
        a Notice of Intent to Dismiss Pursuant to Pa.R.Crim.P. 907 on May
        29, 2018. This Court dismissed the PCRA petition because it was
        untimely and Appellant did not meet an exception because Muniz
        does not apply retroactively on collateral review to untimely PCRA
        petitions.

              Appellant filed his response on June 18, 2018 arguing that
        he was unrepresented by counsel at the time of the [Muniz]
        decision and therefore had no one to file his PCRA petition. On
____________________________________________


2   Appellant did not file a direct appeal.
3In Muniz, our Supreme Court held that SORNA’s registration provisions are
punitive, and retroactive application of SORNA’s provisions violates the federal
ex post facto clause, as well as the ex post facto clause of the Pennsylvania
Constitution.

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     June 21, 2018, th[e PCRA court] dismissed the PCRA petition
     without a hearing due to lack of jurisdiction.


PCRA Court Opinion, 1/7/19, at 1-2 (footnotes omitted).       Appellant timely

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

     On May 20, 2019, Appellant’s PCRA counsel filed in this Court an

application to withdraw as counsel and a no-merit letter, wherein counsel

repeats the claim under Muniz. See Turner/Finley Brief at 12-20.

     Before we may consider this issue, we must address whether PCRA

counsel has met the requirements of Turner/Finley. For PCRA counsel to

withdraw under Turner/Finley in this Court:

     (1)   PCRA counsel must file a no-merit letter that details the
           nature and extent of counsel’s review of the record; lists the
           appellate issues; and explains why those issues are
           meritless.

     (2)   PCRA counsel must file an application to withdraw; serve the
           PCRA petitioner with the application and the no-merit letter;
           and advise the petitioner that if the Court grants the motion
           to withdraw, the petitioner can proceed pro se or hire his
           own lawyer.

     (3)   This Court must independently review the record and agree
           that the appeal is meritless.

See Commonwealth v. Widgins, 29 A.3d 816, 817-18 (Pa. Super. 2011)

(citing or quoting Turner, Finley, Commonwealth v. Pitts, 981 A.2d 875

(Pa. 2009), and Commonwealth v. Friend, 896 A.2d 607 (Pa. Super. 2008),

overruled in part by, Pitts).

     We find that PCRA counsel has complied with Turner/Finley.             PCRA

counsel has filed an application to withdraw and filed a Turner/Finley no-




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merit letter. Finally, PCRA counsel informed Appellant of his right to hire a

new lawyer or file a pro se response.

      We now address whether this appeal is indeed meritless. “On appeal

from the denial of PCRA relief, our standard of review requires us to determine

whether the ruling of the PCRA court is supported by the record and free of

legal error.” Widgins, 29 A.3d at 819. As this Court has explained:

      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) (citations

omitted).

      Before we may address the merits of this appeal, however, we must

determine whether the PCRA court had jurisdiction to entertain the underlying

PCRA petition.   The PCRA contains the following restrictions governing the

timeliness of any PCRA petition.

      (b) Time for filing petition.--

      (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


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              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.

       (2) Any petition invoking an exception provided in paragraph (1)
       shall be filed within one year of the date the claim could have been
       presented.[4]

       (3) For purposes of this subchapter, a judgment 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.A.    §   9545(b).        Section    9545’s   timeliness   provisions   are

jurisdictional.    Commonwealth v. Ali, 86 A.3d 173, 177 (Pa. 2014).

Additionally, we have emphasized repeatedly that “the PCRA confers no

authority upon this Court to fashion ad hoc equitable exceptions to the PCRA

time-bar in addition to those exceptions expressly delineated in the Act.”

Commonwealth v. Robinson, 837 A.2d 1157, 1161 (Pa. 2003) (citations

omitted).
____________________________________________


4 Section 9545(b)(2) was recently amended, effective December 24, 2018, to
extend the time for filing from sixty days of the date the claim could have
been presented to one year. The amendment applies only to claims arising
on or after December 24, 2017. As a result, this amendment does not apply
to Appellant’s PCRA petition because it was filed prior to the amendment’s
effective date.

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      Here, the record reflects Appellant’s judgment of sentence became final

on July 10, 2014. See 42 Pa.C.S.A. § 9545(b)(3); Pa.R.A.P. 903(a). Because

Appellant had one year from July 10, 2014, to file his PCRA petition, the

current filing raising the Muniz issue is facially untimely given it was filed on

January 24, 2018.

      The one-year time limitation, however, can be overcome if a petitioner

alleges and proves one of the three exceptions set forth in Section

9545(b)(1)(i)-(iii) of the PCRA.       Here, Appellant invokes the time-bar

exception of Section 9545(b)(1)(iii) of the PCRA in arguing, without citing any

legal authority, that that our Supreme Court’s decision in Muniz created a

new substantive right that applies retroactively. Our Supreme Court has set

forth a two-part test to determine the applicability of Section 9545(b)(1)(iii) to

a new decision:

      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 this
      [C]ourt 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 (2002).




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       We recently addressed a similar claim under Section 9545(b)(1)(iii) in

Commonwealth v. Murphy, 180 A.3d 402 (Pa. Super. 2018). In Murphy,

we explained:

       that this Court has declared that, “Muniz created a substantive
       rule that retroactively applies in the collateral context.”
       Commonwealth v. Rivera–Figueroa, 174 A.3d 674, 678 (Pa.
       Super. 2017). However, because [the a]ppellant’s PCRA petition
       is untimely (unlike the petition at issue in Rivera–Figueroa), he
       must demonstrate that the Pennsylvania Supreme Court has
       held that Muniz applies retroactively in order to satisfy [S]ection
       9545(b)(1)(iii). Because at this time, no such holding has been
       issued by our Supreme Court, Appellant cannot rely on Muniz to
       meet that timeliness exception.

Murphy, 180 A.3d at 405-06 (emphasis in original) (citations omitted).

Consistent with Murphy, Appellant obtains no relief sub judice because, to

date, our Supreme Court has not held Muniz to apply retroactively to meet

the Section 9545(b)(1)(iii) exception. Accordingly, we affirm the PCRA court’s

order, as Appellant’s petition is untimely.5

       Upon conducting our independent review of the record, we conclude that

this appeal is in fact meritless.

       Order affirmed. Petition to withdraw granted.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 10/2/19
____________________________________________


5 Appellant’s PCRA petition invoking Muniz also is untimely because Appellant
failed to file it within sixty days of the July 19, 2017 Muniz decision.

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