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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
DAVID MCCOMB
Appellant No. 2129 EDA 2018
Appeal from the PCRA Order Entered June 22, 2018
In the Court of Common Pleas of Bucks County
Criminal Division at No.: CP-09-CR-0001953-2014
BEFORE: GANTMAN, P.J.E., STABILE, J., and STEVENS, P.J.E.*
MEMORANDUM BY STABILE, J.: FILED OCTOBER 02, 2019
Appellant David McComb appeals from the June 22, 2018 order entered
in the Court of Common Pleas of Bucks County (“PCRA court”), which
dismissed as untimely his 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. As
recounted by the PCRA court:
Appellant was convicted of rape, kidnapping, and
aggravated assault in 1983. While serving his sentence, Megan’s
Law I was enacted on October 24, 1995 which applied
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* Former Justice specially assigned to the Superior Court.
1Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth v.
Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
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retroactively to sexual offenders who were convicted before the
effective date of the statute and were still serving sentences at
the time the law was enacted. As a result of the conviction, the
Petitioner has been required to register under Megan's Law and
subsequent versions for life.
On February 19, 2014, Appellant voluntarily arrived at the
Pennsylvania State Police Trevose Barracks to update his
information for Megan’s Law Registration. He told the State
Trooper that he had lost his job, car, and moved three days prior.
Upon exiting the barracks, the Trooper saw Appellant drive away
in a car Appellant did not mention and there was a woman with
him. When the Trooper stopped Appellant in the parking lot, the
woman identified herself as Appellant’s sister but then admitted
she was his wife. In addition, the registered owner of the vehicle
was Appellant. The wife informed the Trooper that Appellant had
been residing at his new address and lost his job earlier than three
days ago.
On June 10, 2014, Appellant pleaded guilty to Failure to
Provide Accurate Registration Information [(18 Pa.C.S.A. §
4915.1(a)(3))] and Failure to Register with Pennsylvania State
Police [(18 Pa.C.S.A. § 4915.1(a)(1))]. He was sentenced to not
less than five years imprisonment nor more than twenty years.
Appellant filed his Motion for Reconsideration of Sentence on June
16, 2014. Appellant then withdrew his motion on July 31, 2014.[2]
On January 24, 2018, Appellant filed a pro se [PCRA]
Petition. Appointed counsel filed an amended PCRA petition on
May 2, 2018. [Appellant] argued that he was entitled to relief
under Commonwealth v. Muniz, 164 A.3d 1189 (Pa. 2017),[3]
because a retroactive application of SORNA violates the ex post
facto clauses of the United States and Pennsylvania Constitutions.
After reviewing the matter in its entirety, this Court issued
a Notice of Intent to Dismiss Pursuant to Pa.R.Crim.P. 907 on May
29, 2018. This Court dismissed the PCRA petition because it was
untimely and Appellant did not meet an exception because Muniz
does not apply retroactively on collateral review to untimely PCRA
petitions.
Appellant filed his response on June 18, 2018 arguing that
he was unrepresented by counsel at the time of the [Muniz]
decision and therefore had no one to file his PCRA petition. On
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2 Appellant did not file a direct appeal.
3In Muniz, our Supreme Court held that SORNA’s registration provisions are
punitive, and retroactive application of SORNA’s provisions violates the federal
ex post facto clause, as well as the ex post facto clause of the Pennsylvania
Constitution.
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June 21, 2018, th[e PCRA court] dismissed the PCRA petition
without a hearing due to lack of jurisdiction.
PCRA Court Opinion, 1/7/19, at 1-2 (footnotes omitted). Appellant timely
appealed. Both Appellant and the PCRA court complied with Pa.R.A.P. 1925.
On May 20, 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 12-20.
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 filed an application to withdraw and filed a Turner/Finley no-
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merit letter. Finally, PCRA counsel informed Appellant of his right to hire a
new lawyer or file a pro se response.
We now address whether this appeal 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. As this Court has explained:
We review an order dismissing a petition under the PCRA in the
light most favorable to the prevailing party at the PCRA level. This
review is limited to the findings of the PCRA court and the evidence
of record. We will not disturb a PCRA court’s ruling if it is
supported by evidence of record and is free of legal error. This
Court may affirm a PCRA court’s decision on any grounds if the
record supports it. Further, we grant great deference to the
factual findings of the PCRA court and will not disturb those
findings unless they have no support in the record. However, we
afford no such deference to its legal conclusions. Where the
petitioner raises questions of law, our standard of review is de
novo and our scope of review plenary.
Commonwealth v. Ford, 44 A.3d 1190, 1194 (Pa. Super. 2012) (citations
omitted).
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
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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.
(2) Any petition invoking an exception provided in paragraph (1)
shall be filed within one year of the date the claim could have been
presented.[4]
(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).
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4 Section 9545(b)(2) was recently amended, effective December 24, 2018, to
extend the time for filing from sixty days of the date the claim could have
been presented to one year. The amendment applies only to claims arising
on or after December 24, 2017. As a result, this amendment does not apply
to Appellant’s PCRA petition because it was filed prior to the amendment’s
effective date.
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Here, the record reflects Appellant’s judgment of sentence became final
on July 10, 2014. See 42 Pa.C.S.A. § 9545(b)(3); Pa.R.A.P. 903(a). Because
Appellant had one year from July 10, 2014, to file his PCRA petition, the
current filing raising the Muniz issue is facially untimely given it was filed on
January 24, 2018.
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
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, 812 A.2d 497, 501 (2002).
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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.5
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: 10/2/19
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5 Appellant’s PCRA petition invoking Muniz also is untimely because Appellant
failed to file it within sixty days of the July 19, 2017 Muniz decision.
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