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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
TERRY WAYNE KLINGENSMITH, : No. 677 WDA 2018
:
Appellant :
Appeal from the PCRA Order, March 26, 2018,
in the Court of Common Pleas of Jefferson County
Criminal Division at No. CP-33-CR-0000234-2012
BEFORE: OLSON, J., MURRAY, J., AND FORD ELLIOTT, P.J.E.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED SEPTEMBER 28, 2018
Terry Wayne Klingensmith appeals pro se from the March 26, 2018
order dismissing his petition filed pursuant to the Post Conviction Relief Act
(“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. After careful review, we affirm.
A previous panel of this court provided the following factual and
procedural history:
On July 7, 1992, [appellant] pled guilty to rape,
statutory rape, involuntary deviate sexual
intercourse (“IDSI”), and other lesser-included
offenses.[Footnote 2] The trial court sentenced him
to an aggregate sentence of five to 20 years’
incarceration. On January 24, 2000, he was paroled.
While on parole, [appellant] committed a technical
violation and was re-incarcerated on May 16, 2001.
On January 22, 2008, he executed a request to serve
his maximum sentence, indicating that he did not
wish to be considered for parole. Consequently,
[appellant] remained incarcerated until his maximum
date of September 5, 2011. After his release,
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[appellant] resided at the Just for Jesus shelter in
Snyder Township, Jefferson County, Pennsylvania.
[Footnote 2] 18 Pa.C.S.[A.] §§ 3121,
3122, and 3123, respectively.
Shortly thereafter, [appellant] moved to Arizona. In
an affidavit of probable cause sworn to on
October 26, 2011, Trooper Carol Ponce of the
Pennsylvania State Police averred that [appellant]
had departed from the Just for Jesus facility nearly
three weeks earlier and, as of October 21, 2011, he
had failed to register a current address as required
by law. Subsequently, [appellant] was located and
extradited to Jefferson County.
On July 16, 2012, he was charged with failure to
comply with registration pursuant to
Section 4915(a)(2) of the Pennsylvania Crimes Code.
On August 9, 2012, the Commonwealth filed a
motion for nolle prosequi, stating that the offense
was inapplicable to [appellant]. The motion was
originally granted by the Honorable John B. Leete, a
visiting senior judge, on the same day. Four days
later, the Honorable John Henry Foradora, President
Judge, vacated Judge Leete’s order and set the
matter for a hearing, which was held on August 23,
2012. Subsequently, the court denied the
Commonwealth’s motion for nolle prosequi.
A trial was scheduled for September 14, 2012. On
that day, the court, sitting without a jury, found
[appellant] guilty of failure to comply with
registration pursuant to Section 4915(a)(2). On
September 19, 2012, the court sentenced
[appellant] to a period of 210 days to 10 years’
incarceration.
Commonwealth v. Klingensmith, No. 1459 WDA 2012, unpublished
memorandum at 2-3 (Pa.Super. filed March 24, 2014).
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Appellant appealed from the judgment of sentence and this court
affirmed on March 24, 2014. Id. On August 17, 2017, appellant filed a
pro se petition pursuant to the PCRA, alleging that our supreme court’s
decision in Commonwealth v. Muniz, 164 A.3d 1189 (Pa. 2017), applied
retroactively and thus the registration requirements under
Section 4915(a)(2) did not apply to him. On August 23, 2017, the PCRA
court appointed George N. Daghir, Esq., to represent appellant.
Attorney Daghir filed a Turner/Finley1 no-merit letter and petition to
withdraw on March 2, 2018. On that same day, the PCRA court issued a
notice of intent to dismiss appellant’s PCRA petition without a hearing
pursuant to Pa.R.Crim.P. 907 and granted Attorney Daghir’s petition to
withdraw. The PCRA court dismissed appellant’s PCRA petition on March 26,
2018.
Appellant filed a timely notice of appeal to this court on April 16, 2018.
The PCRA court ordered appellant to file a concise statement of errors
complained of on appeal pursuant to Pa.R.A.P. 1925(b) on May 10, 2018.
Appellant timely complied with the PCRA court’s order. The PCRA court filed
an opinion pursuant to Pa.R.A.P. 1925(a) in which it incorporated the
contents of Attorney Daghir’s Turner/Finley letter on May 14, 2018.
Appellant raises the following issues for our review:
1 See Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and
Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc).
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A. Notwithstanding the recent decision by the
Superior Court in [Commonwealth] v.
Murphy, [180 A.3d 402 (Pa.Super. 2018)],
the [PCRA] court erred as a matter of law in
dismissing [appellant’s] 2017 petition under
the Post-Conviction Relief Act by holding that
the decision of the Supreme Court of
Pennsylvania in [Commonwealth] v. Muniz,
164 A.3d 1189 [(Pa. 2017)], does not create
an exemption of the timeliness requirement
under 42 Pa.C.S.A. § 9545(b)(1)(iii) where the
decision in Muniz clearly renders [appellant’s]
conviction a nullity.
B. The [PCRA] court erred as a matter of law in
relying solely on the decision in Muniz as the
starting point for timeliness where the
subsequent enactment of Act 10 of 2018 on
February 21, 2018 alternately serves as the
proper starting point because it, rather than
Muniz, states that [appellant] is not subject to
the provisions of 18 Pa.C.S.A. § 4915.
C. The [PCRA] court erred as a matter of law in
concluding that [appellant’s] conviction under
18 Pa.C.S.A. § 4915 was not void ab initio
since [appellant] stands convicted through an
unconstitutional application of said statute.
Appellant’s brief at 3.
When reviewing a PCRA court’s dismissal of a petition under the PCRA,
we are governed by the following standard:
Our standard of review of an order denying PCRA
relief is whether the record supports the PCRA
court’s determination, and whether the PCRA court’s
determination is free of legal error.
Commonwealth v. Phillips, 31 A.3d 317, 319
(Pa.Super. 2011), appeal denied, [] 42 A.3d 1059
([Pa.] 2012) (citing Commonwealth v. Berry, 877
A.2d 479, 482 (Pa.Super. 2005)). The PCRA court’s
findings will not be disturbed unless there is no
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support for the findings in the certified record. Id.
(citing Commonwealth v. Carr, 768 A.2d 1164,
1166 (Pa.Super. 2001)).
It is undisputed that a PCRA petition must be filed
within one year of the date that the judgment of
sentence becomes final. 42 Pa.C.S.A. § 9545(b)(1).
This time requirement is mandatory and
jurisdictional in nature, and the court may not ignore
it in order to reach the merits of the petition.
Commonwealth v. Murray, [] 753 A.2d 201, 203
([Pa.] 2000). A judgment of sentence “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.” 42 Pa.C.S.A. § 9545(b)(3).
However, an untimely petition may be received when
the petition alleges, and the petitioner proves, that
any of the three limited exceptions to the time for
filing the petition, set forth at 42 Pa.C.S.A.
§ 9545(b)(1)(i), (ii), and (iii), is met.[Footnote 1] A
petition invoking one of these exceptions must be
filed within sixty days of the date the claim could
first have been presented. 42 Pa.C.S.A.
§ 9545(b)(2). In order to be entitled to the
exceptions to the PCRA’s one-year filing deadline,
“the petitioner must plead and prove specific facts
that demonstrate his claim was raised within the
sixty-day time frame” under section 9545(b)(2).
Carr, 768 A.2d at 1167.
[Footnote 1] 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
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Constitution or laws of the
United States;
(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.
42 Pa.C.S.A. § 9545(b)(1)(i), (ii), and
(iii).
Commonwealth v. Hernandez, 79 A.3d 649, 651-652 (Pa.Super. 2013).
In the instant case, this court affirmed appellant’s judgment of
sentence on March 24, 2014, and appellant did not file a petition for
allocatur with our supreme court. Accordingly, appellant’s judgment of
sentence became final on April 23, 2014. See Pa.R.A.P. 903(a). Appellant
filed the instant petition on August 17, 2017—more than three years after
his judgment of sentence became final and more than two years after a
PCRA petition could be considered timely. See 42 Pa.C.S.A. § 9545(b)(1).
As noted above, the PCRA does enumerate exceptions to the one-year
requirement. Here, appellant is relying on our supreme court’s recent
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holding that a retroactive application of the Sexual Offender Registration and
Notification Act’s (“SORNA”) registration provisions is unconstitutional, as it
violates the ex post facto prohibitions contained within both the United
States and Pennsylvania Constitutions. Muniz, 164 A.3d at 1223. Shortly
after our supreme court announced its decision in Muniz, this court
determined that the holding in Muniz “should be retroactively applied in
state collateral courts to comply with the United States and Pennsylvania
Constitutions.” Commonwealth v. Rivera-Figueroa, 174 A.3d 674, 678
(Pa.Super. 2017), citing Montgomery v. Louisiana, 136 S.Ct. 718, 734
(2016).
Most recently, in Commonwealth v. Murphy, 180 A.3d 402
(Pa.Super. 2018), a case involving an untimely PCRA petition, we held that
the defendant was required to demonstrate that the Supreme Court of
Pennsylvania has held Muniz applies retroactively in order to satisfy the
time-bar exception of 42 Pa.C.S.A. § 9454(b)(1)(iii) (new constitutional right
exception), and because, currently, no such holding has been issued by our
supreme court, a defendant cannot rely on Muniz to meet that timeliness
exception. Murphy, 180 A.3d at 405-406.
The Murphy court acknowledged the holding in Rivera-Figueroa and
distinguished the case before it from Rivera-Figueroa. Id. In Murphy,
similar to the case before us, the defendant’s petition was untimely. Id. at
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405. To the contrary, the petition at issue in Rivera-Figueroa was timely
filed. Rivera-Figueroa, 174 A.3d at 677.
Consequently, because appellant’s petition is untimely and our
supreme court has not held that Muniz applies retroactively to satisfy the
new constitutional right exception to the one-year time-bar, appellant’s
petition is untimely, and we do not have jurisdiction to consider appellant’s
appeal on its merits.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/28/2018
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