Com. v. Williams, R

Opinion

J-S27026-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : MELVIN WILLIAMS AKA RASHAD : WILLIAMS : : No. 2701 EDA 2019 Appellant :

Appeal from the PCRA Order Entered August 26, 2019 In the Court of Common Pleas of Delaware County Criminal Division at No(s): CP-23-CR-0004645-2015

BEFORE: SHOGAN, J., McCAFFERY, J., and STEVENS, P.J.E.*

MEMORANDUM BY McCAFFERY, J.: FILED SEPTEMBER 14, 2020

Melvin Williams, also known as Rashad Williams, appeals, pro se, from

the order dismissing his second petition for collateral relief filed pursuant to

the Post Conviction Relief Act1 (PCRA). On appeal, he contends: (1) the PCRA

court erred in dismissing his petition without an evidentiary hearing; and (2)

his PCRA petition is not time barred because of newly discovered facts,

pursuant to the holdings in Riley v. California, 573 U.S. 373 (2014), and

Commonwealth v. Fulton, 179 A.3d 475 (Pa. 2018).2 We affirm.

* Former Justice specially assigned to the Superior Court.

1 42 Pa.C.S.§§ 9541-9546.

2Fulton, 179 A.3d 475, applied the holding of Riley, 573 U.S. 373, and held warrantless searches of cell phones violate the Fourth Amendment to the U.S. Constitution and Article I, Section 8 of the Pennsylvania Constitution. Fulton, 179 A.3d at 478. J-S27026-20

The relevant factual and procedural history is set forth as follows. In

April 2015, Appellant’s daughter reported that beginning in December 2014,

Appellant would take her to two separate locations in Upper Darby,

Pennsylvania. At these locations, Appellant would order her to disrobe and

expose her vagina. Appellant then photographed his daughter in various

indecent positions. Afterwards, Appellant penetrated his daughter’s vagina

with his fingers, tongue, and penis. Images discovered by Upper Darby

detectives on his cell-phone corroborate the daughter’s report.

On December 28, 2015, Appellant entered into a negotiated guilty plea

to involuntary deviate sexual intercourse with a child (IDSI), incest of a minor,

and sexual abuse of children.3

On May 11, 2016, the trial court sentenced Appellant to an aggregate

term of 96 to 240 months’ incarceration, to be followed by 20 years’

probation.4 The affidavit of probable cause, attached to the criminal

complaint, served as the factual basis for the plea. At the same hearing, the

trial court also determined Appellant was a sexually violent predator (SVP), as

well as a Tier III offender,5 and ordered him to comply with registration and

3 18 Pa.C.S. §§ 3123(b), 4302(b), 6312.

4The court imposed 96 to 240 months’ incarceration for IDSI, to be followed by consecutive terms of 10 years’ probation for both sexual abuse of children and incest (for an aggregate term of 20 years’ probation). 5 See 42 Pa.C.S. § 9799.14(d)(4) (designating IDSI as a Tier III offense), 9799.15(a)(3) (“An individual convicted of a Tier III sexual offense shall register for the life of the individual.”). -2- J-S27026-20

notification requirements pursuant to the then-in effect version of the Sexual

Offender Registration and Notification Act (SORNA I).6

On May 19, 2016, Appellant filed a post-sentence motion challenging

the validity of the plea, but subsequently withdrew that motion on June 30th.

Appellant did not appeal from his judgment of sentence.

On June 28, 2017, Appellant filed his first, timely pro se PCRA petition.

The PCRA court appointed counsel to represent him. On March 19, 2018,

appointed counsel filed an amended PCRA petition, alleging the illegality of

the sentence imposed because his SVP classification procedure was

determined to be unconstitutional pursuant to Muniz.7 After the

Commonwealth replied, the PCRA court conducted a hearing on July 24, 2018.

By agreement between the parties, the PCRA court filed an order the following

day, July 25th, vacating Appellant’s SVP classification. However, the PCRA

court left undisturbed all remaining terms of his sentence. The PCRA court

also explained that because Appellant pleaded guilty to IDSI, a Tier III offense

6SORNA I was enacted at 42 Pa.C.S. §§ 9799.10 to 9799.41. The current version of SORNA, “SORNA II,” was enacted in 2018, in response to Commonwealth v. Muniz, 164 A.3d 1189 (Pa. 2017), and appears at 42 Pa. C.S. §§ 9799.10 through 9799.75.

7 In Muniz, the Supreme Court of Pennsylvania held that the retroactive application of SORNA’s registration and reporting requirements violated the ex post facto clauses of the United States and Pennsylvania Constitutions. Muniz, 164 A.3d at 1223.

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under SORNA, he was still subject to lifetime sexual offender registration. See

Order, 7/25/18.

Appellant filed a pro se notice of appeal on August 2, 2018. However,

this appeal was discontinued on September 18th upon Appellant’s pro se

motion to discontinue the appeal.8

On April 26, 2019, Appellant filed a second PCRA petition, entitled

“Warrantless Search of Cellphone P.C.R.A.” This petition seeks relief under

the newly-discovered evidence exception of the PCRA, at 42 Pa.C.S. §

9545(b)(1)(ii), but, we note, did not specify what new “evidence” existed.

Nevertheless, the petition relies on Riley, which Appellant summarizes to hold

that a search of a cell phone requires a warrant, as well as Fulton, which, he

states, held that “the act of turning on [a] phone constituted a search.”

Appellant’s Warrantless Search of Cellphone P.C.R.A., 4/26/19, at 1, 5.

Appellant then avers that because the police in this case searched his phone

without a warrant, the evidence therefrom was illegally seized. Appellant thus

requests relief in the form of “an evidentiary Hearing or another plea bargain.”

Id. at 6.

On June 20, 2019, the PCRA court filed a notice of intent to dismiss the

petition without a hearing9 pursuant to Pa.R.Crim.P. 907, and ordered

8Commonwealth v. Williams, 2377 EDA 2018 (order) (Pa. Super. Sept. 17, 2018).

9 Although the face of the order states a date of June 18, 2019, the docket reflects June 20, 2019, as the date of entry. -4- J-S27026-20

Appellant to file an answer within 20 days. Appellant did not file any response.

On August 30, 2019, the PCRA court entered the underlying order dismissing

Appellant’s second PCRA petition. It found the petition was untimely filed, and

that Riley, a new court decision, was not a “fact” under the newly-discovered

evidence exception. Appellant filed a timely pro se notice of appeal on

September 16, 2019.10

Appellant presents four issues for our review:

I. Whether the P.C.R.A. Court erred in denying [Appellant’s] Motion for Post-Conviction Collateral Relief due to no genuine issue of fact[?]

II. Whether the P.C.R.A. Court in failing to abide by Commonwealth -v-Fulton[, v]is -a- vis, Riley -v- California [a]nd vacate Appellant’s illegal and unconstitutional search of his cell–phone[?]

III. Whether the P.C.R.A. Court erred in denying Appellant’s Motion for Allegedly Being Untimely[?]

IV. Whether the application of Fulton -vis-a-vis Riley, resets Appellant’s Direct Appeal Rights. (Nunc Pro Tunc) and allows a constitutional challenge to search of Appellant’s cell-phone without a warrant[?]

Appellant’s Brief at 5.

For ease of disposition, we will address Appellant’s issues together, as

they are related. Appellant avers the PCRA court erred by dismissing his

second PCRA petition without a hearing. Appellant believes his petition is

10 The PCRA court did not require Appellant to file a Pa.R.A.P. 1925(b) statement of errors complained of on appeal. -5- J-S27026-20

timely filed and overcomes the jurisdictional time bar because of the “newly

discovered evidence” in Fulton, 179 A.3d 475, and Riley, 573 U.S. 373.

Appellant’s Brief at 10 (unpaginated). Appellant contends he is entitled to

relief because “the lower court should have suppressed the evidence of the

cell-phone,” pursuant to Fulton and Riley. Id. at 8 (unpaginated). Appellant

avers both cases, which exclude a warrantless search of a cell phone because

it violates an individual’s expectation of privacy, apply to his case because

detectives searched his cell phone without a warrant. Appellant contends that

he “made a prima facie case” when his arresting officers “turned on/powered

up and forensically extracted” information from his cell-phone on May 28,

2015 without obtaining warrant approval until June 7, 2015. Appellant’s

“Reply Brief” at 3.11 Appellant also argues his judgment of sentence became

final on July 25, 2018, which we note was the date the prior PCRA court

vacated Appellant’s SVP classification. Appellant’s Brief at 9-11

(unpaginated).

Our standard of review regarding the dismissal of a PCRA petition is as

follows:

In reviewing the denial of PCRA relief, we examine whether the PCRA court’s determinations are supported by the record and are free of legal error.

11This “Reply Brief” was attached to Appellant’s Brief in his “Appendix”, but was not filed in this Court. -6- J-S27026-20

Commonwealth v. Goodmond, 190 A.3d 1197, 1200 (Pa. Super. 2018)

(citation omitted).

“Crucial to the determination of any PCRA appeal is the timeliness of the

underlying petition. Thus, we must first determine whether the instant PCRA

petition was timely filed.” Commonwealth v. Smith, 35 A.3d 766, 768 (Pa.

Super. 2011).

The PCRA timeliness requirement . . . is mandatory and jurisdictional in nature. The court cannot ignore a petition’s untimeliness and reach the merits of the petition.

Commonwealth v. Taylor, 67 A.3d 1245, 1248 (Pa. 2013).

In order to be considered timely filed, a PCRA petition, including a

second or subsequent petition, must be filed within one year of when a

petitioner’s judgment of sentence becomes final. 42 Pa.C.S. § 9545(b)(1).

“[A] judgment 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 the time for seeking

the review.” 42 Pa.C.S. § 9545(b)(3). If a defendant does not file a direct

appeal, their judgment of sentence becomes final when the 30-day period for

filing a direct appeal to this Court expires. Commonwealth v. Ruiz, 131

A.3d 54, 59 (Pa. Super. 2015); see also Pa.R.A.P. 903(a) (notice of appeal

shall be filed within 30 days after the entry of the order from which the appeal

is taken). The Supreme Court of Pennsylvania has held that the PCRA’s time

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restriction is constitutionally sound. Commonwealth v. Cruz, 852 A.2d 287,

292 (Pa. 2004).

Nevertheless, an untimely PCRA petition can overcome the jurisdictional

time-bar if the petitioner pleads and proves, inter alia, the statutory exception

set forth at 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[.]

42 Pa.C.S. § 9545(b)(1)(ii). See Commonwealth v. Brandon, 51 A.3d 231,

233-34 (Pa. Super. 2012) (summarizing three PCRA timing exceptions: “(1)

interference by government officials in the presentation of the claim; (2) newly

discovered facts; and (3) an after-recognized constitutional right”) (citation

omitted). A petition invoking an exception to the time-bar must be filed within

one year of the date that the claim could have been presented.12 42 Pa.C.S.

§ 9545(b)(2). “[S]ubsequent decisional law does not amount to a new ‘fact’

under section 9545(b)(1)(ii) of the PCRA.” Commonwealth v. Whitehawk,

146 A.3d 266, 271 (Pa. Super. 2016).

Appellant’s judgment of sentence became final on June 10, 2016, 30

days after the imposition of his sentence.13 See 42 Pa.C.S. § 9545(b)(3);

12 Section 9545(b)(2) was amended on October 24, 2018, to expand the time for filing a petition, that invokes an exception, from 60 days to one year. This amendment affects claims arising on or after December 24, 2017, and thus applies to the instant PCRA petition, filed on April 26, 2019. 13 While the PCRA court found Appellant’s judgment of sentence became final

on June 30, 2016, PCRA Ct. Op., 9/30/19, at 3, we determine Appellant’s -8- J-S27026-20

Ruiz, 131 A.3d at 59. Thus, Appellant generally had until Monday, June 12,

2017, to file a PCRA petition. See 42 Pa.C.S. § 9545(b)(1). Appellant filed

this instant PCRA petition on April 26, 2019, approximately one year and ten

months after this one-year deadline. Thus, Appellant’s petition is facially

untimely. See id. We thus consider whether Appellant properly pleaded a

timeliness exception. See 42 Pa.C.S. § 9545(b)(1)(i)-(iii); Brandon, 51 A.3d

at 233-34.

Instantly, none of the issues raised by Appellant successfully invoked an

exception to the PCRA’s timeliness requirements. As the PCRA court

explained:

[Appellant] alleges that “(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.” See 42 Pa.C.S.[ ] § 9545(b)(1)(ii). In support he cites the United States Supreme Court case, Riley . . ., 34 S.Ct. 2473 . . . ,for the proposition that “cell phones have a protected expectation of privacy.” Reliance on new case law as a newly discovered “fact” that could not have been discovered through the exercise of due diligence fails. . . .

Assuming arguendo that this petition is timely filed, the petition . . . fails to makes a strong prima face showing demonstrating that either the proceedings which resulted in his conviction were so unfair that a miscarriage of justice may have occurred. . . .

PCRA Ct. Op. at 3-4 (some citations omitted).

judgment of sentence became final on June 10, 2016 for the reasons stated above. -9- J-S27026-20

Here, Appellant’s new-found awareness of the United States Supreme

Court decision in Riley did not amount to a new fact within the meaning of

the timeliness exception at Section 9545(b)(1)(ii) of the PCRA. See

Whitehawk, 146 A.3d at 271. Appellant is entitled no relief.

Furthermore, even if Appellant had properly pleaded a timeliness

exception, no relief would be due. As stated above, Appellant entered into a

negotiated guilty plea, and thus waived any challenge to a search of his cell

phone. See Commonwealth v. Jones, 929 A.2d 205, 212 (Pa. 2007) (“A

plea of guilty constitutes a waiver of all nonjurisdictional defects and defenses.

When a defendant pleads guilty, he waives the right to challenge anything but

the legality of his sentence and the validity of his plea.”).

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 9/14/20

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