J-S09037-19

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,           :    IN THE SUPERIOR COURT OF
                                        :          PENNSYLVANIA
                  Appellee              :
                                        :
          v.                            :
                                        :
KENNETH A. DILTS,                       :
                                        :
                  Appellant             :    No. 1293 WDA 2018

               Appeal from the PCRA Order Entered August 6, 2018
                in the Court of Common Pleas of Jefferson County
               Criminal Division at No(s): CP-33-CR-0000207-2015

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

MEMORANDUM BY STRASSBURGER, J.:                     FILED APRIL 25, 2019

     Kenneth A. Dilts (Appellant) appeals pro se from the August 6, 2018

order dismissing his petition filed under the Post Conviction Relief Act

(PCRA), 42 Pa.C.S. §§ 9541-9546. Upon review, we affirm.

     On September 16, 2015, Appellant pleaded guilty to one count of

failure to comply with Megan’s Law1 registration requirements. N.T.,

9/16/2015, at 3. He was sentenced the same day to serve 40 to 80 months

of incarceration to be followed by 40 months of probation. Neither a post-

sentence motion nor a direct appeal was filed.




1 18 Pa.C.S. § 4915.1(a)(1) (failing to register with the Pennsylvania State
Police). Appellant had been convicted of rape and other related offenses in
Clarion County on September 29, 1999, requiring him to register for life as a
sex offender.



* Retired Senior Judge assigned to the Superior Court.
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      In June of 2018,2 Appellant wrote a letter to the trial court, which the

trial court construed to be Appellant’s first PCRA petition. On June 21, 2018,

the PCRA court appointed counsel to represent Appellant, and on July 13,

2018, counsel filed a petition to withdraw and 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).         Specifically, PCRA

counsel concluded that Appellant’s petition was untimely filed, and our

Supreme Court’s decision in Commonwealth v. Muniz, 164 A.3d 1189 (Pa.

2017) (holding that certain registration provisions of Pennsylvania’s Sex

Offender Registration and Notification Act (SORNA) are punitive and

retroactive application of those provisions violates the federal ex post facto

clause, as well as the ex post facto clause of the Pennsylvania constitution),

was not applicable to Appellant retroactively in this untimely-filed PCRA

petition. Counsel’s No-Merit Letter, 7/13/2018, at 4-5. See Commonwealth

v. Murphy, 1880 A.3d 402 (Pa. Super. 2018).3




2 Because this filing is not included in the certified record, the exact date is
unclear, but all parties agree that it occurred in June of 2018. See
Appellant’s Brief at 3 (stating that he “wrote a letter to the trial court
questioning his appeal rights” on June 13, 2018); No-Merit Letter,
7/13/2018, at 2 (“Thereafter [Appellant] posted correspondence to the court
dated June 13, 2013…. PCRA counsel was unable to locate and view the
correspondence to the court[.]”).
3PCRA counsel also suggests that Appellant believes his sentence should be
vacated based upon our Supreme Court’s holding in Commonwealth v.
Neiman, 84 A.3d 603 (Pa. 2013) (declaring unconstitutional Act 152, which
(Footnote Continued Next Page)

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      The PCRA court granted counsel’s petition to withdraw, and issued

notice of its intent to dismiss Appellant’s PCRA petition pursuant to

Pa.R.Crim.P. 907. In that notice, the PCRA court stated that it reviewed the

no-merit letter, conducted its “own independent review,” and concluded that

the issues are meritless. Order of Court, 7/16/2018. Appellant did not file a

response, and on August 6, 2018, the PCRA court dismissed Appellant’s

petition. Appellant timely filed a notice of appeal.

      The PCRA court issued an order directing Appellant to file a concise

statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925.

Appellant timely filed a concise statement raising the issue that Muniz,

supra, should apply to him retroactively. Concise Statement, 12/10/2018,

at 1. The PCRA court filed an opinion pursuant to Pa.R.A.P. 1925(a), which

once again adopted the findings and conclusions set forth in the no-merit

letter.4 PCRA Court Opinion, 12/12/2018.

      In considering the issues Appellant presents on appeal, we must

address whether this PCRA petition was filed timely, as neither this Court nor
(Footnote Continued)   _______________________

included Megan’s Law III provisions). No-Merit Letter, 7/13/2018. PCRA
counsel does not provide an analysis of this issue in his no-merit letter.

4 We note with disapproval the PCRA court’s adopting the counsel’s no-merit
letter as its Pa.R.Crim.P. 907 notice and Pa.R.A.P. 1925(a) opinion. See
Commonwealth v. Glover, 738 A.2d 460 (Pa. Super. 1999) (holding that it
is improper for a PCRA court to adopt an attorney’s no-merit letter in lieu of
writing an opinion); Commonwealth v. Fulton, 876 A.2d 342 (Pa. 2002)
(holding that the PCRA court erred in adopting Commonwealth’s motion to
dismiss in lieu of authoring an independent opinion). However, based on our
result as discussed infra, we conclude remand is not necessary in this case.

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the PCRA court has jurisdiction to address the merits of an untimely-filed

petition.   Commonwealth v. Leggett, 16 A.3d 1144, 1145 (Pa. Super.

2011).

      Any PCRA petition, including second and subsequent petitions, must

either (1) be filed within one year of the judgment of sentence becoming

final, or (2) plead and prove a timeliness exception. 42 Pa.C.S. § 9545(b).

Furthermore, the petition “shall be filed within one year of the date the claim

could have been presented.”5 42 Pa.C.S. § 9545(b)(2).

      “For purposes of [the PCRA], a judgment [of sentence] 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). Here, Appellant was sentenced on September 16, 2015, and

he did not file a post-sentence motion or direct appeal. Thus, his judgment

of sentence became final 30 days later, on October 16, 2015, and he had

one year, until October 17, 2016, to file timely a PCRA petition.        Thus,

Appellant’s June 2018 filing is facially untimely, and he was required to plead

and prove an exception to the timeliness requirements.




5  On October 24, 2018, this subsection was amended to extend the
timeframe from 60 days to one year, effective for claims aising on December
24, 2017 or thereafter. Because Appellant’s PCRA petition was filed in June
of 2018, one-year timeframe applies.

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      On appeal, Appellant claims that he satisfies the newly-discovered

facts exception pursuant to 42 Pa.C.S. § 9545(b)(1)(ii) (“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 …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.”). Appellant’s Brief at 4.

Appellant argues that the Supreme Court’s decision in Neiman, supra, “was

known or should have been known to trial counsel prior to Appellant’s

involuntary plea.” Id. at 5. In addition, Appellant argues that he is innocent

of the crime to which he pleaded guilty, and trial counsel was ineffective for

failing to investigate the underlying facts. Id. at 5-6. Furthermore, Appellant

claims that trial counsel was ineffective for failing to file a requested direct

appeal, and Appellant did not learn of this failure until he wrote to the trial

court in June of 2018. Id. at 7.

      First, Appellant did not raise any of the aforementioned issues in his

Pa.R.A.P. 1925(b) statement; therefore, they are waived. See Pa.R.A.P.

1925(b)(vii) (“Issues not included in the Statement and/or not raised in

accordance with the provisions of this paragraph (b)(4) are waived.”). Thus,

he is not entitled to relief.

      Even if Appellant did not waive these issues, he has still not pleaded

and proven facts which satisfy the timeliness requirements.          “It is well


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settled that allegations of ineffective assistance of counsel will not overcome

the jurisdictional timeliness requirements of the PCRA.” Commonwealth v.

Wharton, 886 A.2d 1120, 1127 (Pa. 2005). Thus, Appellant’s suggestions

that trial counsel was ineffective for not seeking relief based upon Neiman,

supra, and for not investigating Appellant’s case more thoroughly, cannot

overcome the jurisdictional timeliness requirements.

      Finally, with respect to Appellant’s contention that trial counsel was

ineffective for failing to file a requested direct appeal, Appellant was required

to plead when he discovered that no appeal had been filed. In addition, the

PCRA requires a petitioner to act with due diligence to make this discovery.

42 Pa.C.S. § 9545(b)(1)(ii). “[D]ue diligence requires neither perfect

vigilance nor punctilious care, but rather it requires reasonable efforts by a

petitioner, based on the particular circumstances, to uncover facts that may

support a claim for collateral relief.” Commonwealth v. Burton, 121 A.3d

1063, 1071 (Pa. Super. 2015). “A petitioner must explain why [he or] she

could not have learned the new fact earlier with the exercise of due

diligence.” Commonwealth v. Shiloh, 170 A.3d 553, 558 (Pa. Super.

2017).   Here, Appellant has offered no explanation as to why he waited

nearly three years to write to the trial court.       Thus, Appellant has not

pleaded any facts to support a contention that he acted with due diligence.

Thus, even if these issues had been preserved in Appellant’s Pa.R.A.P.

1925(b) statement, Appellant would not have been entitled to relief.


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      Based on the foregoing, we conclude that Appellant’s petition was

untimely filed, and he has not asserted an exception to the timeliness

requirements. Thus, he is not entitled to relief.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/25/2019




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