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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
MICHAEL RYAN BOYES
Appellant No. 2986 EDA 2018
Appeal from the PCRA Order Dated September 6, 2018
In the Court of Common Pleas of Delaware County
Criminal Division at No.: CP-23-CR-0001479-2015
BEFORE: STABILE, J., MURRAY, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY STABILE, J.: FILED JUNE 25, 2019
Appellant Michael Ryan Boyes appeals from the September 6, 2018
order entered in the Court of Common Pleas of Delaware County (“PCRA
court”), which dismissed as untimely his second petition under the Post
Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-46. PCRA counsel has filed a no-
merit brief and petitioned to withdraw under Turner/Finley.1 Upon review,
we affirm and grant the petition to withdraw.
The facts and procedural history of this case are undisputed. Briefly, in
connection with a 2015 incident involving a minor, Appellant entered into a
negotiated guilty plea to one count of solicitation of involuntary deviate sexual
intercourse (“IDSI”) of a person under the age of sixteen,2 a Tier III offense
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1Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth v.
Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
2 18 Pa.C.S.A. §§ 902 and 3123(a)(7).
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requiring a lifetime registration under the Pennsylvania’s Sex Offender
Registration and Notification Act (“SORNA”), 42 Pa.C.S.A. §§ 9799.14(d),
9799.15(a)(3). On October 19, 2015, consistent with the negotiated plea, the
trial court sentenced Appellant to two and one-half to five years’
imprisonment, followed by five years’ probation. The trial court also subjected
Appellant to SORNA’s lifetime registration requirement, as contemplated by
the plea agreement. Appellant did not file a direct appeal. Appellant’s
judgment of sentence became final on November 18, 2015.
On September 19, 2016, Appellant pro se filed a PCRA petition, his first,
asserting, inter alia, ineffective assistance of counsel claims. The PCRA court
appointed counsel who then filed a no-merit letter pursuant to Turner/Finley
and petitioned to withdraw from the case. On March 15, 2017, the PCRA court
granted counsel’s petition and issued a Pa.R.Crim.P. 907 notice of its intent to
dismiss Appellant’s PCRA petition without a hearing. Appellant did not file a
response to the PCRA court’s Rule 907 notice. On April 18, 2017, the PCRA
court denied Appellant PCRA relief without a hearing. Appellant did not file an
appeal.
On November 27, 2017, Appellant pro se filed a petition for writ of
habeas corpus, raising a claim under Commonwealth v. Muniz, 164 A.3d
1189 (Pa. 2017).3 Treating the writ of habeas corpus as Appellant’s second
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3In Muniz, our Supreme Court held that SORNA’s registration provisions are
punitive, and retroactive application of SORNA’s provisions violates the federal
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PCRA petition, the PCRA court appointed counsel, who subsequently filed an
amended petition.4 The Commonwealth filed a motion to dismiss the petition.
On August 17, 2018, the PCRA court filed a Rule 907 notice of its intent to
dismiss without a hearing the amended PCRA petition. On September 6, 2018,
the PCRA court dismissed as untimely Appellant’s second PCRA petition, as
subsequently amended by appointed counsel. Appellant appealed to this
Court. The PCRA court directed Appellant to file a Pa.R.A.P. 1925(b)
statement of errors complained of on appeal. Appellant complied, raising a
single assertion of error.
Was the [PCRA] court in error for dismissing Appellant’s
petition for post conviction relief which argued that his sentence
was unconstitutional pursuant to [Muniz] as [i]t pertains to his
lifetime registration requirements?
Appellant’s Rule 1925(b) Statement, 10/31/18.
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ex post facto clause, as well as the ex post facto clause of the Pennsylvania
Constitution.
4 It is well settled that the PCRA is intended to be the “sole means of obtaining
collateral relief.” 42 Pa.C.S. § 9542; see also Commonwealth v. Peterkin,
722 A.2d 638, 640 (Pa. 1998). So long as the PCRA provides a potential
remedy to a given claim, “the PCRA statute subsumes the writ of habeas
corpus.” Commonwealth v. Taylor, 65 A.3d 462, 465-66 (Pa. Super. 2013)
(citation omitted). A challenge to the legality of sentence is cognizable under
the PCRA. 42 Pa.C.S. § 9543(a)(2)(vii); see also Commonwealth v. Beck,
848 A.2d 987, 989 (Pa. Super. 2004). When raising a challenge to the legality
of his sentence, “a defendant cannot escape the PCRA time-bar by titling his
petition or motion as a writ of habeas corpus.” Commonwealth v. Taylor,
65 A.3d 462, 466 (Pa. Super. 2013).
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On January 10, 2019, Appellant’s PCRA counsel filed in this Court an
application to withdraw as counsel and a no-merit letter, wherein counsel
repeats the claim under Muniz. See Turner/Finley Brief at 4.
Before we may consider this issue, we must address whether PCRA
counsel has met the requirements of Turner/Finley. For PCRA counsel to
withdraw under Turner/Finley in this Court:
(1) PCRA counsel must file a no-merit letter that details the
nature and extent of counsel’s review of the record; lists the
appellate issues; and explains why those issues are
meritless.
(2) PCRA counsel must file an application to withdraw; serve the
PCRA petitioner with the application and the no-merit letter;
and advise the petitioner that if the Court grants the motion
to withdraw, the petitioner can proceed pro se or hire his
own lawyer.
(3) This Court must independently review the record and agree
that the appeal is meritless.
See Commonwealth v. Widgins, 29 A.3d 816, 817-18 (Pa. Super. 2011)
(citing or quoting Turner, Finley, Commonwealth v. Pitts, 981 A.2d 875
(Pa. 2009), and Commonwealth v. Friend, 896 A.2d 607 (Pa. Super. 2008),
overruled in part by, Pitts).
We find that PCRA counsel has complied with Turner/Finley. PCRA
counsel has petitioned for leave to withdraw and filed an Anders brief, which
we accept in lieu of a Turner/Finley no-merit letter.5 Finally, PCRA counsel
informed Appellant of his right to hire a new lawyer or file a pro se response.
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5Anders v. California, 386 U.S. 738 (1967), sets forth the requirements to
withdraw on direct appeal, which are more stringent than the Turner/Finley
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We now turn to this appeal to determine whether it is indeed meritless.
“On appeal from the denial of PCRA relief, our standard of review requires us
to determine whether the ruling of the PCRA court is supported by the record
and free of legal error.” Widgins, 29 A.3d at 819.
Before we may address the merits of this appeal, however, we must
determine whether the PCRA court had jurisdiction to entertain the underlying
PCRA petition. The PCRA contains the following restrictions governing the
timeliness of any PCRA petition.
(b) Time for filing petition.--
(1) 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:
(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;
(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.
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requirements that apply on collateral appeal. See Widgins, 29 A.3d at 817
n.2. “Because an Anders brief provides greater protection to a defendant,
this Court may accept an Anders brief in lieu of a Turner/Finley letter.” Id.
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(2) Any petition invoking an exception provided in paragraph (1)
shall be filed within 60 days of the date the claim could have been
presented.
(3) For purposes of this subchapter, 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.
42 Pa.C.S.A. § 9545(b). Section 9545’s timeliness provisions are
jurisdictional. Commonwealth v. Ali, 86 A.3d 173, 177 (Pa. 2014).
Additionally, we have emphasized repeatedly that “the PCRA confers no
authority upon this Court to fashion ad hoc equitable exceptions to the PCRA
time-bar in addition to those exceptions expressly delineated in the Act.”
Commonwealth v. Robinson, 837 A.2d 1157, 1161 (Pa. 2003) (citations
omitted).
Here, the record reflects Appellant’s judgment of sentence became final
on November 18, 2015. See 42 Pa.C.S.A. § 9545(b)(3); Pa.R.A.P. 903(a).
Because Appellant had one year from November 18, 2015, to file his PCRA
petition, the current filing raising the Muniz issue is facially untimely given it
was filed on November 27, 2017.
The one-year time limitation, however, can be overcome if a petitioner
alleges and proves one of the three exceptions set forth in Section
9545(b)(1)(i)-(iii) of the PCRA. Here, Appellant invokes the time-bar
exception of Section 9545(b)(1)(iii) of the PCRA in arguing, without citing any
legal authority, that that our Supreme Court’s decision in Muniz created a
new substantive right that applies retroactively. Our Supreme Court has set
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forth a two-part test to determine the applicability of Section 9545(b)(1)(iii) to
a new decision:
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
[C]ourt 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.
Commonwealth v. Abdul–Salaam, 571 Pa. 219, 812 A.2d 497, 501 (2002).
We recently addressed a similar claim under Section 9545(b)(1)(iii) in
Commonwealth v. Murphy, 180 A.3d 402 (Pa. Super. 2018). In Murphy,
we explained:
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 [the a]ppellant’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 [S]ection
9545(b)(1)(iii). Because at this time, no such holding has been
issued by our Supreme Court, Appellant cannot rely on Muniz to
meet that timeliness exception.
Murphy, 180 A.3d at 405-06 (emphasis in original) (citations omitted).
Consistent with Murphy, Appellant obtains no relief sub judice because, to
date, our Supreme Court has not held Muniz to apply retroactively to meet
the Section 9545(b)(1)(iii) exception. Accordingly, we affirm the PCRA court’s
order, as Appellant’s petition is untimely.
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Upon conducting our independent review of the record, we conclude that
this appeal is in fact meritless.
Order affirmed. Petition to withdraw granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/25/19
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