J-S42044-18


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    :         IN THE SUPERIOR COURT OF
                                                 :               PENNSYLVANIA
                      Appellee                   :
                                                 :
             v.                                  :
                                                 :
JERRY JERON DANIELS,                             :
                                                 :
                      Appellant                  :         No. 1821 MDA 2017

                   Appeal from the PCRA Order November 20, 2017
                    in the Court of Common Pleas of Adams County
                  Criminal Division at No(s): CP-01-CR-0000048-2006

BEFORE: BOWES, MCLAUGHLIN, and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.:                            FILED SEPTEMBER 06, 2018

        Jerry Jeron Daniels (Appellant) appeals from the November 20, 2017

order denying his petition filed pursuant to the Post Conviction Relief Act

(PCRA), 42 Pa.C.S. §§ 9541-9546. Also before us is a petition to withdraw

filed   by        Appellant’s    counsel   and       a     no-merit   brief   pursuant    to

Commonwealth              v.     Turner,   544           A.2d   927   (Pa.    1988),     and

Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc). We

affirm the order denying the petition and grant counsel’s petition to

withdraw.

        On January 2, 2006, following an altercation with his wife, Appellant

was charged with rape, involuntary deviate sexual intercourse, terroristic

threats, and two counts of simple assault. After Appellant continually wrote

to his wife from jail, he was charged with intimidation of a witness, stalking,



* Retired Senior Judge assigned to the Superior Court.
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and four counts of harassment.    On December 11, 2006, a jury convicted

Appellant of all counts. On February 16, 2007, Appellant was sentenced to

an aggregate term of 11 to 22 years’ imprisonment. This Court affirmed his

judgment of sentence, and our Supreme Court denied his petition for

allowance of appeal.    Commonwealth v. Daniels, 981 A.2d 309 (Pa.

Super. 2009) (unpublished memorandum), appeal denied, 985 A.2d 970

(Pa. 2009).

     On March 8, 2010, Appellant filed his first PCRA petition.   The PCRA

court denied his petition following an evidentiary hearing.       This Court

affirmed that order, and our Supreme Court denied his petition for allowance

of appeal.    Commonwealth v. Daniels, 50 A.3d 238 (Pa. Super. 2012)

(unpublished memorandum), appeal denied, 57 A.3d 66 (Pa. 2012)

(unpublished memorandum).

     On September 22, 2017, Appellant filed pro se a second PCRA petition.

The PCRA court appointed Thomas R. Nell, Esquire, to represent Appellant.

Counsel did not amend or seek to amend Appellant’s petition. On October

23, 2017, the PCRA court conducted a pre-hearing conference.       Two days

later, on October 25, 2017, the PCRA court issued a notice pursuant to

Pa.R.Crim.P. 907 informing Appellant that it planned to deny his petition

without a hearing.   Appellant did not file a response, and the PCRA court

entered an order denying his petition on November 20, 2017.




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     Appellant timely filed a notice of appeal. Both Appellant and the PCRA

court complied with Pa.R.A.P. 1925. Thereafter, Attorney Nell sought from

this Court leave to withdraw his representation of Appellant pursuant to

Turner/Finley.    Initially, Attorney Nell failed to meet all of the technical

requirements of Turner/Finley. This Court ordered Attorney Nell to issue a

revised letter to Appellant, which explained that Appellant did not have to

wait until this Court ruled on the request to withdraw in order to proceed pro

se or through private counsel. Attorney Nell complied, and Appellant filed

pro se a response to Attorney Nell’s request to withdraw.

     Before we may address the potential merit of Appellant’s claims, we

must determine if counsel has complied with the technical requirements of

Turner and Finley.

           … Turner/Finley counsel 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 the 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.

           If counsel fails to satisfy the foregoing technical
     prerequisites of Turner/Finley, the court will not reach the
     merits of the underlying claims but, rather, will merely deny
     counsel’s request to withdraw. Upon doing so, the court will
     then take appropriate steps, such as directing counsel to file a
     proper Turner/Finley request or an advocate’s brief.


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             However, where counsel submits a petition and no-merit
      letter that do 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. By contrast, if the claims
      appear to have merit, the court will deny counsel’s request and
      grant relief, or at least instruct counsel to file an advocate’s
      brief.

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

(citations omitted).

      We are satisfied that counsel has substantially complied with the

technical requirements of Turner and Finley.        However, before we may

consider the merits, we must first determine whether Appellant has timely

filed his petition, as neither this Court nor 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 60 days of the date the claim

could have been presented.” 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.


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§ 9545(b)(3).   Here, our Supreme Court denied Appellant’s petition for

allowance of appeal on December 9, 2009. Appellant did not seek further

review by the United States Supreme Court. Thus, his judgment of sentence

became final 90 days later on March 9, 2010, and he had one year to file

timely a PCRA petition.   Thus, Appellant’s September 22, 2017 petition is

facially untimely, and he was required to plead and prove an exception to

the timeliness requirements.

      Although Appellant did not cite to 42 Pa.C.S. § 9545 in his PCRA

petition, it is apparent that he was attempting to plead the exception set

forth in subsection 9545(b)(1)(iii) (“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 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.”).    In asserting the exception,

Appellant relies on our Supreme Court’s decision in Commonwealth v.

Muniz, 164 A.3d 1189 (Pa. 2017), which held that the registration and

reporting provisions of the Sex Offender Registration and Notification Act

(SORNA) are punitive, and retroactive application of these provisions are

unconstitutional.




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     This   Court     considered   whether   Muniz    applies   under   similar

circumstances in Commonwealth v. Murphy, 180 A.3d 402 (Pa. Super.

2018).   In that case, Murphy was convicted of a number of sex-related

crimes in 2007, and after review, his judgment of sentence became final on

July 28, 2009.      On October 18, 2017, while a serial PCRA petition was

pending in this Court, Murphy filed a motion asserting that Muniz renders

portions of his sentence unconstitutional.      This Court considered that

argument and offered the following.

           Here, we acknowledge that this 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
     [Murphy’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 [sub]section 9545(b)(1)(iii).
     Because at this time, no such holding has been issued by our
     Supreme Court, [Murphy] cannot rely on Muniz to meet that
     timeliness exception.

Murphy, 180 A.3d at 405–06 (emphasis in original; some citations omitted).

     In other words, this Court concluded that the holding in Muniz does

not apply at this point to untimely-filed PCRA petitions.          This Court

acknowledges that “if the Pennsylvania Supreme Court issues a decision

holding that Muniz applies retroactively, Murphy can then file a PCRA

petition, within 60 days of that decision, attempting to invoke the ‘new

retroactive right’ exception in [sub]section 9545(b)(1)(iii).” Murphy, 180

A.3d at 406 n.1. The same holds true for Appellant.


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

untimely filed, and he did not satisfy an exception to the timeliness

requirements. Thus, the PCRA court lacked jurisdiction to hear his petition,

and he is not entitled to relief. We therefore affirm the order dismissing the

PCRA petition and grant counsel’s petition to withdraw.

      Order affirmed. Petition to withdraw granted.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 09/06/2018




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