J-S60044-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    DAVID TERRY ALTER                          :
                                               :
                       Appellant               :   No. 1096 MDA 2019

               Appeal from the PCRA Order Entered June 18, 2019
       In the Court of Common Pleas of Perry County Criminal Division at
                        No(s): CP-50-CR-0000293-2016


BEFORE: SHOGAN, J., STABILE, J., and PELLEGRINI, J.*

MEMORANDUM BY PELLEGRINI, J.:                       FILED NOVEMBER 26, 2019

        David Terry Alter (Alter) appeals from the order of the Court of Common

Pleas of Perry County (PCRA court) denying his first petition filed pursuant to

the Post Conviction Relief Act, 42 Pa.C.S. §§ 9541-9546, as untimely.

Appointed counsel has filed a petition for leave to withdraw.          We grant

counsel’s petition and affirm the PCRA court’s order.

        We take the following factual background and procedural history from

the PCRA court’s August 30, 2019 opinion and our independent review of the

certified record. On October 6, 2016, Alter pleaded guilty to ten counts of

Sexual Abuse of Children, 18 Pa.C.S. § 6312(c), stemming from his possession

of child pornography videos. On January 5, 2017, the trial court sentenced


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*   Retired Senior Judge assigned to the Superior Court.
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Alter to an aggregate term of not less than seventeen-and-one-half nor more

than sixty years’ incarceration as well as register as a sexually violent predator

(SVP). On February 21, 2017, the trial court granted Alter’s Post-Sentence

Motion and Modified the Registration under Megan's Law to 15 years, not life

as had originally been ordered. Alter did not file a direct appeal.

       On August 9, 2018, Alter filed a pro se PCRA petition.        Counsel was

appointed but moved to withdraw from representation on January 10, 2019.

The PCRA court then filed a Rule 907 notice of its intention to dismiss Alter’s

petition without a hearing. See Pa.R.Crim.P. 907(1). After Alter responded

to the Rule 907 notice, the trial court granted counsel’s motion to withdraw,

but on April 11, 2019, scheduled a hearing on Alter’s PCRA petition and

appointed new and current PCRA counsel. After the hearing, the trial court

denied the PCRA petition as untimely because it was not filed within one year

of the date on which the judgment of sentence becomes final. Alter timely

appealed pro se1 on July 5, 2019. Both he and the PCRA court complied with

Rule 1925.     See Pa.R.A.P. 1925.         Counsel filed a petition to withdraw on

September 4, 2019.




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1The prohibition against hybrid representation does not nullify pro se notices
of appeal, because “a notice of appeal protects a constitutional right.”
Commonwealth v. Williams, 151 A.3d 621, 624 (Pa. Super. 2016).




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       As a preliminary matter, we must address whether counsel has met the

requirements of Turner/Finley,            2    which requires him to conduct an

independent review of the record before a court can authorize his withdrawal.

Appointed PCRA counsel must file a no-merit letter detailing the nature and

extent of his review and list each issue the petitioner wishes to have

examined, explaining why those issues are meritless. See Commonwealth

v. Freeland, 106 A.3d 768, 774 (Pa. Super. 2014). Counsel is required to

contemporaneously serve upon his client his no-merit letter and application to

withdraw, along with a statement that if the court granted counsel’s

withdrawal request, the client may proceed either pro se or with a privately

retained attorney. See id. We must conduct our own independent evaluation

of the record and agree with counsel that the petition is meritless.

       From our review, we find that counsel has substantially complied with

the requirements of Turner/Finley and their progeny, detailing his review of

the record and his conclusion that Alter’s claims are meritless. Counsel also

notified Alter and furnished him with a copy of his no merit letter, advising

him of his right to proceed pro se or to retain private counsel. Accordingly,

we will grant counsel’s petition to withdraw.



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




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       Next, we proceed to our independent review of Alter’s claims. 3

However, before addressing the arguments’ merits, we must determine the

timeliness of Alter’s petition.

       “It is well-settled that the PCRA’s time restrictions are jurisdictional in

nature. As such, this statutory time-bar implicates the [C]ourt’s very power

to adjudicate a controversy and prohibits a court from extending filing periods

except as the statute permits.” Commonwealth v. Robinson, 139 A.3d 178,

185–86 (Pa. 2016) (quotation marks and citations omitted). Under the PCRA,

any petition for relief must be filed within one year of the date on which the

judgment of sentence becomes final.              See 42 Pa.C.S. § 9545(b)(1).   “A

judgment becomes final for purposes of the PCRA 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.”        Robinson, supra at 185–86 (internal quotation

marks and citations omitted).




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3 “This Court analyzes PCRA appeals in the light most favorable to the
prevailing party at the PCRA level.” Commonwealth v. Rigg, 84 A.3d 1080,
1084 (Pa. Super. 2014) (citation and internal quotation marks omitted). “Our
review is limited to the findings of the PCRA court and the evidence of record
and we do not disturb a PCRA court’s ruling if it is supported by evidence of
record and is free of legal error.” Id. (citation and internal quotation marks
omitted).




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       Here, Alter’s judgment of sentence became final on March 23, 2017,

when his time to file an appeal expired.          See 42 Pa.C.S.A. § 9545(b)(3).

Therefore, he had until March 23, 2018, to file a timely PCRA petition. See

42 Pa.C.S.A. § 9545(b)(1). Because Alter filed the instant petition on August

9, 2018, it is untimely on its face, and the PCRA court lacked jurisdiction to

review it unless he pleaded and proved one of the statutory exceptions to the

time-bar. See 42 Pa.C.S.A. § 9545(b)(1)(i)-(iii).4

       Any petition invoking an exception must “be filed within [sixty] days of

the date the claim could have been presented.” Id. at § 9545(b)(2). “If the

[PCRA] petition is determined to be untimely, and no exception has been pled

and proven, the petition must be dismissed . . . because Pennsylvania courts

are   without     jurisdiction    to   consider   the   merits   of   the   petition.”

Commonwealth v. Jackson, 30 A.3d 516, 519 (Pa. Super. 2011), appeal

denied, 47 A.3d 845 (Pa. 2012) (citation omitted).

       In this case, all of Alter’s claims are premised on the newly recognized

and retroactively applied constitutional right in Commonwealth v. Muniz,


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4 The three exceptions that allow for review of an untimely PCRA petition are
limited to:   (1) the petitioner’s inability to raise a claim because of
governmental interference; (2) the discovery of previously unknown facts that
would have supported a claim; and (3) a newly recognized constitutional right.
See 42 Pa.C.S. § 9545(b)(1)(i)-(iii). Any petition attempting to invoke these
exceptions “shall be filed within 60 days of the date the claim could have been
presented.” 42 Pa.C.S. § 9545(b)(2).




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164 A.3d 1189 (Pa. 2017), cert. denied, 138 S.Ct. 925 (2018). In Muniz, the

Pennsylvania Supreme Court held that the retroactive application of the

SORNA 5 I’s registration scheme to sexual offenders who committed their

crimes before the SORNA’s effective date violates the United States and

Pennsylvania’s ex post facto clauses because of the scheme’s punitive nature.

See Muniz, supra at 1217; see also 42 Pa.C.S. §§ 9799.10-9799.41.6

        However, as previously observed by this Court:

               Appellant’s reliance on Muniz cannot satisfy the ‘new
        retroactive right’ exception of section 9545(b)(1)(iii). . . . . 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 Appellant’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 [Commonwealth v.] Abdul-
        Salaam, [571 Pa. 219, 812 A.2d 497, 501 (2002)]. 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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5   Sexual Offender Registration and Notification Act.

6 In response to Muniz, the General Assembly enacted SORNA II, 42 Pa.C.S.
§§ 9799.51-9799.75. That act effectively divides SORNA into two parts, with
one set of obligations applicable to offenses committed on or after December
20, 2012 (Subchapter H), and the other applicable to offenders who were
convicted of certain offenses on or after April 22, 1996, but before December
20, 2012 (Subchapter I). Subchapter I was designed to ensure that those
required to retroactively register under SORNA—and therefore entitled to
relief following Muniz—will still have to do so. Because Alter was convicted
of offenses committed after December 20, 2012, Subchapter H applies and ex
post facto principles have no application to his sentence.




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Commonwealth v. Greco, 203 A.3d 1120, 1124 (Pa. Super. 2019) (quoting

Commonwealth v. Murphy, 180 A.3d 402, 405-06 (Pa. Super. 2018),

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

       Because this Court has determined that Muniz does not establish a

timeliness exception under the PCRA, Alter has failed to plead and prove a

timeliness exception premised on Muniz.7

       Additionally, Alter’s claim that both of his PCRA counsel were ineffective

for not raising a claim pursuant to Muniz does not save his petition because

claims of ineffectiveness of counsel do not satisfy any timeliness exception.

See Commonwealth v. Wharton, 886 A.2d 1120, 1127 (Pa. 2005)

(“[A]llegations of ineffective assistance of counsel will not overcome the

jurisdictional timeliness requirements of the PCRA.”) (citation omitted).

Moreover, even if this were not true, the argument would fail because the

underlying claim lacks arguable merit and counsel had a reasonable basis for

not raising the issue. See Commonwealth v. Simpson, 66 A.3d 253, 260

(Pa. 2013) (to establish ineffectiveness of counsel, petitioner must establish

underlying legal claim was of arguable merit; counsel had no reasonable




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7 Muniz was decided on July 19, 2017. Therefore, Alter failed to comply with
the requirement that he file his petition within 60 days of the date when the
claim could have been presented. See 42 Pa.C.S. § 9545(b)(2).




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strategic basis for his action or inaction; and petitioner was prejudiced).8 For

all of these reasons, we affirm the PCRA court’s order.

       Order affirmed. Petition to withdraw granted.

       Judge Stabile joins the memorandum.

       Judge Shogan concurs in the result.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 11/26/2019




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8  Also, although we acknowledge that our Supreme Court currently is
considering the constitutionality of Acts 10 and 29, which amended SORNA in
light of Muniz and Commonwealth v. Butler, 173 A.3d 1212 (Pa. Super.
2018) (holding certain SVP provisions of SORNA to be constitutionally infirm),
this does not impact our disposition in this matter. See Commonwealth v.
Torsilier, No. 37 MAP 2018 (Pa. 2018); Commonwealth v. Lacombe, No.
35 MAP 2018 (Pa. 2018).

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