J-S21015-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT
                                                       OF PENNSYLVANIA
                             Appellee

                        v.

    MICHAEL RYAN BOYES

                             Appellant                 No. 2986 EDA 2018


             Appeal from the PCRA Order Dated September 6, 2018
               In the Court of Common Pleas of Delaware County
               Criminal Division at No.: CP-23-CR-0001479-2015


BEFORE: STABILE, J., MURRAY, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY STABILE, J.:                              FILED JUNE 25, 2019

        Appellant Michael Ryan Boyes appeals from the September 6, 2018

order entered in the Court of Common Pleas of Delaware County (“PCRA

court”), which dismissed as untimely his second 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. Briefly, in

connection with a 2015 incident involving a minor, Appellant entered into a

negotiated guilty plea to one count of solicitation of involuntary deviate sexual

intercourse (“IDSI”) of a person under the age of sixteen,2 a Tier III offense
____________________________________________


1Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth v.
Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
2   18 Pa.C.S.A. §§ 902 and 3123(a)(7).
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requiring a lifetime registration under the Pennsylvania’s Sex Offender

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

9799.15(a)(3). On October 19, 2015, consistent with the negotiated plea, the

trial court sentenced Appellant to             two   and one-half to   five   years’

imprisonment, followed by five years’ probation. The trial court also subjected

Appellant to SORNA’s lifetime registration requirement, as contemplated by

the plea agreement.         Appellant did not file a direct appeal.    Appellant’s

judgment of sentence became final on November 18, 2015.

       On September 19, 2016, Appellant pro se filed a PCRA petition, his first,

asserting, inter alia, ineffective assistance of counsel claims. The PCRA court

appointed counsel who then filed a no-merit letter pursuant to Turner/Finley

and petitioned to withdraw from the case. On March 15, 2017, the PCRA court

granted counsel’s petition and issued a Pa.R.Crim.P. 907 notice of its intent to

dismiss Appellant’s PCRA petition without a hearing. Appellant did not file a

response to the PCRA court’s Rule 907 notice. On April 18, 2017, the PCRA

court denied Appellant PCRA relief without a hearing. Appellant did not file an

appeal.

       On November 27, 2017, Appellant pro se filed a petition for writ of

habeas corpus, raising a claim under Commonwealth v. Muniz, 164 A.3d

1189 (Pa. 2017).3 Treating the writ of habeas corpus as Appellant’s second

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3In Muniz, our Supreme Court held that SORNA’s registration provisions are
punitive, and retroactive application of SORNA’s provisions violates the federal



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PCRA petition, the PCRA court appointed counsel, who subsequently filed an

amended petition.4 The Commonwealth filed a motion to dismiss the petition.

On August 17, 2018, the PCRA court filed a Rule 907 notice of its intent to

dismiss without a hearing the amended PCRA petition. On September 6, 2018,

the PCRA court dismissed as untimely Appellant’s second PCRA petition, as

subsequently amended by appointed counsel.          Appellant appealed to this

Court.    The PCRA court directed Appellant to file a Pa.R.A.P. 1925(b)

statement of errors complained of on appeal. Appellant complied, raising a

single assertion of error.

              Was the [PCRA] court in error for dismissing Appellant’s
       petition for post conviction relief which argued that his sentence
       was unconstitutional pursuant to [Muniz] as [i]t pertains to his
       lifetime registration requirements?

Appellant’s Rule 1925(b) Statement, 10/31/18.




____________________________________________


ex post facto clause, as well as the ex post facto clause of the Pennsylvania
Constitution.
4 It is well settled that the PCRA is intended to be the “sole means of obtaining
collateral relief.” 42 Pa.C.S. § 9542; see also Commonwealth v. Peterkin,
722 A.2d 638, 640 (Pa. 1998). So long as the PCRA provides a potential
remedy to a given claim, “the PCRA statute subsumes the writ of habeas
corpus.” Commonwealth v. Taylor, 65 A.3d 462, 465-66 (Pa. Super. 2013)
(citation omitted). A challenge to the legality of sentence is cognizable under
the PCRA. 42 Pa.C.S. § 9543(a)(2)(vii); see also Commonwealth v. Beck,
848 A.2d 987, 989 (Pa. Super. 2004). When raising a challenge to the legality
of his sentence, “a defendant cannot escape the PCRA time-bar by titling his
petition or motion as a writ of habeas corpus.” Commonwealth v. Taylor,
65 A.3d 462, 466 (Pa. Super. 2013).

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       On January 10, 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 4.

       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 petitioned for leave to withdraw and filed an Anders brief, which

we accept in lieu of a Turner/Finley no-merit letter.5 Finally, PCRA counsel

informed Appellant of his right to hire a new lawyer or file a pro se response.
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5Anders v. California, 386 U.S. 738 (1967), sets forth the requirements to
withdraw on direct appeal, which are more stringent than the Turner/Finley



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       We now turn to this appeal to determine whether it 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.

       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
              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.


____________________________________________


requirements that apply on collateral appeal. See Widgins, 29 A.3d at 817
n.2. “Because an Anders brief provides greater protection to a defendant,
this Court may accept an Anders brief in lieu of a Turner/Finley letter.” Id.


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      (2) Any petition invoking an exception provided in paragraph (1)
      shall be filed within 60 days of the date the claim could have been
      presented.

      (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).

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

on November 18, 2015. See 42 Pa.C.S.A. § 9545(b)(3); Pa.R.A.P. 903(a).

Because Appellant had one year from November 18, 2015, to file his PCRA

petition, the current filing raising the Muniz issue is facially untimely given it

was filed on November 27, 2017.

      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


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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, 571 Pa. 219, 812 A.2d 497, 501 (2002).

      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.


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      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: 6/25/19




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