J-S59018-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA                 :   IN THE SUPERIOR COURT OF
                                                 :        PENNSYLVANIA
                                                 :
                v.                               :
                                                 :
                                                 :
    WADE ANTHONY MASON                           :
                                                 :
                       Appellant                 :   No. 1590 EDA 2019

              Appeal from the PCRA Order Entered April 29, 2019
     In the Court of Common Pleas of Delaware County Criminal Division at
                       No(s): CP-23-CR-0006304-2009


BEFORE: LAZARUS, J., NICHOLS, J., and McLAUGHLIN, J.

MEMORANDUM BY NICHOLS, J.:                             FILED DECEMBER 12, 2019

        Appellant Wade Anthony Mason appeals from the order dismissing as

untimely his third petition filed under the Post Conviction Relief Act 1 (PCRA).

Appellant’s    PCRA     counsel    has   filed   a   petition   to   withdraw   and   an

Anders/Santiago brief.2           We affirm and grant PCRA counsel’s petition to

withdraw.



____________________________________________


1   42 Pa.C.S. §§ 9541-9546.

2Counsel filed a brief and petition withdraw pursuant to Anders v. California,
386 U.S. 738 (1967), and Commonwealth v. Santiago, 978 A.2d 349 (Pa.
2009). When counsel seeks to withdraw from a matter involving the denial of
PCRA relief, a Turner/Finley “no-merit letter” is the appropriate filing. See
Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth v.
Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc). However, “[b]ecause an
Anders brief provides greater protection to a defendant, this Court may
accept an Anders brief in lieu of a Turner/Finley letter.” Commonwealth
v. Widgins, 29 A.3d 816, 817 n.2 (Pa. Super. 2011).
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      The PCRA court summarized the procedural history of this case as

follows:

      On January 20, 2011, a jury convicted [Appellant] of rape, sexual
      assault and simple assault. Thereafter, on April 11, 2011, the
      [trial] court sentenced [Appellant] to an aggregate term of seven
      to fourteen years of imprisonment, and a consecutive two-year
      probationary term. Following the denial of [Appellant]’s timely
      post-sentence motion, [Appellant] filed an appeal [with this
      Court], in which he raised a claim of prosecutorial misconduct. In
      an unpublished memorandum filed on April 14, 2012, [this Court]
      rejected [Appellant]’s claim and affirmed his judgment of
      sentence. On September 19, 2012, the Supreme Court denied
      [Appellant]’s petition for allowance of appeal. Commonwealth
      v. Mason, 48 A.3d 484 (Pa. Super. 2012).

      [Appellant] thereafter filed a timely pro se PCRA petition, and [the
      PCRA] court appointed counsel. After reviewing the record and
      [Appellant]’s proposed issues, PCRA counsel filed a petition to
      withdraw and “no-merit” letter pursuant to [Turner/Finley].
      [The PCRA] court then issued a Pa.R.A.P. 907 notice of intent to
      dismiss [Appellant]’s pro se petition without a hearing.
      [Appellant] filed a pro se response. By order entered March 26,
      2014, [the PCRA] court dismissed [Appellant]’s PCRA petition and
      granted PCRA counsel’s petition to withdraw. [Appellant] filed a
      timely pro se appeal to [this Court].          In an unpublished
      memorandum filed on January 16, 2015, [this Court] affirmed the
      order denying [PCRA] relief. Commonwealth v. Mason, 118
      A.3d 448 (Pa. Super. 2015). [Appellant] did not file a motion for
      allowance of appeal.

      [Appellant] then filed his second pro se PCRA petition on March
      20, 2015. Within this petition, [Appellant] reiterated his claim of
      prosecutorial misconduct that he unsuccessfully litigated during
      his direct appeal. [The PCRA] court issued a Pa.R.A.P. 907 notice
      of intent to dismiss [Appellant]’s second PCRA petition as untimely
      filed. [Appellant] filed a pro se response on May 18, 2015. By
      order entered June 22, 2015, this court dismissed [Appellant]’s
      second PCRA petition. [Appellant] filed a pro se appeal to [this
      Court]. In an unpublished memorandum filed on March 14, 2016,
      the Superior Court affirmed this court’s order denying [PCRA]
      relief. Commonwealth v. Mason, No. 2483 EDA 2015.


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      On November 30, 2017, [Appellant] filed the instant PCRA
      petition, his third, citing Commonwealth v. Muniz, 164 A.3d
      1189 (Pa. 2017). PCRA [c]ounsel was appointed to represent his
      interests. On March 5, 2019, [the PCRA court] served [Appellant]
      with a [Rule 907 notice]. Thereafter[, Appellant’s] PCRA was
      dismissed on April 30, 2019[.]

PCRA Ct. Op., 7/8/19, at 1-3 (some formatting altered).

      On June 10, 2019, Appellant filed a timely notice of appeal. He filed a

court-ordered Pa.R.A.P. 1925(b) statement on June 21, 2019. The trial court

issued a responsive Rule 1925(a) opinion stating that Appellant’s PCRA

petition was untimely. On August 29, 2019, PCRA counsel filed a petition to

withdraw and an Anders brief with this Court. Appellant subsequently filed

two pro se responses.

      Counsel identifies one issue for our review:

      Was the trial court in error for dismissing [Appellant’s PCRA]
      petition alleging that his sentence was unconstitutional pursuant
      to [Muniz] and its progeny?

Anders/Santiago Brief at 9.

      Initially, we must address whether PCRA counsel has fulfilled the

procedural requirements for withdrawing his representation in this Court.

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

that before “addressing the merits of the appeal, we must review counsel’s

compliance with the procedural requirements for withdrawing as counsel”

(citation omitted)).

      As we have explained,




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      [c]ounsel petitioning to withdraw from PCRA representation must
      proceed under [Turner and Finley] and 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.

Id. at 510-11 (citations omitted and some formatting altered).

      As noted previously, we may accept PCRA counsel’s Anders brief if we

conclude that it substantially complies with Turner/Finley. See Widgins,

29 A.3d at 817 n.2. PCRA counsel’s petition to withdraw and brief to this

Court detail his diligent review of the case and includes the issue that

Appellant wishes to have reviewed. PCRA counsel sets forth reasons why the

issue lacks merit and requests permission to withdraw. Additionally, PCRA

counsel has provided Appellant with a copy of the no-merit brief and his

application to withdraw, as well as a statement advising Appellant of his right

to proceed pro se or with privately retained counsel. See Widgins, 29 A.3d

at 818. Accordingly, we will permit PCRA counsel to withdraw if, after our

review, we conclude that the issues relevant to this appeal lack merit.



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      PCRA counsel identifies Appellant’s claim that Muniz satisfies the newly

recognized constitutional right exception to the PCRA’s time bar.          See 42

Pa.C.S. § 9545(b)(1)(iii). Anders/Santiago Brief at 6. PCRA counsel notes

that the Pennsylvania Supreme Court has yet to hold that Muniz applies

retroactively. Id. Therefore, PCRA counsel maintains that Appellant cannot

rely on Muniz to excuse the timeliness of his instant PCRA petition. Id.

      Our standard of review for the dismissal of a PCRA petition is limited to

“whether the record supports the PCRA court’s determination and whether the

PCRA court’s decision is free of legal error.” Commonwealth v. Lawson, 90

A.3d 1, 4 (Pa. Super. 2014) (citation omitted). We grant great deference to

the PCRA court’s factual findings and we will not disturb them unless they

have no support in the record. Commonwealth v. Rigg, 84 A.3d 1080, 1084

(Pa. Super. 2014) (citation omitted).

      It is well settled that “the timeliness of a PCRA petition is a jurisdictional

requisite.” Commonwealth v. Brown, 111 A.3d 171, 175 (Pa. Super. 2015)

(citation omitted). A PCRA petition “including a second or subsequent petition,

shall be filed within one year of the date the judgment becomes final[.]” 42

Pa.C.S. § 9545(b)(1). A judgment is 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. § 9545(b)(3).




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       Courts may consider a PCRA petition filed more than one year after a

judgment of sentence becomes final only if the petitioner pleads and proves

one of the following three statutory exceptions:


       (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). Moreover, a petitioner must file his petition

within sixty days of the date the claim could have been presented. See 42

Pa.C.S. § 9545(b)(2).3

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

2018), appeal denied, 195 A.3d 559 (Pa. 2018), this Court explained that

          [s]ubsection (iii) of Section 9545 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 th[e Pennsylvania Supreme Court] 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”
____________________________________________


33 Section 9545(b)(2) was amended on October 24, 2018, effective December
24, 2018, extending the time for filing from sixty days of the date the claim
could have been first presented to one year. The amendment applies to claims
arising on December 24, 2017, or thereafter. See Act 2018, Oct. 24, P.L.
894, No. 146, § 3.

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

     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 [the
     petitioner]’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). Because at this time, no such
     holding has been issued by our Supreme Court, [the petitioner]
     cannot rely on Muniz to meet that timeliness exception.[fn1]

            Certainly, if the Pennsylvania Supreme Court issues a
        [fn1]

        decision holding that Muniz applies retroactively, [the
        petitioner] can then file a PCRA petition . . . attempting to
        invoke the ‘new retroactive right’ exception of section
        9545(b)(1)(iii).

Murphy, 180 A.3d at 405-06 (some citations omitted).

     Instantly, the Pennsylvania Supreme Court has yet to hold that Muniz

applies retroactively. Accordingly, like the petitioner in Murphy, Appellant

cannot rely on Muniz to excuse the facial untimeliness of the instant PCRA

petition. See id. Therefore, the PCRA court properly dismissed Appellant’s

petition as untimely. See Lawson, 90 A.3d at 4.




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       We must also address Appellant’s pro se responses to PCRA counsel’s

Anders brief and petition to withdraw. From what we can discern,4 it appears

that Appellant is seeking to characterize his untimely PCRA as a petition for

habeas corpus or coram nobis relief. Additionally, Appellant cites to the ex

post facto clause of the United States Constitution, an apparent reference to

his Muniz claim.

       Our Supreme Court has held that “claims that could be brought under

the PCRA must be brought under that Act. No other statutory or common law

remedy ‘for the same purpose’ is intended to be available; instead, such

remedies are explicitly ‘encompassed’ within the PCRA.” Commonwealth v.

Hall, 771 A.2d 1232, 1235 (Pa. 2001) (emphasis omitted); see also 42

Pa.C.S. § 9542 (stating that the PCRA subsumes both habeas corpus and

coram nobis); see also Commonwealth v. Pagan, 864 A.2d 1231, 1233

(Pa. Super. 2004) (explaining that other remedies do “not become available

merely because the PCRA [court] refuses to remedy a petitioner’s grievance;

rather, we look at the claims a petitioner is raising”). In sum, if “a petitioner’s

claim is cognizable under the PCRA, the PCRA is the only method of obtaining

collateral review.” Commonwealth v. Descardes, 136 A.3d 493, 503 (Pa.

2016).


____________________________________________


4 In his pro se filings, Appellant includes numerous citations to cases and
statutes, but does not indicate how they are applicable to his case. Therefore,
we limit our analysis to the issue that we were able to decipher from his
statements of the law.

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      Here, to the extent Appellant challenges his sentence under Muniz and

the ex post facto clause, his claim is cognizable under the PCRA.        See

Commonwealth v. Greco, 203 A.3d 1120, 1123 (Pa. Super. 2019) (holding

that a post-conviction claim that an original sentence is illegal due to the

retroactive application of a sexual offender registration requirement must be

raised in a PCRA petition). Therefore, because Appellant’s underlying claim is

cognizable under the PCRA, he cannot seek habeas corpus or coram nobis

relief. See Descardes, 136 A.3d at 503; see also Pagan, 864 A.2d at 1233.

      Because our own review of the record confirms that Appellant’s claims

are without merit, we affirm the order denying Appellant’s PCRA petition, and

we grant counsel’s petition to withdraw. See Murphy, 180 A.3d at 405-06;

Muzzy, 141 A.3d at 510.

      Order affirmed. Application to withdraw as counsel granted.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/12/19




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