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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.

CARL HOUSE,

Appellee

Appellant No. 1372 WDA 2018

Appeal from the PCRA Order Entered September 12, 2018

in the Court of Common Pleas of Allegheny County

Criminal Division at No(s): CP-02-CR-0011199-2011

BEFORE: PANELLA, P.J., LAZARUS, J. and STRASSBURGER, J.*

MEMORANDUM BY STRASSBURGER, J.: FILED JULY 17, 2019

Carl House (Appellant), appeals from the September 12, 2018 order

dismissing his petition filed under the Post Conviction Relief Act (PCRA), 42

Pa.C.S. §§ 9541-9546. Counsel has filed a petition to withdraw and a brief

pursuant to Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988) and

Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).1

1 In this Court, counsel filed a brief comparable to that required for counsel

seeking to withdraw on direct appeal pursuant to Anders v. California, 386

U.S. 738 (1967).

A Turner/Finley no -merit letter, however, is the appropriate

filing. See Commonwealth v. Turner, [544 A.2d 927 (Pa.

1988)]; Commonwealth v. Finley, [550 A.2d 213 (Pa. Super.

1988)] (en banc). Because an Anders brief provides greater

protection to a defendant, this Court may accept an Anders

brief in lieu of a Turner/Finley letter.

(Footnote Continued Next Page)

* Retired Senior Judge assigned to the Superior Court.
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Upon review, we affirm the order of the PCRA court and grant counsel's

petition to withdraw.

We provide the following background. On January 30, 2012, Appellant

pleaded guilty to one count of indecent assault of a person less than 13

years of age and two counts of corruption of minors. The same day, the trial

court sentenced Appellant to an aggregate term of five to ten months of

incarceration, paroled forthwith, followed by six years of probation and ten

years of sex offender registration. Following a hearing, the court designated

Appellant a sexually violent predator (SVP). Order, 5/3/2013.

Subsequently, the trial court found Appellant violated his probationary

terms by failing to comply with his treatment programs at Mercy Behavioral

Health, insomuch as Appellant did not disclose information regarding his

past conduct to the provider. See N.T., 6/3/2013, at 2, 4. As a result of the

foregoing, on June 3, 2013, Appellant's probation was revoked and he was

resentenced to an aggregate term of 18 to 36 months of incarceration,

followed by three years of probation and lifetime sex offender registration.

In June 2018,2 Appellant pro se filed the instant PCRA petition.

Counsel was appointed, and he filed a Turner/Finley letter and petition to

(Footnote Continued)

Commonwealth v. Widgins, 29 A.3d 816, 817 n.2 (Pa. Super. 2011)

(some citations omitted).

2 Appellant's petition was dated June 2, 2018, and filed by the clerk of courts

on June 11, 2018. However, based on the certified record before us, we

cannot ascertain when Appellant delivered the petition to prison officials.

(Footnote Continued Next Page)

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withdraw on August 15, 2018 because Appellant's PCRA petition was time -

barred. On August 20, 2018, the PCRA court issued notice of its intent to

dismiss Appellant's PCRA petition without a hearing pursuant to Pa.R.Crim.P.

907. The PCRA court also indicated that it would permit counsel to

withdraw.3 On September 10 2018, counsel for Appellant filed a response to

the notice of intent to dismiss, alleging that Appellant has a meritorious

claim outside of the PCRA based on Commonwealth v. Fernandez, 195

A.3d 299 (Pa Super. 2018) (en banc),4 and therefore filed simultaneously a

motion to enforce plea agreement to limit Appellant's sex offender

(Footnote Continued)

See Commonwealth v. Little, 716 A.2d 1287, 1288 (Pa. Super. 1998)

(holding that the prisoner mailbox rule applies to PCRA petitions, meaning

that date of delivery of the PCRA petition by the defendant to prison officials

is considered the date of filing). Regardless of when the petition was

delivered to prison officials between June 2 and June 11, 2018, it was

untimely, and the precise delivery date does not affect our disposition.

3 The PCRA court did not ultimately rule on counsel's petition to withdraw.

4 In Fernandez, an en banc panel of this Court consolidated several appeals

where the defendants were found to have violated the terms of their

probation and were ordered to comply with new sex offender registration

requirements under the Sexual Offender Registration and Notification Act

(SORNA), 42 Pa.C.S. §§ 9799.10-9799.42. In doing so, the lower courts

relied on Commonwealth v. Partee, 86 A.3d 245 (Pa. Super. 2014), which

held that a defendant could not seek specific performance of his plea bargain

where he effectively rescinded the bargain by violating the terms of his

probation. After Partee, our Supreme Court held in Commonwealth v.

Muniz, 164 A.3d 1189 (Pa. 2017), that certain provisions of SORNA are

punitive and retroactive application of those provisions violates the ex post

facto clause of the Pennsylvania constitution. Applying Muniz, this Court

held in Fernandez that Muniz abrogated the holding in Partee. As such,

this Court concluded that "the trial court may not increase [defendants']

registration requirements under SORNA[,]" and "the original periods of

sexual offender registration and conditions imposed in each case [were]

reinstated." Fernandez, 195 A.3d at 301.

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registration to the ten-year term imposed originally. On September 12,

2018, the PCRA court dismissed Appellant's PCRA petition because it was

time -barred and ordered the Commonwealth to respond to Appellant's

motion to enforce plea agreement within 30 days.5

This timely -filed appeal followed.6 Before we may address the

potential merit of Appellant's claim on appeal, we must determine if counsel

has complied with the technical requirements of Turner and Finley.

... Turner/Finley counsel 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 the 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.

If counsel fails to satisfy the foregoing technical

prerequisites of Turner/Finley, the court will not reach the

merits of the underlying claims but, rather, will merely deny

counsel's request to withdraw. Upon doing so, the court will

then take appropriate steps, such as directing counsel to file a

proper Turner/Finley request or an advocate's brief.

5 The PCRA court's order dismissing Appellant's PCRA petition was a final

order for purposes of appeal. Pa.R.Crim.P. 910. At the time of Appellant's

filing of a notice of appeal from that order, his motion to enforce plea

agreement was still pending. This pending motion did not alter the PCRA

order's final or appealable nature.

6 Both Appellant and the PCRA court complied with the mandates of

Pa.R.A.P. 1925.

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However, where counsel submits a petition and no -merit

letter that do 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. By contrast, if the claims

appear to have merit, the court will deny counsel's request and

grant relief, or at least instruct counsel to file an advocate's

brief.

Commonwealth v. Wrecks, 931 A.2d 717, 721 (Pa. Super. 2007)

(citations omitted).

We are satisfied that counsel has complied with the technical

requirements of Turner and Finley. Therefore, we will consider the

substantive issue contained in counsel's brief.

In his brief, counsel raises a single potential question for this Court's

review: whether the PCRA court erred in determining that Appellant's PCRA

petition was untimely filed. Turner/Finley Brief at 2. We consider this

claim mindful of the following.

Neither this Court nor 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.7 42 Pa.C.S. § 9545(b). Furthermore, a petition raising a

There are three exceptions to the PCRA's time -bar.

(Footnote Continued Next Page)

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timeliness exception "shall be filed within one year of the date the claim

could have been presented." 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 resentenced on June 3, 2013. He did

not file a post -sentence motion or direct appeal. Thus, his judgment of

sentence became final 30 days later, on July 3, 2013, and he had one year,

or until July 3, 2014, to file timely a PCRA petition. As such, Appellant's

June 2018 PCRA petition is facially untimely, and he was required to plead

and prove an exception to the timeliness requirements.

Appellant did not attempt to plead any timeliness exceptions in his pro

se PCRA petition. In counsel's Turner/Finley brief to the PCRA court,

(Footnote Continued)

(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. § 9545(b)(1)(i)-(iii).

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counsel concluded that Appellant would be unable to prove any of the

exceptions to the PCRA's time -bar. Turner/Finley Brief, 8/15/2018, at 8-9.

Upon review of the record, even if Appellant had attempted to plead

any of the exceptions, he would be unable to prove an exception because

they are all inapplicable to Appellant's situation. Specifically, there is no

support for an allegation of governmental interference or newly -discovered

facts. Moreover, insofar as Appellant may be attempting to invoke Muniz,

supra, via Fernandez, supra, as the basis for a new constitutional right,

neither the United States Supreme Court nor our Supreme Court has held

that Muniz applies retroactively. As such, Appellant cannot rely on either

case to meet the third timeliness exception. See Commonwealth v.

Murphy, 180 A.3d 402 (Pa. Super. 2018) (concluding that because our

Supreme Court has not held that Muniz applies retroactively, Murphy cannot

rely on Muniz to meet the third timeliness exception).8

Based on the foregoing, we conclude that Appellant's petition was filed

untimely, and he has not asserted an exception to the timeliness

requirements. Thus, he is not entitled to relief. See Commonwealth v.

Albrecht, 994 A.2d 1091, 1095 (Pa. 2010) (affirming dismissal of PCRA

petition without a hearing because the appellant failed to meet burden of

8 As in Murphy, this Court acknowledges that if the Pennsylvania Supreme

Court declares Muniz retroactive, Appellant will have the opportunity to

raise this issue pursuant to 42 Pa.C.S. § 9545(b)(1)(iii). Murphy, 180 A.3d

at 406 n.1. Until that time, however, Appellant does not have a new right to

assert.

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establishing timeliness exception). Therefore, the PCRA court did not err by

dismissing Appellant's petition because it was time -barred. Accordingly, we

affirm the order of the PCRA court and grant counsel's petition to withdraw.

Order affirmed. Petition to withdraw granted.

Judgment Entered.

J seph D. Seletyn,

Prothonotary

Date: 7/17/2019

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