Com. v. Klinger, G.

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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT
: OF PENNSYLVANIA
Appellee :
:
v. :
:
GARY R. KLINGER :
:
Appellant : No. 319 MDA 2020
Appeal from the PCRA Order Entered December 12, 2019
in the Court of Common Pleas of Dauphin County
Criminal Division at No: CP-22-CR-0002081-2008
BEFORE: STABILE, J., NICHOLS, J. and STRASSBURGER, J.*
MEMORANDUM BY STABILE, J.: FILED APRIL 23, 2021
Appellant, Gary R. Klinger, appeals from the December 12, 2019 order
entered in the Court of Common Pleas of Dauphin County (“PCRA Court”),
which dismissed as untimely his second petition for collateral relief under the
Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-46.1 PCRA
counsel has filed an Anders2 brief and an application to withdraw as
counsel. Upon review, we affirm and grant the application to withdraw.
1 Appellant’s underlying PCRA petition also collaterally attacked his
convictions at docket number 4142 of 2008, which were part of his
negotiated plea agreement with the instant docket number. We note that
Appellant has only filed a notice of appeal at docket number 2081 of 2008.
2 Counsel filed a brief pursuant to Anders v. California, 386 U.S. 738(1967). However, where counsel seeks to withdraw on appeal from the
denial of PCRA relief, a Turner/Finley “no-merit letter” is the appropriate
filing. Commonwealth v. Reed, 107 A.3d 137, 139 n.5 (Pa. Super. 2014)
(citing Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988);
(Footnote Continued Next Page)
*Retired Senior Judge assigned to the Superior Court.
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The factual background of the instant appeal is not at issue. On April
7, 2009, Appellant pleaded guilty to two counts each of involuntary deviate
sexual intercourse with a child, indecent assault of a person less than 13
years of age, indecent exposure, corruption of minors, and unlawful contact
with a minor, and 42 counts of sexual abuse of children – child
pornography,3 pursuant to a negotiated plea agreement.4 On August 20,
2009, the plea court imposed an aggregate sentence of 9 to 18 years of
incarceration and a concurrent 10-year term of probation. Appellant was
classified as a sexually violent predator (SVP) and subjected to lifetime
registration as a sex offender.
After sentencing, Appellant did not request to withdraw his plea or file
a direct appeal. Accordingly, Appellant’s judgment of sentence became final
on or about September 19, 2009.
(Footnote Continued) _______________________
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc)).
Nevertheless, our practice in these situations is to accept counsel’s Anders
brief and determine whether it substantially complies with the
Turner/Finley criteria. See Commonwealth v. Widgins, 29 A.3d 816,
819 (Pa. Super. 2011).
On February 10, 2021, this Court denied counsel’s petition to withdraw and
directed counsel to send a copy of the letter, petition to withdraw, and
Anders brief to Appellant with amended certificates demonstrating proper
service on Appellant and the Commonwealth. Counsel has complied and this
case is now ready for review.
3
18 Pa.C.S.A. §§ 3123(b), 3126(a)(7), 3127, 6301, 6318, and 6312(d),
respectively.
4 As part of the plea agreement, Appellant also pleaded guilty at docket
number 4142 of 2008 to 54 counts relating to child pornography.
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Appellant filed his first PCRA petition in 2010. The PCRA court
appointed counsel, who filed a motion to withdraw as counsel and withdraw
Appellant’s petition at Appellant’s request. The PCRA court granted
counsel’s motion.
Appellant filed the instant PCRA petition, his second, on February 26,
2018, challenging the legality of his sentence, sex offender registration, and
SVP classification. Appellant asserted his petition was timely filed pursuant
to Section 9545(b)(1)(iii).5 Specifically, he relied on our Supreme Court’s
decision in Commonwealth v. Muniz, 164 A.3d 1189 (Pa. 2017), which
held that the registration and reporting provisions of the Sex Offender
Registration and Notification Act are punitive, and retroactive application of
these provisions is unconstitutional. The PCRA court appointed counsel, who
filed a supplemental PCRA petition at the direction of the PCRA court.
Finding that neither our Supreme Court nor the United States Supreme
Court has held the right recognized in Muniz applies retroactively, the PCRA
5 This subsection provides as follows.
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 … 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.A. § 9545(b)(1)(iii).
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court concluded that Muniz could not be relied upon to satisfy Section
9545(b)(1)(iii). See PCRA Court Opinion, 11/18/2019, at 3-6. Thus, the
PCRA court issued notice of its intent to dismiss Appellant’s petition without
a hearing pursuant to Pennsylvania Rule of Criminal Procedure 907. On
December 12, 2019, the PCRA court dismissed Appellant’s petition as
untimely filed.
Appellant did not file a notice of appeal. Instead, on January 17,
2020, Appellant filed a petition for reinstatement of his PCRA appellate rights
nunc pro tunc. According to the reinstatement petition, the PCRA court’s
November 18, 2019 notice of intent to dismiss and December 12, 2019
dismissal orders were mailed to Appellant’s prison address. However,
Appellant had been released in June 2019,6 and thus did not receive notice
of the court’s dismissal and could not direct counsel to file a notice of appeal.
The PCRA court granted the petition to reinstate Appellant’s PCRA appellate
rights nunc pro tunc.7
6 Although released from prison, Appellant remains on parole. In that
regard, he is eligible to seek PCRA relief. 42 Pa.C.S.A. § 9543(a)(1)(i).
7 Appellant’s petition to reinstate was a subsequent PCRA petition subject to
the timeliness requirements of the PCRA. See Commonwealth v. Fairiror,
809 A.2d 396, 397 (Pa. Super. 2002). Within his petition to reinstate,
Appellant argued that he had not received the PCRA court’s notice of intent
to dismiss or dismissal orders, thereby invoking the newly-discovered fact
exception set forth in Section 9545(b)(1)(ii). Appellant’s petition was filed
within one year of his learning of the PCRA court’s orders. Therefore, the
petition to reinstate was timely filed under the PCRA, and the PCRA court
had jurisdiction to reinstate Appellant’s PCRA appellate rights nunc pro tunc.
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On February 19, 2020, Appellant filed the instant appeal. Both
Appellant and the PCRA court complied with Pennsylvania Rule of Appellate
Procedure 1925. As noted above, counsel has filed an Anders brief and
petition to withdraw as counsel. Appellant’s counsel raises a single issue of
arguable merit for our review: “Did the [PCRA] court err in dismissing the
Appellant’s Post-Conviction Relief Act Petition as untimely when the
Appellant raised a legitimate exception to the one-year filing requirement
under 42 Pa.C.S.A. § 9545(b)(1)(iii)?” Anders Brief at 4. Appellant has not
filed a response.
Before we may consider this issue, we must address whether PCRA
counsel has met the requirements of Turner/Finley. For PCRA counsel to
withdraw under Turner/Finley in this Court:
(1) PCRA counsel must file a no-merit letter that details the
nature and extent of counsel’s review of the record; lists
the appellate issues; and explains why those issues are
meritless.
(2) PCRA counsel must file an application to withdraw; serve
the PCRA petitioner with the application and the no-merit
letter; and advise the petitioner that if the Court grants
the motion to withdraw, the petitioner can proceed pro se
or hire his own lawyer.
(3) This Court must independently review the record and
agree that the appeal is meritless.
See Commonwealth v. Widgins, 29 A.3d 816, 817-18 (Pa. Super. 2011)
(citing or quoting Turner, Finley, Commonwealth v. Pitts, 981 A.2d 875-5-
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(Pa. 2009), and Commonwealth v. Friend, 896 A.2d 607 (Pa. Super.
2008), overruled in part by Pitts).
We find that PCRA counsel has complied with Turner/Finley. PCRA
counsel has filed an application to withdraw and filed a Turner/Finley no-
merit letter. Finally, PCRA counsel informed Appellant of his right to hire a
new lawyer or file a pro se response.
We now address whether this appeal is indeed meritless. “On appeal
from the denial of PCRA relief, our standard of review requires us to
determine whether the ruling of the PCRA court is supported by the record
and free of legal error.” Widgins, 29 A.3d at 819. As this Court has
explained:
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) (citations
omitted).
Before we may address the merits of this appeal, however, we must
determine whether the PCRA court had jurisdiction to entertain the
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underlying PCRA petition. The PCRA contains the following restrictions
governing the timeliness of any petition filed under the PCRA.
(b) Time for filing petition.—
(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.
(2) Any petition invoking an exception provided in
paragraph (1) shall be filed within one year of the date the
claim could have been presented.
(3) For purposes of this subchapter, a judgment 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.A. § 9545(b). Section 9545’s timeliness provisions are
jurisdictional. Commonwealth v. Ali, 86 A.3d 173, 177 (Pa. 2014).
Additionally, we have emphasized repeatedly that “the PCRA confers no
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authority upon this Court to fashion ad hoc equitable exceptions to the PCRA
time-bar in addition to those exceptions expressly delineated in the Act.”
Commonwealth v. Robinson, 837 A.2d 1157, 1161 (Pa. 2003) (citations
omitted).
Here, the record reflects that Appellant failed to file a direct appeal.
Thus, his judgment of sentence became final on or about September 19,
2009. Appellant’s instant petition is facially untimely as he did not file it
until February 26, 2018.
The one-year time limitation, however, can be overcome if a petitioner
(1) alleges and proves one of the three exceptions set forth in Section
9545(b)(1)(i)-(iii) of the PCRA, and (2) files a petition raising this exception
within one year of the date the claim could have been presented. 42
Pa.C.S.A. § 9545(b)(2).
Here, Appellant invoked the time-bar exception set forth at Section
9545(b)(iii) based on Muniz. However, this Court has held that “the Muniz
decision does not allow a petitioner to escape the PCRA time-bar as it does
not satisfy the newly-recognized constitutional right exception as set forth
in Section 9545(b)(1)(iii).” Commonwealth v. Hromek, 232 A.3d 881,
885 (Pa. Super. 2020).
[T]his 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 Appellant’s PCRA petition is
untimely (unlike the petition at issue in Rivera-Figueroa), he
must demonstrate that the Pennsylvania Supreme Court has
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held that Muniz applies retroactively in order to satisfy [S]ection
9545(b)(1)(iii). See Abdul-Salaam, supra. Because 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 886 (quoting Commonwealth v. Murphy, 180 A.3d 402, 405-06
(Pa. Super. 2018)).
To date, our Supreme Court has not recognized that the new
constitutional right announced in Muniz applies retroactively in the collateral
context. Appellant, therefore, cannot rely on Muniz to satisfy Section
9545(b)(1)(iii). Accordingly, because Appellant’s PCRA petition was
untimely filed and he failed to plead and prove a timeliness exception, the
PCRA court did not err in dismissing Appellant’s petition as untimely.
We conclude this appeal is meritless. Therefore, we affirm the PCRA
court’s December 12, 2019 order dismissing Appellant’s PCRA petition as
untimely.
Order affirmed. Application to withdraw granted.
Judge Strassburger did not participate in the consideration or decision
of this case.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 04/23/2021
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