J-S40011-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT

OF PENNSYLVANIA

Appellee

v.

DOUGLAS TYLER GREENAWALT, Appellant No. 1674 WDA 2018

Appeal from the PCRA Order Entered October 2, 2018

In the Court of Common Pleas of Clarion County

Criminal Division at No(s):

CP-16-CR-0000357-2015

CP-16-CR-0000550-2014

CP-16-CR-0000551-2014

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT

OF PENNSYLVANIA

Appellee

v.

DOUGLAS TYLER GREENAWALT,

Appellant No. 1702 WDA 2018

Appeal from the PCRA Order Entered October 2, 2018

In the Court of Common Pleas of Clarion County

Criminal Division at No(s):

CP-16-CR-0000357-2015

CP-16-CR-0000550-2014

CP-16-CR-0000551-2014

BEFORE: BENDER, P.J.E., MCLAUGHLIN, J., and PELLEGRINI, J.* MEMORANDUM BY BENDER, P.J.E.: FILED SEPTEMBER 11, 2019

____________________________________________

* Retired Senior Judge assigned to the Superior Court.
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Appellant, Douglas Tyler Greenawalt, appeals pro se from the order

denying his Post Conviction Relief Act (“PCRA”)1 petition as untimely. After

careful review, we affirm.

On September 9, 2015, Appellant entered a negotiated guilty plea to

numerous sexual offenses involving multiple victims at CP-16-CR-0000357- 2015 (“357-15”), CP-16-CR-0000550-2014 (“550-14”), and CP-16-CR- 0000551-2014 (“551-14”). At 357-15, Appellant pled guilty to unlawful

contact with a minor,2 and ten counts of promoting prostitution.3 At 550-14, he pled guilty to unlawful contact with a minor, corruption of minors,4 criminal

use of a communication facility,5 and indecent assault.6 At 551-14, he pled

guilty to statutory sexual assault.7 Following his plea, the trial court ordered

a Sexually Violent Predator (“SVP”) evaluation by the Sexual Offenders

Assessment Board. On December 1, 2015, the Sexual Offenders Assessment

____________________________________________

1 See 42 Pa.C.S. §§ 9541-9546.

2 18 Pa.C.S. § 6318(a)(1) (contacting a minor for the purpose of committing

a Chapter 31 offense).

3 18 Pa.C.S. § 5902(b)(3)(“encouraging, inducing, or otherwise intentionally

causing another to become or remain a prostitute”).

4 18 Pa.C.S. § 6301(a)(ii)(“by any course of conduct in violation of Chapter

31 ... corrupts or tends to corrupt the morals of any minor”).

5 18 Pa.C.S. § 7512.

6 18 Pa.C.S. § 3126(a)(2) (by forcible compulsion).

7 18 Pa.C.S. § 3122.1(a)(1) (victim 4-8 years’ younger than defendant).
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Board recommended that Appellant be deemed an SVP by the trial court. An

SVP hearing was held on January 26, 2016, following which the trial court

determined by clear and convincing evidence that Appellant is an SVP. A

sentencing hearing was then scheduled for March 9, 2016.

On that date, the trial court rejected Appellant’s guilty plea on the basis

that the negotiated term of 4-8 years’ incarceration was “insufficient given the

number and serious nature of the crimes....” Order, 3/17/16, at 1 (single

page). Appellant subsequently entered another guilty plea on April 6, 2016,

to indecent assault and unlawful contact with a minor at 550-14, statutory

sexual assault at 551-14, and two counts of unlawful contact with a minor,

one count of promoting prostitution, and two counts of unlawful contact with

a minor at 357-15. The court accepted Appellant’s second plea agreement,

noting that:

The plea was entered pursuant to a plea agreement[,] the terms

of which [Appellant] will receive an aggregate minimum sentence

of incarceration on all charges of four years and a consecutive

period of probation of five years. [Appellant] does not contest and

will not request further hearing on the allegation and finding that

he is a[n SVP].

Plea Order, 4/6/16, at 1 (single page) (docketed on April 14, 2016).

By order dated April 6, 2016, the trial court sentenced Appellant to an

aggregate term of 4-11 years’ incarceration and 5 years’ consecutive

probation. Sentencing Order, 4/6/16, at 1 (docketed on April 15, 2016). The

sentencing order also restated the court’s finding that Appellant is an SVP.

Id. at 2. Appellant did not file a direct appeal from his judgment of sentence.
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On June 25, 2018, Appellant filed a facially untimely, pro se PCRA

petition (“Petition”), his first. PCRA counsel was appointed to represent him

soon thereafter. However, PCRA counsel filed a no-merit letter and a petition

to withdrawal on August 15, 2018, indicating in the letter that the Petition was

untimely and, therefore, Appellant was not entitled to relief. On August 21,

2018, based on PCRA counsel’s no-merit letter, the PCRA court issued notice

of its intent to dismiss the Petition without a hearing pursuant to Pa.R.Crim.P.

907. The court also granted counsel’s petition to withdrawal on that date.

Appellant filed a response to the PCRA court’s Rule 907 notice on September

13, 2018. On October 2, 2018, the court issued an opinion and order

dismissing the Petition.

Appellant filed a notice of appeal on November 7, 2018,8 and a timely,

court-ordered, pro se Pa.R.A.P. 1925(b) statement on December 14, 2018. ____________________________________________

8 There are two major problems with Appellant’s notice of appeal. First, it is

untimely on its face. A notice of appeal must be filed “within 30 days after

the entry of the order from which the appeal is taken.” Pa.R.A.P. 903.

Appellant’s notice of appeal was filed with the clerk of courts six days late, on

November 7, 2018. Although the notice of appeal and the accompanying

certificate of service were both dated October 31, 2018, nothing in the

certified record indicates that Appellant actually delivered the notice of appeal

to prison authorities on that date, so as to render his notice of appeal timely

filed pursuant to the prisoner mailbox rule. See Commonwealth v.

DiClaudio, 210 A.3d 1070, 1074 (Pa. Super. 2019) (“The prisoner mailbox

rule provides that a pro se prisoner’s document is deemed filed on the date

he delivers it to prison authorities for mailing.”) (cleaned up).

Second, it is also immediately apparent that Appellant’s notice of appeal

runs afoul of our Supreme Court’s decision in Commonwealth v. Walker, 185 A.3d 969, 976 (Pa. 2018). In Walker, our Supreme Court construed
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The trial court issued a statement pursuant to Rule 1925(a) on December 17,

2018. Therein, the court indicated it would rely on its October 2, 2018 opinion

to address the claims raised in Appellant’s Rule 1925(b) statement. By order

dated December 26, 2018, this Court sua sponte consolidated Appellant’s

multiple notices of appeal.

Appellant now presents the following question for our review:

Whether this pro se appeal petition merits reinstatement of

petitioner’s appeal rights is a question of exceptional

circumstances and the law?

Appellant’s Brief at 2.

Appellant’s statement of the question presented obscures his issue, which centers on a single claim that his SVP determination constitutes an

illegal sentence pursuant to Commonwealth v. Butler, 173 A.3d 1212 (Pa.

Super. 2017). In Butler, this Court applied Commonwealth v. Muniz, 164

A.3d 1189 (Pa. 2017), in holding that “the Sexual Offender Registration and

____________________________________________ Pa.R.A.P. 341(a) as a “bright-line mandatory instruction to practitioners to file

separate notices of appeal” for each docket where one or more orders resolve

issues on multiple dockets. Id. at 976-77. Here, Appellant filed a single

notice of appeal listing all three docket numbers at issue in this case, which

the clerk of courts apparently copied and filed separately in the three separate

dockets. This does not constitute compliance with Walker. See

Commonwealth v. Creese, 2019 PA Super 241, 2019 WL 3812232 (Pa.

Super. filed Aug. 14, 2019) (“We read our Supreme Court’s decision in Walker

as instructing that we may not accept a notice of appeal listing multiple docket

numbers, even if those notices are included in the records of each case.”).

Nevertheless, as addressed infra, the court below lacked jurisdiction to

entertain the Petition, as it did not satisfy the timeliness requirements of the

PCRA statute. Accordingly, in disposing of Appellant’s claim presented herein,

we apply that jurisdictional bar first.
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Notification Act’s (“SORNA’s”) framework for designating a convicted

defendant a[n SVP] violates the federal and state constitutions.” Butler, 173

A.3d at 1213. Appellant further contends that the PCRA court erred when it

denied the Petition as untimely, arguing that the Petition met at least one

timeliness exception to the PCRA’s time bar.

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) (cleaned

up).

However, we must begin by addressing the timeliness of Appellant’s

petition, because the PCRA time limitations implicate our jurisdiction and may

not be altered or disregarded in order to address the merits of a petition.

Commonwealth v. Bennett, 930 A.2d 1264, 1267 (Pa. 2007). Under the

PCRA, any petition for post-conviction relief, including a second or subsequent

one, must be filed within one year of the date the judgment of sentence

becomes final, unless one of the following exceptions set forth in 42 Pa.C.S. §

9545(b)(1)(i)-(iii) applies:

(b) Time for filing petition.--
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(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

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). Any petition attempting to invoke one of

these exceptions “shall be filed within 60 days of the date the claim could have

been presented.” 42 Pa.C.S. § 9545(b)(2).9

Appellant contends that he did not discover our Butler decision until

April 20, 2018. On that basis, he attempts to invoke the timeliness exception

set forth in Section 9545(b)(1)(ii), and further argues that an illegal

sentencing claim can be raised at any time.

However, it is well-established that “a legality of sentencing issue must

be raised in a timely filed PCRA petition.” Commonwealth v. Whitehawk, ____________________________________________

9 An amendment to Section 9545(b)(2), which became effective on December

24, 2018, changed the language to require that a petition “be filed within one

year of the date the claim could have been presented.” 42 Pa.C.S. §

9545(b)(2). Instantly, the Petition was filed on June 25, 2018, prior to the

effective date of that amendment and, thus, the Petition was subject to the

60-day rule.
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146 A.3d 266, 270 (Pa. Super. 2016). Furthermore, our Supreme Court has

held “that subsequent decisional law does not amount to a new ‘fact’ under

[S]ection 9545(b)(1)(ii) of the PCRA.” Commonwealth v. Watts, 23 A.3d

980, 987 (Pa. 2011). Accordingly, Appellant cannot invoke Section

9545(b)(1)(ii) to bypass the timeliness requirements of the PCRA based on

this Court’s decision in Butler. Appellant also argues that the timeliness exception set forth in Section

9545(b)(1)(iii) applies to the Petition based on our decision in Butler and/or

our Supreme Court’s decision in Muniz. 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 [the

Supreme Court of Pennsylvania] 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 (Pa. 2002).

Butler is not a decision issued by “the Supreme Court of the United

States or the Supreme Court of Pennsylvania[,]” and thus cannot be used to

invoke Section 9545(b)(1)(iii). 42 Pa.C.S. § 9545(b)(1)(iii). Furthermore, no

decision by our Supreme Court has indicated that Muniz applies retroactively

to cases on collateral review, including the Muniz decision itself. Accordingly,
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Appellant cannot invoke the timeliness exception set forth in Section

9545(b)(1)(iii).

For these reasons, we agree with the PCRA court that the Petition is

untimely and that it does not satisfy any exception to that statute’s timeliness

requirements. See PCRA Court Opinion, 10/2/18, at 3. To the extent that

our reasoning differs from that of the PCRA court, we note that this “Court

may affirm a PCRA court’s decision on any grounds if the record supports it.”

Ford, 44 A.3d at 1194.

Order affirmed. Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 9/11/2019