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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA                  :   IN THE SUPERIOR COURT OF
                                                            PENNSYLVANIA

                 v.


    JOHN JAMES FISHER        III
                          Appellant               :   No. 3304 EDA 2018

              Appeal from the PCRA Order Entered October 17, 2018
      In the Court of Common Pleas of Delaware County Criminal Division at
                         No(s): CP-23-CR-0004656-2012


BEFORE:      LAZARUS, J., McLAUGHLIN, J., and STEVENS*, P.J.E.

MEMORANDUM BY McLAUGHLIN, J.:                               FILED AUGUST 12, 2019

        John James Fisher      III, appeals the denial of   his request for relief under

the Post Conviction Relief Act ("PCRA"), 42 Pa.C.S.A. §§ 9541-9546. Appellate

counsel has filed     a   Turner/Finley" letter with this Court maintaining that
Fisher's appeal is meritless and asks us to grant his application to withdraw

as counsel. We affirm the order of the court and grant counsel's request.

        The procedural history of this case is as follows. Fisher pled guilty to

possession of child pornography and criminal use of communication facility.2

On February 7, 2013, the           trial court sentenced Fisher to eight to 23 months'

incarceration for child pornography followed by             a   consecutive term of five


      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).
2   18 Pa.C.S.A. §§ 6312(d) and 7512, respectively.
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years' reporting probation on the remaining charge. Fisher did not file                   a    post -

sentence motion or        a   direct appeal.

        On April 28, 2017, Fisher was sentenced by a                   different court for an

unrelated conviction for child pornography. Consequently, on December 12,

2017, the trial court that sentenced Fisher following his guilty plea revoked

Fisher's probation and sentenced him to 18 to 60 months' incarceration for

criminal use of communication facility.3 Fisher did not file                   a   post -sentence

motion or    a   direct appeal.

        On December 4, 2017, Fisher filed a pro se PCRA petition. The PCRA

court appointed counsel, who filed an amended petition on July 6, 2018. In

the amended petition counsel argued that pursuant to Commonwealth v.

Muniz, 164 A.3d 1189 (Pa. 2017), "[Fisher] should not                         be subject to the

registration requirements that he          is   currently under and      is   presently   is    [sic]

serving an illegal sentence." Amended PCRA Petition, filed 7/6/18, at                     ¶ 9. On

September 25, 2018, the PCRA court issued its notice of intent to dismiss the

petition without      a   hearing pursuant to Pa.R.Crim.P. 907 and denied the

petition on October 17, 2018. This appeal followed.

        On appeal, counsel mistakenly filed an                Anders4 brief with this Court
instead of   a   Turner/Finley letter, which            is   the appropriate way for counsel

to seek to withdraw his or her appearance on appeal from the denial of PCRA


3 At the time of the revocation hearing, Fisher's sentence for the child
pornography conviction had expired.

4   Anders v. California, 386         U.S. 738 (1967).

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relief. See Commonwealth v. Widgins, 29 A.3d 816, 817 n.2 (Pa.Super.

2011) (noting that         Turner/Finley letter        is   appropriate when seeking to

withdraw from an appeal from denial of PCRA relief). We ordered counsel to

file copies of   a   letter addressed to Fisher informing him of his right to counsel

or to proceed pro se. See Order, filed 2/21/19. Counsel in turn filed                    a

Turner/Finley letter with this Court           along with the letter sent to Fisher

notifying him of counsel's application to withdraw as well as his right to new

counsel or to proceed pro se. See also         Turner/Finley letter, filed 3/5/19.
        Before addressing the merits of this appeal, we must review counsel's

application to withdraw as counsel. Counsel requesting to withdraw must file

a   no -merit letter: (1) "detailing the nature and         extent of [their] review"; (2)

"listing each issue the petitioner wished to have reviewed"; and (3) "counsel's

'explanation'        of   why    the    petitioner's        issues   were    meritless[.]"
Commonwealth v. Pitts, 981 A.2d 875, 876                    n.1 (Pa. 2009). Counsel must

also send this letter to the petitioner with       a   copy of their petition to withdraw

and also inform the petitioner of their right to proceed pro se or to retain new

counsel. Commonwealth v. Wrecks, 931 A.2d 717, 721 (Pa.Super. 2007).

Once we conclude that the above has been satisfied, this Court "must then

conduct its own review of the merits of the case." Commonwealth v. Muzzy,

141 A.3d 509, 511 (Pa.Super. 2016) (quoting                 Commonwealth v. Doty, 48
A.3d 451, 454 (Pa.Super. 2012)).

        Here, counsel has substantially complied with the requirements of

Turner and Finley. Counsel provided details regarding the nature of                    his

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review of Fisher's claim, discussed the issue that Fisher wanted to have

reviewed, and also explained why he believed the issue was meritless.

Therefore, we now conduct our own independent review of the merits of the

case.

           Our review of the denial of PCRA relief "is limited to determining whether

the PCRA court's findings are supported by the record and without legal error."

Commonwealth v. Edmiston, 65 A.3d 339, 345                (Pa. 2013). The   credibility

determinations of the PCRA court are binding on this Court, when supported

by the record.      Commonwealth v. Medina, 92 A.3d 1210, 1214 (Pa.Super.
2014). However, we review the legal conclusions of the PCRA court de novo.

Id. at 1215.
           We first address the timeliness of Fisher's petition, as the PCRA time -

bar is jurisdictional in nature. See Medina, 92 A.3d at 1215. A petitioner must

file   a   petition for PCRA relief within one year from the date the judgment of

sentence becomes final. 42 Pa.C.S.A.           §   9545(b). 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.A.

§   9545(b)(3). After this deadline, the petitioner must plead and prove at least
one of the following time -bar exceptions:

           (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;

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        (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.A.     §   9545(b)(1)(i)-(iii).
        Here, Fisher claims that he is serving an illegal sentence pursuant to

Muniz. The      PCRA       court denied Fisher's petition, concluding that the petition

was untimely.        It   also concluded that Fisher did not plead and prove the third

time -bar exception because he failed to raise              a   claim under Muniz within 60

days of the decision. See Pa.R.Crim.P. 907 Notice, filed 9/19/18, at ¶ 17; see

also 42 Pa.C.S.A.          §   9545(b)(1)(iii). In Muniz, our Supreme Court held that
the retroactive application of the Sexual Offender Registration and Notification

Act ("SORNA") registration requirements was punitive. Muniz, 164 A.3d at

1223.

        Fisher's judgment of sentence became final on March 11, 2013, after

the time period to file an appeal with this Court expired.5 Thus, Fisher had

until March 11, 2014 to file          a   timely   PCRA   petition. See Commonwealth v.

Garcia, 23 A.3d 1059, 1062 n.3 (Pa.Super. 2011) (where claim related to



5 Both parties state that Fisher's sentence became final "on or about March 9,
2013." Turner/Finley Letter at 2; Commonwealth's Br. at 9. However, March
9 was a Saturday, therefore, Fisher had until the following Monday, March 11,
to file a timely PCRA petition. See 1 Pa.C.S.A. § 1908.

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original guilty plea and sentence, revocation of probation on separate charge

does not "reset the clock" for time to file timely PCRA petition). The instant

petition filed on December 4, 2017   is   patently untimely. Therefore, Fisher had

to plead and prove at least one of the time -bar exceptions within 60 days from

the date the claim could have been raised in order for the court to entertain

his petition.

        Fisher claimed   relief under the third time -bar exception,         a   new

constitutional right that has been held to apply retroactively, arguing that the

registration requirements imposed by the court violated Muniz, thereby

making his sentence illegal. See 42 Pa.C.S.A.     §   9545(b)(1)(iii). This argument
fails because Fisher failed to raise the claim within 60 days from the date it

could have been raised. Muniz was decided on July 19, 2017, giving Fisher

until September 18, 2017, to raise the claim. Fisher did not file the instant

petition until December 2017.

        Moreover, even if Fisher had raised the claim in      a   timely manner, we

still would conclude it lacks merit because our Supreme Court has not held

that Muniz applies retroactively. See Commonwealth v. Murphy, 180 A.3d

402, 406 (Pa.Super. 2018), appeal denied, 195 A.3d 559 (Pa. 2018)

(concluding Supreme Court has not held that Muniz applies retroactively).

        Additionally, our independent review of the record does not reveal any

other meritorious issues. We affirm the order of the PCRA court denying

Fisher's request for relief and grant counsel's application to withdraw.

        Order affirmed. Counsel's application to withdraw granted.

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Judgment Entered.




  seph D. Seletyn,
Prothonotary



Date: 8/12/19




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