J-S64020-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA           :   IN THE SUPERIOR COURT OF
                                        :        PENNSYLVANIA
                                        :
              v.                        :
                                        :
                                        :
 JOHN MERTON GRIFFITH                   :
                                        :
                   Appellant            :   No. 1317 EDA 2018

                Appeal from the PCRA Order March 22, 2018
  In the Court of Common Pleas of Northampton County Criminal Division
                    at No(s): CP-48-CR-0002037-1999


BEFORE: BOWES, J., OLSON, J., and KUNSELMAN, J.

MEMORANDUM BY OLSON, J.:                      FILED NOVEMBER 30, 2018

     Appellant, John Merton Griffith, appeals from the March 22, 2018 order

denying his second petition filed pursuant to the Post-Conviction Relief Act

(“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. In this appeal from the denial of PCRA

relief, Appellant’s court-appointed counsel filed a petition to withdraw as

counsel 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). As we conclude that counsel fulfilled the procedural

requirements of Turner/Finley, and this appeal is without merit, we grant

counsel’s petition to withdraw as counsel and affirm the PCRA court’s order

denying Appellant’s PCRA petition.
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        On March 6, 2000, Appellant pleaded guilty to attempted rape and

indecent assault of a minor;1 on May 5, 2000, the trial court sentenced

Appellant to serve an aggregate term of ten to 20 years in prison.       N.T.

Sentencing, 5/5/00, at 71. We affirmed Appellant’s judgment of sentence on

May 1, 2001 and Appellant did not file a petition for allowance of appeal with

our Supreme Court. Commonwealth v. Griffith, 776 A.2d 1005 (Pa. Super.

2001) (unpublished memorandum) at 1-9.

        On July 25, 2003, Appellant filed his first PCRA petition and the PCRA

court appointed counsel to represent Appellant.      See PCRA Court Order,

7/30/03, at 1. The PCRA court dismissed Appellant’s petition on September

18, 2003 and Appellant did not file a notice of appeal from the PCRA court’s

order. PCRA Court Order, 9/18/03, at 1.

        Appellant filed the current PCRA petition 14 years later, on September

18, 2017.     Within this petition, Appellant pointed to the recently decided

Pennsylvania Supreme Court opinion in Commonwealth v. Muniz, 164 A.3d

1189 (Pa. 2017), where the Supreme Court held that the registration

requirements contained in Subchapter H of the Sexual Offender Registration

and Notification Act (“SORNA”) were punitive and, therefore, criminal in

nature. See Appellant’s Second PCRA Petition, 9/18/17, at 1-4. Hence, in

Muniz, our Supreme Court held that retroactive application of Subchapter H's

registration requirements to defendants whose crimes occurred prior to

____________________________________________


1   18 Pa.C.S.A. §§ 901(a) and 3126(a)(8), respectively.

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SORNA's effective date violated the ex post facto clause of the Pennsylvania

Constitution.    Muniz, 164 A.3d at 1218-1225.      Appellant claimed that his

convictions render him subject to the unconstitutional, retroactive application

of Subchapter H’s registration requirements and that his sentence is, thus,

illegal. Appellant’s Second PCRA Petition, 9/18/17, at 1-4. Further, Appellant

claimed that, even though his PCRA petition is untimely, he is entitled to relief

because he filed his petition within 60 days of the date Muniz was decided.2

See id.

        The PCRA court appointed counsel to represent Appellant during the

proceedings and counsel filed an amended petition on Appellant’s behalf.

PCRA Court Order, 9/27/17, at 1; Appellant’s Amended Second PCRA Petition,

10/30/17, at 1-4; Appellant’s Second Amended Second PCRA Petition,

1/12/18, at 1-6. However, after receiving briefing on the issue, the PCRA

court dismissed Appellant’s petition on March 23, 2018, without holding an

evidentiary hearing. PCRA Court Order, 3/23/18, at 1.

        Appellant filed a timely notice of appeal on Monday, April 23, 2018.

However, on appeal, Appellant’s court-appointed counsel filed a petition to

withdraw as counsel and a no-merit letter pursuant to Turner, 544 A.2d at

927 and Finley, 550 A.2d at 213. Therefore, prior to addressing the merits

of the issues raised in counsel’s Turner/Finley letter, we must determine

whether counsel met the procedural requirements necessary to withdraw.

____________________________________________


2   The Pennsylvania Supreme Court decided Muniz on July 19, 2017.

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      Counsel seeking to withdraw in PCRA proceedings:

          must review the case zealously. Turner/Finley counsel
          must then submit a “no-merit” letter to the PCRA 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.

          Where counsel submits a petition and no-merit letter that
          satisfy the technical demands of Turner/Finley, the court —
          PCRA 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. Muzzy, 141 A.3d 509, 510–511 (Pa. Super. 2016)

(internal quotations, citations, and corrections omitted). In this case, counsel

fulfilled the procedural requirements for withdrawing as PCRA counsel.

Therefore, we must determine whether the claim raised in the petition lacks

merit. We conclude that Appellant’s petition is untimely and that it does not

satisfy any exception to the PCRA’s one-year time-bar. Therefore, we agree

with counsel that, pursuant to Turner/Finley, any claim on appeal is “without

merit.”

      We have explained:

          [The PCRA requires] a petitioner to file any PCRA petition
          within one year of the date the judgment of sentence
          becomes final. A judgment of sentence becomes final at the



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        conclusion of direct review . . . or at the expiration of time
        for seeking review.

                                      ...

        However, an untimely petition may be received when the
        petition alleges, and the petitioner proves, that any of the
        three limited exceptions to the time for filing the petition, set
        forth at 42 Pa.C.S.A. § 9545(b)(1)(i), (ii), and (iii), are met.
        A petition invoking one of these exceptions must be filed
        within [60] days of the date the claim could first have been
        presented. In order to be entitled to the exceptions to the
        PCRA’s one-year filing deadline, the petitioner must plead
        and prove specific facts that demonstrate his claim was raised
        within the [60]-day timeframe.

Commonwealth v. Lawson, 90 A.3d 1, 4-5 (Pa. Super. 2014) (some internal

citations omitted) (internal quotations omitted).

      Appellant’s judgment of sentence became final at the end of the day on

May 31, 2001, which was 30 days after we affirmed his judgment of sentence

and the time for filing a petition for allowance of appeal with the Pennsylvania

Supreme Court expired. See 42 Pa.C.S.A. § 9545(b)(3). The PCRA explicitly

requires that a petition be filed “within one year of the date the judgment

becomes final.” 42 Pa.C.S.A. § 9545(b)(1). Thus, Appellant had until May

31, 2002 to file a timely PCRA petition. 42 Pa.C.S.A. § 9545(b). As Appellant

did not file his current petition until September 18, 2017, the current petition

is facially untimely and the burden thus fell upon Appellant to plead and prove

that one of the enumerated exceptions to the one-year time-bar applied to his

case. See 42 Pa.C.S.A. § 9545(b)(1); Commonwealth v. Perrin, 947 A.2d

1284, 1286 (Pa. Super. 2008) (to properly invoke a statutory exception to the



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one-year time-bar, the PCRA demands that the petitioner properly plead all

required elements of the relied-upon exception).

     Here, Appellant purports to invoke the “newly recognized constitutional

right” exception to the time-bar. This statutory exception provides:

        (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:

                                     ...

           (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.

                                     ...

        (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.

42 Pa.C.S.A. § 9545(b).

     As our Supreme Court explained:

        Subsection (iii) of Section 9545(b)(1) 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 the Supreme Court of Pennsylvania 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,


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        the legislature clearly intended that the right was already
        recognized at the time the petition was filed.

Commonwealth v. Copenhefer, 941 A.2d 646, 649-650 (Pa. 2007), quoting

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

corrections omitted). Moreover, since the plain statutory language of section

9545 demands that the PCRA petition “allege” all elements of the statutory

exception, it is clear that – to properly invoke the “newly recognized

constitutional right” exception – the petitioner must plead each of the above-

stated elements in the petition. 42 Pa.C.S.A. § 9545(b)(1).

     Within Appellant’s second PCRA petition, Appellant claims that his

sentence is illegal, unconstitutional, and subject to correction based on the

Pennsylvania Supreme Court’s holding in Muniz.       However, as we held in

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

        [a petitioner’s] reliance on Muniz cannot satisfy the “new
        retroactive right” exception of Section 9545(b)(1)(iii).

                                     ...

        [W]e acknowledge that [the Pennsylvania Superior] 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 [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 section 9545(b)(1)(iii). See
        Abdul–Salaam, supra. Because at this time, no such
        holding has been issued by our Supreme Court, Appellant
        cannot rely on Muniz to meet that timeliness exception.




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Murphy, 180 A.3d at 405-406 (emphasis in original) (internal footnote and

some internal emphasis omitted).

       As we did in Murphy, we note that “if the Pennsylvania Supreme Court

issues a decision holding that Muniz applies retroactively, Appellant can then

file a PCRA petition, within 60 days of that decision, attempting to invoke the

‘new retroactive right’ exception of section 9545(b)(1)(iii).” See id. at 405

n.1. However, at this time, Appellant cannot rely on Muniz to obtain relief.

       Since Appellant did not attempt to plead any other exception to the

time-bar, we conclude that Appellant’s petition is time-barred and that our

“courts are without jurisdiction to offer [Appellant] any form of relief.”3

Commonwealth v. Jackson, 30 A.3d 516, 523 (Pa. Super. 2011).               We

further note that counsel complied with the procedural requirements for

withdrawing as counsel and that, under Turner/Finley, the issues Appellant

wished to pursue in his PCRA petition are without merit. Accordingly, we grant

counsel’s petition to withdraw and affirm the order denying Appellant’s

petition.

       Petition to withdraw as counsel granted. Order affirmed. Jurisdiction

relinquished.


____________________________________________


3 To the extent Appellant claims that his illegal sentencing claim is
non-waivable, we note that, in Commonwealth v. Fahy, our Supreme Court
held: “[a]lthough legality of sentence is always subject to review within the
PCRA, claims must still first satisfy the PCRA’s time limits or one of the
exceptions thereto.” Commonwealth v. Fahy, 737 A.2d 214, 223 (Pa.
1999) (emphasis added).

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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/30/18




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