J

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

COMMONWEALTH OF PENNSYLVANIA

v.

WADE ANTHONY MASON

Appellant : : : : : : : : : IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 1590 EDA 2019 Appeal from the PCRA Order Entered April 29, 2019 In the Court of Common Pleas of Delaware County Criminal Division at

No(s): CP

- 23

- CR

- 0006304

- 2009

BEFORE: LAZARUS, J., NICHOLS, J., and McLAUGHLIN, J. MEMORANDUM BY NICHOLS, J.: FILED DECEMBER 1 2 , 2019 Appellant Wade Anthony Mason appeals from the order dismissing as untimely his third petition filed under the Post Conviction Relief Act 1 (PCRA)

. Appellant ’ s PCRA counsel has filed a petition to withdraw and an

Anders / Santia go brief. 2 We affirm and grant PCRA counsel ’ s petition to

withdraw.

_________________ __________ ______ ____ _______

1 42 Pa.C.S. §§ 9541

- 9546.

2 Counsel filed a brief and petition withdraw pursuant to Anders v. California , 386 U.S. 738 (1967) , and Commonwealth v. Santiago , 978 A.2d 349 (Pa. 2009). When counsel seeks to withdraw from a matter involving the denial of PCRA relief, a Turner / Finley “ no - merit letter ” 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 ). However, “ [b]ecause an Anders brief provides greater protection to a defendant, this Court may accept an Anders brief in lieu of a Turner / Finley letter. ” Commonwealth v. Widgins , 29 A.3d 8 16, 817 n.2 (Pa. Super. 2011).J

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The PCRA court summarized the procedural history of this case as
follows:
On January 20, 2011, a jury convicted [Appellant] of r ape, sexual
a ssault and s imple a ssault. Thereafter, on April 11, 2011, the [trial] court sentenced [Appellant] to an aggregate term of seven to fourteen years of imprisonment, and a consecutive two

- year probationary term. Following the denial of [Appellant]’ s timely post

- sentence motion, [Appel lant] filed an appeal [with this Court] , in which he raised a claim of prosecutorial misconduct. In an unpublished memorandum filed on April 14, 2012, [this Court ] rejected [Appellant]’ s claim and affirmed his judgment of sentence. On September 19, 2012, the Supreme Court denied [Appellant]’ s petition for allowance of appeal. Commonwealth v. Mason , 48 A.3d 484 (Pa. Super. 2012)

. [Appellant] thereafter filed a timely pro se PCRA petition, and [the PCRA] court appointed counsel. After reviewing the record and [Appellant]’ s proposed issues, PCRA counsel filed a petition to withdraw and “ no - merit ” letter pursuant to [ Turner / Finley ]. [The PCRA ] court then issued a Pa.R.A.P. 907 notice of intent to dismiss [Appellant]’ s pro se petiti on without a hearing. [Appellant] filed a pro se response. By order entered March 26, 2014, [the PCRA] court dismissed [Appellant]’ s PCRA petition and granted PCRA counsel ’ s petition to withdraw. [Appellant] filed a timely pro se appeal to [this Court]

. In an unpublished memorandum filed on January 16, 2015, [this Court ] affirmed the order denying [PCRA] relief. Commonwealth v. Mason , 118 A.3d 448 (Pa. Super. 2015). [Appellant] did not file a motion for allowance of appeal. [Appellant] then filed his second pro se PCRA petition on March 20, 2015. Within this petition, [Appellant] reiterated his claim of prosecutorial misconduct that he unsuccessfully litigated during his direct appeal. [The PCRA] court issued a Pa.R.A.P. 907 notice of intent to dismiss [Appellant]’ s second PCRA petition as untimely filed. [Appellant] filed a pro se response on May 18, 2015. By order entered June 22, 2015, this court dismissed [Appellant]’ s second PCRA petition. [Appellant] filed a pro se a ppeal to [this Court]. In an unpublished memorandum filed on March 14, 2016, the Superior Court affirmed this court ’ s order denying [PCRA] relief. Commonwealth v. Mason , No. 2483 EDA 2015.J

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On November 30, 2017, [Appellant] filed the instant PCRA petition , his third, citing Commonwealth v. Muniz , 164 A.3d 1189 (Pa. 2017). PCRA [c] ounsel was appointed to represent hi s interests. On March 5, 2019, [the PCRA court] served [Appellant] with a [Rule 907 notice]

. Thereafter[, Appellant’s] PCRA was dismissed on April 30, 2019 [.]

PCRA Ct. Op., 7/8/19 , at 1

- 3 (some formatting altered).
On June 10, 2019, Appellant filed a timely notice of appeal. He filed a

court

- ordered Pa.R.A.P. 1925( b ) statement on June 21, 2019

. The trial court

issued a responsive Rule 1925( a) opinion stating that Appellant’s PCRA
petition was untimely

. On August 29, 2019 , PCRA c ounsel filed a petition to

withdraw and an Anders brief with this Court . Appellant subsequently filed

two pro se response s

.
Coun sel identifies one issue for our review:
Was the trial court in error for dismissing [Appellant’s PCRA] petition alleging that his sentence was unconstitutional pursuant to [ Muniz ] and its progeny?

Anders / Santiago Brief at 9.
Initially, we must address whether PCRA counsel has fulfilled the procedural requirements for withdrawing his representation in this Court.
Commonwealth v. Muzzy , 141 A.3d 509, 510 (Pa. Super. 2016) (stating

that before “ addressing the merits of the appeal, we must review counsel’s
compliance with the procedural re quireme nts for withdrawing as counsel”
(citation omitted) )

. As we have explained,J

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[c]ounsel petitioning to withdraw from PCRA representation must proceed under [ Turner and Finley ] and must review the case zealously. Turner

/ Finley counsel must then submit a “no

- merit” letter to the [PCRA] 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 c ounsel. Where counsel submits a petition and no

- merit letter that satisfy the technical demands of Turner / Finley , the court

— [PCRA] 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.

Id. at 510

- 11 (citations omitted and some formatting altered ).
As noted previously, we may accept PCRA counsel’s Anders brief if we
conclude that it substantially complies with Turner / Finley

. See Widgins , 29 A.3d at 817 n.2

. PCRA counsel’s petition to withdraw and brief to this Court detail his diligent review of the case and includes the issue that
Appellant wishes to have re viewed. PCRA c ounsel sets forth reasons why the

issue lack s merit and requests permission to withdraw. Additionally, PCRA counsel has provided Appellant with a copy of the no

- merit brief and his application to withdraw, as well as a statement advising Appellant of his right
to proceed pro se or with privately retained counsel. See Widgins , 29 A.3d

at 818. Accordingly, we will permit PCRA counsel to withdraw if, after our
review, we conclude that the issues relevant to this appeal lack merit.J

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PCRA c ounsel identifies Appellant’s claim that Muniz satisfies the newly recognized constitutional right exception to the PCRA’s time bar. See 42 Pa.C.S. § 9545(b)(1)(iii). Anders / Santiago Brief at 6

. PCRA c ounsel notes

that the Pennsylvania Supr eme Court has yet to hold that Muniz applies
retroactively. Id. Therefore, PCRA counsel maintains that Appellant cannot
rely on Muniz to excuse the timeliness of his instant PCRA petition. Id.

Our standard of review for the dismissal of a PCRA petition is limited to

“ whether the record supports the PCRA court’ s determination and whether the

PCRA court ’ s decision is free of legal error .” Commonwealth v. Lawson , 90 A.3d 1, 4 (Pa. Super. 2014) (citation omitted). We grant great deference to the PCRA court’s factual findings and we will not disturb them unless they
have no support in the record. Commonwealth v. Rigg , 84 A.3d 1080, 1084
(Pa. Super. 2014) (citation omitted)

. It is well settled that “the timeliness of a PCRA petition is a jurisdictional
requisite.” Commonwealth v. Brown , 111 A.3d 171, 175 (Pa. Super. 2015)
(citation omitted). A PCRA petition “including a second or subsequent petition,
shall be filed within one year of the date the judgment becomes final [

. ] ” 42
Pa.C.S. § 9545(b)(1). A judgment is 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 revie w.” 42 Pa.C.S. § 9545(b)(3).J

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Courts may consider a PCRA petition filed more than one year after a
judgment of sentence becomes final only if the petitioner pleads and proves

one of the follow ing three statutory exceptions:

(i) the failure to raise the cla im 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 p redicated 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 Penn sylvania 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). Moreover, a petitioner must file his petition
within sixty days of the date the claim could have been present ed. See 42 Pa.C.S. § 9545(b)(2). 3

In Commonwealth v. Murphy , 180 A.3d 402, 405

- 06 (Pa. Super.
2018) , appeal denied , 195 A.3d 559 (Pa. 2018), this Court explained that

[s]ubsection (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 th[e Pennsylvania Supreme Court] after the time provided in this section. Second, it provides that the right “has been he ld” by “that court” to apply retroactively. Thus, a petitioner must prove that there is a “new”

_________________ __________ ______ ____ _______

3 3 Section 9545(b)(2) was amended on October 24, 2018, effective December 24, 2018, extending the time for filing f rom sixty days of the date the claim could have been first presented to one year. The amendment applies to claims arising on December 24, 2017, or thereafter. See Act 2018, Oct. 24, P.L. 894, No. 146, § 3.J

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- 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 r ight was already recognized at the time the petition was filed. Here, we acknowledge 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 petitioner]’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 section 9545(b)(1)(iii). Because at this time, no such holding has been issued by our Supreme Court, [the petitioner] cannot rely on Muniz to meet that timeliness exception

. [fn1]

[fn1] Certainly, if the Pennsylva nia Supreme Court issues a decision holding that Muniz applies retroactively, [the petitioner] can then file a PCRA petition . . . attempting to invoke the ‘new retroactive right’ exception of section 9545(b)(1)(iii).

Murphy , 180 A.3d at 405

- 06 ( some cita tion s omitted).
Instantly, the Pennsylvania Supreme Court has yet to hold that Muniz applies retroactively. Accordingly, like the petitioner in Murphy , Appellant
cannot rely on Muniz to excuse the facial untimeliness of the instant PCRA
petition. See id. Therefore, the PCRA court properly dismissed Appellant’s
petition as untimely. See Lawson , 90 A.3d at 4.J

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We must also address Appellant’s pro se responses to PCRA counsel’s

Anders brief and petition to withdraw. From what we can discern, 4 it appears

t hat Appellant is seeking to characterize his untimely PCRA as a petition for
habeas corpus or coram nobis relief. Additionally, Appellant cites to the ex post facto clause of the United States Constitution , an apparent reference to

his Muniz claim

. Our Supreme Court has held that “claims that could be brought under
the PCRA must be brought under that Act. No other statutory or common law remedy ‘for the same purpose’ is intended to be available; instead, such remedies are explicitly ‘encompassed’ wi thin the PCRA.” Commonwealth v.

Hall , 771 A.2d 1232, 1235 ( Pa. 2001) (emphasis omitted) ; see also 42
Pa.C.S. § 9542 (stating that the PCRA subsumes both habeas corpus and

coram nobis ); see also Commonwealth v. Pagan , 864 A.2d 1231, 1233
(Pa. Super. 2004) (explaining that other remedies do “not become available
merely because the PCRA [court] refuses to remedy a petitioner’ s grievance; rather, we look at the claims a petitioner is raising ”). In sum, i f “a petitioner’s
claim is cognizable under the PCRA, th e PCRA is the only method of obtaining

collateral review .” Commonwealth v. Descardes , 136 A.3d 493, 50 3 (Pa.
2016).

_________________ __________ ______ ____ _______

4 In his pro se filings, Appellant includes nu merous citations to cases and statutes , but does not indicate how they are applicable to his case

. Therefore, we limit our analysis to the issue that we were able to decipher from his statements of the law.J

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Here, to the extent Appellant challenges his sentence under Muniz and

the ex post facto clause , his claim is cognizable under the PCRA. See

Commonwealth v. Greco , 203 A.3d 1120, 1123 (Pa. Super. 2019) (holding

that a post

- conviction claim that an original sentence is illegal due to the retroactive application of a sexual offender registration requirement mu st be
raised in a PCRA petition). Therefore, because Appellant’s underlying claim is
cognizable under the PCRA, he cannot seek habeas corpus or coram nobis

relief

. See Descardes , 136 A.3d at 503 ; see also Pagan , 864 A.2d at 1233

. Because our own review of the record confirms that Appellant’s claim s

are without merit, we affirm the order denying Appellant’s PCRA petition, and we grant counsel’s petition to withdraw. See Murphy , 180 A.3d at 405

- 06;
Muzzy , 141 A.3d at 510

. Order affi rmed. Application to withdraw as counsel granted.
Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 12/12/19