Opinion
J-S49008-18 No. 761 MDA 2018
10-10-2018
COMMONWEALTH OF PENNSYLVANIA v. ANTHONY GEORGE COTTON Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the PCRA Order May 1, 2018
In the Court of Common Pleas of Lancaster County Criminal Division at No(s): CP-36-CR-0002771-2013 BEFORE: SHOGAN, J., STABILE, J., and STEVENS, P.J.E. MEMORANDUM BY SHOGAN, J.:
Former Justice specially assigned to the Superior Court.
Appellant, Anthony George Cotton, appeals from the order denying his petition filed pursuant to the Post Conviction Relief Act ("PCRA"), 42 Pa.C.S. §§ 9541-9546. In addition, counsel for Appellant has filed 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), in which he requests permission to withdraw as counsel. We grant counsel's application to withdraw and affirm the order of the PCRA court.
In its opinion, the PCRA court summarized the history of this case as follows:
On September 24, 2013, Appellant entered into a negotiated guilty plea to one count of rape of a child, two counts of indecent assault of a person less than thirteen years of age, one count of unlawful contact with a minor, one count of corruption of minors, and one count of incest. (Notes of Testimony, Guilty Plea & Sentencing at 2) ("N.T."). During the hearing, Appellant was
informed that these were Megan's Law offenses which would require him to register with the Pennsylvania State Police ("PSP") for the rest of his life. (N.T. at 2, 19); see also Notification of Registration Requirements form. Appellant waived the requirement that a sexually violent predator ("SVP") assessment be completed prior to sentencing, and he agreed to immediately proceed to sentencing. (N.T. at 2); see also Waiver of Requirements form.
Following the guilty plea, the court imposed an aggregate sentence of 10 to 20 years incarceration, followed by 5 years of consecutive probation. (N.T. at 19-20). Moreover, all Megan's Law and Adam Walsh registration and verification requirements were imposed. Id. at 21. Additionally, the court directed that Appellant be evaluated by the Sexual Offenders Assessment Board to determine whether he met the criteria for an SVP. Id. An SVP hearing was then held on May 28, 2014, at which time Appellant was classified as an SVP. See 5/28/14 Order. Appellant did not file a direct appeal.
On November 27, 2017, Appellant filed a Motion for Post Conviction Collateral Relief, alleging that in light of the recent Pennsylvania Supreme Court case of Commonwealth v. Muniz, 164 A.3d 1189 (Pa. 2017), he has been subject to an unconstitutional application of SORNA.1 See PCRA Motion. Appellant sought modification of the Megan's Law requirements and removal of his SVP status. Id. On December 5, 2017, this court appointed PCRA counsel to represent Appellant. See 12/5/17 Order.
1 Pennsylvania's Sex Offender Registration and Notification Act ("SORNA") took effect on December 20, 2012, expressly providing for the expiration of all prior versions of Megan's Law as of that date. See 42 Pa.C.S.A. § 9799.41. SORNA then applied retroactively to any person who had not yet completed their registration period under prior registration statutes. See 42 Pa.C.S.A. § 9799.13. In Muniz, the Supreme Court concluded that SORNA's registration provisions were unconstitutional because they were punitive, thus violating the federal and state ex post facto clauses. 164 A.3d at 1223.
On January 29, 2018, PCRA counsel filed an amended PCRA motion claiming that Appellant is entitled to relief because Muniz created a substantive rule that applies retroactively in the collateral context. See Amended Motion for Post-Conviction Collateral Relief. Since Appellant committed these offenses prior to SORNA's effective date, counsel argues he cannot be constitutionally required to comply with the registration and verification requirements of SORNA. Id.2 Furthermore, pursuant to Commonwealth v. Butler, 173 A.3d 1212 (Pa. Super. 2017), Appellant argues that requiring him to be designated as an SVP violates his constitutional rights under the Federal and State Constitutions. Id.3
2 Appellant's offenses occurred between the dates of March 15, 2011 and December 1, 2012. See Information. At the time of the guilty plea on September 24, 2013, SORNA was applicable.
3 In Butler, the Superior Court concluded that 42 Pa.C.S.A. § 9799.24(e)(3) was unconstitutional because it identified the trial court as the finder of fact to designate an individual as an SVP and specified clear and convincing evidence as the burden of proof. 173 A.3d at 1217-18. Therefore, the requirement that appellant register as an SVP was illegal, and trial courts were no longer permitted to designate convicted defendants as SVPs or hold SVP hearings until the General Assembly enacted a designation mechanism that was constitutional. Id.
On February 27, 2018, the Commonwealth filed a response opposing the requested relief, asserting that the instant motion should be dismissed as untimely. See Commonwealth's Response to the Amended PCRA Motion. Specifically, the Commonwealth argued that the timeliness exception involving recently recognized constitutional rights to be applied retroactively does not apply in Appellant's case because neither the United States Supreme Court nor the Pennsylvania Supreme Court have ruled on the retroactivity of Muniz or Butler. Id.
Pursuant to the Rules of Criminal Procedure, this court conducted an independent review of the record and concluded that Appellant's amended PCRA motion was time-barred with no timeliness exception. Thus, on April 2, 2018, the PCRA court filed
a Rule 907 Notice stating its intent to dismiss the amended PCRA motion, while granting Appellant twenty days to file a response. See Rule 907 Notice. Appellant failed to respond, and on May 1, 2018, the court entered an order dismissing the amended PCRA motion. See Order, 5/1/18.PCRA Court Opinion, 5/22/18, at 1-3. On May 7, 2018, Appellant filed a timely notice of appeal. Both Appellant and the PCRA court have complied with Pa.R.A.P. 1925.
Prior to addressing the merits of Appellant's appeal, we must first decide whether counsel has fulfilled the procedural requirements for withdrawing his representation. Commonwealth v. Daniels , 947 A.2d 795, 797 (Pa. Super. 2008). This Court has set forth the conditions that must be satisfied before counsel will be permitted to withdraw in a collateral appeal:
Counsel petitioning to withdraw from PCRA representation must proceed ... under [ Turner , supra and Finley , supra and] ... must review the case zealously. Turner/Finley counsel must then submit a "no-merit" letter to the trial court, or brief on appeal to this Court, detailing the nature and extent of counsel's diligent review of the case, listing the issues which petitioner wants to have reviewed, explaining why and how those issues lack merit, and requesting permission to withdraw.Commonwealth v. Doty , 48 A.3d 451, 454 (Pa. Super. 2012) (citation omitted) (brackets in original).
Counsel must also send to the 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.
* * *
[W]here counsel submits a petition and no-merit letter that ... satisfy the technical demands of Turner/Finley , the court-trial court or this Court-must then conduct its own review of the merits of the case. If the court agrees with counsel that the claims are without merit, the court will permit counsel to withdraw and deny relief.
In the application filed with this Court and the documents appended thereto, counsel explained that he was appointed to represent Appellant at the PCRA proceedings and that he reviewed the case, evaluated the issues, conducted an independent review of the record, and concluded there were no issues of merit. Counsel also listed the issues relevant to this appeal in his no-merit letter and explained why the appeal is without merit. In addition, counsel averred that he served upon Appellant a copy of the application to withdraw, the no-merit letter, and a letter addressed to Appellant accompanying those documents. Thus, we will allow counsel to withdraw if, after our review, we conclude that the claims relevant to this appeal lack merit.
We note that counsel's first letter to Appellant was deficient; it incorrectly informed Appellant that his ability to respond to counsel's motion to withdraw was contingent upon this Court's ruling on the motion. In an order filed on June 25, 2018, this Court directed counsel to cure this error and inform Appellant that he had the immediate right to proceed pro se or with privately retained counsel. See Commonwealth v. Muzzy , 141 A.3d 509 (Pa. Super. 2016) (clarifying that counsel's letter to the client shall inform him that upon counsel's filing of petition to withdraw, he has the immediate right to proceed pro se or through privately retained counsel). In a letter dated July 2, 2018, counsel correctly apprised Appellant of his rights and cured the prior error.
We have discerned the following issue noted by PCRA counsel on behalf of Appellant in the Turner/Finley letter: "[Appellant] claims pursuant to Commonwealth v. Muniz , 164 A.3d 1189 (Pa. 2017) and Commonwealth v. Butler , (Pa. Super. 2017) that he cannot be constitutionally subject to registration under SORNA as a sexually violent predator." Turner/Finley letter, 6/18/18, at unnumbered 2.
When reviewing the propriety of an order denying PCRA relief, we consider the record "in the light most favorable to the prevailing party at the PCRA level." Commonwealth v. Stultz , 114 A.3d 865, 872 (Pa. Super. 2015) (quoting Commonwealth v. Henkel , 90 A.3d 16, 20 (Pa. Super. 2014) (en banc)). This Court is limited to determining whether the evidence of record supports the conclusions of the PCRA court and whether the ruling is free of legal error. Commonwealth v. Rykard , 55 A.3d 1177, 1183 (Pa. Super. 2012). We grant great deference to the PCRA court's findings that are supported in the record and will not disturb them unless they have no support in the certified record. Commonwealth v. Rigg , 84 A.3d 1080, 1084 (Pa. Super. 2014).
The PCRA court concluded that Appellant's PCRA petition was untimely. Trial Court Opinion, 5/22/18, at 8. The timeliness of a PCRA petition is a jurisdictional threshold that may not be disregarded in order to reach the merits of the claims raised in a PCRA petition that is untimely. Commonwealth v. Lawson , 90 A.3d 1, 4 (Pa. Super. 2014) (citing Commonwealth v. Murray , 753 A.2d 201, 203 (Pa. 2000)). In the case at bar, Appellant pled guilty to aforementioned charges and waived a presentence SVP determination. The trial court sentenced Appellant on September 24, 2013, and he was adjudicated an SVP on May 28, 2014. He did not file post-sentence motions or a direct appeal to this Court, and Appellant's judgment of sentence became final thirty days later on June 27, 2014. See Commonwealth v. Schrader , 141 A.3d 558, 561 (Pa. Super. 2016) (holding that where a defendant pleads guilty and waives a presentence SVP determination, the judgment of sentence cannot become final until the SVP determination is made); see also Pa.R.A.P. 903(a) (notice of appeal shall be filed within thirty days after the entry of the order from which the appeal is taken); see also 42 Pa.C.S. § 9545(b)(3) (for purposes of calculating the timeliness of a petition, 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 time for seeking the review"). Thus, Appellant had until June 27, 2015, to file a timely PCRA petition. See 42 Pa.C.S. § 9545(b)(1) (A PCRA petition, "including a second or subsequent petition, shall be filed within one year of the date the judgment becomes final. . . ."). Appellant filed the instant PCRA petition on November 27, 2017, and therefore, the petition is facially untimely.
Nevertheless, the PCRA's jurisdictional time bar can be overcome by satisfying one of the three statutory exceptions codified at 42 Pa.C.S. § 9545(b)(1)(i)-(iii). Commonwealth v. Spotz , 171 A.3d 675, 678 (Pa. 2017). Further, "[a]ny petition invoking an exception . . . shall be filed within 60 days of the date the claim could have been presented." 42 Pa.C.S. § 9545(b)(2). The PCRA petitioner bears the burden of proving the applicability of one of the exceptions. Commonwealth v. Edmiston , 65 A.3d 339, 346 (Pa. 2013).
The exceptions to the timeliness requirement are:
(i) the failure to raise the claim previously was the result of interference by government officials with the presentation of the claim in violation of the Constitution or laws of this Commonwealth or the Constitution or laws of the United States;42 Pa.C.S. § 9545(b)(1)(i), (ii), and (iii).
(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; or
(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 and has been held by that court to apply retroactively.
In Commonwealth v. Muniz , 164 A.3d 1189 (Pa. 2017), our Supreme Court held that retroactive application of the registration and reporting requirements of SORNA, 42 Pa.C.S. §§ 9799.10-9799.42, violated the ex post facto clauses of the United States and Pennsylvania Constitutions. Muniz , 164 A.3d at 1223. Appellant contends that the decision in Muniz satisfies the newly recognized constitutional right exception to the PCRA's time bar. See 42 Pa.C.S. § 9545(b)(1)(iii). In Commonwealth v. Murphy , 180 A.3d 402 (Pa. Super. 2018), our Court rejected this argument:
Appellant's reliance on Muniz cannot satisfy the timeliness exception of Section 9545(b)(1)(iii). In Commonwealth v. Abdul-Salaam , 812 A.2d 497 (Pa. 2002), our Supreme Court held that,
subsection (iii) of Section 9545 has two requirements. First, it provides that the right asserted is a constitutional right that was recognized by the Supreme Court of the United States or this Court after the time provided in this section. Second, it provides that the right "has been held" by "that court" to apply retroactively. Thus, a petitioner must prove that there is a "new" constitutional right and that the right "has been held" by that court to apply retroactively. The language "has been held" is in the past tense. These words mean that the action has already occurred, i.e.,"that court" has already held the new constitutional right to be retroactive to cases on collateral review. By employing the past tense in writing this provision, the legislature clearly intended that the right was already recognized at the time the petition was filed.
Murphy , 180 A.3d at 405-406. Accordingly, Appellant has failed to satisfy an exception to the PCRA's time bar. Therefore, we affirm the PCRA court's order denying Appellant's untimely PCRA petition.
Id. at 501.
Here, we acknowledge that this Court has declared 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). However, because Appellant's PCRA petition is untimely (unlike the petition at issue in Rivera-Figueroa ), he must demonstrate that the Pennsylvania Supreme Court has held that Muniz applies retroactively in order to satisfy Section 9545(b)(1)(iii). See [ Commonwealth v.] Abdul-Salaam , [812 A.2d 497 (Pa. 2002)]. Because at this time, no such holding has been issued by our Supreme Court, Appellant cannot rely on Muniz to meet that timeliness exception.
"Certainly, if the Pennsylvania Supreme Court issues a decision holding that Muniz applies retroactively, [an a]ppellant can then file a PCRA petition, within 60 days of that decision, attempting to invoke the 'new retroactive right' exception of section 9545(b)(1)(iii)." Murphy , 180 A.3d at 406 n.1.
In conclusion, because Appellant's PCRA petition was untimely and no exceptions apply, the PCRA court lacked jurisdiction to address the issues presented and grant relief. See Commonwealth v. Fairiror , 809 A.2d 396, 398 (Pa. Super. 2002) (holding that PCRA court lacks jurisdiction to hear untimely petition). Likewise, we lack the authority to address the merits of any substantive claims raised in the PCRA petition. See Commonwealth v. Bennett , 930 A.2d 1264, 1267 (Pa. 2007) ("[J]urisdictional time limits go to a court's right or competency to adjudicate a controversy."). Furthermore, after our independent review of the record, we conclude that there are no meritorious issues upon which Appellant may obtain relief. Having determined that Appellant is not entitled to PCRA relief, we grant counsel's application to withdraw pursuant to Turner/Finley .
Application to withdraw as counsel granted. Order affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 10/10/2018