J-S33029-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    CLARK KITCHELL                             :
                                               :
                       Appellant               :   No. 1927 MDA 2018

             Appeal from the PCRA Order Entered October 23, 2018
                In the Court of Common Pleas of Luzerne County
              Criminal Division at No(s): CP-40-CR-0001292-2011


BEFORE: LAZARUS, J., OTT, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY OTT, J.:                                FILED OCTOBER 04, 2019

        Clark Kitchell appeals from the order entered October 23, 2018, in the

Luzerne County Court of Common Pleas denying his petition for collateral relief

filed pursuant to the Post Conviction Relief Act (“PCRA”).1 Kitchell seeks relief

from his resentence of 94 to 188 months’ imprisonment, and three years’

consecutive probation imposed on April 28, 2017,2 after his jury conviction of

involuntary deviate sexual intercourse (“IDSI”) with a child less than 13 years

old.3 Concomitant with this appeal, counsel has filed a motion to withdraw

____________________________________________


1   42 Pa.C.S. §§ 9541-9546.

2As will be discussed infra, Kitchell was originally sentenced on January 9,
2013, but obtained relief from that sentence via a prior PCRA petition.

3   See 18 Pa.C.S. § 3123(b).
J-S33029-19



and Turner/Finley4 “no merit” letter. Because we conclude Kitchell’s petition

was untimely filed, and he failed to plead or prove any of the time-for-filing

exceptions, we affirm the order denying relief and grant counsel’s petition to

withdraw.

       The facts and procedural history underlying this appeal are well known

to the parties and not pertinent to the issue raised herein. In summary, on

October 18, 2012, a jury found Kitchell guilty of one count of IDSI with a child.

He was sentenced on January 9, 2013, to a mandatory minimum term of 10

to 20 years’ imprisonment. Although Kitchell was not classified as a sexually

violent offender under Pennsylvania’s Sexual Offender Registration and

Notification Act (“SORNA”),5 he was still required to register as a Tier III sex

offender for the duration of his life.         See 42 Pa.C.S. § 9799.14(d).   His

judgment of sentence was affirmed by a panel of this Court on direct appeal,

and the Pennsylvania Supreme Court denied his request for allowance of

appeal on July 30, 2014. See Commonwealth v. Kitchell, 100 A.3d 299

____________________________________________


4 Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).

5 See 42 Pa.C.S. §§ 9799.10-9799.42. SORNA II was enacted in 2018.
Subchapter H, 42 Pa.C.S. §§ 9799.10-9799.42, was enacted on February 21,
2018, and applies to those who commit sexual offenses on or after December
20, 2012. On June 12, 2018, Subchapter I, 42 Pa.C.S. §§ 9799.51-9799.75,
was enacted to apply to offenders who committed a sexual offense on or after
April 22, 1996, but before December 20, 2012. See 2018, Feb. 21, P.L. 27,
No. 10, § 5.2, imd. effective (“Act 10”); Reenacted 2018, June 12, P.L. 140,
No. 29, § 4, imd. effective. (“Act 29”).



                                           -2-
J-S33029-19



(Pa. Super. 2014) (unpublished memorandum), appeal denied, 96 A.3d 1026

(Pa. 2014).

       Following litigation of a timely PCRA petition, a panel of this Court

granted Kitchell relief on his claim that the mandatory minimum sentence

imposed was illegal pursuant to Alleyne v. United States, 133 S.Ct. 2151

(U.S. 2013). See Commonwealth v. Kitchell, 168 A.3d 355 (Pa. Super.

2017) (unpublished memorandum). Accordingly, the panel vacated Kitchell’s

judgment of sentence and remanded for resentencing. On April 28, 2017, the

trial court resentenced Kitchell to a term of 94 to 188 months’ imprisonment,

followed by three years’ probation. His lifetime registration requirement did

not change. Kitchell did not appeal that sentence.

       However, on March 23, 2018, Kitchell filed the present PCRA petition

seeking, inter alia, relief from his SORNA registration requirements pursuant

to Commonwealth v. Muniz, 164 A.3d 1189 (Pa. 2017), cert. denied, 138

S.Ct. 925 (U.S. 2018). Counsel was appointed, and filed a brief addressing

Kitchell’s Muniz claim on May 3, 2018. The PCRA court conducted a hearing

on July 23, 2018, and, subsequently entered an order denying relief on

October 23, 2018. This timely appeal follows.6

____________________________________________


6We note that following the denial of PCRA relief, appointed counsel filed the
notice of appeal, as well as a motion requesting the PCRA court appoint new
counsel for litigation of the appeal. See Motion for Appointment of Appellate
Counsel, 11/19/2018. The PCRA court granted the motion, and appointed
present counsel on January 7, 2019. Present counsel then filed a Pa.R.A.P.
1925(b) concise statement of errors complained of on appeal on January 16,
2019, prior to being ordered to do so by the PCRA court the following day.

                                           -3-
J-S33029-19



      Before addressing the merits of this appeal, we must first consider

whether counsel has fulfilled the procedural requirements for withdrawal.

Commonwealth v. Muzzy, 141 A.3d 509, 510 (Pa. Super. 2016). Pursuant

to Turner/Finley and their progeny:

      Counsel petitioning to withdraw from PCRA representation must …
      review the case zealously. Turner/Finley counsel must then
      submit a “no-merit” letter to the trial court, or brief on appeal to
      this Court, detailing the nature and extent of counsel’s diligent
      review of the case, listing the issues which petitioner wants to
      have reviewed, explaining why and how those issues lack merit,
      and requesting permission to withdraw. Counsel must also send
      to the petitioner: (1) a copy of the “no merit” letter/brief; (2) a
      copy of counsel’s petition to withdraw; and (3) a statement
      advising petitioner of the right to proceed pro se or by new
      counsel.

                                     ***

      [W]here counsel submits a petition and no-merit letter that …
      satisfy the technical demands of Turner/Finley, the court — trial
      court or this Court — must then conduct its own review of the
      merits of the case. If the court agrees with counsel that the claims
      are without merit, the court will permit counsel to withdraw and
      deny relief.

Commonwealth v. Doty, 48 A.3d 451, 454 (Pa. Super. 2012) (citation

omitted).

      Here, our review reveals counsel has substantially complied with the

procedural aspects of Turner/Finley. Although he filed a brief, as opposed

to a “no merit” letter, counsel’s brief properly lists the issues Kitchell wishes

to be reviewed and explains why they are meritless. See Kitchell’s Brief at 6-

8. Furthermore, counsel provided Kitchell with a copy of the brief and the

petition to withdraw, and advised him of his right to proceed pro se or with


                                      -4-
J-S33029-19



private counsel. See Petition to Withdraw as Counsel, 4/24/2019. Kitchell

has not responded to counsel’s petition.         Therefore, we proceed to a

consideration of whether the PCRA court erred in dismissing the petition. See

Doty, supra.

       Kitchell raises two related claims on appeal, both of which challenge his

registration requirements under SORNA. First, he argues that, pursuant to

Muniz, SORNA constitutes an unconstitutional ex post facto law when applied

to defendants like him, who committed their crimes prior to its enactment.7

Further, he contends SORNA II, enacted in 2018, is also unconstitutional as

applied to him. See Kitchell’s Brief at 5.

       By way of background, on July 19, 2017, the Pennsylvania Supreme

Court filed its decision in Muniz, in which it held SORNA’s registration

provisions constitute punishment, and, therefore, the retroactive application

of those provisions to offenses committed prior to SORNA’s effective date

(December 20, 2012), violates the ex post facto clauses of the federal and

Pennsylvania constitutions.8          Muniz, supra, 164 A.3d at 1193.        In
____________________________________________


7 “[T]the critical inquiry for determining whether the application of SORNA to
a convicted sex offender violates ex post facto prohibitions is the date of the
offense.” Commonwealth v. Wood, 208 A.3d 131, 136 (Pa. Super. 2019)
(en banc). Here, the record reveals Kitchell sexually abused the victim
between November of 2009 and April of 2010.

8 Muniz was a plurality decision. Justice Dougherty authored the Opinion
Announcing the Judgment of the Court (“OAJC”), holding: (1) SORNA’s
registration requirements constitute punishment; (2) the retroactive
application of the registration requirements violates the ex post facto clauses



                                           -5-
J-S33029-19



Commonwealth v. Rivera-Figeroa, 174 A.3d 674 (Pa. Super. 2017), a

panel of this Court held that because Muniz announced a new substantive

rule for which “there was a significant risk that a defendant faced a

punishment the law cannot impose[,]” the decision “should be retroactively

applied in state collateral courts         to comply with the United States and

Pennsylvania Constitutions.”          Id. at 678.    Therefore, defendants who

successfully raise Muniz in a timely PCRA petition are entitled to relief.

       Here, the PCRA court determined Kitchell was not entitled to relief

because the application of SORNA did not alter his reporting status. See PCRA

Court’s Opinion, 3/14/2019, at 4. Indeed, under both Megan’s Law III, which

was in effect at the he committed the offenses, and SORNA, Kitchell was

required to register as a sex offender for his lifetime. See id. Therefore, the




____________________________________________


of the United States and Pennsylvania Constitutions; and (3) Pennsylvania’s
ex post facto clause provides greater protection than its federal counterpart.
See Muniz, 164 A.3d at 1193, 1223. Justices Baer and Donahue joined the
OAJC in full. Justice Wecht filed a Concurring Opinion, joined by Justice Todd,
which joined those parts of the OAJC concluding the registration requirements
constitute punishment, and their retroactive application runs afoul of
Pennsylvania’s ex post facto clause. However, he disagreed with the OAJC’s
holding that the Pennsylvania Constitution provides greater protection than
the federal constitution, and, additionally, stated he would decline to address
the federal claim. See id. at 1224. Justice Saylor authored a Dissenting
Opinion in which he concluded SORNA is not punitive. Justice Mundy did not
participate in the decision.




                                           -6-
J-S33029-19



court concluded “[t]here is no violation of ex post facto because [Kitchell] was

not subjected to any increase in penalty.”9 Id. at 5.

       “In reviewing the denial of PCRA relief, we examine whether the PCRA

court’s determination is supported by the record and free of legal error.”

Commonwealth v. Mitchell, 141 A.3d 1277, 1283–1284 (Pa. 2016)

(internal punctuation and citation omitted). However, “an appellate court is

not bound by the rationale of the trial court and may affirm on any basis if the

record supports it.” Commonwealth v. Diaz, 183 A.3d 417, 421 (Pa. Super.

2018), appeal granted, 199 A.3d 347 (Pa. 2018).

       Although neither the PCRA court nor counsel addressed the timeliness

of Kitchell’s petition, we do so sua sponte since the “PCRA’s time restrictions

are jurisdictional in nature” and affect this Court’s “very power to adjudicate



____________________________________________


9  Panel decisions of this Court seem to be split on this issue. Compare
Commonwealth v. Haughwout, 198 A.3d 403, 405 (Pa. Super. 2018) (no
Muniz violation when defendant was already subject to lifetime registration
under Megan’s Law I), appeal denied, 207 A.3d 905 (Pa. 2019), with
Commonwealth v. Horning, 193 A.3d 411, 416-417 (Pa. Super. 2018)
(registration under SORNA violates Muniz even though defendant would have
been required to register for lifetime under Megan’s Law II; although
registration period remained the same, SORNA “augment[ed] the registration
requirements … which included quarterly in-person reporting and the posting
of [] personal information on the Pennsylvania State Police website”), appeal
denied, 204 A.3d 370 (Pa. 2019), and Commonwealth v. Adams-Smith,
209 A.3d 1011, 1022-1023 (Pa. Super. 2019) (although convictions carried
lifetime registration under Megan’s Law III and SORNA, imposition of SORNA
violated ex post facto clause because of increased reporting requirements).
Because we conclude Kitchell’s PCRA petition was untimely filed, we need not
address this issue.


                                           -7-
J-S33029-19



a controversy.”    Commonwealth v. Robinson, 139 A.3d 178, 185 (Pa.

2016).

      A PCRA petition must be filed within one year of the date the underlying

judgment becomes final.       See 42 Pa.C.S. § 9545(b)(1).         Here, Kitchell’s

original judgment of sentence was final on October 28, 2014, 90 days after

the Pennsylvania Supreme Court denied Kitchell’s petition for allowance of

appeal, and he failed to file a petition for writ of certiorari in the Unites States

Supreme Court. See United States Supreme Court Rule 13. Therefore, he

had until October 28, 2014, to file a timely PCRA petition, and his present

petition, filed on March 23, 2018, is patently untimely.

      However, as noted above, Kitchell obtained relief from an illegal

sentence through a timely PCRA petition filed on February 2, 2015.

Presumably, both the PCRA court and Kitchell believed Kitchell’s April 28,

2017, resentencing reset the clock for purposes of filing a first PCRA petition.

We disagree.

      In Commonwealth v. McKeever, 947 A.2d 782 (Pa. Super. 2008), a

panel of this Court concluded a federal court’s grant of habeas corpus relief

with respect to two of the defendant’s convictions, did not permit the

defendant to challenge his non-vacated convictions following resentencing.

The panel explained:

      [A]s we held in Commonwealth v. Dehart, 730 A.2d 991, 994
      n. 2 (Pa. Super. 1999)[, appeal denied, 745 A.2d 1218 (Pa.
      1999)], a successful first PCRA petition does not “reset the
      clock” for the calculation of the finality of the judgment of
      sentence for purposes of the PCRA where the relief granted

                                       -8-
J-S33029-19


     in the first petition neither restored a petitioner’s direct
     appeal rights nor disturbed his conviction, but, rather,
     affected his sentence only.         We reached this conclusion
     because the purpose of the PCRA is to prevent an unfair
     conviction. Id., 730 A.2d at 994 n. 2. This conclusion applies
     with even greater force to the case before us.

     Although Appellant successfully challenged his corrupt
     organizations convictions and sentences successfully in federal
     court, the remainder of his convictions, each having a distinct
     sentence, were not disturbed by the Eastern District Court’s grant
     of habeas corpus relief or by the trial court when it vacated the
     corrupt organizations sentences in its resentencing order.
     Further, while it is correct that Appellant had an absolute
     constitutional right to appeal his judgment of sentence entered
     after the Eastern District Court’s grant of habeas corpus relief, see
     Pa. Const. Art. V, § 9, in that direct appeal, he was permitted to
     raise issues pertaining only to the re-sentencing procedure itself;
     his underlying claims of trial error regarding his non-vacated
     convictions could not be addressed on direct appeal from re-
     sentencing. See Commonwealth v. Gaito, 277 Pa.Super. 404,
     419 A.2d 1208, 1211, 1211 n. 4 (1980). Therefore, for purposes
     of the PCRA, those convictions and their sentences became final
     on October 2, 1995. Cf. Dehart, 730 A.2d at 994 n. 2 (grant of
     PCRA relief per se in first petition does not “reset clock” of finality
     of judgment of sentence; “clock” is reset only where direct appeal
     rights are restored or original conviction is disturbed). Our
     conclusion is wholly supported by the principle that, where a
     defendant is convicted of multiple charges and sentenced on those
     charges separately, his appellate challenge to one of the
     sentences, to the exclusion of the others, does not affect the
     operation of the other sentences. See Commonwealth v.
     DeBooth, 379 Pa.Super. 522, 550 A.2d 570, 573 n. 2 (1988).

McKeever, supra, 947 A.2d at 785–786 (emphasis supplied).

     Here, Kitchell’s registration requirements under SORNA were unaffected

by the sentencing relief granted pursuant to the PCRA petition he filed in

February of 2015.    Accordingly, that part of his sentence was “final” for

purposes of PCRA relief on October 28, 2014, and his present petition is

untimely.

                                      -9-
J-S33029-19


        Nevertheless, an untimely PCRA petition may still be considered if a

petitioner pleads and proves that one of the three time-for-filing exceptions

applies.10 See 42 Pa.C.S. § 9545(b)(1)(i)-(iii). A PCRA petition alleging any

of the exceptions under Section 9545(b)(1) must be filed within 60 days of

when the PCRA claim could have first been brought.11            See 42 Pa.C.S. §

9545(b)(2).     “The PCRA squarely places upon the petitioner the burden of


____________________________________________


10   Section 9545(b) provides, in relevant part:

        (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.

42 Pa.C.S. § 9545(b)(1)(i)-(iii).

11 Subsection 9545(b)(2) was recently amended to extend the filing period to
one year from the date the claim could have been presented. See Section 3
of Act 2018, Oct. 24, P.L. 894, No. 146, effective in 60 days. However, the
extended time period applies only to claims arising on or after December 24,
2017. See id. Accordingly, it is inapplicable here.



                                          - 10 -
J-S33029-19


proving an untimely petition fits within one of the three exceptions.”

Commonwealth v. Jones, 54 A.3d 14, 17 (Pa. 2012). Here, Kitchell failed

to invoke any of the time-for-filing exceptions in his PCRA petition, and counsel

failed to address this claim in his “no-merit” brief. Accordingly, no relief is

warranted.

       Nevertheless, even if we were to consider the timing exceptions set forth

in Section 9545(b)(1), we would still conclude Kitchell is entitled to no relief.

His claim focuses on the Supreme Court’s decision in Muniz, which held the

application of SORNA’s registration requirements to offenders who committed

their crimes before the effective date of the statute constitutes an ex post

facto punishment. Accordingly, the only time-for-filing exception that might

apply is the newly recognized constitutional right exception set forth in

Subsection 9545(b)(1)(iii).12 However, this Court has held Muniz does not

satisfy this PCRA timing exception. In Commonwealth v. Murphy, 180 A.3d

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

that in order to satisfy the newly recognized constitutional right exception, the

new right must have been held to apply retroactively by either the

Pennsylvania or United States Supreme Court.        See id. at 405. The panel



____________________________________________


12Kitchell’s claim does not assert governmental interference, and “[o]ur
Supreme Court has held that subsequent decisional law does not amount to a
new fact under section 9545(b)(1)(iii) of the PCRA.” Commonwealth v.
Brandon, 51 A.3d 231 (Pa. Super. 2012) (internal punctuation omitted),
quoting Commonwealth v. Watts, 23 A.3d 980 (Pa. 2011).

                                          - 11 -
J-S33029-19


found “[b]ecause 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 406 (footnote omitted).   See also Commonwealth v.

Johnson, 200 A.3d 964, 966-967 (Pa. Super. 2018). The same is true here.

      Therefore, because we conclude Kitchell’s present PCRA petition was

untimely filed, and he failed to satisfy any of the time-for-filing exceptions,

we affirm the order denying him PCRA relief. Moreover, because we agree

with counsel’s assessment that this appeal is without merit, we grant counsel’s

petition to withdraw.

      Order affirmed. Petition to withdraw granted.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/04/2019




                                    - 12 -
