Com. v. Quick, K. ( 2021 )

J-A02029-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
KENNETH M. QUICK :
:
Appellant : No. 209 WDA 2020
Appeal from the PCRA Order Entered October 23, 2018
In the Court of Common Pleas of Allegheny County Criminal Division at
No(s): CP-02-CR-0002811-1985
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
KENNETH M. QUICK :
:
Appellant : No. 210 WDA 2020
Appeal from the PCRA Order Entered October 23, 2018
In the Court of Common Pleas of Allegheny County Criminal Division at
No(s): CP-02-CR-0002815-1985
BEFORE: BOWES, J., NICHOLS, J., and McLAUGHLIN, J.
MEMORANDUM BY NICHOLS, J.: FILED: MAY 25, 2021
Appellant Kenneth M. Quick appeals nunc pro tunc from the order
dismissing as untimely his serial Post-Conviction Relief Act1 (PCRA) petition
challenging his sex offender registration requirements. Appellant’s counsel
____________________________________________
1 42 Pa.C.S. §§ 9541-9546.
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(present counsel) has filed a petition to withdraw and a Turner/Finley2 brief.
We deny present counsel’s petition, vacate the order dismissing the petition,
and remand this matter for further proceedings.
The parties are familiar with the factual and procedural history of this
case. On March 8, 1985, the Commonwealth charged Appellant with
numerous sexual offenses that Appellant committed in 1984 and 1985.
Appellant entered a negotiated guilty plea on July 3, 1985, and the trial court
sentenced him to an aggregate term of twenty to forty years’ imprisonment.
Appellant did not take a direct appeal, and he unsuccessfully sought post-
conviction relief.
According to the PCRA court, it received Appellant’s pro se “motion to
vacate an illegal sentence” in June 2018.3 The court appointed counsel (prior
counsel) to represent Appellant. Prior counsel filed an amended PCRA petition
“and/or petition for writ of habeas corpus” challenging “the constitutionality
of the registration and reporting requirements imposed by the new
‘Subchapter I’ of the Pennsylvania Sex Offender Registration and Notification
Act [(SORNA II)4].” Am. Pet., 8/17/18. Therein, Appellant asserted that
Subchapter I was punitive and violated the protection against ex post facto
____________________________________________
2Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth v.
Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
3 Although docketed on June 18, 2018, Appellant’s pro se motion giving rise
to this appeal does not appear in the record.
4 42 Pa.C.S. §§ 9799.51-9799.75 (eff. Feb. 21, 2018).
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laws and double jeopardy under the federal and Pennsylvania constitutions.
Appellant also noted that his offenses and convictions occurred before
Pennsylvania enacted any laws governing the registration of sex offenders.
The PCRA court issued a Pa.R.Crim.P. 907 notice of its intent to dismiss
Appellant’s petition as time-barred under the PCRA. Appellant did not
respond. The PCRA court dismissed Appellant’s petition by the order dated
October 22, 2018, and entered on October 23, 2018.5
Appellant appealed, but listed two trial court docket numbers on his
notice of appeal. This Court quashed the appeal pursuant to Commonwealth
v. Walker, 185 A.3d 969 (Pa. 2018). See Commonwealth v. Quick, 1641
WDA 2018, 2019 WL 4413311, at *2 (Pa. Super. filed Sept. 16, 2019).
Appellant, through present counsel, filed a PCRA petition seeking
reinstatement of his right to appeal the October 23, 2018 order. The PCRA
court reinstated Appellant’s right to appeal on February 12, 2020. The court
filed a Pa.R.A.P. 1925(a) opinion maintaining that the PCRA time-bar
precluded consideration of the merits of Appellant’s challenge to Subchapter
I. See PCRA Ct. Op., 10/7/20, at 6.
Present counsel identifies the following issue for review in the
Turner/Finley brief:
Whether the registration and reporting requirements imposed by
SORNA or SORNA II, and/or any iteration of “Megan’s Law” applies
to [Appellant’s] convictions of involuntary deviate sexual
____________________________________________
5 We have amended the caption of this appeal to reflect the date of entry on
the docket. See Pa.R.A.P. 108, 301(a)(1).
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intercourse, incest, indecent assault, corruption of the morals of a
minor and endangering the welfare of a child in 1985 given the
Pennsylvania Supreme Court’s decision in Commonwealth v.
Muniz, 164 A.3d 1189 (Pa. 2017) and whether the Supreme
Court’s decision in Muniz is “retroactive” to include those
charged, like [Appellant] before [Muniz] was published?
Turner/Finley Brief at 2 (some formatting altered).
Present counsel asserts that Appellant cannot obtain relief because
Appellant was not serving sentences on most of his convictions and because
of the PCRA time bar. Turner/Finley Brief at 10. Appellant has not filed a
response either pro se or through new counsel.
Before addressing the merits of the identified claim, this Court must first
consider whether present counsel met the technical requirements for
withdrawing from representation. Commonwealth v. Muzzy, 141 A.3d 509,
510 (Pa. Super. 2016). As we have explained,
[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 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.
***
Where 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
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counsel that the claims are without merit, the court will
permit counsel to withdraw and deny relief.
Id. at 510-11 (citations omitted).
Here, present counsel’s application to withdraw and brief with this Court
detail his diligent review of the case and include the issue Appellant wishes to
have reviewed. Present counsel explains the reasons the issue lacks merit
and requests permission to withdraw. Present counsel has provided Appellant
with a copy of the no-merit brief and application to withdraw, as well as a
statement advising Appellant of his right to proceed pro se or with privately
retained counsel. Accordingly, we will permit counsel to withdraw if, after our
review, we conclude that the issues relevant to this appeal lack merit.
As noted above, present counsel and the PCRA court assert that
Appellant was not entitled to consideration of his claim because his PCRA
petition was untimely. However, in Commonwealth v. Lacombe, 234 A.3d
602 (Pa. 2020), our Supreme Court stated:
This Court has not yet required that sexual offender registration
statutes be challenged through the PCRA or some other procedural
mechanism. Indeed, we have consistently decided cases
regarding sexual offender registration statutes that were
challenged via different types of filings. Our approach in this
regard takes into account the fact that frequent changes to sexual
offender registration statutes, along with more onerous
requirements and retroactive application, complicate registrants’
ability to challenge new requirements imposed years after their
sentences become final.
This is especially so under the PCRA as many registrants . . . would
be ineligible for relief on timeliness grounds. Other registrants
may be ineligible because their sentence has expired while their
registration requirements continue. Both situations arise from the
fact that the registration period does not begin until registrants
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are released from prison, which may be well after their sentence
has become final or may signal the completion of their sentence.
Accordingly, we decline to find the PCRA, or any other procedural
mechanism, is the exclusive method for challenging sexual
offender registration statutes . . . .
Id. at 617-18. (citations omitted). Accordingly, the Lacombe Court
concluded that petitioners may challenge the application of a sexual offender
registration statute outside the framework of the PCRA. Id. at 618.
Based on Lacombe, we are constrained to disagree with present
counsel’s conclusion that the PCRA barred consideration of Appellant’s claim.
We further conclude that the PCRA court erred in dismissing Appellant’s
petition as an untimely PCRA petition. See id. Accordingly, under the
circumstances of this case, we deny present counsel’s petition to withdraw,
vacate the order dismissing Appellant’s petition, and remand this matter for
consideration of the merits of Appellant’s claim.
Petition to withdraw denied. Order vacated. Case remanded for further
proceedings. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 05/25/2021
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