J-S46014-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : JEROME MCINTYRE, : : Appellant : No. 3698 EDA 2016
Appeal from the PCRA Order November 4, 2016 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0009339-2010
BEFORE: BOWES, J., SHOGAN, J., and KUNSELMAN, J.
MEMORANDUM BY BOWES, J.: FILED DECEMBER 17, 2018
Jerome McIntyre appeals pro se from the order that dismissed his
petition filed pursuant to the Post Conviction Relief Act (“PCRA”). We affirm.
We glean the following history of the case from this Court’s
memorandum disposing of Appellant’s direct appeal. Appellant was convicted
of indecent assault in 2001, and, as a result, was required to register under
Megan’s Law for ten years, beginning in February 2003. Appellant was
charged on two separate occasions for failing to comply with his registration
requirements: one resulting in a guilty plea for 2005 charges, and the instant
case, in which Appellant was sentenced to five to ten years imprisonment after
convicted by a jury of failing to register. This Court affirmed Appellant’s
judgment of sentence, and Appellant did not seek review in our Supreme
Court. Commonwealth v. McIntyre, 82 A.3d 1066 (Pa.Super. 2013)
(unpublished memorandum). J-S46014-18
Appellant filed a timely pro se PCRA petition on April 22, 2014. Therein,
he raised several claims of ineffective assistance of counsel, as well as the
claim that he was innocent of the original charges that led to his registration
requirement. PCRA Petition, 4/22/16, at Appendix B. The PCRA court
appointed counsel, who was later removed and substitute counsel appointed.
The latter filed a motion to withdraw and a no-merit letter pursuant to
Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and Commonwealth
v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc). On September 23, 2016,
the PCRA court issued notice of its intent to dismiss Appellant’s petition
without a hearing for the reasons stated in counsel’s Finley letter. Appellant
responded with a motion to proceed pro se. On November 4, 2016, the PCRA
court entered an order dismissing Appellant’s PCRA petition, granting
counsel’s motion to withdraw, and indicating that Appellant thereafter could
represent himself. Appellant filed a timely notice of appeal, and both Appellant
and the PCRA court complied with Pa.R.A.P. 1925.
Appellant presents three questions for this Court’s consideration, which
we have reordered for ease of disposition and paraphrase as follows:
A. Did the PCRA court err by not entering an order for Appellant to file an Pa.R.A.P. 1925(a) and (b) concise statement of errors complained on appeal?
B. Whether Appellant can raise a new decision in law when the appeal was already sent to the appellate court when Commonwealth v. Muniz, 164 A.3d 1189 (Pa. 2017), was not decided until July 19, 2017?
-2- J-S46014-18
C. Whether Appellant can raise actual innocence since the change in the Megan Law, SORNA, after being convicted for failure to register prior to the decision of Muniz and Commonwealth v. Derhammer, 173 A.3d 723 (Pa. 2017)?
Appellant’s brief at 4.1
We begin with our standard of review. “When reviewing the denial of a
PCRA petition, our standard of review is limited to examining whether the
PCRA court’s determination is supported by evidence of record and whether it
is free of legal error.” Commonwealth v. Jordan, 182 A.3d 1046, 1049
(Pa.Super. 2018).
Appellant first contends that the PCRA court erred in not ordering him
to file a concise statement of errors complained of on appeal pursuant to
Pa.R.A.P. 1925(b). Appellant’s brief at 9-10. However, the record shows that
the PCRA court did enter such an order, and that Appellant timely complied
by filing his statement. Moreover, a trial court is not required to order an
appellant to file such a statement; it may do so if it desires clarification of the
issues that will be pursued on appeal. See Pa.R.A.P. 1925(b). Appellant’s
first issue merits no relief from this Court.
____________________________________________
1 On October 26, 2018, Appellant filed in this Court a “Petition for Relief and Extension of Time.” Therein, Appellant complains about Appellant’s receipt of mail and his ability to file original documents with this Court. Appellant filed his brief and, after the grant of an extension, a reply brief. As such, there are no outstanding filings for Appellant to make with this Court, and thus no need for an extension. Accordingly, Appellant’s October 26, 2018 petition is denied as moot.
-3- J-S46014-18
Appellant next contends that he “filed a praecipe to the lower court to
add the new cases to his PCRA to address the Megan[’s] Law which [he] was
deemed to have violated.” Appellant’s brief at 8. Specifically, Appellant
suggests that our Supreme Court’s decisions in Muniz and Derhammer
render his underlying conviction unconstitutional, and that this Court has the
ability to consider the claim sua sponte. Id.
In Muniz, our High Court held that the Sexual Offender Registration and
Notification Act (“SORNA”) was an unconstitutional ex post facto law as
applied retroactively. Muniz, supra at 1193. In Derhammer, the Court held
that the defendant could not be prosecuted for violating the registration
requirements of Megan’s Law III, the precursor to SORNA, because, at the
time of the defendant’s trial, Megan’s Law III had been voided as
unconstitutional. Derhammer, supra at 729-30.
As this is a timely PCRA petition, we are able to consider Appellant’s
claims although he did not raise them prior to appeal. 2 However, neither
Muniz nor Derhammer mandates the relief Appellant requests. Appellant was
convicted of failing to register under Megan’s Law III, not under SORNA.
2 See Commonwealth v. Fernandez, ___ A.3d ___, 2018 PA Super 245 (Pa.Super. September 5, 2018) (en banc) (noting this Court can correct illegal sentences sua sponte when we have jurisdiction); Commonwealth v. Rivera-Figueroa, 174 A.3d 674, 678 (Pa.Super. 2017) (holding Muniz applies retroactively to cases on collateral review).
-4- J-S46014-18
Indeed, Appellant’s underlying conviction in this case pre-dates the effective
date of SORNA.
The Derhammer case is distinguishable from the instant case.
Derhammer was prosecuted for violating his Megan’s Law III registration
requirements after our Supreme Court invalidated Megan’s Law III in
Commonwealth v. Neiman, 84 A.3d 603, 605 (Pa. 2013). Here, Appellant
was convicted for failing to register under Megan’s Law III, and his judgment
of sentence became final before the Neiman decision. Appellant does not
discuss the Neiman decision, let alone present argument that it applies
retroactively to invalidate his conviction.
Accordingly, Muniz’s holding regarding retroactive application of
Free access — add to your briefcase to read the full text and ask questions with AI
J-S46014-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : JEROME MCINTYRE, : : Appellant : No. 3698 EDA 2016
Appeal from the PCRA Order November 4, 2016 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0009339-2010
BEFORE: BOWES, J., SHOGAN, J., and KUNSELMAN, J.
MEMORANDUM BY BOWES, J.: FILED DECEMBER 17, 2018
Jerome McIntyre appeals pro se from the order that dismissed his
petition filed pursuant to the Post Conviction Relief Act (“PCRA”). We affirm.
We glean the following history of the case from this Court’s
memorandum disposing of Appellant’s direct appeal. Appellant was convicted
of indecent assault in 2001, and, as a result, was required to register under
Megan’s Law for ten years, beginning in February 2003. Appellant was
charged on two separate occasions for failing to comply with his registration
requirements: one resulting in a guilty plea for 2005 charges, and the instant
case, in which Appellant was sentenced to five to ten years imprisonment after
convicted by a jury of failing to register. This Court affirmed Appellant’s
judgment of sentence, and Appellant did not seek review in our Supreme
Court. Commonwealth v. McIntyre, 82 A.3d 1066 (Pa.Super. 2013)
(unpublished memorandum). J-S46014-18
Appellant filed a timely pro se PCRA petition on April 22, 2014. Therein,
he raised several claims of ineffective assistance of counsel, as well as the
claim that he was innocent of the original charges that led to his registration
requirement. PCRA Petition, 4/22/16, at Appendix B. The PCRA court
appointed counsel, who was later removed and substitute counsel appointed.
The latter filed a motion to withdraw and a no-merit letter pursuant to
Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and Commonwealth
v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc). On September 23, 2016,
the PCRA court issued notice of its intent to dismiss Appellant’s petition
without a hearing for the reasons stated in counsel’s Finley letter. Appellant
responded with a motion to proceed pro se. On November 4, 2016, the PCRA
court entered an order dismissing Appellant’s PCRA petition, granting
counsel’s motion to withdraw, and indicating that Appellant thereafter could
represent himself. Appellant filed a timely notice of appeal, and both Appellant
and the PCRA court complied with Pa.R.A.P. 1925.
Appellant presents three questions for this Court’s consideration, which
we have reordered for ease of disposition and paraphrase as follows:
A. Did the PCRA court err by not entering an order for Appellant to file an Pa.R.A.P. 1925(a) and (b) concise statement of errors complained on appeal?
B. Whether Appellant can raise a new decision in law when the appeal was already sent to the appellate court when Commonwealth v. Muniz, 164 A.3d 1189 (Pa. 2017), was not decided until July 19, 2017?
-2- J-S46014-18
C. Whether Appellant can raise actual innocence since the change in the Megan Law, SORNA, after being convicted for failure to register prior to the decision of Muniz and Commonwealth v. Derhammer, 173 A.3d 723 (Pa. 2017)?
Appellant’s brief at 4.1
We begin with our standard of review. “When reviewing the denial of a
PCRA petition, our standard of review is limited to examining whether the
PCRA court’s determination is supported by evidence of record and whether it
is free of legal error.” Commonwealth v. Jordan, 182 A.3d 1046, 1049
(Pa.Super. 2018).
Appellant first contends that the PCRA court erred in not ordering him
to file a concise statement of errors complained of on appeal pursuant to
Pa.R.A.P. 1925(b). Appellant’s brief at 9-10. However, the record shows that
the PCRA court did enter such an order, and that Appellant timely complied
by filing his statement. Moreover, a trial court is not required to order an
appellant to file such a statement; it may do so if it desires clarification of the
issues that will be pursued on appeal. See Pa.R.A.P. 1925(b). Appellant’s
first issue merits no relief from this Court.
____________________________________________
1 On October 26, 2018, Appellant filed in this Court a “Petition for Relief and Extension of Time.” Therein, Appellant complains about Appellant’s receipt of mail and his ability to file original documents with this Court. Appellant filed his brief and, after the grant of an extension, a reply brief. As such, there are no outstanding filings for Appellant to make with this Court, and thus no need for an extension. Accordingly, Appellant’s October 26, 2018 petition is denied as moot.
-3- J-S46014-18
Appellant next contends that he “filed a praecipe to the lower court to
add the new cases to his PCRA to address the Megan[’s] Law which [he] was
deemed to have violated.” Appellant’s brief at 8. Specifically, Appellant
suggests that our Supreme Court’s decisions in Muniz and Derhammer
render his underlying conviction unconstitutional, and that this Court has the
ability to consider the claim sua sponte. Id.
In Muniz, our High Court held that the Sexual Offender Registration and
Notification Act (“SORNA”) was an unconstitutional ex post facto law as
applied retroactively. Muniz, supra at 1193. In Derhammer, the Court held
that the defendant could not be prosecuted for violating the registration
requirements of Megan’s Law III, the precursor to SORNA, because, at the
time of the defendant’s trial, Megan’s Law III had been voided as
unconstitutional. Derhammer, supra at 729-30.
As this is a timely PCRA petition, we are able to consider Appellant’s
claims although he did not raise them prior to appeal. 2 However, neither
Muniz nor Derhammer mandates the relief Appellant requests. Appellant was
convicted of failing to register under Megan’s Law III, not under SORNA.
2 See Commonwealth v. Fernandez, ___ A.3d ___, 2018 PA Super 245 (Pa.Super. September 5, 2018) (en banc) (noting this Court can correct illegal sentences sua sponte when we have jurisdiction); Commonwealth v. Rivera-Figueroa, 174 A.3d 674, 678 (Pa.Super. 2017) (holding Muniz applies retroactively to cases on collateral review).
-4- J-S46014-18
Indeed, Appellant’s underlying conviction in this case pre-dates the effective
date of SORNA.
The Derhammer case is distinguishable from the instant case.
Derhammer was prosecuted for violating his Megan’s Law III registration
requirements after our Supreme Court invalidated Megan’s Law III in
Commonwealth v. Neiman, 84 A.3d 603, 605 (Pa. 2013). Here, Appellant
was convicted for failing to register under Megan’s Law III, and his judgment
of sentence became final before the Neiman decision. Appellant does not
discuss the Neiman decision, let alone present argument that it applies
retroactively to invalidate his conviction.
Accordingly, Muniz’s holding regarding retroactive application of
SORNA is not applicable to Appellant’s conviction for failure to register under
Megan’s Law III,3 and Derhammer does not entitle Appellant to relief. As
such, Appellant’s second issue does not warrant reversal of the PCRA court’s
decision.
With his final issue, Appellant maintains that he is innocent of the
underlying indecent assault for which he was convicted in 2001, and that
prejudicial comments by the district attorney and trial judge constituted
reversible error in that case. Appellant’s brief at 9. Appellant’s underlying
3 We note that the registration obligations, if any, that will apply to Appellant upon his release from incarceration will depend upon the statute in place at that time.
-5- J-S46014-18
conviction was not at the instant docket number, but at docket CP-51-CR-
1007011-2000. Rather, this case relates only to his conviction for failing to
register. Any collateral attack upon Appellant’s 2001 conviction must be
litigated at the docket number for that case.4
Because Appellant has not convinced us that the PCRA court erred in
dismissing his 2014 PCRA petition and that relief is due, we affirm the PCRA
court’s November 4, 2016 order. See Commonwealth v. Miner, 44 A.3d
684, 688 (Pa.Super. 2012) (“It is an appellant’s burden to persuade us that
the PCRA court erred and that relief is due.”).
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 12/17/18
4In fact, it appears from a review of that docket that Appellant also filed a new PCRA petition in that case on October 10, 2017.
-6-