Com. v. Williams, S.

Opinion

J. S51042/18

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA v. : : SHAWN CHRISTOPHER WILLIAMS, : No. 1175 EDA 2018 : Appellant :

Appeal from the PCRA Order, March 13, 2018, in the Court of Common Pleas of Northampton County Criminal Division at No. CP-48-CR-0000140-2014

BEFORE: DUBOW, J., NICHOLS, J., AND FORD ELLIOTT, P.J.E.

MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED NOVEMBER 27, 2018

Shawn Christopher Williams appeals from the March 13, 2018 order

entered in the Court of Common Pleas of Northampton County that denied

his petition filed pursuant to the Post Conviction Relief Act, 42 Pa.C.S.A.

§§ 9541-9546 (“PCRA”). PCRA counsel Matthew J. Deschler, Esq., has also

filed a petition to withdraw. We affirm.

The record reflects that on December 4, 1998, a jury found appellant

guilty of sexual assault, graded as a second-degree felony. The trial court

sentenced appellant to four to ten years of imprisonment. Following

imposition of sentence, the Pennsylvania General Assembly passed

Megan’s Law II, under which appellant was required to register as a

sex offender for ten years. Thereafter, the General Assembly passed

Megan’s Law III, which, in 2013, our supreme court struck down as violative J. S51042/18

of the single subject requirement of Article III, Section 3 of the Pennsylvania

Constitution in Commonwealth v. Neiman, 84 A.3d 603, 607 (Pa. 2013).

The Sexual Offender Registration and Notification Act (“SORNA”) replaced

Megan’s Law III, effective December 20, 2012. Under SORNA, appellant was

deemed a Tier III offender and subject to a lifetime registration requirement.

The record further reflects that appellant violated SORNA’s registration

requirement in late 2013 and was charged with numerous offenses with

respect to his failure to register as a sex offender. On June 2, 2014,

appellant pled nolo contendere to failure to register with the state police in

violation of 18 Pa.C.S.A. § 4915.1(a)(1), a second-degree felony. The trial

court sentenced appellant to five years of probation. Appellant did not file a

direct appeal.

On December 5, 2017, appellant filed a pro se motion to reconsider,

nunc pro tunc, seeking vacation of his conviction and sentence for violating

Section 4915.1(a)(1) based on Commonwealth v. Muniz, 164 A.3d 1189

(Pa. 2017), wherein our supreme court held that application of the

registration requirements under SORNA to sexual offenders who committed

their crimes before SORNA’s effective date violates the ex post facto clause

of the Pennsylvania Constitution. The PCRA court appointed counsel.1 On

1 The record reflects that the PCRA court initially appointed Catherine L. Kollet, Esq., as PCRA counsel. By order entered December 6, 2017, the PCRA court determined that Attorney Kollet was no longer available to represent appellant, withdrew her appearance, and appointed Attorney Deschler as PCRA counsel.

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January 11, 2018, Attorney Deschler filed an amended petition on

appellant’s behalf seeking vacation of appellant’s conviction and sentence

based on Muniz.2 On March 13, 2018, the PCRA court entered an order

denying appellant’s PCRA petition. On April 10, 2018, appellant filed a

notice of appeal. The PCRA court then ordered appellant to file a concise

statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).

In response, Attorney Deschler filed a Rule 1925(c)(4) statement stating his

intent to file an “Anders/McClendon[3] brief in the Superior Court in lieu of

filing a Concise Statement of Matters Complained of on Appeal.” (Docket

#30.) The PCRA court did not file a Rule 1925(a) opinion.

Preliminarily, we note that where counsel seeks to withdraw on appeal

from the denial of PCRA relief, the appropriate filing is a Turner/Finley4 no

merit letter. See Commonwealth v. Widgins, 29 A.3d 816, 820 n.2

(Pa.Super. 2011). Because an Anders brief provides greater protection to a

2 We note that the record reflects that appellant violated his registration requirements in 2015, was convicted by a jury of multiple violations of the SORNA registration requirements, and sentenced to 33 to 120 months of imprisonment. On direct appeal, a panel of this court vacated appellant’s convictions and sentence in light of our supreme court’s decision in Muniz. See Commonwealth v. Williams, 79 A.3d 535 (Pa.Super. 2017) (judgment order).

3See Anders v. California, 386 U.S. 738 (1967), and Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009); Commonwealth v. McClendon, 495 434 A.2d 1185 (Pa. 1981).

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

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defendant, however, we may accept an Anders brief in lieu of a

Turner/Finley letter. Id. (citation omitted).

Pursuant to Turner/Finley, before withdrawal on collateral appeal is

permitted, an independent review of the record by competent counsel is

required. Commonwealth v. Pitts, 981 A.2d 875, 876 n.1 (Pa. 2009).

Counsel must then submit a no-merit letter that (1) details the nature and

extent of his or her review; (2) lists each issue the petitioner wishes to have

reviewed; and (3) explains why the petitioner’s issues lack merit. Id. The

court then conducts its own independent review of the record to determine

whether the petition indeed lacks merit. Id. Counsel must also send

petitioner: “(1) a copy of the ‘no-merit’ letter/brief; (2) a copy of counsel’s

petition to withdraw; and (3) a statement advising petitioner of the right to

proceed pro se or by new counsel.” Commonwealth v. Wrecks, 931 A.2d

717, 721 (Pa.Super. 2007) (citation omitted).

Here, Attorney Deschler filed an Anders brief on July 9, 2018, wherein

he concludes that, after a conscientious review of the record, appellant’s

PCRA petition is untimely and the appeal is frivolous because the position he

advanced in appellant’s amended PCRA petition was subsequently

“squarely reject[ed]” by this court in Commonwealth v. Murphy, 180 A.3d

402, 406, 407 (Pa.Super. 2018). Also on July 9, 2018, Attorney Deschler

filed a petition to withdraw as counsel stating that he conscientiously

reviewed the record in this case and has concluded that the appeal is

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frivolous. The record further reflects that by correspondence dated July 9,

2018, Attorney Deschler provided appellant with a copy of the

Anders/McClendon brief, as well as counsel’s petition to withdraw, and

that counsel advised appellant that he has the right to retain new counsel,

proceed pro se, or raise any additional points appellant deems worthy of

this court’s attention. Counsel also informed appellant that counsel will

remain appellant’s counsel until this court grants leave to withdraw.

Appellant has not filed a response to either the Anders brief or the

application to withdraw.5

Our review of the record demonstrates that Attorney Deschler has

substantially complied with each of the above requirements.

All PCRA petitions, including second and subsequent petitions, must be

filed within one year of when a defendant’s judgment of sentence becomes

final. 42 Pa.C.S.A. § 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.A. § 9545(b)(3).

The Supreme Court of Pennsylvania has held that the PCRA’s time restriction

is constitutionally sound. Commonwealth v. Cruz, 852 A.2d 287, 292 (Pa.

2004). In addition, our supreme court has instructed that the timeliness of

5 We note that the Commonwealth filed a letter with this court declining to file an appellee’s brief because it concurs with Attorney Deschler’s position.

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a PCRA petition is jurisdictional. If a PCRA petition is untimely, a court lacks

jurisdiction over the petition. Commonwealth v. Callahan, 101 A.3d 118,

120-121 (Pa.Super. 2014) (courts do not have jurisdiction over an untimely

PCRA); see also Commonwealth v. Wharton, 886 A.2d 1120 (Pa. 2005).

Here, the trial court sentenced appellant on June 2, 2014. Appellant

failed to file a direct appeal to this court. Consequently, appellant’s

judgment of sentence became final July 2, 2014, thirty days after imposition

of sentence and the time for filing a direct appeal expired. See

42 Pa.C.S.A. § 9545(b)(3); Pa.R.A.P. 903; Commonwealth v. Cintora, 69

A.3d 759, 763 (Pa.Super. 2013). Therefore, appellant’s petition, filed

December 5, 2017, is facially untimely. As a result, the PCRA court lacked

jurisdiction to review appellant’s petition, unless appellant alleged and

proved one of the statutory exceptions to the time-bar, as set forth in

42 Pa.C.S.A. § 9545(b)(1).

Those three narrow exceptions to the one-year time-bar are: when

the government has interfered with the petitioner’s ability to present the

claim, when the appellant has recently discovered facts upon which his PCRA

claim is predicated, or when either the Supreme Court of Pennsylvania or

the Supreme Court of the United States has recognized a new constitutional

right and made that right retroactive. 42 Pa.C.S.A. § 9545(b)(1)(i-iii);

Commonwealth v. Brandon, 51 A.3d 231, 233-234 (Pa.Super. 2012).

The petitioner bears the burden of pleading and proving the applicability of

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any exception. 42 Pa.C.S.A. § 9545(b)(1). If a petitioner fails to invoke a

valid exception to the PCRA time-bar, this court may not review the petition.

See 42 Pa.C.S.A. § 9545(b)(1)(i-iii).

Here, in his PCRA petition, appellant challenged the retroactive

application of SORNA based upon the Supreme Court of Pennsylvania’s

decision in Muniz, which implicates the newly recognized constitutional right

exception to the PCRA’s time-bar under Section 9545(b)(1)(iii). With that

exception, appellant must satisfy the requirement that he filed his claim

within 60 days of the date the claim could have been presented.

42 Pa.C.S.A. § 9545(b)(2). Our supreme court filed its decision in Muniz on

July 19, 2017. Appellant filed his petition on December 5, 2017, in excess of

60 days of the Muniz decision. Therefore, because appellant did not file his

claim within 60 days of when it could first be presented, he cannot satisfy

the newly recognized constitutional right statutory exception to overcome

the PCRA’s time-bar.

Even assuming that appellant satisfied the 60-day requirement,

appellant would still not be entitled to relief. In Muniz, our supreme court

held that application of the registration requirements under SORNA to sexual

offenders who committed their crimes before SORNA’s effective date violates

the ex post facto clause of the Pennsylvania Constitution. Muniz, 164

A.3d at 1218. Therefore, retroactive application of SORNA would appear to

violate the ex post facto clauses of the United States Constitution and the

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Pennsylvania Constitution, as set forth in Muniz. See Muniz, 164 A.3d at

1218-1219. Appellant, however, presents his claim in the context of an

untimely filed PCRA petition.

In a case involving a timely filed PCRA petition, this court has held that

“Muniz created a substantive rule that retroactively applies in the collateral

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

(Pa.Super. 2017). Because appellant’s PCRA petition is facially untimely,

however, he would be required to satisfy the jurisdiction requirement set

forth at 42 Pa.C.S.A. § 9545(b)(1)(iii). To do so, appellant would be

required to demonstrate that the Supreme Court of Pennsylvania has held

that Muniz applies retroactively. See Commonwealth v. Murphy, 180

A.3d 402, 406-407 (Pa.Super. 2018) (finding that when the PCRA petition is

untimely filed, in order to satisfy the timeliness exception set forth at

42 Pa.C.S.A. § 9545(b)(1)(iii)), a petitioner must demonstrate that the

Supreme Court of Pennsylvania has expressly held that Muniz applies

retroactively). Because at this time, no such holding has been issued by our

supreme court, even assuming that appellant met the 60-day requirement,

appellant would be unable to rely on Muniz to meet the timeliness exception

set forth at Subsection 9545(b)(1)(iii).

Having conducted an independent review of the record, we conclude

that the PCRA court lacked jurisdiction to review appellant’s petition, and we

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may not review the petition on appeal. We, therefore, grant

Attorney Deschler’s petition to withdraw and affirm the PCRA court’s order.

Petition to withdraw granted. Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 11/27/18

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