J-S19024-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                                          :
              v.                          :
                                          :
                                          :
 ARTHUR F. GUPTON,                        :
                                          :
                       Appellant.         :   No. 731 EDA 2018


               Appeal from the PCRA Order, February 20, 2018,
            in the Court of Common Pleas of Philadelphia County,
            Criminal Division at No(s): CP-51-CR-0004847-2012.


BEFORE:     LAZARUS, J., KUNSELMAN, J., and STRASSBURGER*, J.

MEMORANDUM BY KUNSELMAN, J.:                          FILED JUNE 25, 2019

      Arthur F. Gupton appeals from the order denying his first petition for

relief pursuant to the Post Conviction Relief Act (“PCRA”). 42 Pa.C.S.A. §§

9541-9546. We affirm the PCRA order, but vacate a portion of the sentence

as set forth herein.

      The PCRA court has summarized the pertinent facts as follows:

              In 1997, [Gupton] abducted sixteen-year-old A.S. at
          gunpoint as she was walking home, drove her to a remote
          garage, and raped her with a knife to her throat. She ran
          home and told her mother and a family friend what
          happened. They called the police and A.S. gave the arriving
          officer a description of [Gupton]. She then went to the
          hospital, where she submitted to a rape kit examination
          which tested positive for ejaculate. [Gupton] remained a
          fugitive for over fifteen years.

             On January 5, 2011, Detective James Owens, a “cold
          case” investigator for the Special Victims Unit of the
          Philadelphia Police Department, received notification from

____________________________________
* Retired Senior Judge assigned to the Superior Court.
J-S19024-19


        the department’s DNA lab that DNA acquired from [Gupton]
        matched that found in the ejaculate of the rape kit
        conducted on A.S. in 1997. Detective Owens met with
        [Gupton] and took a buccal swab to obtain a sample of his
        DNA. The police lab tested the swab against the DNA found
        in the 1997 rape kit and found that [Gupton] was the source
        of the ejaculate found in A.S.’s vaginal and cervical swabs.
        The Commonwealth obtained an arrest warrant for [Gupton]
        on December 28, 2011, and arrested him on January 18,
        2012.

PCRA Court Opinion, 11/1/18, at 1-2 (citations omitted).

     The PCRA court also summarized the procedural history as follows:

           On October 5, 2012, a jury sitting before this Court
        convicted [Gupton] of rape, kidnapping, sexual assault,
        carrying a firearm without a license, corruption of a minor
        and indecent assault. On May 31, 2013, this Court found
        him to be a sexually violent predator and imposed
        consecutive terms of imprisonment of ten to twenty years
        for rape, eight to twenty years for kidnapping, three and
        one-half to seven years for violating the Uniform Firearms
        Act, two to five years for corruption of a minor, and no
        further penalty for the remaining crimes. As part of the
        hearing, the Court discussed the statute of limitations issue
        with the attorneys for Commonwealth and [Gupton], and
        [Gupton].

           On June 10, 2013, [Gupton] filed a post-sentence motion
        challenging the weight of the evidence, which the Court
        denied on June 25, 2013. The following day, on June 26,
        2013, [Gupton] filed an untimely second post-sentence
        motion purporting to challenge the discretionary aspects of
        sentencing. This untimely second post-sentence motion
        was denied by operation of law [pursuant to] Pa.R.Crim.P.
        720(B)(3)(a).




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Id. at 2-3 (citations omitted).1

       Gupton filed a timely appeal, and this Court affirmed his judgment of

sentence on December 15, 2014. Commonwealth v. Gupton, 116 A.3d 687

(Pa. Super. 2014) (unpublished memorandum).                     On May 12, 2015, our

Supreme      Court    denied     Gupton’s      petition   for   allowance   of   appeal.

Commonwealth v. Gupton, 116 A.3d 603 (Pa. 2015).

       On April 29, 2016, Gupton filed a timely pro se PCRA petition. The PCRA

court appointed counsel, and PCRA counsel filed an amended petition on June

5, 2017. In this amended petition, Gupton contended that trial counsel was

ineffective “for failing to file a motion barring prosecution” for kidnapping and

carrying a firearm without a license “because the criminal activity alleged in

the complaint was beyond the statute of limitations.”               Amended Petition,

Memorandum of Law, at 1.            The Commonwealth filed a motion to dismiss

Gupton’s petition on October 10, 2017.

       On December 4, 2017, the PCRA issued Pa.R.Crim.P. 907 notice of its

intention to dismiss Chamber’s PCRA petition without a hearing. Gupton did

not file a response.      By order entered February 20, 2018, the PCRA court




____________________________________________


1 The trial court also ordered Gupton to comply with the reporting and
registration requirements of the Sexual Offender Registration and Notification
Act (“SORNA”).




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dismissed the petition. This appeal followed.2 Both Gupton the PCRA court

have complied with Pa.R.A.P. 1925.

       Gupton raises the following issue:

          1. Did the trial court err by dismissing the PCRA petition
             when trial counsel was ineffective for failing to assert that
             the charges of kidnapping and violation of the Uniform
             Firearms Act were time barred by the applicable statute
             of limitations?

See Gupton’s Brief at 3.

       Our scope and standard of review is well settled:

          In PCRA appeals, our scope of review is limited to the
          findings of the PCRA court and the evidence on the record
          of the PCRA court's hearing, viewed in the light most
          favorable to the prevailing party. Because most PCRA
          appeals involve questions of fact and law, we employ a
          mixed standard of review. We defer to the PCRA court's
          factual findings and credibility determinations supported by
          the record. In contrast, we review the PCRA court's legal
          conclusions de novo.

Commonwealth v. Reyes-Rodriguez, 111 A.3d 775, 779 (Pa. Super. 2015)

(citations omitted).

       When the PCRA court has dismissed a petitioner’s PCRA petition without

an evidentiary hearing, we review the PCRA court’s decision for an abuse of

discretion. Commonwealth v. Roney, 79 A.2d 595, 604 (Pa. 2013). The

PCRA court has discretion to dismiss a petition without a hearing when the
____________________________________________


2 By order entered March 13, 2018, the PCRA court permitted PCRA counsel
to withdraw and, thereafter, appointed present counsel to assist Gupton in
this appeal.


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court is satisfied that there are no genuine issues concerning any material

fact, the defendant is not entitled to post-conviction collateral relief, and no

legitimate purpose would be served by further proceedings. Id. To obtain a

reversal of a PCRA court’s decision to dismiss a petition without a hearing, an

appellant must show that he raised a genuine issue of material fact which, if

resolved in his favor, would have entitled him to relief, or that the court

otherwise abused its discretion in denying a hearing.     Commonwealth v.

Blakeney, 108 A.3d 739, 750 (Pa. 2014).

      Gupton’s issue alleges the ineffective assistance of trial counsel.    To

obtain relief under the PCRA premised on a claim that counsel was ineffective,

a petitioner must establish, by a preponderance of the evidence, that counsel's

ineffectiveness so undermined the truth-determining process that no reliable

adjudication of guilt or innocence could have taken place. Commonwealth

v. Johnson, 966 A.2d 523, 532 (Pa. 2009).                “Generally, counsel’s

performance is presumed to be constitutionally adequate, and counsel will

only be deemed ineffective upon a sufficient showing by the petitioner.” Id.

This requires the petitioner to demonstrate that: (1) the underlying claim is

of arguable merit; (2) counsel had no reasonable strategic basis for his or her

action or inaction; and (3) counsel’s act or omission prejudiced the petitioner.

Id. at 533.

      As to the first prong, “[a] claim has arguable merit where the factual

averments, if accurate, could establish cause for relief.” Commonwealth v.

Stewart, 84 A.3d 701, 707 (Pa. Super. 2013) (en banc). “Whether the facts

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rise to the level of arguable merit is a legal determination.’”         Id. (citing

Commonwealth v. Saranchak, 866 A.2d 292, 304 n.14 (Pa. 2005).

       As to the second prong of this test, trial counsel's strategic decisions

cannot be the subject of a finding of ineffectiveness if the decision to follow a

particular course of action was reasonably based and was not the result of

sloth or ignorance of available alternatives. Commonwealth v. Collins, 545

A.2d 882, 886 (Pa. 1988).        Counsel's approach must be "so unreasonable

that no competent lawyer would have chosen it." Commonwealth v. Ervin,

766 A.2d 859, 862-63 (Pa. Super. 2000) (citation omitted).

       As to the third prong of the test for ineffectiveness, “[p]rejudice is

established if there is a reasonable probability that, but for counsel’s errors,

the result of the proceeding would have been different." Stewart, 84 A.3d at

707.    “A reasonable probability ‘is a probability sufficient to undermine

confidence in the outcome.’” Id. (quoting Commonwealth v. Rathfon, 899

A.2d 365, 370 (Pa. Super. 2006).

       Finally, when considering an ineffective assistance of counsel claim, the

PCRA court “is not required to analyze these [prongs] in any particular order

of priority; instead if a claim fails under any necessary [prong] of the

ineffectiveness   test,   the   court   may   proceed   to   that   [prong]   first.”

Commonwealth v. Tharp, 101 A.3d 736, 747 (Pa. 2014) (citations omitted).

In particular, when it is clear that the petitioner has failed to meet the

prejudice prong, the court may dispose of the claim on that basis alone,




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without a determination of whether the first two prongs have been met.

Commonwealth v. Travaglia, 661 A.2d 352, 357 (Pa. 1995).

     In his attempt to establish the arguable merit of his ineffectiveness

claim, Gupton asserts that the “Ex Post Facto” and “Due Process” clauses of

both the federal and state constitutions “bar prosecution where the previously

effective statute of limitations had expired before [the Pennsylvania

legislature] enacted 42 Pa.C.S.A. § 5552(c.1)” in 2004. Gupton’s Brief at 9.

According to Gupton, “a newly enacted state law cannot be used to revive a

previously time-barred prosecution.” Id.

     Gupton’s claim fails for a number of reasons. Initially, our review of

Gupton’s amended petition supports the Commonwealth’s assertion that

Gupton did not raise this constitutional issue in the petition.          See

Commonwealth’s Brief at 6. Thus, Gupton inappropriately raises this issue for

the first time on appeal, and it is therefore waived. See Commonwealth v.

Edmiston, 851 A.2d 883, 889 (Pa. 2004) (explaining a claim that is not raised

in PCRA petition is waived on appeal); see also Pa.R.A.P. 302(a).

     Moreover, Gupton’s claim is also waived because he has failed to

develop his constitutional claim. See Commonwealth v. Tielsch, 934 A.2d

81, 93 (Pa. Super. 2007) (holding that undeveloped claims will not be

considered on appeal).    Although Gupton discusses several U.S. Supreme

Court decisions, he does not explain how their holdings apply to the

circumstances of his case. See Gupton’s Brief at 14-15.



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       In Commonwealth v. Rose, 127 A.3d 794 (Pa. 2015), our Supreme

Court discussed the federal ex post facto clause as follows:

          The Ex Post Facto Clause of the United States Constitution
          is contained in Article [I], § 10, which provides: “No State
          shall . . . pass any Bill of Attainder, ex post facto Law, or
          Law impairing the Obligations of Contracts . . . “ U.S. Const.
          art. I, § 10. The definition of an ex post facto law in the
          context of American law was first set forth more than two
          centuries ago in Calder v. Bull, 3 U.S. (3 Dall.) 386, 1 L.Ed.
          648 (1798), wherein Justice Chase offered the following
          description of the term:

              [1] Every law that makes an action, done before the
              passing of the law, and which was innocent when
              done, criminal; and punishes such action. [2] Every
              law that aggravates a crime, or makes it greater than
              it was, when committed. [3] Every law that changes
              the punishment, and inflicts a greater punishment,
              than the law annexed to the crime, when committed.
              [4] Every law that alters the legal rules of evidence,
              and receives less, or different testimony, than the law
              required at the time of the commission of the
              [offense], in order to convict the offender.

          3 U.S. (3 Dall.) 386, 390 (1798).

Rose, 127 A.3d at 797-98 (footnote omitted).3 Rose involved an ex post

facto violation, but concerned the proper sentence for a defendant based on
____________________________________________


3 The Rose court noted that, because Pennsylvania’s ex post facto law, Article
I, § 17, provides the same protections as its federal counterpart, it did not
need to conduct a separate analysis. Rose, 127 A.3d at 798, n.11; but see
Commonwealth v. Muniz, 164 A.3d 1189, 1223 (Opinion Announcing the
Judgment of the Court, Dougherty, J.) (noting that in previous decisions the
Pennsylvania Supreme Court has found some divergence between the state
and federal ex post facto clauses, and, at least in the context of sexual
offender registration, “Pennsylvania’s ex post facto clause provides even
greater protections than its federal counterpart”).




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when he committed the crime. Although Gupton relies on Rose, he fails to

explain which type of ex post facto violation he claims occurred in his case.

       The deficiency in Gupton’s constitutional claim is understandable. Even

absent waiver, Gupton’s assertion that trial counsel was ineffective for failing

to challenge his kidnapping and firearm charge based on an expired statute of

limitations is meritless.

       Section 5552 of the Judicial Code governs the time in which the

Commonwealth must initiate a prosecution.        42 Pa.C.S.A. § 5552.      Most

offenses are subject to a two-year statute of limitations; however, certain

enumerated offenses have five-year statutes of limitations. See 42 Pa.C.S.A.

5552(a) & (b). At issue in this case is Section 5552(c.1), which provides:



          (c.1) Genetic identification evidence.—Notwithstanding
          any provision of law to the contrary, if evidence of a
          misdemeanor sexual offense set forth in subsection (c)(3)
          or a felony offense is obtained containing human
          deoxyribonucleic acid (DNA) which is subsequently used to
          identify an otherwise unidentified individual as the
          perpetrator of the offense, the prosecution of the offense
          may be commenced within the period of limitations provided
          for the offense or one year after the identity of the
          individual is determined, whichever is later.

42 Pa.C.S.A. § 5552(c.1) (emphasis added).




____________________________________________




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      As noted above, Gupton claims that section 5552(c.1) cannot apply to

him because the statute of limitations for kidnapping and the firearm violation

had expired before the Pennsylvania legislature had enacted subsection (c.1)

in 2004. The trial court found no merit to this claim, and explained as follows:

             [Gupton] argues that trial counsel should have petitioned
         for barring prosecution for kidnapping and carrying a
         firearm without a license because subsection (c.1) does not
         apply to him where it was promulgated as an amendment
         to § 5552 in 2004, two years after the statute of limitations
         would have tolled for kidnapping under subsection (b)
         [(providing a five-year statute of limitation for major
         offenses)], and five years after the statute of limitations
         would have tolled for carrying a firearm without a license
         under subsection (a) [(providing, as a general rule, a two-
         year statute of limitation for offenses)]. However, this
         interpretation of subsection (c.1) is not supported by the
         plain language of the statute nor by any other legal
         authority. Trial counsel could not have been ineffective for
         failing to adopt an interpretation of the statute that lacks
         any basis in law.

            In construing statutory language, “[w]ords and phrases
         shall be construed according to rules of grammar and
         according to their common and approved usage.” 1 Pa.C.S.
         § 1903. Additionally, when determining the intent of a
         statute, it is presumed “that the General Assembly does not
         intend a result that is absurd.” 1 Pa.C.S. § 1922(1)[.]

            According to its plain meaning, the language of the
         statute of limitations has no restriction precluding the
         application of subsection (c.1) to offenses for which the
         statute of limitations would have expired under some other
         subsection.     Such a result would contradict the very
         purpose of subsection (c.1), which is to provide the
         opportunity to prosecute a perpetrator who managed to hide
         his identity for more than the length of the statute of
         limitations, but was subsequently discovered by DNA
         identification evidence.    This statute was designed for
         precisely cases such as this one.



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PCRA Court Opinion, 11/1/18, at 5-6 (emphasis in original; citations omitted).

      We agree.     The Commonwealth discovers an offense when it gains

knowledge     or   learns   a   defendant     has    violated    a    penal   statute.

Commonwealth v. Hawkins, 439 A.2d 748, 750 (Pa. Super. 1982). Here,

although the offenses occurred in 1997, law officials did not identify Gupton

as the perpetrator until January 5, 2011.       Thus, given the plain language

section 5552(c.1), the Commonwealth had one year from that date to

commence     its prosecution of Gupton.             Because     the   Commonwealth

commenced prosecution in December 2011, the charges at issue were not

time-barred, and trial counsel cannot be deemed ineffective for failing to

pursue this meritless claim. See generally, Commonwealth v. Loner, 836

A.2d 125 (Pa. Super. 2003) (en banc).

      As he did below, in arguing to the contrary, Gupton relies upon our

Supreme Court’s decision in Commonwealth v. Laventure, 894 A.2d 109,

116-17 (Pa. 2006). In Laventure, the Commonwealth, four days before the

expiration of the five-year period of limitations under Section 5552(b), filed a

complaint alleging arson and other crimes against an unknown defendant,

identified only as “John Doe ‘Steve’” having an unknown address, and who

was a white male, in his thirties. Laventure, 894 A.2d at 111. Approximately

one week later, the Commonwealth identified “John Doe ‘Steve’” as Laventure,

and amended the criminal complaint accordingly. Id.

      Subsequently, after Laventure filed a pre-trial motion, the trial court

dismissed the prosecution “holding that, given the generality of the description

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contained in the initial complaint and warrant, neither instrument was valid or

sufficient to support the commencement of criminal proceedings under Section

5552(b).” Id. (citation omitted). The Commonwealth filed an appeal to this

Court and a divided panel reversed.            See Commonwealth v. Laventure,

858 A.2d 112 (Pa. Super. 2004). The Laventure majority concluded that

“the statute of limitations was tolled by the filing of the initial complaint and

the prompt substitution of the amended complaint and warrant.” Laventure,

894 A.2d at 114 (citation omitted).4 Upon further review, our Supreme Court

in turn reversed this Court, holding “that the initial complaint filed and warrant

issued in this case were ineffective for the purpose of tolling Section 5552(b)’s

period of limitations, and the amendments cannot be deemed to relate back

to the dates of the original documents.”            Laventure, 894 A.2d at 119

(footnote omitted).

       The PCRA court correctly found Gupton’s reliance on our Supreme

Court’s decision in Laventure to be misplaced:

             [Gupton] misconstrues the holding of [Laventure] to
          support his argument. Laventure addressed subsection (b)
          of 42 Pa.C.S. § 5552, whereas the instant case involves
          subsection (c.1) of 42 Pa.C.S. § 5552. Subsection (b)
          specifies a five or twelve year statute of limitations for
          various offenses, including kidnapping and rape, whereas
____________________________________________


4 Judge Peter Paul Olszewski dissented because he believed the information in
the original complaint was insufficient to support the commencement of an
action, and the majority cited no case authority supporting its conclusion that
the amended complaint could “relate back” to the original complaint. See
Laventure, 858 A.2d at 117-18.



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         subsection (c) addresses exceptions to those statute[s] of
         limitations. In Laventure, [our Supreme Court] found that
         filing an arrest warrant was insufficient where it described
         the unknown [defendant] as “John Doe ‘Steve’, having an
         unknown address, and who was a white male, in his
         thirties.” Id. at 118-19. The question of whether or not a
         description in an arrest warrant is sufficient to toll the
         statute of limitations is simply not applicable in this case,
         where prosecution commenced within one year of the
         discovery of DNA evidence that identified a previously
         unknown perpetrator. Here, the Commonwealth did not file
         any complaint nor seek any warrant until it discovered
         [Gupton’s] identity.     The subsection of the statute of
         limitations implicated in Laventure, subsection (b), had no
         relevance to the instant case. Only subsection (c.1) applied
         in the instant case, and no legal authority exists that
         prevents its application to [Gupton’s] prosecutions for
         kidnapping or carrying a firearm without a license.

PCRA Court Opinion, 11/1/18, at 6-7.

      We agree. In fact, in Laventure our Supreme Court noted the trial

court’s distinguishing Laventure’s claim from “situations in which the

Commonwealth      is   able   to   furnish     reasonably   specific   identification

characteristics or criteria of an unknown or unnamed individual, such as a

DNA profile[.]” Laventure, 894 A.2d at 111 (emphasis added).

      Thus, we affirm the order denying Gupton post-conviction relief on the

ineffective assistance of counsel claim he raised in his amended petition.

      As an additional matter, we address the legality of Gupton’s sentence

sua sponte.   See Commonwealth v. DiMatteo, 177 A.3d 182, 191 (Pa.

2018) (holding that an illegal sentence may be reviewed in the context of a

timely PCRA petition); Commonwealth v. Randal, 837 A.2d 1211, 1214 (Pa.

Super 2003) (en banc) (explaining challenges to an illegal sentence cannot be


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waived and may be raised by Superior Court sua sponte; assuming jurisdiction

is proper, illegal sentence must be vacated).

      Most recently, this Court addressed a situation in which a defendant was

designated an SVP and who was later ordered to register under SORNA, even

though he committed the sex offenses prior to the effective date of SORNA.

In Commonwealth v. Adams-Smith, 2019 WL 1997650, ___ A.3d ___ (Pa.

Super. 2019), we first discussed recent decisions by our Supreme Court in

Commonwealth v. Muniz, 164 A.3d 1189 (Pa. 2017) (declaring SORNA

unconstitutional as an ex post facto law applied to persons who committed

sex offenses prior to the effective date of SORNA, December 20, 2012), and

this Court’s subsequent decisions in Commonwealth v. Rivera-Figueroa,

174 A.3d 674 (Pa. Super. 2017) (holding Muniz created a substantive rule

that retroactively applies in the collateral context), and Commonwealth v.

Butler, 173 A.3d 1212 (Pa. Super. 2017), appeal granted, 190 A.3d 581 (Pa.

2018) (applying the federal decisions prohibiting judicial fact-finding at the

time of sentencing in Apprendi v. New Jersey, 530 U.S. 466 (2000), and

Alleyne v. United States, 570 U.S. 99 (2013), to the SVP process in light of

Muniz).

      We then concluded:

          Because [Adams-Smith] committed his offenses before the
          effective date of SORNA, the increased reporting
          requirements of SORNA constitute greater punishment for
          [Adams-Smith]. See Muniz, supra. Thus, the imposition
          of SORNA registration requirements on [Adams-Smith]
          violates the ex post facto clauses of both the United States
          and Pennsylvania Constitutions.

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Adams-Smith, at *7 (footnote omitted).

      Here, Gupton committed his crimes in 1997, long before the legislature

enacted SORNA in 2012. Thus, like Adams-Smith, the application of SORNA’s

increased reporting requirements to Gupton violates the ex post facto clauses

of both the federal and state constitutions.

      In Adams-Smith, we also noted that Adams-Smith had been

designated an SVP. We then discussed this Court’s decision in Butler, which

dealt with “the related issue concerning the validity of the process and

imposition of SVP status on a defendant.”        Adams-Smith, at *8.        We

observed that in reaching a decision in Butler, to conclude that the SVP

process involved unconstitutional judicial fact-finding at the time of

sentencing, “the Butler Court simply applied Alleyne and Apprendi to the

SVP process, in light of Muniz.” Id.

      Therefore, even though Adams-Smith’s judgment of sentence became

final prior to this Court’s decision in Butler, the panel determined that Adams-

Smith was still entitled to relief:

         Both Muniz and Butler were decided during the pendency
         of [Adams-Smith’s] timely PCRA petition. Under these new
         cases, [his] SVP status constitutes an illegal sentence
         subject to correction. See 42 Pa.C.S.A. § 9542 (stating
         persons serving illegal sentence may obtain collateral
         relief); DiMatteo, supra (noting unconstitutionality of
         Section of 7508 [of the Judicial Code] in light of Alleyne
         and allowing Alleyne relief in PCRA context, so long as
         judgment of sentence was not final before Alleyne was
         decided) (citing Commonwealth v. Ruiz, 131 A.3d 54
         (Pa. Super. 2015) (applying Alleyne to correct illegal
         sentence in context of a timely-filed PCRA petition)).


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            To quiet any conflict in the law, we now hold a PCRA
         petitioner can obtain relief from an illegal sentence 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. Because Butler simply applied
         Alleyne principles to the SVP process, Butler did not
         announce a new constitutional rule that required a [Teague
         v. Lane, 489 U.S. 288 (1989)] retroactivity analysis. See
         [Chaidez v. U.S.] 568 U.S. 342 (2013)]. Therefore, the
         date of the Alleyne decision, not the date of the Butler
         decision, controls for the purposes of obtaining PCRA relief
         from the imposition of SVP status.

Adams-Smith, at *8 (emphasis in original).

      Although we affirmed the denial of post-conviction relief based upon his

claim of ineffectiveness counsel, we vacated Adams-Smith’s judgment of

sentence to the extent it required registration and reporting requirements

under SORNA, and Adams-Smith’s SVP status. We remanded “the case to the

trial court to instruct [Adams-Smith] on his proper registration and reporting

requirements.” Id.

      Here, like Adams-Smith, both Muniz and Butler were decided during

the pendency of Gupton’s timely PCRA petition. Thus, although Gupton’s claim

of counsel’s ineffectiveness warrants no relief, we vacate his judgment of

sentence, to the extent it required SORNA compliance, as well as his

designation as an SVP. We therefore remand this case to the trial court to

instruct Gupton on his proper registration and reporting requirements. See

42 Pa.C.S.A. §§ 9799.51-9799.75.

      Order affirmed in part; SORNA requirements and SVP status vacated;

case remanded with instructions. Jurisdiction relinquished.


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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/25/19




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