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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA            :     IN THE SUPERIOR COURT OF
                                        :           PENNSYLVANIA
                   v.                   :
                                        :
TERRY WAYNE KLINGENSMITH,               :          No. 677 WDA 2018
                                        :
                        Appellant       :


                 Appeal from the PCRA Order, March 26, 2018,
               in the Court of Common Pleas of Jefferson County
               Criminal Division at No. CP-33-CR-0000234-2012


BEFORE: OLSON, J., MURRAY, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:           FILED SEPTEMBER 28, 2018

      Terry Wayne Klingensmith appeals pro se from the March 26, 2018

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

(“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. After careful review, we affirm.

      A previous panel of this court provided the following factual and

procedural history:

            On July 7, 1992, [appellant] pled guilty to rape,
            statutory    rape,   involuntary   deviate    sexual
            intercourse (“IDSI”), and other lesser-included
            offenses.[Footnote 2] The trial court sentenced him
            to an aggregate sentence of five to 20 years’
            incarceration. On January 24, 2000, he was paroled.
            While on parole, [appellant] committed a technical
            violation and was re-incarcerated on May 16, 2001.
            On January 22, 2008, he executed a request to serve
            his maximum sentence, indicating that he did not
            wish to be considered for parole. Consequently,
            [appellant] remained incarcerated until his maximum
            date of September 5, 2011.        After his release,
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           [appellant] resided at the Just for Jesus shelter in
           Snyder Township, Jefferson County, Pennsylvania.

                [Footnote 2] 18 Pa.C.S.[A.] §§ 3121,
                3122, and 3123, respectively.

           Shortly thereafter, [appellant] moved to Arizona. In
           an affidavit of probable cause sworn to on
           October 26, 2011, Trooper Carol Ponce of the
           Pennsylvania State Police averred that [appellant]
           had departed from the Just for Jesus facility nearly
           three weeks earlier and, as of October 21, 2011, he
           had failed to register a current address as required
           by law. Subsequently, [appellant] was located and
           extradited to Jefferson County.

           On July 16, 2012, he was charged with failure to
           comply       with     registration   pursuant     to
           Section 4915(a)(2) of the Pennsylvania Crimes Code.
           On August 9, 2012, the Commonwealth filed a
           motion for nolle prosequi, stating that the offense
           was inapplicable to [appellant]. The motion was
           originally granted by the Honorable John B. Leete, a
           visiting senior judge, on the same day. Four days
           later, the Honorable John Henry Foradora, President
           Judge, vacated Judge Leete’s order and set the
           matter for a hearing, which was held on August 23,
           2012.       Subsequently, the court denied the
           Commonwealth’s motion for nolle prosequi.

           A trial was scheduled for September 14, 2012. On
           that day, the court, sitting without a jury, found
           [appellant] guilty of failure to comply with
           registration pursuant to Section 4915(a)(2).    On
           September      19, 2012,    the  court   sentenced
           [appellant] to a period of 210 days to 10 years’
           incarceration.

Commonwealth v. Klingensmith, No. 1459 WDA 2012, unpublished

memorandum at 2-3 (Pa.Super. filed March 24, 2014).




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        Appellant appealed from the judgment of sentence and this court

affirmed on March 24, 2014.        Id.   On August 17, 2017, appellant filed a

pro se petition pursuant to the PCRA, alleging that our supreme court’s

decision in Commonwealth v. Muniz, 164 A.3d 1189 (Pa. 2017), applied

retroactively     and     thus     the    registration    requirements      under

Section 4915(a)(2) did not apply to him.        On August 23, 2017, the PCRA

court appointed George N. Daghir, Esq., to represent appellant.

        Attorney Daghir filed a Turner/Finley1 no-merit letter and petition to

withdraw on March 2, 2018.        On that same day, the PCRA court issued a

notice of intent to dismiss appellant’s PCRA petition without a hearing

pursuant to Pa.R.Crim.P. 907 and granted Attorney Daghir’s petition to

withdraw. The PCRA court dismissed appellant’s PCRA petition on March 26,

2018.

        Appellant filed a timely notice of appeal to this court on April 16, 2018.

The PCRA court ordered appellant to file a concise statement of errors

complained of on appeal pursuant to Pa.R.A.P. 1925(b) on May 10, 2018.

Appellant timely complied with the PCRA court’s order. The PCRA court filed

an opinion pursuant to Pa.R.A.P. 1925(a) in which it incorporated the

contents of Attorney Daghir’s Turner/Finley letter on May 14, 2018.

        Appellant raises the following issues for our review:




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


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            A.     Notwithstanding the recent decision by the
                   Superior Court in [Commonwealth] v.
                   Murphy, [180 A.3d 402 (Pa.Super. 2018)],
                   the [PCRA] court erred as a matter of law in
                   dismissing [appellant’s] 2017 petition under
                   the Post-Conviction Relief Act by holding that
                   the decision of the Supreme Court of
                   Pennsylvania in [Commonwealth] v. Muniz,
                   164 A.3d 1189 [(Pa. 2017)], does not create
                   an exemption of the timeliness requirement
                   under 42 Pa.C.S.A. § 9545(b)(1)(iii) where the
                   decision in Muniz clearly renders [appellant’s]
                   conviction a nullity.

            B.     The [PCRA] court erred as a matter of law in
                   relying solely on the decision in Muniz as the
                   starting point for timeliness where the
                   subsequent enactment of Act 10 of 2018 on
                   February 21, 2018 alternately serves as the
                   proper starting point because it, rather than
                   Muniz, states that [appellant] is not subject to
                   the provisions of 18 Pa.C.S.A. § 4915.

            C.     The [PCRA] court erred as a matter of law in
                   concluding that [appellant’s] conviction under
                   18 Pa.C.S.A. § 4915 was not void ab initio
                   since [appellant] stands convicted through an
                   unconstitutional application of said statute.

Appellant’s brief at 3.

      When reviewing a PCRA court’s dismissal of a petition under the PCRA,

we are governed by the following standard:

            Our standard of review of an order denying PCRA
            relief is whether the record supports the PCRA
            court’s determination, and whether the PCRA court’s
            determination      is   free   of    legal   error.
            Commonwealth v. Phillips, 31 A.3d 317, 319
            (Pa.Super. 2011), appeal denied, [] 42 A.3d 1059
            ([Pa.] 2012) (citing Commonwealth v. Berry, 877
            A.2d 479, 482 (Pa.Super. 2005)). The PCRA court’s
            findings will not be disturbed unless there is no


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          support for the findings in the certified record. Id.
          (citing Commonwealth v. Carr, 768 A.2d 1164,
          1166 (Pa.Super. 2001)).

          It is undisputed that a PCRA petition must be filed
          within one year of the date that the judgment of
          sentence becomes final. 42 Pa.C.S.A. § 9545(b)(1).
          This    time     requirement    is   mandatory     and
          jurisdictional in nature, and the court may not ignore
          it in order to reach the merits of the petition.
          Commonwealth v. Murray, [] 753 A.2d 201, 203
          ([Pa.] 2000). 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.A. § 9545(b)(3).

          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), is met.[Footnote 1] A
          petition invoking one of these exceptions must be
          filed within sixty days of the date the claim could
          first have been presented.                42 Pa.C.S.A.
          § 9545(b)(2).     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
          sixty-day time frame” under section 9545(b)(2).
          Carr, 768 A.2d at 1167.

                [Footnote 1] The exceptions        to   the
                timeliness requirement are:

                (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



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                         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.A. § 9545(b)(1)(i), (ii), and
                 (iii).

Commonwealth v. Hernandez, 79 A.3d 649, 651-652 (Pa.Super. 2013).

     In the instant case, this court affirmed appellant’s judgment of

sentence on March 24, 2014, and appellant did not file a petition for

allocatur with our supreme court.       Accordingly, appellant’s judgment of

sentence became final on April 23, 2014. See Pa.R.A.P. 903(a). Appellant

filed the instant petition on August 17, 2017—more than three years after

his judgment of sentence became final and more than two years after a

PCRA petition could be considered timely. See 42 Pa.C.S.A. § 9545(b)(1).

     As noted above, the PCRA does enumerate exceptions to the one-year

requirement.   Here, appellant is relying on our supreme court’s recent



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holding that a retroactive application of the Sexual Offender Registration and

Notification Act’s (“SORNA”) registration provisions is unconstitutional, as it

violates the ex post facto prohibitions contained within both the United

States and Pennsylvania Constitutions. Muniz, 164 A.3d at 1223. Shortly

after our supreme court announced its decision in Muniz, this court

determined that the holding in Muniz “should be retroactively applied in

state collateral courts to comply with the United States and Pennsylvania

Constitutions.”   Commonwealth v. Rivera-Figueroa, 174 A.3d 674, 678

(Pa.Super. 2017), citing Montgomery v. Louisiana, 136 S.Ct. 718, 734

(2016).

      Most recently, in    Commonwealth v. Murphy, 180 A.3d 402

(Pa.Super. 2018), a case involving an untimely PCRA petition, we held that

the defendant was required to demonstrate that the Supreme Court of

Pennsylvania has held Muniz applies retroactively in order to satisfy the

time-bar exception of 42 Pa.C.S.A. § 9454(b)(1)(iii) (new constitutional right

exception), and because, currently, no such holding has been issued by our

supreme court, a defendant cannot rely on Muniz to meet that timeliness

exception. Murphy, 180 A.3d at 405-406.

      The Murphy court acknowledged the holding in Rivera-Figueroa and

distinguished the case before it from Rivera-Figueroa.       Id.   In Murphy,

similar to the case before us, the defendant’s petition was untimely. Id. at




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405. To the contrary, the petition at issue in Rivera-Figueroa was timely

filed. Rivera-Figueroa, 174 A.3d at 677.

      Consequently, because appellant’s petition is untimely and our

supreme court has not held that Muniz applies retroactively to satisfy the

new constitutional right exception to the one-year time-bar, appellant’s

petition is untimely, and we do not have jurisdiction to consider appellant’s

appeal on its merits.

      Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary




Date: 9/28/2018




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