Com. v. Kitchell, C. ( 2019 )

J-S33029-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
CLARK KITCHELL :
:
Appellant : No. 1927 MDA 2018
Appeal from the PCRA Order Entered October 23, 2018
In the Court of Common Pleas of Luzerne County
Criminal Division at No(s): CP-40-CR-0001292-2011
BEFORE: LAZARUS, J., OTT, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY OTT, J.: FILED OCTOBER 04, 2019
Clark Kitchell appeals from the order entered October 23, 2018, in the
Luzerne County Court of Common Pleas denying his petition for collateral relief
filed pursuant to the Post Conviction Relief Act (“PCRA”).1 Kitchell seeks relief
from his resentence of 94 to 188 months’ imprisonment, and three years’
consecutive probation imposed on April 28, 2017,2 after his jury conviction of
involuntary deviate sexual intercourse (“IDSI”) with a child less than 13 years
old.3 Concomitant with this appeal, counsel has filed a motion to withdraw
____________________________________________
1 42 Pa.C.S. §§ 9541-9546.
2As will be discussed infra, Kitchell was originally sentenced on January 9,
2013, but obtained relief from that sentence via a prior PCRA petition.
3 See 18 Pa.C.S. § 3123(b).
J-S33029-19
and Turner/Finley4 “no merit” letter. Because we conclude Kitchell’s petition
was untimely filed, and he failed to plead or prove any of the time-for-filing
exceptions, we affirm the order denying relief and grant counsel’s petition to
withdraw.
The facts and procedural history underlying this appeal are well known
to the parties and not pertinent to the issue raised herein. In summary, on
October 18, 2012, a jury found Kitchell guilty of one count of IDSI with a child.
He was sentenced on January 9, 2013, to a mandatory minimum term of 10
to 20 years’ imprisonment. Although Kitchell was not classified as a sexually
violent offender under Pennsylvania’s Sexual Offender Registration and
Notification Act (“SORNA”),5 he was still required to register as a Tier III sex
offender for the duration of his life. See 42 Pa.C.S. § 9799.14(d). His
judgment of sentence was affirmed by a panel of this Court on direct appeal,
and the Pennsylvania Supreme Court denied his request for allowance of
appeal on July 30, 2014. See Commonwealth v. Kitchell, 100 A.3d 299____________________________________________
4 Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
5 See 42 Pa.C.S. §§ 9799.10-9799.42. SORNA II was enacted in 2018.
Subchapter H, 42 Pa.C.S. §§ 9799.10-9799.42, was enacted on February 21,
2018, and applies to those who commit sexual offenses on or after December
20, 2012. On June 12, 2018, Subchapter I, 42 Pa.C.S. §§ 9799.51-9799.75,
was enacted to apply to offenders who committed a sexual offense on or after
April 22, 1996, but before December 20, 2012. See 2018, Feb. 21, P.L. 27,
No. 10, § 5.2, imd. effective (“Act 10”); Reenacted 2018, June 12, P.L. 140,
No. 29, § 4, imd. effective. (“Act 29”).
-2-
J-S33029-19
(Pa. Super. 2014) (unpublished memorandum), appeal denied, 96 A.3d 1026(Pa. 2014).
Following litigation of a timely PCRA petition, a panel of this Court
granted Kitchell relief on his claim that the mandatory minimum sentence
imposed was illegal pursuant to Alleyne v. United States, 133 S.Ct. 2151(U.S. 2013). See Commonwealth v. Kitchell, 168 A.3d 355 (Pa. Super.
2017) (unpublished memorandum). Accordingly, the panel vacated Kitchell’s
judgment of sentence and remanded for resentencing. On April 28, 2017, the
trial court resentenced Kitchell to a term of 94 to 188 months’ imprisonment,
followed by three years’ probation. His lifetime registration requirement did
not change. Kitchell did not appeal that sentence.
However, on March 23, 2018, Kitchell filed the present PCRA petition
seeking, inter alia, relief from his SORNA registration requirements pursuant
to Commonwealth v. Muniz, 164 A.3d 1189 (Pa. 2017), cert. denied, 138
S.Ct. 925 (U.S. 2018). Counsel was appointed, and filed a brief addressing
Kitchell’s Muniz claim on May 3, 2018. The PCRA court conducted a hearing
on July 23, 2018, and, subsequently entered an order denying relief on
October 23, 2018. This timely appeal follows.6
____________________________________________
6We note that following the denial of PCRA relief, appointed counsel filed the
notice of appeal, as well as a motion requesting the PCRA court appoint new
counsel for litigation of the appeal. See Motion for Appointment of Appellate
Counsel, 11/19/2018. The PCRA court granted the motion, and appointed
present counsel on January 7, 2019. Present counsel then filed a Pa.R.A.P.
1925(b) concise statement of errors complained of on appeal on January 16,
2019, prior to being ordered to do so by the PCRA court the following day.
-3-
J-S33029-19
Before addressing the merits of this appeal, we must first consider
whether counsel has fulfilled the procedural requirements for withdrawal.
Commonwealth v. Muzzy, 141 A.3d 509, 510 (Pa. Super. 2016). Pursuant
to Turner/Finley and their progeny:
Counsel petitioning to withdraw from PCRA representation 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.
***
[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.
Commonwealth v. Doty, 48 A.3d 451, 454 (Pa. Super. 2012) (citation
omitted).
Here, our review reveals counsel has substantially complied with the
procedural aspects of Turner/Finley. Although he filed a brief, as opposed
to a “no merit” letter, counsel’s brief properly lists the issues Kitchell wishes
to be reviewed and explains why they are meritless. See Kitchell’s Brief at 6-
8. Furthermore, counsel provided Kitchell with a copy of the brief and the
petition to withdraw, and advised him of his right to proceed pro se or with
-4-
J-S33029-19
private counsel. See Petition to Withdraw as Counsel, 4/24/2019. Kitchell
has not responded to counsel’s petition. Therefore, we proceed to a
consideration of whether the PCRA court erred in dismissing the petition. See
Doty, supra.Kitchell raises two related claims on appeal, both of which challenge his
registration requirements under SORNA. First, he argues that, pursuant to
Muniz, SORNA constitutes an unconstitutional ex post facto law when applied
to defendants like him, who committed their crimes prior to its enactment.7
Further, he contends SORNA II, enacted in 2018, is also unconstitutional as
applied to him. See Kitchell’s Brief at 5.
By way of background, on July 19, 2017, the Pennsylvania Supreme
Court filed its decision in Muniz, in which it held SORNA’s registration
provisions constitute punishment, and, therefore, the retroactive application
of those provisions to offenses committed prior to SORNA’s effective date
(December 20, 2012), violates the ex post facto clauses of the federal and
Pennsylvania constitutions.8 Muniz, supra, 164 A.3d at 1193. In
____________________________________________
7 “[T]the critical inquiry for determining whether the application of SORNA to
a convicted sex offender violates ex post facto prohibitions is the date of the
offense.” Commonwealth v. Wood, 208 A.3d 131, 136 (Pa. Super. 2019)
(en banc). Here, the record reveals Kitchell sexually abused the victim
between November of 2009 and April of 2010.
8 Muniz was a plurality decision. Justice Dougherty authored the Opinion
Announcing the Judgment of the Court (“OAJC”), holding: (1) SORNA’s
registration requirements constitute punishment; (2) the retroactive
application of the registration requirements violates the ex post facto clauses
-5-
J-S33029-19
Commonwealth v. Rivera-Figeroa, 174 A.3d 674 (Pa. Super. 2017), a
panel of this Court held that because Muniz announced a new substantive
rule for which “there was a significant risk that a defendant faced a
punishment the law cannot impose[,]” the decision “should be retroactively
applied in state collateral courts to comply with the United States and
Pennsylvania Constitutions.” Id. at 678. Therefore, defendants who
successfully raise Muniz in a timely PCRA petition are entitled to relief.
Here, the PCRA court determined Kitchell was not entitled to relief
because the application of SORNA did not alter his reporting status. See PCRA
Court’s Opinion, 3/14/2019, at 4. Indeed, under both Megan’s Law III, which
was in effect at the he committed the offenses, and SORNA, Kitchell was
required to register as a sex offender for his lifetime. See id. Therefore, the
____________________________________________
of the United States and Pennsylvania Constitutions; and (3) Pennsylvania’s
ex post facto clause provides greater protection than its federal counterpart.
See Muniz, 164 A.3d at 1193, 1223. Justices Baer and Donahue joined the
OAJC in full. Justice Wecht filed a Concurring Opinion, joined by Justice Todd,
which joined those parts of the OAJC concluding the registration requirements
constitute punishment, and their retroactive application runs afoul of
Pennsylvania’s ex post facto clause. However, he disagreed with the OAJC’s
holding that the Pennsylvania Constitution provides greater protection than
the federal constitution, and, additionally, stated he would decline to address
the federal claim. See id. at 1224. Justice Saylor authored a Dissenting
Opinion in which he concluded SORNA is not punitive. Justice Mundy did not
participate in the decision.
-6-
J-S33029-19
court concluded “[t]here is no violation of ex post facto because [Kitchell] was
not subjected to any increase in penalty.”9 Id. at 5.
“In reviewing the denial of PCRA relief, we examine whether the PCRA
court’s determination is supported by the record and free of legal error.”
Commonwealth v. Mitchell, 141 A.3d 1277, 1283–1284 (Pa. 2016)
(internal punctuation and citation omitted). However, “an appellate court is
not bound by the rationale of the trial court and may affirm on any basis if the
record supports it.” Commonwealth v. Diaz, 183 A.3d 417, 421 (Pa. Super.
2018), appeal granted, 199 A.3d 347 (Pa. 2018).
Although neither the PCRA court nor counsel addressed the timeliness
of Kitchell’s petition, we do so sua sponte since the “PCRA’s time restrictions
are jurisdictional in nature” and affect this Court’s “very power to adjudicate
____________________________________________
9 Panel decisions of this Court seem to be split on this issue. Compare
Commonwealth v. Haughwout, 198 A.3d 403, 405 (Pa. Super. 2018) (no
Muniz violation when defendant was already subject to lifetime registration
under Megan’s Law I), appeal denied, 207 A.3d 905 (Pa. 2019), with
Commonwealth v. Horning, 193 A.3d 411, 416-417 (Pa. Super. 2018)
(registration under SORNA violates Muniz even though defendant would have
been required to register for lifetime under Megan’s Law II; although
registration period remained the same, SORNA “augment[ed] the registration
requirements … which included quarterly in-person reporting and the posting
of [] personal information on the Pennsylvania State Police website”), appeal
denied, 204 A.3d 370 (Pa. 2019), and Commonwealth v. Adams-Smith,
209 A.3d 1011, 1022-1023 (Pa. Super. 2019) (although convictions carried
lifetime registration under Megan’s Law III and SORNA, imposition of SORNA
violated ex post facto clause because of increased reporting requirements).
Because we conclude Kitchell’s PCRA petition was untimely filed, we need not
address this issue.
-7-
J-S33029-19
a controversy.” Commonwealth v. Robinson, 139 A.3d 178, 185 (Pa.
2016).
A PCRA petition must be filed within one year of the date the underlying
judgment becomes final. See 42 Pa.C.S. § 9545(b)(1). Here, Kitchell’s
original judgment of sentence was final on October 28, 2014, 90 days after
the Pennsylvania Supreme Court denied Kitchell’s petition for allowance of
appeal, and he failed to file a petition for writ of certiorari in the Unites States
Supreme Court. See United States Supreme Court Rule 13. Therefore, he
had until October 28, 2014, to file a timely PCRA petition, and his present
petition, filed on March 23, 2018, is patently untimely.
However, as noted above, Kitchell obtained relief from an illegal
sentence through a timely PCRA petition filed on February 2, 2015.
Presumably, both the PCRA court and Kitchell believed Kitchell’s April 28,
2017, resentencing reset the clock for purposes of filing a first PCRA petition.
We disagree.
In Commonwealth v. McKeever, 947 A.2d 782 (Pa. Super. 2008), a
panel of this Court concluded a federal court’s grant of habeas corpus relief
with respect to two of the defendant’s convictions, did not permit the
defendant to challenge his non-vacated convictions following resentencing.
The panel explained:
[A]s we held in Commonwealth v. Dehart, 730 A.2d 991, 994
n. 2 (Pa. Super. 1999)[, appeal denied, 745 A.2d 1218 (Pa.
1999)], a successful first PCRA petition does not “reset the
clock” for the calculation of the finality of the judgment of
sentence for purposes of the PCRA where the relief granted
-8-
J-S33029-19
in the first petition neither restored a petitioner’s direct
appeal rights nor disturbed his conviction, but, rather,
affected his sentence only. We reached this conclusion
because the purpose of the PCRA is to prevent an unfair
conviction. Id., 730 A.2d at 994 n. 2. This conclusion applies
with even greater force to the case before us.
Although Appellant successfully challenged his corrupt
organizations convictions and sentences successfully in federal
court, the remainder of his convictions, each having a distinct
sentence, were not disturbed by the Eastern District Court’s grant
of habeas corpus relief or by the trial court when it vacated the
corrupt organizations sentences in its resentencing order.
Further, while it is correct that Appellant had an absolute
constitutional right to appeal his judgment of sentence entered
after the Eastern District Court’s grant of habeas corpus relief, see
Pa. Const. Art. V, § 9, in that direct appeal, he was permitted to
raise issues pertaining only to the re-sentencing procedure itself;
his underlying claims of trial error regarding his non-vacated
convictions could not be addressed on direct appeal from re-
sentencing. See Commonwealth v. Gaito, 277 Pa.Super. 404,
419 A.2d 1208, 1211, 1211 n. 4 (1980). Therefore, for purposes
of the PCRA, those convictions and their sentences became final
on October 2, 1995. Cf. Dehart, 730 A.2d at 994 n. 2 (grant of
PCRA relief per se in first petition does not “reset clock” of finality
of judgment of sentence; “clock” is reset only where direct appeal
rights are restored or original conviction is disturbed). Our
conclusion is wholly supported by the principle that, where a
defendant is convicted of multiple charges and sentenced on those
charges separately, his appellate challenge to one of the
sentences, to the exclusion of the others, does not affect the
operation of the other sentences. See Commonwealth v.
DeBooth, 379 Pa.Super. 522, 550 A.2d 570, 573 n. 2 (1988).
McKeever, supra, 947 A.2d at 785–786 (emphasis supplied).
Here, Kitchell’s registration requirements under SORNA were unaffected
by the sentencing relief granted pursuant to the PCRA petition he filed in
February of 2015. Accordingly, that part of his sentence was “final” for
purposes of PCRA relief on October 28, 2014, and his present petition is
untimely.
-9-
J-S33029-19
Nevertheless, an untimely PCRA petition may still be considered if a
petitioner pleads and proves that one of the three time-for-filing exceptions
applies.10 See 42 Pa.C.S. § 9545(b)(1)(i)-(iii). A PCRA petition alleging any
of the exceptions under Section 9545(b)(1) must be filed within 60 days of
when the PCRA claim could have first been brought.11 See 42 Pa.C.S. §
9545(b)(2). “The PCRA squarely places upon the petitioner the burden of
____________________________________________
10 Section 9545(b) provides, in relevant part:
(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).
11 Subsection 9545(b)(2) was recently amended to extend the filing period to
one year from the date the claim could have been presented. See Section 3
of Act 2018, Oct. 24, P.L. 894, No. 146, effective in 60 days. However, the
extended time period applies only to claims arising on or after December 24,
2017. See id. Accordingly, it is inapplicable here.
- 10 -
J-S33029-19
proving an untimely petition fits within one of the three exceptions.”
Commonwealth v. Jones, 54 A.3d 14, 17 (Pa. 2012). Here, Kitchell failed
to invoke any of the time-for-filing exceptions in his PCRA petition, and counsel
failed to address this claim in his “no-merit” brief. Accordingly, no relief is
warranted.
Nevertheless, even if we were to consider the timing exceptions set forth
in Section 9545(b)(1), we would still conclude Kitchell is entitled to no relief.
His claim focuses on the Supreme Court’s decision in Muniz, which held the
application of SORNA’s registration requirements to offenders who committed
their crimes before the effective date of the statute constitutes an ex post
facto punishment. Accordingly, the only time-for-filing exception that might
apply is the newly recognized constitutional right exception set forth in
Subsection 9545(b)(1)(iii).12 However, this Court has held Muniz does not
satisfy this PCRA timing exception. In Commonwealth v. Murphy, 180 A.3d
402 (Pa. Super. 2018), appeal denied, 195 A.3d 559 (Pa. 2018), we explained
that in order to satisfy the newly recognized constitutional right exception, the
new right must have been held to apply retroactively by either the
Pennsylvania or United States Supreme Court. See id. at 405. The panel
____________________________________________
12Kitchell’s claim does not assert governmental interference, and “[o]ur
Supreme Court has held that subsequent decisional law does not amount to a
new fact under section 9545(b)(1)(iii) of the PCRA.” Commonwealth v.
Brandon, 51 A.3d 231 (Pa. Super. 2012) (internal punctuation omitted),
quoting Commonwealth v. Watts, 23 A.3d 980 (Pa. 2011).
- 11 -
J-S33029-19
found “[b]ecause at this time, no such holding has been issued by our
Supreme Court, Appellant cannot rely on Muniz to meet that timeliness
exception.” Id. at 406 (footnote omitted). See also Commonwealth v.
Johnson, 200 A.3d 964, 966-967 (Pa. Super. 2018). The same is true here.
Therefore, because we conclude Kitchell’s present PCRA petition was
untimely filed, and he failed to satisfy any of the time-for-filing exceptions,
we affirm the order denying him PCRA relief. Moreover, because we agree
with counsel’s assessment that this appeal is without merit, we grant counsel’s
petition to withdraw.
Order affirmed. Petition to withdraw granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/04/2019
- 12 -