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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
KENNETH A. DILTS, :
:
Appellant : No. 1293 WDA 2018
Appeal from the PCRA Order Entered August 6, 2018
in the Court of Common Pleas of Jefferson County
Criminal Division at No(s): CP-33-CR-0000207-2015
BEFORE: PANELLA, P.J., LAZARUS, J. and STRASSBURGER, J.*
MEMORANDUM BY STRASSBURGER, J.: FILED APRIL 25, 2019
Kenneth A. Dilts (Appellant) appeals pro se from the August 6, 2018
order dismissing his petition filed under the Post Conviction Relief Act
(PCRA), 42 Pa.C.S. §§ 9541-9546. Upon review, we affirm.
On September 16, 2015, Appellant pleaded guilty to one count of
failure to comply with Megan’s Law1 registration requirements. N.T.,
9/16/2015, at 3. He was sentenced the same day to serve 40 to 80 months
of incarceration to be followed by 40 months of probation. Neither a post-
sentence motion nor a direct appeal was filed.
1 18 Pa.C.S. § 4915.1(a)(1) (failing to register with the Pennsylvania State
Police). Appellant had been convicted of rape and other related offenses in
Clarion County on September 29, 1999, requiring him to register for life as a
sex offender.
* Retired Senior Judge assigned to the Superior Court.
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In June of 2018,2 Appellant wrote a letter to the trial court, which the
trial court construed to be Appellant’s first PCRA petition. On June 21, 2018,
the PCRA court appointed counsel to represent Appellant, and on July 13,
2018, counsel filed a petition to withdraw and 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). Specifically, PCRA
counsel concluded that Appellant’s petition was untimely filed, and our
Supreme Court’s decision in Commonwealth v. Muniz, 164 A.3d 1189 (Pa.
2017) (holding that certain registration provisions of Pennsylvania’s Sex
Offender Registration and Notification Act (SORNA) are punitive and
retroactive application of those provisions violates the federal ex post facto
clause, as well as the ex post facto clause of the Pennsylvania constitution),
was not applicable to Appellant retroactively in this untimely-filed PCRA
petition. Counsel’s No-Merit Letter, 7/13/2018, at 4-5. See Commonwealth
v. Murphy, 1880 A.3d 402 (Pa. Super. 2018).3
2 Because this filing is not included in the certified record, the exact date is
unclear, but all parties agree that it occurred in June of 2018. See
Appellant’s Brief at 3 (stating that he “wrote a letter to the trial court
questioning his appeal rights” on June 13, 2018); No-Merit Letter,
7/13/2018, at 2 (“Thereafter [Appellant] posted correspondence to the court
dated June 13, 2013…. PCRA counsel was unable to locate and view the
correspondence to the court[.]”).
3PCRA counsel also suggests that Appellant believes his sentence should be
vacated based upon our Supreme Court’s holding in Commonwealth v.
Neiman, 84 A.3d 603 (Pa. 2013) (declaring unconstitutional Act 152, which
(Footnote Continued Next Page)
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The PCRA court granted counsel’s petition to withdraw, and issued
notice of its intent to dismiss Appellant’s PCRA petition pursuant to
Pa.R.Crim.P. 907. In that notice, the PCRA court stated that it reviewed the
no-merit letter, conducted its “own independent review,” and concluded that
the issues are meritless. Order of Court, 7/16/2018. Appellant did not file a
response, and on August 6, 2018, the PCRA court dismissed Appellant’s
petition. Appellant timely filed a notice of appeal.
The PCRA court issued an order directing Appellant to file a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925.
Appellant timely filed a concise statement raising the issue that Muniz,
supra, should apply to him retroactively. Concise Statement, 12/10/2018,
at 1. The PCRA court filed an opinion pursuant to Pa.R.A.P. 1925(a), which
once again adopted the findings and conclusions set forth in the no-merit
letter.4 PCRA Court Opinion, 12/12/2018.
In considering the issues Appellant presents on appeal, we must
address whether this PCRA petition was filed timely, as neither this Court nor
(Footnote Continued) _______________________
included Megan’s Law III provisions). No-Merit Letter, 7/13/2018. PCRA
counsel does not provide an analysis of this issue in his no-merit letter.
4 We note with disapproval the PCRA court’s adopting the counsel’s no-merit
letter as its Pa.R.Crim.P. 907 notice and Pa.R.A.P. 1925(a) opinion. See
Commonwealth v. Glover, 738 A.2d 460 (Pa. Super. 1999) (holding that it
is improper for a PCRA court to adopt an attorney’s no-merit letter in lieu of
writing an opinion); Commonwealth v. Fulton, 876 A.2d 342 (Pa. 2002)
(holding that the PCRA court erred in adopting Commonwealth’s motion to
dismiss in lieu of authoring an independent opinion). However, based on our
result as discussed infra, we conclude remand is not necessary in this case.
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the PCRA court has jurisdiction to address the merits of an untimely-filed
petition. Commonwealth v. Leggett, 16 A.3d 1144, 1145 (Pa. Super.
2011).
Any PCRA petition, including second and subsequent petitions, must
either (1) be filed within one year of the judgment of sentence becoming
final, or (2) plead and prove a timeliness exception. 42 Pa.C.S. § 9545(b).
Furthermore, the petition “shall be filed within one year of the date the claim
could have been presented.”5 42 Pa.C.S. § 9545(b)(2).
“For purposes of [the PCRA], 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.
§ 9545(b)(3). Here, Appellant was sentenced on September 16, 2015, and
he did not file a post-sentence motion or direct appeal. Thus, his judgment
of sentence became final 30 days later, on October 16, 2015, and he had
one year, until October 17, 2016, to file timely a PCRA petition. Thus,
Appellant’s June 2018 filing is facially untimely, and he was required to plead
and prove an exception to the timeliness requirements.
5 On October 24, 2018, this subsection was amended to extend the
timeframe from 60 days to one year, effective for claims aising on December
24, 2017 or thereafter. Because Appellant’s PCRA petition was filed in June
of 2018, one-year timeframe applies.
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On appeal, Appellant claims that he satisfies the newly-discovered
facts exception pursuant to 42 Pa.C.S. § 9545(b)(1)(ii) (“Any petition under
this subchapter, including a second or subsequent petition, shall be filed
within one year of the date the judgment becomes final, unless the petition
alleges and the petitioner proves that …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.”). Appellant’s Brief at 4.
Appellant argues that the Supreme Court’s decision in Neiman, supra, “was
known or should have been known to trial counsel prior to Appellant’s
involuntary plea.” Id. at 5. In addition, Appellant argues that he is innocent
of the crime to which he pleaded guilty, and trial counsel was ineffective for
failing to investigate the underlying facts. Id. at 5-6. Furthermore, Appellant
claims that trial counsel was ineffective for failing to file a requested direct
appeal, and Appellant did not learn of this failure until he wrote to the trial
court in June of 2018. Id. at 7.
First, Appellant did not raise any of the aforementioned issues in his
Pa.R.A.P. 1925(b) statement; therefore, they are waived. See Pa.R.A.P.
1925(b)(vii) (“Issues not included in the Statement and/or not raised in
accordance with the provisions of this paragraph (b)(4) are waived.”). Thus,
he is not entitled to relief.
Even if Appellant did not waive these issues, he has still not pleaded
and proven facts which satisfy the timeliness requirements. “It is well
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settled that allegations of ineffective assistance of counsel will not overcome
the jurisdictional timeliness requirements of the PCRA.” Commonwealth v.
Wharton, 886 A.2d 1120, 1127 (Pa. 2005). Thus, Appellant’s suggestions
that trial counsel was ineffective for not seeking relief based upon Neiman,
supra, and for not investigating Appellant’s case more thoroughly, cannot
overcome the jurisdictional timeliness requirements.
Finally, with respect to Appellant’s contention that trial counsel was
ineffective for failing to file a requested direct appeal, Appellant was required
to plead when he discovered that no appeal had been filed. In addition, the
PCRA requires a petitioner to act with due diligence to make this discovery.
42 Pa.C.S. § 9545(b)(1)(ii). “[D]ue diligence requires neither perfect
vigilance nor punctilious care, but rather it requires reasonable efforts by a
petitioner, based on the particular circumstances, to uncover facts that may
support a claim for collateral relief.” Commonwealth v. Burton, 121 A.3d
1063, 1071 (Pa. Super. 2015). “A petitioner must explain why [he or] she
could not have learned the new fact earlier with the exercise of due
diligence.” Commonwealth v. Shiloh, 170 A.3d 553, 558 (Pa. Super.
2017). Here, Appellant has offered no explanation as to why he waited
nearly three years to write to the trial court. Thus, Appellant has not
pleaded any facts to support a contention that he acted with due diligence.
Thus, even if these issues had been preserved in Appellant’s Pa.R.A.P.
1925(b) statement, Appellant would not have been entitled to relief.
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Based on the foregoing, we conclude that Appellant’s petition was
untimely filed, and he has not asserted an exception to the timeliness
requirements. Thus, he is not entitled to relief.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/25/2019
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