Opinion
J-S44012-19 No. 96 WDA 2019
09-10-2019
COMMONWEALTH OF PENNSYLVANIA v. JUAN JOSE GONZALES Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the PCRA Order Entered December 21, 2018
In the Court of Common Pleas of Venango County Criminal Division at No(s): CP-61-CR-0000289-2011 BEFORE: SHOGAN, J., McLAUGHLIN, J., and FORD ELLIOTT, P.J.E. MEMORANDUM BY SHOGAN, J.:
Juan Jose Gonzales ("Appellant") appeals from the order denying his petition filed pursuant to the Post Conviction Relief Act ("PCRA"), 42 Pa.C.S. §§ 9541-9546. In addition, counsel for Appellant has filed a motion to withdraw and a 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). We grant counsel's application to withdraw and affirm the order of the PCRA court.
The facts underlying this case are not in dispute. See Commonwealth v. Gonzales , 120 A.3d 378, 1292 WDA 2014 (Pa. Super. filed February 11, 2015) (unpublished memorandum) (setting forth facts on direct appeal). Following a four-day trial in October 2011, a jury convicted Appellant of two counts of Unlawful Contact with a Minor-Open Lewdness, Endangering the Welfare of Children, two counts of Corruption of Minors by Any Act, and two counts of Indecent Exposure. Because the jury was deadlocked on the remaining charges, the trial court declared a mistrial. N.T., 10/20/11, at 16. The remaining counts were subsequently nolle prossed. Order, 8/28/12.
18 Pa.C.S. §§ 6318(a)(2), 4303(a), 6301(a), and 3127(a), respectively.
Following a hearing on April 23, 2013, the trial court determined that Appellant was a sexually violent predator ("SVP"). Opinion, 4/24/13, at unnumbered 6-7. The next day at sentencing, the trial court advised Appellant that he was considered a SVP, subject to lifetime registration under the Sexual Offender Registration and Notification Act ("SORNA"), 42 Pa.C.S. §§ 9799.10-9799.42. N.T., 4/24/13, at 16-17. The trial court then sentenced Appellant to imprisonment for an aggregate term of nine and one-half to twenty-four years. Id. at 34-39.
Appellant filed a motion for reconsideration, which the trial court denied. Motion for Reconsideration, 5/6/13; Order 5/7/13. Following reinstatement of Appellant's direct appeal rights nunc pro tunc, this Court affirmed the judgment of sentence and permitted counsel to withdraw. Gonzales , 1292 WDA 2014 (unpublished memorandum at *4). Appellant did not file an application for permission to appeal in the Pennsylvania Supreme Court.
Relying on the Pennsylvania Supreme Court's decision in Commonwealth v. Muniz , 164 A.3d 1189 (Pa. 2017), Appellant filed a petition titled, "Pro Se Petition to Correct And/Or Modify Unconstitutional Sentence To Com. v. Muniz, J-121B-2016 (19 July 2017)," on September 5, 2017. Construing Appellant's filing as a PCRA petition, the PCRA court appointed counsel. Order, 9/25/17. Counsel filed an amended PCRA petition. Petition, 4/6/18. Following a hearing on July 16, 2018, the trial court dismissed Appellant's petition. Opinion and Order, 12/21/18, at 1.
This appeal followed. Appellant and the trial court complied with Pa.R.A.P. 1925. Counsel filed an application for leave to withdraw in this Court on June 17, 2019, along with a "no-merit" letter brief. Appellant has not filed a reply, and the Commonwealth has not filed a brief.
Prior to addressing the merits of Appellant's appeal, we must first decide whether counsel has fulfilled the procedural requirements for withdrawing her representation. Commonwealth v. Daniels , 947 A.2d 795, 797 (Pa. Super. 2008). This Court has set forth the conditions that must be satisfied before counsel will be permitted to withdraw in a collateral appeal:
Counsel petitioning to withdraw from PCRA representation must proceed ... under [ Turner , supra and Finley , supra and] ... must review the case zealously. Turner/Finley counsel must then submit a "no-merit" letter to the trial court, or brief on appeal to this Court, detailing the nature and extent of counsel's diligent review of the case, listing the issues which petitioner wants to have reviewed, explaining why and how those issues lack merit, and requesting permission to withdraw.
Counsel must also send to the petitioner: (1) a copy of the "no merit" letter/brief; (2) a copy of counsel's petition to withdraw; and (3) a statement advising petitioner of the right to proceed pro se or by new counsel.
Commonwealth v. Doty , 48 A.3d 451, 454 (Pa. Super. 2012) (citation omitted) (brackets in original).
* * *
[W]here counsel submits a petition and no-merit letter that ... satisfy the technical demands of Turner/Finley , the court-trial court or this Court-must then conduct its own review of the merits of the case. If the court agrees with counsel that the claims are without merit, the court will permit counsel to withdraw and deny relief.
In the application filed with this Court and the documents appended thereto, counsel explained that she was appointed to represent Appellant as PCRA counsel and that she reviewed the case, evaluated the issues, conducted an independent review of the record, and concluded there were no issues of merit. Application to Withdraw, 6/17/19; No Merit Letter Brief, 6/17/19, at unnumbered 1-2. Counsel also listed two issues relevant to this appeal in her no-merit letter brief and explained why the appeal is without merit. Id. at unnumbered 2-6. In addition, counsel averred that she served upon Appellant a copy of the application to withdraw, the brief, and a letter addressed to Appellant accompanying those documents, informing Appellant of his right to retain new counsel, proceed pro se, or raise any additional points that he deems worthy of the Court's attention. Application to Withdraw, 6/17/19, at Certificate of Service; Letter, 6/14/19. Thus, we will allow counsel to withdraw if, after our review, we conclude that the claims relevant to this appeal lack merit.
Counsel presents two issues on Appellant's behalf:
1. The PCRA [c]ourt erred in determining that [Appellant's] PCRA was untimely[.]No Merit Letter Brief at unnumbered 2. The gist of these issues is that Appellant cannot constitutionally be subject to registration under SORNA pursuant to Muniz.
2. The conditions of SORNA are punitive in nature and therefore retroactive application to offenders convicted prior to its enactment violates the Ex Post Fact clauses of the U.S. and Pennsylvania Constitutions. U.S. CONST., art. 1 § 10, PA. CONST. art 1, § 17. Consequently the application [of] SORNA to [Appellant], who was convicted prior to its enactment, is unconstitutional.
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 ruling is free of legal error. Commonwealth v. Staton , 184 A.3d 949 (Pa. 2018). We consider the record in the light most favorable to the prevailing party in the PCRA court. Commonwealth v. Mason , 130 A.3d 601 (Pa. 2015). We grant great deference to the PCRA court's findings that are supported in the record and will not disturb them unless they have no support in the certified record. Commonwealth v. Rigg , 84 A.3d 1080, 1084 (Pa. Super. 2014).
A PCRA petition must be filed within one year of the date that the judgment of sentence becomes final. 42 Pa.C.S. § 9545(b)(1). 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). 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. Taylor , 67 A.3d 1245, 1248 (Pa. 2013). The jurisdictional time bar can be overcome only by satisfaction of one of the three statutory exceptions codified at 42 Pa.C.S. § 9545(b)(1)(i)-(iii). Commonwealth v. Spotz , 171 A.3d 675, 678 (Pa. 2017). Further, "[a]ny petition invoking an exception ... shall be filed within 60 days of the date the claim could have been presented." 42 Pa.C.S. § 9545(b)(2). The PCRA petitioner bears the burden of proving the applicability of one of the exceptions. Commonwealth v. Edmiston , 65 A.3d 339, 346 (Pa. 2013).
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 Constitution or laws of the United States;42 Pa.C.S. § 9545(b)(1)(i-iii).
(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.
We note that Section 9545(b)(2) was amended on October 24, 2018, effective sixty days later on December 24, 2018, and extended the time for filing from sixty days of the date the claim could have been presented to one year. The amendment applies to claims arising on December 24, 2017, or thereafter. Act 2018, Oct. 24, P.L. 894, No. 146, § 3.
We have reviewed the briefs of the parties, the certified record before us on appeal, and the PCRA court opinions filed on December 21, 2018, denying collateral relief, and on March 1, 2019, pursuant to Pa.R.A.P. 1925(a). We conclude that the PCRA court's opinions adequately and accurately addressed and disposed of Appellant's issues. Specifically, the PCRA court properly concluded that Appellant's PCRA petition was untimely and, therefore, it lacked jurisdiction to entertain Appellant's petition in light of this Court's ruling in Commonwealth v. Murphy , 180 A.3d 402 (Pa. Super. 2018). See PCRA Court Pa.R.A.P. 1925(a) Opinion, 3/1/19, at 1 (incorporating Opinion and Order, 12/21/18). Consequently, we discern no error in the PCRA court's order dismissing Appellant's petition. We affirm on the basis of the PCRA court's opinions and adopt its analysis as our own. Having determined that Appellant's PCRA petition was properly denied, we grant counsel's application to withdraw representation.
The parties are directed to attach a copy of those opinions in the event of further proceedings in this matter.
Application to withdraw as counsel granted. Order affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 9/10/2019
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