Com. v. Reed, C.

• Court: Superior Court of Pennsylvania
• Decided: April 9, 2019
• Docket: 1237 WDA 2018
• Status: Unpublished

Opinion

J-A03043-19

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellee : : v. : : CLIFFORD JUSTIN REED, : : Appellant : No. 1237 WDA 2018

Appeal from the PCRA Order Entered June 19, 2018 in the Court of Common Pleas of Cameron County Criminal Division at No(s): CP-12-CR-0000011-2015

BEFORE: BOWES, J., SHOGAN, J. and STRASSBURGER, J.*

MEMORANDUM BY STRASSBURGER, J.: FILED APRIL 9, 2019

Clifford Justin Reed (Appellant) appeals from the June 19, 2018 order

dismissing his petition filed under 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). Upon review, we quash this appeal

and deny counsel’s petition to withdraw as moot.

Appellant moved from Tennessee to Cameron County, Pennsylvania,

where he was required to register as a sexual offender due to a conviction in

Tennessee. Appellant failed to notify Pennsylvania or Tennessee authorities

of his change in residence within the requisite time-period. Thus, the

Commonwealth charged Appellant with failure to comply with sexual

* Retired Senior Judge assigned to the Superior Court. J-A03043-19

offender registration requirements. On April 21, 2015, Appellant pleaded

guilty and was sentenced to a term of incarceration of two to five years.

Appellant did not file a post-sentence motion or direct appeal.

On December 29, 2017, Appellant pro se filed his first PCRA petition.

In his petition, Appellant sought to vacate his conviction based upon 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 is unconstitutional. The PCRA

court appointed Christopher Martini, Esquire, to represent Appellant.

Attorney Martini filed a petition to withdraw as counsel pursuant to

Turner/Finley, because Appellant untimely filed his petition. Petition for

Leave to Withdraw, 4/11/2018. Appellant pro se filed a response, asserting

the same PCRA claim. Motion for Post Conviction Collateral Relief,

4/16/2018.1

On May 3, 2018, the PCRA court issued notice of its intent to dismiss

Appellant’s petition without a hearing pursuant to Pa.R.Crim.P. 907 and

granted Attorney Martini’s petition to withdraw. In response, Appellant filed

a brief in support of his PCRA petition, asserting his petition was timely

1Although Appellant styled his pro se response as a PCRA petition, this did not constitute a separate PCRA petition.

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pursuant to subsection 9545(b)(1)(iii).2 In asserting this exception,

Appellant again relied on Muniz. Thereafter, on June 19, 2018, the PCRA

court dismissed Appellant’s petition as untimely filed. No appeal was filed.

On July 12, 2018, Appellant sought the appointment of new counsel.

The PCRA court granted Appellant’s request and appointed George N.

Daghir, Esquire. Order of Court, 7/25/2018. On August 21, 2018, Attorney

Daghir filed a motion to reinstate Appellant’s right to file an appeal nunc pro

tunc from the June 19, 2018 order denying his PCRA petition. The PCRA

court granted the motion, and the instant appeal followed. Before we can

consider the merits of this appeal, we must determine whether the appeal

was filed timely. See Commonwealth v. Demora, 149 A.3d 330, 331 (Pa.

Super. 2016) (“We may raise the issue of jurisdiction sua sponte.”).

A petition to reinstate the right to appeal an order denying a first PCRA

petition is a second PCRA petition. See Commonwealth v. Fairiror, 809

A.2d 396, 397 (Pa. Super. 2002) (“[Fairiror’s] January 8, 2001 petition for

2 This subsection provides as follows.

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.

42 Pa.C.S. § 9545(b)(1)(iii).

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reinstatement of PCRA appellate rights nunc pro tunc must be considered a

second [] PCRA petition. … Although [Commonwealth v. Hall, 771 A.2d

1232 (Pa. 2001)] and [Commonwealth v. Lantzy, 736 A.2d 564 (Pa.

1999),] dealt with the restoration of direct appeal rights, these cases teach

that all requests for reinstatement of appellate rights, including PCRA

appellate rights, must meet the timeliness requirements of the PCRA.”).

Under the PCRA, all petitions must be filed within one year of the date

that the petitioner’s judgment became final, unless one of three statutory

exceptions applies. 42 Pa.C.S. § 9545(b)(1); Commonwealth v. Chester,

895 A.2d 520, 522 (Pa. 2006). For purposes of the PCRA, a judgment

becomes final at the conclusion of direct review. 42 Pa.C.S. § 9545(b)(3).

“The PCRA’s time restrictions are jurisdictional in nature.” Chester, 895

A.2d at 522. “Thus, ‘[i]f a PCRA petition is untimely, neither this Court nor

the trial court has jurisdiction over the petition. Without jurisdiction, we

simply do not have the legal authority to address the substantive claims.’”

Id. (quoting Commonwealth v. Lambert, 884 A.2d 848, 851 (Pa. 2005)).

Instantly, Appellant was sentenced on April 21, 2015. Because

Appellant did not file a post-sentence motion or direct appeal, his judgment

of sentence became final on May 21, 2015. See 42 Pa.C.S. § 9545(b)(3);

Pa.R.A.P. 903. Accordingly, Appellant had until May 23, 2016, to file a

timely PCRA petition. Appellant filed his motion seeking to reinstate his right

to appeal the order denying his PCRA petition on August 21, 2018. In light

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of our case law, this motion constituted a second PCRA petition, and was

subject to the PCRA’s timeliness requirements. Because Appellant’s

judgment of sentence became final in 2015, his petition is patently untimely,

and he had the burden of pleading and proving an exception to the time-bar.

42 Pa.C.S. § 9545(b)(1).

Appellant’s second PCRA petition did not allege any of the statutory

exceptions to the PCRA’s one-year time bar. Therefore, the PCRA court was

without jurisdiction to restore Appellant’s PCRA appeal rights nunc pro tunc.

Thus, the instant notice of appeal was untimely filed. Accordingly, we quash

this appeal.

Appeal quashed. Counsel’s petition to withdraw is denied as moot.

Judge Shogan joins in the memorandum.

Judge Bowes concurs in the result.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 4/9/2019

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