Com. v. Whitehawk, T.

• Court: Superior Court of Pennsylvania
• Decided: May 2, 2019
• Docket: 2065 EDA 2018
• Status: Unpublished

Opinion

J-S77028-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : TRAVIS JUSTIN WHITEHAWK : : Appellant : No. 2065 EDA 2018

Appeal from the PCRA Order Entered June 26, 2018 In the Court of Common Pleas of Montgomery County Criminal Division at No(s): CP-46-CR-0003018-2010

BEFORE: OTT, J., DUBOW, J., and STRASSBURGER*, J.

MEMORANDUM BY DUBOW, J.: FILED MAY 02, 2019

Appellant, Travis Justin Whitehawk, appeals pro se from the June 26,

2018 Order, entered in the Montgomery County Court of Common Pleas

denying his second Petition filed pursuant to the Post Conviction Relief Act

(“PCRA”), 42 Pa.C.S. §§ 9541-9546, as untimely. Relying on

Commonwealth v. Muniz, 164 A.3d 1189 (Pa. 2017), he challenges the

application of a lifetime registration requirement, imposed pursuant to

Megan’s Law II that was in effect when he entered a negotiated guilty plea in

2011 to Involuntary Deviate Sexual Intercourse-Complainant Less than 16

years of Age (“IDSI”).1 Because Appellant’s Petition was untimely filed, we

affirm the PCRA court’s dismissal.

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1 18 Pa.C.S. § 3123(a)(7).

____________________________________ * Retired Senior Judge assigned to the Superior Court. J-S77028-18

On May 17, 2011, Appellant entered a negotiated guilty plea to one

count of IDSI arising from a crime he committed on April 5, 2010, in exchange

for the Commonwealth’s withdrawal of nine additional charges. Pursuant to

the plea agreement, the court sentenced Appellant to a term of 8 to 20 years’

incarceration that same day. At the time Appellant pleaded guilty, IDSI was

an enumerated offense under the then-current version of Megan’s Law,

commonly known as Megan’s Law II, requiring Appellant to register as a sex

offender for the remainder of his lifetime. See 42 Pa.C.S. § 9795.1(b)(2)

(expired).2

On May 24, 2011, Appellant filed a Motion to Withdraw Guilty Plea, which

the trial court denied on May 26, 2011. On June 10, 2011, the court denied

Appellant’s Motion for Reconsideration of Sentence. Appellant did not file a

direct appeal from his Judgment of Sentence. Thus, Appellant’s Judgment of

Sentence became final on July 11, 2011. See 42 Pa.C.S. § 9545(b)(3)

(providing “a judgment becomes final at the conclusion of direct review,

including discretionary review in the Supreme Court of the United States and

2 The Sexual Offender Registration and Notification Act (“SORNA”), 42 Pa.C.S.A. §§ 9799.10-9799.41, became effective on December 20, 2012. SORNA replaced Megan’s Law as the statute governing the registration and supervision of sex offenders. SORNA increased the registration period for certain crimes, but the lifetime registration requirement for those convicted of IDSI remained the same. Compare 42 Pa.C.S. § 9795.1(b)(2) (expired) with 42 Pa.C.S. § 9799.14(d)(4) and § 9799.15(a)(3). SORNA was recently amended by H.B. 631, 202 Gen. Assem., Reg. Sess. (Pa. 2018), Act 10 of 2018 (“Act 10”).

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the Supreme Court of Pennsylvania, or at the expiration of time for seeking

the review[ ]”).

On August 24, 2015, Appellant filed an untimely first PCRA Petition. The

PCRA court appointed counsel who, on December 4, 2015, sought to withdraw.

On December 12, 2015, the PCRA court notified Appellant of its intent to

dismiss his Petition without a hearing pursuant to Pa.R.Crim.P. 907. Appellant

filed a pro se response to the court’s Rule 907 Notice wherein he challenged

the legality of his sentence. On January 8, 2016, the PCRA court permitted

counsel to withdraw and dismissed Appellant’s PCRA Petition. This Court

affirmed the PCRA court’s Order on August 24, 2016. See Commonwealth

v. Whitehawk, 146 A.3d 266 (Pa. Super. 2016).

On March 9, 2018, Appellant filed pro se the instant PCRA Petition, his

second. In this Petition, Appellant claimed that his SORNA registration

requirements are unconstitutional pursuant to Muniz, supra.3 Petition,

3/9/18, at 4. He further claimed that, under contract law theories, the

increased reporting requirements struck down by Muniz essentially violated

his “plea agreement contract” with the Commonwealth, and since the

Commonwealth breached the contract, Appellant is entitled to have his guilty

plea withdrawn and his sentence reconsidered. Id. ____________________________________________

3 In Muniz, decided on July 19, 2017, the Pennsylvania Supreme Court determined that retroactive application of SORNA’s registration requirements violates the ex post facto clause of the Pennsylvania Constitution. Thus, the Court declared SORNA unconstitutional when applied to defendants who were convicted of crimes committed before SORNA’s effective date. In response, the Legislature amended SORNA with Act 10.

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The PCRA court appointed Patrick J. McMenamin, Jr., Esquire to

represent Appellant. Attorney McMenamin subsequently filed a Petition to

Withdraw as Counsel and a Turner/Finley “no merit” letter.

On June 1, 2018, the PCRA court granted counsel’s Petition to Withdraw

and notified Appellant of its intent to dismiss his Petition without a hearing

pursuant to Pa.R.Crim.P. 907. Appellant filed a pro se Response to the court’s

Rule 907 Notice in which he reiterated the claims he raised in his Petition.

See Response, 6/10/18, at 2. He also asserted that Attorney McMenamin was

ineffective “for standing behind Turner/Finley,” and stated that Appellant

“never wanted to challenge the retroactivity aspects of Muniz, supra, in

[a]ppeals or [p]ost-[c]onviction proceedings.” Response at 4. Rather, his

position has always been that because SORNA is unconstitutional, its

registration requirements cannot be applied to him. Id. He further stated

that he “went into a contract with the Commonwealth for a limited time, not

a lifetime,” and sought specific performance of his plea agreement with the

Commonwealth. Id. at 4-5.

On June 26, 2018, the PCRA court dismissed Appellant’s Petition. This

timely pro se appeal followed. Both Appellant and the PCRA court complied

with Pa.R.A.P. 1925.

Appellant raises the following two issues on appeal:

1. Did the Commonwealth err in passing Act 10, violating the ex post facto laws?

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2. Was appellate counsel, Mr. McMenamin, ineffective assistance of counsel for failing to investigate [Appellant’s] case, thus prematurely filing a Turner/Finley letter?

Appellant’s Brief at iii (unpaginated) (reordered for ease of disposition).

In his first issue, Appellant claims that the Commonwealth of

Pennsylvania erred in passing Act 10, and challenges the application of

SORNA’s registration requirements as unconstitutional after Muniz.

Appellant’s Brief at 9-18.

“Our standard of review of a PCRA court's dismissal of a PCRA petition

is limited to examining whether the PCRA court's determination is supported

by the record evidence and free of legal error.” Commonwealth v. Root,

179 A.3d 511, 515-16 (Pa. Super. 2018) (citation omitted). This Court grants

great deference to the findings of the PCRA court if they are supported by the

record. Commonwealth v. Boyd, 923 A.2d 513, 515 (Pa. Super. 2007). We

give no such deference, however, to the court’s legal conclusions.

Commonwealth v. Ford, 44 A.3d 1190, 1194 (Pa. Super. 2012).

In order to obtain relief under the PCRA, a petition must be timely filed.

See 42 Pa.C.S. § 9545 (providing jurisdictional requirements for the timely

filing of a petition for post-conviction relief). A petition must be filed within

one year from the date the judgment of sentence became final. Id. at Section

9545(b)(1). The PCRA, however, provides exceptions to the timeliness

requirement in certain circumstances. 42 Pa.C.S. §9545(b)(1)(i)-(iii). In

addition to establishing the elements of a timeliness exception, a petitioner

must also establish that he filed his PCRA Petition within 60 days of the date

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he could have presented his claim. 42 Pa.C.S. § 9545(b)(2). Appellant’s

Petition, filed more than 6 years after his Judgment of Sentence became final,

is facially untimely.

Section 9545(b)(2) explicitly requires that any PCRA petition invoking

one of the statutory exceptions to the time requirements of the PCRA “shall

be filed within 60 days of the date the claim could have been presented.” 42

Pa.C.S § 9545(b)(2).4

Appellant attempts to invoke Section 9545(b)(1)(ii) to overcome the

PCRA’s time bar. See 42 Pa.C.S. § 9545(b)(1)(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).” However, Appellant has not

explained which facts were previously unknown to him, how and when he

learned such facts, and how they underlie the claim he advances here. Thus,

Appellant has failed to overcome the PCRA’s time-bar.

Appellant also attempts to invoke the exception set forth at Section

9545(b)(1)(iii). See 42 Pa.C.S. § 9545(b)(1)(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 as has been held by that court to apply retroactively.”).

4 Effective December 24, 2018, Section 9545(b)(2) now provides that, for claims arising on December 24, 2017, or after, “[a]ny petition invoking an exception . . . shall be filed within one year of the date the claim could have been presented.”

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Our Supreme Court decided Muniz on July 17, 2017. Appellant did not

file the instant PCRA petition until March 9, 2018, which is obviously more

than 60 days from the date of the decision in Muniz.

Even if Appellant had filed this Petition within 60 days of the Supreme

Court’s decision in Muniz, Appellant would still not be entitled to relief.

Because Appellant's PCRA petition is untimely, the timeliness exception

provided in Section 9545(b)(1)(iii) requires that he demonstrate that the

Pennsylvania Supreme Court has held that the holding in Muniz applies

retroactively. Because our Supreme Court has issued no such holding,

Appellant cannot rely at this time on Muniz to meet that timeliness exception.

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

appeal denied, 195 A.3d 559 (Pa. 2018). Thus, even if Appellant had filed his

Petition within 60 days of the Muniz decision, he cannot satisfy this timeliness

exception. Accordingly, we are without jurisdiction to address this issue.

In Appellant’s second issue, which he initially raised in response to the

PCRA court’s Rule 907 Notice, Appellant baldly claims that his counsel was

ineffective for failing to investigate his PCRA claims before seeking to

withdraw. Although it is proper for a petitioner to raise an ineffectiveness of

PCRA counsel claim in a response to the PCRA court’s Rule 907 Notice,5

Appellant failed to satisfy any of the exceptions to the PCRA’s time-bar, and, ____________________________________________

5 See Commonwealth v. Smith, 121 A.3d 1049, 1059 (Pa. Super. 2015) (explaining that “the response [to the court’s Rule 907 Notice] is [] the opportunity for the petitioner to object to counsel’s effectiveness at the PCRA level”).

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thus, the PCRA court lacked jurisdiction to address the merits of Appellant’s

ineffectiveness claim. See Commonwealth v. Walters, 135 A.3d 589, 590-

91 (Pa. Super. 2016) (reiterating that, because “the PCRA’s timeliness

requirements are jurisdictional in nature . . . courts may not address the

merits of the issues raised in a petition if it is not timely filed”). We are,

likewise, without jurisdiction to address this issue.6

In conclusion, Appellant has not pleaded and proved the applicability of

any of the PCRA’s timeliness exceptions and, therefore, we are without

jurisdiction to consider the merits of this appeal. The PCRA court properly

dismissed Appellant’s Petition as untimely. The record supports the PCRA

court’s findings and its Order is free of legal error. We, thus, affirm the denial

of PCRA relief.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 5/2/19

6 We note that Appellant baldly asserts that his PCRA counsel was ineffective without providing any specific arguments to support the claim. Thus, even if the trial court had jurisdiction to address Appellant’s ineffectiveness claim, the trial court would have properly dismissed it because Appellant failed to substantiate his assertion.

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