J-S46034-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    PETER KISTLER                              :
                                               :
                       Appellant               :   No. 435 EDA 2019

              Appeal from the PCRA Order Entered January 18, 2019
       In the Court of Common Pleas of Lehigh County Criminal Division at
                        No(s): CP-39-CR-0003428-2005


BEFORE:      PANELLA, P.J., OLSON, J., and COLINS, J.*

MEMORANDUM BY COLINS, J.:                          FILED SEPTEMBER 09, 2019

        Appellant, Peter Kistler, pro se, appeals from the order entered

January 18, 2019, that dismissed his first petition filed under the Post

Conviction Relief Act (“PCRA”)1 without a hearing. We affirm.

        The facts underlying this appeal are as follows:

        On July 17, 2005, at approximately 7:30 a.m., Appellant was
        driving in the vicinity of the McKinley Elementary School
        playground located in Allentown. He pulled up to L.U., a nine-
        year-old gifted student, and asked her if she wanted a ride. The
        victim immediately ran into the school and reported the incident
        to a teacher. The police were contacted and began to search for
        the suspect. A short time thereafter, the victim and her teacher
        came outside and observed the same car driving near the school.
        The police were again notified, Appellant was subsequently taken
        into custody. . . . [When interviewed by police,] Appellant agreed
        that he asked the victim if she wanted a ride because he wanted
____________________________________________


*   Retired Senior Judge assigned to the Superior Court.
1   42 Pa.C.S. §§ 9541–9546.
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        to have sex. However, Appellant also said he did not know what
        would have happened if he knew she was nine years of age since
        he believed she was a teenager.

Commonwealth v. Kistler, No. 522 EDA 2007, unpublished memorandum

at 1-3 (Pa. Super. filed November 16, 2007).

        On May 30, 2006, at the current docket number, Appellant pleaded

guilty to criminal attempt to lure a child into a motor vehicle or structure.2 At

that time, Megan’s Law III was in effect,3 which required any individual found

to be a sexually violent predator (“SVP”)4 to “be subject to lifetime

registration[.]”    42 Pa.C.S. § 9795.1(b)(3) (effective January 24, 2005 to

February 20, 2012). Therefore,

        at the close of [Appellant’s plea] hearing, the trial court ordered
        an assessment by the Pennsylvania State Sexual Offenders
        Assessment Board (SOAB) to render an opinion as to whether
        Appellant was a [SVP]. On July 18, 2006, the Commonwealth filed
        a petition to classify Appellant as an SVP.

        On September 21, 2006, a hearing was held to determine
        Appellant’s status. . . . [T]he trial court . . . considered Appellant’s
        two prior offenses for rape and attempted rape for purposes of the

____________________________________________


2   18 Pa.C.S. § 901(a) to commit id. § 2910.
3The General Assembly enacted Megan’s Law III on November 24, 2004,
which became effective on January 24, 2005.
4 In May 2006, in January 2019 when Appellant’s PCRA petition was denied,
and as of the date of this decision, a SVP is defined as an individual convicted
of sexually violent offenses who is determined to have engaged in the violent
conduct “due to a mental abnormality or personality disorder that makes the
individual likely to engage in predatory sexually violent offenses.” 42 Pa.C.S.
§ 9792 (effective January 24, 2005 to February 20, 2012); 42 Pa.C.S.
§ 9799.12 (effective June 12, 2018 to present).



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       SVP assessment.[5] Further, the trial court noted that these
       offenses occurred in the 1980’s and that the incident in question
       occurred only one year after Appellant’s parole in July of 2004.

                                   *    *    *
       At the conclusion of the hearing, the trial court found Appellant to
       be an SVP under Megan’s Law . . . Following the hearing, the trial
       court sentenced Appellant to 24 to 60 months’ imprisonment.

Kistler, No. 522 EDA 2007, at 2, 4, 7. Appellant also received credit for time

served. Lehigh County Sentence Sheet, 9/21/2006.6

       Appellant filed a direct appeal, “seek[ing] review of the trial court’s

determination that he is a [SVP] under Megan’s Law[.]” Kistler, No. 522 EDA

2007, at 1. This Court affirmed the judgment of sentence, id., and Appellant

filed a petition for allowance of appeal to the Supreme Court of Pennsylvania,

which was denied on July 24, 2008.

       On September 19, 2018, Appellant filed his first, pro se PCRA petition.

Appellant acknowledged that his petition was untimely but contended that the

right he was asserting “is a constitutional right that was recognized by the

Supreme Court of Pennsylvania in the matter of Commonwealth v. Muniz,

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5  In 1989, at Docket Numbers CP-39-CR-0001984-1988 and CP-39-CR-
0001985-1988, Appellant pleaded guilty to rape, 18 Pa.C.S. § 3121(1), and
criminal attempt to commit rape, id. § 901(a) to commit id. § 3121(1),
respectively. These convictions pre-date Megan’s Law I, which was enacted
on October 24, 1995, and became effective 180 days thereafter; Appellant
hence was not subject to registration requirements at that time.
6 Accordingly, Appellant’s sentence ended 60 months after he was taken into
custody on July 17, 2005 – i.e., on July 17, 2010, at the latest, and he is no
longer serving a sentence of imprisonment or parole for the crime in the
current appeal.



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[164 A.3d 1189] (P[a.] 2017), [cert. denied, 138 S. Ct. 925 (2018),] after the

time period provided in this Section and has been held by that Court to apply

retroactively.”    PCRA Petition, 9/19/2017, at 3 ¶ 4.a.    The PCRA petition

continued:

       The Classification of [Appellant] by the [SOAB] as a [SVP] in 2006
       allowed for the Require Lifetime Registration under SORNA[7]
       enacted in 2012, and in violation of the United States and
       Pennsylvania Constitutions Ex Post Facto Law and the
       Pennsylvania Constitution protection of “Reputation” under Article
       1 §1.

Id. at ¶ 5.

       On October 16, 2018, the PCRA court appointed counsel to represent

Appellant and ordered PCRA counsel to file an amended petition within 90 of

days of the date of the order. On November 13, 2018, PCRA counsel filed a

petition to withdraw and a “no merit” letter pursuant to Commonwealth v.

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

213 (Pa. Super. 1988) (en banc), informing Appellant of his “option of

proceeding without an attorney or with a privately retained attorney.” Motion

to Withdraw as Counsel, 11/13/2018, Exhibit “A”, “No Merit” Letter from PCRA

Counsel, 11/12/2018, at 4 (unpaginated).




____________________________________________


7  “Megan’s Law IV [is] more commonly known as the Sexual Offender
Registration and Notification Act (‘SORNA’). SORNA went into effect on
December 20, 2012, and provided for the expiration of Megan’s Law III at that
time.” Commonwealth v. Derhammer, 173 A.3d 723, 724-25 (Pa. 2017)
(footnote omitted).

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       On December 20, 2018, the PCRA court entered a notice of intent to

dismiss all claims without a hearing pursuant to Pa.R.Crim.P. 907 (“Rule 907

Notice”). Appellant did not file a response.

       On January 18, 2019, the PCRA court dismissed Appellant’s PCRA

petition and granted PCRA counsel’s motion to withdraw.          On February 7,

2019, Appellant filed this timely appeal.8

       Appellant presents the following issues for our review:

       I.    Did the PCRA/trial court err and abuse its discretion in
       denying [Appellant]’s PCRA petition on his “SORNA” claim as
       being untimely, and failing to recognize the PCRA stat[ut]ory
       provision in 42 Pa.C.S. § 9545(b)(1)(iii) ,which allows for
       [Appellant] to file his firs[t] PCRA when the Pennsylvania Supreme
       Court announced a new rule of law in Commonwealth v.
       Muniz?

       [II.] Did the PCRA/trial court err and abuse its discretion by
       forcing [Appellant] into endless appeals in order to prevent his
       “SORNA” claim from ever being heard in the appellate courts, this
       time by not addressing the claim in his opinion, but soely focuses
       on the timeliness of [Appellant]’s petition?

       [III.] Was court appointed counsel ineffective by the providing
       no assistance at all in pursuing [Appellant]’s claims and
       subjecting those claims to survive the adve[r]sarial testing by the
       Commonwealth when failing to properly review said claims before
       he abruptly filed a “Finley Letter?” [sic]

Appellant’s Brief at 6 (emphasis in original) (issues re-ordered to facilitate

disposition) (suggested answers and unnecessary capitalization omitted)

(some additional formatting).



____________________________________________


8Appellant filed his statement of errors complained of on appeal on March 1,
2019. The PCRA court entered its opinion on March 18, 2019.

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      “We review the denial of PCRA relief to decide whether the PCRA court’s

factual determinations are supported by the record and are free of legal error.”

Commonwealth v. Medina, 209 A.3d 992, 996 (Pa. Super. 2019) (quoting

Commonwealth v. Brown, 196 A.3d 130, 150 (Pa. 2018)).

      The   timeliness   of   a    post-conviction   petition   is   jurisdictional.

Commonwealth v. Greco, 203 A.3d 1120, 1124 (Pa. Super. 2019);

Commonwealth v. Hernandez, 79 A.3d 649, 651 (Pa. Super. 2013).

Generally, a petition for relief under the PCRA,

      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.

42 Pa.C.S. § 9545(b)(1).

      In the current case, the PCRA court concluded that it lacked jurisdiction

over Appellant’s first PCRA petition, because the petition was untimely and

failed to satisfy an exception to the PCRA’s time bar. PCRA Court Opinion,

filed March 18, 2019, at 1, 5-6.


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       Appellant concedes that his PCRA petition is untimely.9 PCRA Petition,

9/19/2017, at 3 ¶¶ 4.a.; Appellant’s Brief at 14.       Nevertheless, Appellant

attempts to circumvent the time bar by asserting the “new retroactive right”

exception under subsection 9545(b)(1)(iii), relying upon Muniz, 164 A.3d at

1193, 1222-23, which held that SORNA’s registration provisions are punitive

and that retroactive application thereof violates the federal and state ex post

facto clauses and the reputation clause of the Pennsylvania Constitution.

PCRA Petition, 9/19/2017, at 3 ¶¶ 4.a.-5.; Appellant’s Brief at 12, 14.

Appellant contends that the holding in Muniz, 164 A.3d 1189, thereby created

a new constitutional right that retroactively applies to him, because he was

subject to SORNA’s registration requirements. PCRA Petition, 9/19/2017, at

3 ¶¶ 4.a.-5.; Appellant’s Brief at 12.

       However, Appellant’s reliance on Muniz, 164 A.3d 1189, is misplaced.

In Commonwealth v. Abdul-Salaam, 812 A.2d 497, 501 (Pa. 2002), the

Supreme Court of Pennsylvania explained that subsection 9545(b)(1)(iii) 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 court after the time provided in this section. Second, it
____________________________________________


9 Appellant’s judgment of sentence became final on October 22, 2008, ninety
days after the Pennsylvania Supreme Court denied his petition for allowance
of appeal on July 24, 2008. U.S. Sup. Ct. R. 13. Appellant had one year
thereafter to file a PCRA petition – i.e., until October 22, 2009. 42 Pa.C.S.
§ 9545(b)(1). Appellant filed the current petition on September 19, 2017,
more than seven years late. Therefore, we agree with Appellant that his PCRA
petition was patently untimely.

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       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.

       While this Court has held 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),10 the Supreme Court of

Pennsylvania has not.          As this Court explained in Commonwealth v.

Murphy, 180 A.3d 402 (Pa. Super. 2018):

       because Appellant’s PCRA petition is untimely . . . , he must
       demonstrate that the Pennsylvania Supreme Court has held
       that Muniz applies retroactively in order to satisfy section
       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.

Id. at 405-06 (emphasis in original) (footnote omitted) (citation omitted).

See also Commonwealth v. Johnson, 200 A.3d 964, 967 (Pa. Super. 2018)

(“Muniz applies retroactively on collateral review only to those persons who

could raise the issue in a timely PCRA petition.”). Thus, in the current appeal,

pursuant to Murphy, 180 A.3d at 405-06, Appellant cannot rely on Muniz,

____________________________________________


10 Unlike in the current action, the PCRA petition in Rivera-Figueroa was
timely, and the subsection 9545(b)(1) exceptions were inapplicable. 174 A.3d
at 677. Ergo, Appellant’s reliance on Rivera-Figueroa throughout his brief
is misguided. Appellant’s Brief at 13, 18, 23-25.



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164 A.3d 1189, to meet the timeliness exception. Consequently, the PCRA

court was without jurisdiction to review the merits of Appellant’s claim and

properly dismissed his petition.11


____________________________________________


11 Additionally, as noted above, Appellant is no longer serving a sentence of
imprisonment or parole for the crime in the current action. Assuming
Appellant’s petition qualified for an exception to the PCRA time bar, he would
still be ineligible for relief under the PCRA pursuant to its Section 9543, which
provides in pertinent part:

       To be eligible for relief under this subchapter, the petitioner must
       plead and prove by a preponderance of the evidence all of the
       following:

              (1) That the petitioner has been convicted of a crime
              under the laws of this Commonwealth and is at the
              time relief is granted:

                 (i)  currently  serving   a   sentence     of
              imprisonment, probation or parole for the crime;

42 Pa.C.S. § 9543(a) (emphasis added); see also Commonwealth v.
Ahlborn, 699 A.2d 718, 720 (Pa. 1997).

Appellant is not currently imprisoned, on probation, or on parole. Although
Muniz held that “SORNA’s registration provisions constitute punishment[,]”
164 A.3d at 1193, we find no case or statutory law – and Appellant provides
us with none – that a “punishment” is the equivalent of a “sentence” under
Section 9543(a) of the PCRA. The exact language of the PCRA itself indicates
that any other type of sanction besides “imprisonment, probation or parole”
is not a “sentence” entitling a petitioner to relief under the PCRA. 42 Pa.C.S.
§ 9543(a).

“The basic tenet of statutory construction requires a court to construe the
words of the statute according to their plain meaning.” Commonwealth v.
Gosselin, 861 A.2d 996, 1000 (Pa. Super. 2004). As the plain meaning of
Section 9543(a) is that only those three sanctions constitute a “sentence” for
purposes of PCRA eligibility, Appellant’s SORNA registration, even if referred
to as a “punishment” elsewhere, is not a “sentence” pursuant to the PCRA,



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       As for Appellant’s ineffectiveness claim against PCRA counsel, in

Commonwealth v. Rykard, 55 A.3d 1177 (Pa. Super. 2012), this Court

stated that “a petitioner waives issues of PCRA counsel’s effectiveness

regarding Turner/Finley requirements if he declines to respond to the PCRA

court’s notice of intent to dismiss.”          Id. at 1186 (citation omitted).   Since

Appellant did not file a response to the Rule 907 Notice, he may not now

challenge the correctness of PCRA counsel’s conclusion that there was no merit

to his PCRA petition. See id.12

       Accordingly, having discerned no error of law, we affirm the order below.

See Medina, 209 A.3d at 996.

       Order affirmed.


____________________________________________


and, thus, Appellant is not eligible for relief under the PCRA for this reason,
also.
12 The “Argument” section of Appellant’s brief to this Court includes a section
labelled “De Novo Judicial Review of Defendant’s Claim[,]” in which he argues
“that it is a [d]ue process violation” for him “to be classified as a ‘SVP’ without
a jury being the fact finder[.]”            Appellant’s Brief at 21-22 (citing
Commonwealth v. Butler, 173 A.3d 121 (Pa. Super. filed October 31, 2017)
(citing Alleyne v. United States, 570 U.S. 99 (filed June 17, 2013)), appeal
granted, 190 A.3d 581 (Pa. 2018)). Butler was decided during the pendency
of Appellant’s PCRA petition, and, consequently, no claims pertaining to
Butler could have been included in Appellant’s PCRA petition.

In Commonwealth v. Adams-Smith, 2019 A.3d 1011 (Pa. Super. 2019),
this Court held: “a PCRA petitioner can obtain relief . . . under Butler, if the
petition is timely filed, as long as the relevant judgment of sentence became
final after June 17, 2013, the date Alleyne was decided.” Id. at 1024
(emphasis in original). As Appellant’s PCRA petition was not timely filed and
as his judgment of sentence became final on October 22, 2008, i.e., before
June 17, 2013, Appellant cannot obtain relief pursuant to Butler.

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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/9/19




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