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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
MICHAEL WILLIAMS :
:
Appellant : No. 998 EDA 2019
Appeal from the PCRA Order Entered February 28, 2019
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0000322-2013
BEFORE: PANELLA, P.J., OLSON, J., and MUSMANNO, J.
MEMORANDUM BY PANELLA, P.J.: FILED NOVEMBER 06, 2020
Michael Williams appeals from the February 28, 2019 order entered in
the Philadelphia County Court of Common Pleas, which dismissed his first
petition filed pursuant to the Post Conviction Relief Act (“PCRA”)1 without a
hearing. Williams seeks relief from a term of five to ten years’ incarceration
followed by five years of probation, imposed on July 26, 2013, after he entered
a negotiated guilty plea to the charges of rape (by forcible compulsion) and
endangering the welfare of a child (“EWOC”).2 Williams contends the PCRA
court erred in dismissing his petition because he was not aware and did not
1 See 42 Pa.C.S.A. §§ 9541-9546.
2 See 18 Pa.C.S.A. §§ 3121(a)(1) and 4304(a)(1), respectively.
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understand that he was subject to a lifetime sexual offender registration when
he entered his guilty plea. See Appellant’s Brief, at 3. Based on the following,
we affirm.
Williams’ convictions stem from events that took place in January of
2010. At that time, Williams was in charge of supervising the then nine-year-
old female victim at her house while her mother was not home.3 The victim
stated Williams inserted his penis into her vagina. She also complained that
on numerous occasions, Williams would touch her chest, buttocks, and vagina
with his hand and make inappropriate sexual comments to her. See N.T.,
7/26/2013, at 13-14.
Two years later, Williams was arrested and charged with rape, EWOC,
unlawful restraint, statutory sexual assault, and related charges for the 2010
sexual assault. On July 26, 2013, he entered a negotiated guilty plea to the
crimes of rape and EWOC. Prior to his plea, Williams signed a written plea
colloquy and a notice of lifetime registration requirements as a Tier III
offender pursuant to Sexual Offender Registration and Notification Act
(“SORNA I”).4 Williams was deemed not to be a sexually violent predator.
3 Williams was involved in a romantic relationship with the victim’s mother at
the time, and is the father of the victim’s youngest brother.
4 Act of Dec. 20, 2011, P.L. 446, No. 111, as amended, 42 Pa.C.S.A. §§
9799.10 to 9799.41 (effective Dec. 20, 2012). In 2011, the Pennsylvania
General Assembly passed SORNA I in order to comply with the Adam Walsh
Child Protection and Safety Act of 2006, Pub. L. 109-248, as amended, 34
U.S.C. §§ 20911, et seq.
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That same day, the court sentenced Williams to a term of five to ten
years’ imprisonment on the rape conviction and a consecutive term of five
years’ probation for the EWOC count. Williams did not file post-sentence
motions or a direct appeal.
On January 13, 2017, Williams filed a pro se PCRA petition, alleging that
pursuant to A.S. v. Pa. State Police, 143 A.3d 896, 897 (Pa. 2016), he
should be given the opportunity to rehabilitate as a first-time offender and
should not be subject to SORNA I’s lifetime registration requirements. See
Motion for Post-Conviction Collateral Relief, 1/13/2017, at 4.
Counsel was appointed, who then filed an amended PCRA petition on
October 29, 2018. In the amended petition, Williams alleged he was eligible
for relief based on constitutional violations and exculpatory evidence. See
Amended Petition Under Post-Conviction Relief Act, 10/29/2018, at ¶ 9(a-b).
Specifically, he contended he “has been subjected to lifetime sex offender
registration, when it was neither bargained for, nor imposed, by the [t]rial
[c]ourt and where it seems as if it has been imposed in ex post facto
fashion[,]” which was in violation of Commonwealth v. Muniz, 164 A.3d
1189 (Pa. 2017).5 Amended Petition Under Post-Conviction Relief Act,
5 In Muniz, the Pennsylvania Supreme Court held that the registration
requirements of SORNA I, as applied retroactively, were punitive pursuant to
the seven-factor test set forth by the United States Supreme Court in
Kennedy v. Mendoza-Martinez, 372 U.S. 144 (1963), and therefore,
unconstitutional under the ex post facto clauses of the United States and
Pennsylvania Constitutions. See Muniz, 164 A.3d at 1223. Accordingly, the
Muniz Court determined a fugitive, who did not appear for his 2007
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10/29/2018, at ¶ 10. Williams averred he filed the petition “within sixty (60)
days of … learning that he had been ‘sentenced’ to lifetime sex offender
registration.” Id., at ¶ 6.
In response, the Commonwealth filed a motion to dismiss, proposing
that Williams’s PCRA petition was facially untimely and he failed to plead and
prove an exception to the PCRA timeliness requirements as set forth in 42
Pa.C.S.A. § 9545(b)(1). See Memorandum of Law in Support of The
Commonwealth’s Motion to Dismiss, 1/25/2019, at 1.
On January 29, 2019, the PCRA court issued a Pa.R.Crim.P. 907 notice
indicating its intent to dismiss Williams’s petition without a hearing. Williams
did not file a response and on February 28, 2019, the PCRA court entered an
order dismissing Williams’s petition as untimely pursuant to Section 9545. This
appeal followed.6
As a preliminary matter, we note that despite having been granted an
extension of time, Williams filed his appellate brief late. See Order,
sentencing, could not be subjected to SORNA I registration requirements when
finally sentenced in 2014.
6 The PCRA court did not order Williams to file a concise statement of errors
complained of on appeal under Pa.R.A.P. 1925(b).
On May 12, 2020, this Court issued a per curiam order, stating that the
website for The Disciplinary Board of The Supreme Court of Pennsylvania listed
PCRA counsel, David Scott Rudenstein, Esquire, as deceased. His appearance
in the above–captioned appeal was ordered to be withdrawn and the PCRA
court was directed to appoint new counsel for Williams within 30 days of the
date that the order is filed. Subsequently, new counsel was appointed, and he
entered his appearance on July 5, 2020.
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9/16/2019. The order explicitly stated: "Appellant’s Brief shall be filed on or
before October 18, 2019.” Id. Williams did not file his appellate brief until
November 13, 2019.
Pennsylvania Rule of Appellate Procedure 2188 provides, in relevant
part, that an appellee “may move for dismissal of the matter” when an
appellant fails to file his brief in a timely manner. Pa.R.A.P. 2188. Here,
however, the Commonwealth did not seek dismissal of the appeal or otherwise
contest Williams’ untimely filing. Absent an objection from the appellee, a
panel of this Court has previously overlooked an appellant’s “non-compliance
with Rule 2188 pursuant to our discretion under Pa.R.A.P. 105(a),” and
addressed the substantive claims on appeal. AmerisourceBergen Corp. v.
Doe, 81 A.3d 921, 923 n.1 (Pa. Super. 2013). We will do the same in the
present matter.
We therefore turn to Williams’s claims that the PCRA court erred in
dismissing his amended petition. “In reviewing the denial of PCRA relief, we
examine whether the PCRA court’s determination is supported by the record
and free of legal error.” Commonwealth v. Mitchell, 141 A.3d 1277, 1283-
1284 (Pa. 2016) (internal punctuation and citation omitted). Moreover,
[i]t is well settled that [t]here is no absolute right to an evidentiary
hearing on a PCRA petition, and if the PCRA court can determine
from the record that no genuine issues of material fact exist, then
a hearing is not necessary. [T]o obtain reversal of a PCRA court’s
decision to dismiss a petition without a hearing, an appellant must
show that he raised a genuine issue of fact which, if resolved in
his favor, would have entitled him to relief, or that the court
otherwise abused its discretion in denying a hearing.
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Commonwealth v. Maddrey, 205 A.3d 323, 328 (Pa. Super. 2019) (citations
and quotation marks omitted), appeal denied, 218 A.3d 380 (Pa. 2019).
On appeal, Williams contends that while there was a reference to lifetime
registration made at the sentencing hearing, “it was not clear” to him that “he
would be subject to a lifetime registration.” Appellant’s Brief, at 8. Williams
also states that pursuant to A.S., SORNA “requires an act, a conviction, and
a subsequent act, to trigger lifetime registration for multiple offenses.”
Appellant’s Brief, at 7. Williams alleges that Section 9795.1 reflects a belief
that first-time offenders are capable of reform and rehabilitation, and the
imposition of his lifetime registration requirement is in contravention of
current law. See id. He complains that there was no triggering device to
invoke the lifetime registration and even if there was, the requirement was
imposed in an ex post facto fashion that was in violation of Muniz. See
Appellant’s Brief, at 9.
However, as noted above, the PCRA court determined that Williams’
petition was untimely filed. “Crucial to the determination of any PCRA appeal
is the timeliness of the underlying petition. Thus, we must first determine
whether the instant PCRA petition was timely filed.” Commonwealth v.
Smith, 35 A.3d 766, 768 (Pa. Super. 2011). “We have construed the PCRA’s
timing provisions as jurisdictional in nature, and no court may entertain an
untimely PCRA petition.” Commonwealth v. Small, __ A.3d __, No. 8 EAP
2019, 2020 WL 5833781, at *8 (Pa., filed Oct. 1, 2020). A PCRA petition must
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be filed within one year of the date the underlying judgment becomes final.
See 42 Pa.C.S.A. § 9545(b)(1). A judgment is deemed 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 review.” 42 Pa.C.S.A. § 9545(b)(3).
Here, Williams’ judgment of sentence was final on August 25, 2013, 30
days after the trial court imposed his sentence and Williams did not file a direct
appeal. See Pa.R.A.P. 903(a); 42 Pa.C.S.A. § 9545(b)(3). Therefore, he had
until August 25, 2014, to file a timely PCRA petition. The one before us, filed
January 13, 2017, is patently untimely.
Nevertheless, we may still consider an untimely PCRA petition if one of
the three time-for-filing exceptions applies:
(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.
42 Pa.C.S.A. § 9545(b)(1)(i-iii). For claims arising prior to December 24,
2017, a petitioner invoking an exception must file his petition within 60 days
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of the date he or she could have presented the claim. See Act 2018, Oct. 24,
P.L. 894, No. 146, § 2 and §3.7
Here, Williams attempts to overcome the time bar by arguing that both
the new facts exception and the new constitutional right exception are
applicable to the present matter. First, he invokes the newly discovered fact
exception, claiming he was unaware and did not understand that he was
subject to a lifetime sexual offender registration when he entered his guilty
plea. See Appellant’s Brief, at 8.
The newly discovered fact exception “has two components, which must
be alleged and proved. Namely, the petitioner must establish that: 1) the facts
upon which the claim was predicated were unknown and 2) could not have
been ascertained by the exercise of due diligence.” Commonwealth v.
Bennett, 930 A.2d 1264, 1272 (Pa. 2007) (citation, internal quotation marks,
and emphasis omitted).
Here, the PCRA court found Williams’ assertion was without merit and
belied by the record. Specifically, the court noted:
On the same day [Williams] entered into the negotiated guilty
plea, he also signed a certification which affirmed that he
understood that he would be required to register as a sex offender
for the rest of his life. The certification also was signed by
[Williams’s] attorney, affirming that he explained the reporting
requirements to [Williams]. Therefore, [Williams] has been aware
7 Effective December 24, 2018, Act 146 of 2018 amended 42 Pa.C.S.A. §
9545(b)(2), now provides that a PCRA petitioner invoking a timeliness
exception must file the petition within one year of the date the claim could
have been presented, for all claims arising after December 24, 2017. See Act
2018, Oct. 24, P.L. 894, No. 146, § 2 and § 3.
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of the fact that he is required to register as a sex offender since
the day he was convicted and sentenced. [He] cannot now claim
that he was unaware of this requirement in attempts to overcome
the untimeliness of his petition.
PCRA Court Opinion, 6/28/2019, at 5.
We agree with the PCRA court’s finding. A review of the record supports
the court’s conclusion that Williams acknowledged that he was subject to
lifetime registration requirements as a Tier III offender by signing the sex
offender notice. See Colloquy of Plea of Guilt, 7/26/2013, at Notice of
Registration Requirements – Tier III Offenders, ¶ 3 (“You are subject to
lifetime registration with the Pennsylvania State Police.”).
Additionally, at the July 26, 2013 proceeding, the Commonwealth
specifically asked Williams if he recognized the Notice of Registration
Requirements for Tier III Offenders form and if he went over the form with
plea counsel. See N.T., 7/26/2013, at 19. Williams answered in the affirmative
to both questions. See id. The Commonwealth then asked Williams if he
understood that he was required to appear in person four times a year to
verify his information with the state police, that he was required to appear
within ten days before the quarterly dates designated by the police, and that
he was subject to a lifetime registration. See id., at 19-20. Williams again
answered “yes” to all three questions. See id.
Accordingly, the PCRA court did not err in finding that Williams has not
demonstrated that the “fact” at issue was unknown to him, and failed to prove
the newly discovered fact exception. See Bennett, 930 A.2d at 1272.
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Next, Williams alleges the new constitutional right exception applies,
relying on Muniz. However, a panel of this Court concluded that a PCRA
petitioner could not rely on Muniz to establish the newly recognized
constitutional right timeliness exception under 42 Pa.C.S.A. § 9545(b)(1)(iii)
until the Pennsylvania Supreme Court ruled otherwise. See Commonwealth
v. Murphy, 180 A.3d 402 (Pa. Super. 2018), appeal denied, 195 A.3d 559
(Pa. 2018). Accordingly, Williams’ argument does not satisfy that exception to
the PCRA time bar.
In conclusion, we agree with the determination of the PCRA court that
Williams’ petition was not timely filed, and he failed to plead and prove any of
the timeliness exceptions. Therefore, Williams was not entitled to an
evidentiary hearing. See Maddrey, 205 A.3d at 328. Accordingly, we affirm
the order denying PCRA relief.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/6/20
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