Com. v. Frost, M.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
MICHAEL ALLAN FROST :
:
Appellant : No. 1656 WDA 2018
Appeal from the PCRA Order Entered October 24, 2018
In the Court of Common Pleas of Crawford County Criminal Division at
No(s): CP-20-CR-0001288-1999
BEFORE: DUBOW, J., McLAUGHLIN, J., and COLINS, J.*
MEMORANDUM BY McLAUGHLIN, J.: FILED SEPTEMBER 10, 2020
Michael Allan Frost appeals from the order dismissing as untimely his
petition filed under the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§
9541-9546. Frost’s counsel has filed a Turner/Finley1 brief and a Motion for
Leave to Withdraw as Counsel. We grant counsel leave to withdraw and affirm
the order of the PCRA court.
Frost pled guilty to three counts of involuntary deviate sexual
intercourse and two counts of endangering welfare of children2 for acts he
committed in 1998 and 1999. On May 19, 2000, the trial court sentenced Frost
* Retired Senior Judge assigned to the Superior Court.
1Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth v.
Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc).
2 See 18 Pa.C.S.A. §§ 3123(a)(6) and 4304(a), respectively.
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to serve an aggregate term of 16 to 32½ years’ imprisonment. The court
entered an amended sentencing order on June 6, 2000, giving Frost credit for
time served. At sentencing, the court notified Frost that he would be subject
to a 10-year registration requirement under Megan’s Law. See N.T.,
5/19/2000, at 29. Frost did not file a direct appeal.
After numerous unsuccessful PCRA petitions, on April 24, 2018, Frost
filed the subject petition, his eleventh. Proceeding pro se, Frost alleged that
the application of Subchapter H of the Sexual Offender Registration and
Notification Act (“SORNA”)3 to Frost’s case would violate the Ex Post Facto
Clauses of the state and federal constitutions, pursuant to Commonwealth
v. Muniz, 164 A.3d 1189 (Pa. 2017).
The PCRA court appointed counsel, who filed an amended petition. In
the amended petition, Frost argued that upon his release, he should be subject
to the registration requirements of the version of Megan’s Law that was in
place at the time he committed his crimes. In the alternative, Frost argued
that he should be subject to the recently enacted Subchapter I of SORNA.4
Frost asserted that his petition was timely as he mailed it from prison within
60 days of the February 21, 2018 amendments to SORNA, which included the
addition of Subchapter I.
3 See 42 Pa.C.S.A. §§ 9799.10-9799.41.
4 See 42 Pa.C.S.A. §§ 9799.51-9799.75.
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Following argument,5 the PCRA court issued Pa.R.Crim.P. 907 notice of
its intention to dismiss Frost’s petition without a hearing due to the petition’s
untimeliness. See Pa.R.Crim.P. 907. The court concluded that the petition did
not qualify as timely on the basis of Muniz, and explained that the registration
requirements under the current version of SORNA would apply to Frost upon
his release. The notice gave Frost 20 days from September 25, 2018, to
respond.
Frost mailed an untimely pro se response to the PCRA court,6 again
asserting that the application of Subchapter H to his case would be
unconstitutional pursuant to Muniz. Frost also argued that he should not be
subject to the requirements of Megan’s Law, as it was replaced by SORNA,
and that Subchapter I of SORNA is unconstitutional as applied to him, as it
violates the ex post facto clause of the state and federal constitutions and the
prohibition against double jeopardy. The PCRA court forwarded a copy to
Frost’s counsel, and dismissed the petition.
Frost filed a timely pro se notice of appeal on November 19, 2018.7 The
docket does not reflect whether the court sent a copy of the notice of appeal
5 A transcript of the argument is not included in the certified record.
6 Frost dated the response October 21, 2018.
7 Although Frost was represented by counsel, a criminal defendant
represented by counsel may file a pro se notice of appeal. See
Commonwealth v. Williams, 151 A.3d 621, 624 (Pa.Super. 2016).
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to Frost’s counsel.8 See Pa.R.Crim.P. 576(A)(4). The PCRA court then issued
an order directing Frost to file a concise statement of matters complained of
on appeal, stating that Frost was “unrepresented.” See Pa.R.A.P. 1925(b).
The docket does not contain a notation that the court sent a copy of the order
to Frost’s counsel. Frost thereafter filed an untimely pro se Rule 1925(b)
statement.
Approximately one month later, the court entered an order
acknowledging that Frost had filed a pro se notice of appeal and Rule 1925(b)
statement while still represented by counsel. The court stated that although
Frost “has counsel of record,” he “may continue” to act pro se “with the
understanding that if he wishes to have his attorney act on his behalf, he must
file a motion requesting that[,] so that counsel can be directed to, again, be
involved in this matter on behalf of [Frost.]” See Order, 1/18/19, at 1. In
February 2019, the trial court ordered that counsel would continue to
represent Frost on appeal.
8 Apparently unaware that Frost had filed a pro se notice of appeal and that
an appeal was already pending, on December 4, 2018, Frost’s counsel
petitioned the court for leave to appeal nunc pro tunc. In the petition, Frost’s
counsel alleged that Frost had asked him within the appeal period to file an
appeal, but he had failed to do so. The PCRA court denied counsel’s petition.
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Frost’s counsel initially filed a Motion for Leave to Withdraw as Counsel
and an Anders9 brief.10 By memorandum dated November 26, 2019, this
Court concluded that counsel’s initial request to withdraw was deficient due to
an error in counsel’s letter to Frost. Counsel advised Frost, “Should the [c]ourt
decide to grant my Motion for Leave to Withdraw as Counsel in your case, you
do have the right to proceed pro se (representing yourself) or you may hire
counsel of your own choosing.” See Letter, 3/22/19, at 9 (unpaginated). This
advice was erroneous, as Frost had the immediate right to proceed with the
appeal — whether pro se or with new counsel — once counsel sought leave to
withdraw. See Commonwealth v. Muzzy, 141 A.3d 509, 512 (Pa.Super.
2016).
Accordingly, we denied counsel’s motion to withdraw and instructed
counsel to file either an advocate’s brief or a no-merit letter and request to
withdraw within 30 days. Further, this Court clarified that the issues on appeal
would not be limited to those listed in Frost’s pro se Rule 1925(b) statement.
9 Anders v. California, 386 U.S. 738 (1967).
10 The proper filing in conjunction with a request to withdraw from PCRA
representation is a Turner/Finley “no-merit” letter. See Commonwealth v.
Wrecks, 931 A.2d 717, 722 (Pa.Super. 2007) (explaining differences between
requirements to withdraw during PCRA representation and on direct appeal).
However, because an Anders brief provides greater protection to a defendant,
we may accept it in lieu of a no-merit letter. See Commonwealth v.
Widgins, 29 A.3d 816, 817 n.2 (Pa.Super. 2011).
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Counsel has since filed a renewed Turner/Finley brief and a Motion for
Leave to Withdraw as Counsel. A Turner/Finley brief must “[detail] the
nature and extent of counsel’s diligent review of the case, [list] the issues
which the petitioner wants to have reviewed, [explain] why and how those
issues lack merit, and [request] permission to withdraw.” Wrecks, 931 A.2d
at 721. Counsel must also send to the petitioner (1) a copy of the no-merit
letter, (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.” Id. When
counsel seeks to withdraw from appellate representation, his letter must
advise the petitioner that he has the right to proceed pro se or through new
counsel immediately upon counsel’s request to withdraw. Muzzy, 141 A.3d at
512. If counsel has satisfied the Turner/Finley requirements, this Court will
then “conduct its own review of the merits of the case.” Wrecks, 931 A.2d at
721.
Here, counsel has substantially complied with the technical demands of
Turner/Finley. Counsel sent Frost copies of his no-merit brief and his Motion
for Leave to Withdraw as Counsel. In his cover letter to Frost, counsel cured
the defects of his March 22, 2019 letter, advising, “Upon the filing of my
Motion for Leave to Withdraw as Counsel, you have the immediate right to
proceed in the appeal pro se (representing yourself) or through privately-
retained counsel.” See Letter, 12/9/19, at 10 (unpaginated).
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In his Turner/Finley brief, counsel provides a procedural history of the
case, addresses Frost’s issues raised on appeal, and explains why counsel
believes those issues lack merit. In particular, counsel thoroughly discusses
why Frost’s petition is untimely pursuant to 42 Pa.C.S.A § 9545(b). We thus
conclude that counsel’s request to withdraw meets the technical requirements,
and we turn to an independent review of the case. Frost has not filed a
response to counsel’s no-merit brief and withdrawal request.
Our standard of review from the denial of post-conviction relief “is
limited to examining whether the PCRA court’s determination is supported by
the evidence of record and whether it is free of legal error.” Commonwealth
v. Ligon, 206 A.3d 515, 518 (Pa.Super. 2019) (quoting Commonwealth v.
Ousely, 21 A.3d 1238, 1242 (Pa.Super. 2011)).
The PCRA’s time requirements are a jurisdictional prerequisite.
Commonwealth v. Bankhead, 217 A.3d 1245, 1247 (Pa.Super. 2019). A
PCRA petition must be filed within one year of the date the petitioner’s
judgment of sentence becomes final, unless at least one statutory exception
applies. 42 Pa.C.S.A. § 9545(b)(1). A judgment of sentence 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)(3).
Here, the trial court entered a final sentencing order on June 6, 2000,
and Frost did not file a notice of appeal. Therefore, his judgment of sentence
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became final on July 6, 2000, 30 days after sentencing. See Pa.R.A.P. 903(a).
Frost’s petition, filed nearly 18 years later, is thus facially untimely.
A petition filed after the one-year time period may be considered if one
of three enumerated exceptions applies:
(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.
Id. at § 9545(b)(1)(i-iii).
Upon review, we conclude that Frost has failed to prove that one of the
Section 9545(b)(1) timeliness exceptions applies. Although the Supreme
Court held in Muniz that Subchapter H of SORNA is unconstitutional when
applied to offenders who, like Frost, committed their offenses prior to the
enactment of SORNA, neither the United States Supreme Court nor the
Pennsylvania Supreme Court has held that Muniz newly recognized a
constitutional right that applies retroactively. Commonwealth v. Greco, 203
A.3d 1120, 1124 (Pa.Super. 2019). Thus, the Muniz decision cannot render
a PCRA petition timely. See 42 Pa.C.S.A. § 9545(b)(1)(iii). Moreover, the
2018 amendments to SORNA have rendered Frost’s challenge to Subchapter
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H moot, because Subchapter I will now apply to Frost. See Johnson v.
Martofel, 797 A.2d 943, 946 (Pa.Super. 2002) (stating change in facts may
make controversy moot).
Frost also argued that the application of Subchapter I to his case would
constitute an illegal sentence, and that his petition is timely based on the
enactment of Subchapter I.11 See 42 Pa.C.S.A. § 9545(b)(1)(ii). However,
Frost did not raise a challenge to Subchapter I until he responded to the court’s
Rule 907 notice.12 This filing was untimely, and also a nullity, as Frost filed it
pro se while represented by counsel. See Commonwealth v. Britt, 83 A.3d
198, 204 (Pa.Super. 2013). Frost therefore waived any argument that
Subchapter I renders his sentence illegal, and the enactment of Subchapter I
cannot satisfy a timeliness exception in this case. See Commonwealth v.
Robinson, 185 A.3d 1055, 1061-63 (Pa.Super.) (en banc) (holding newly
discovered facts must bear some connection to underlying claim), appeal
denied, 192 A.3d 1105 (Pa. 2018).
11 It is questionable whether any new legislation can provide a basis for an
exception to the PCRA time bar. See Commonwealth v. Lacombe, --- A.3d
----, No. 35 MAP 2018, 2020 WL 4150283, at *10-11 (Pa. July 21, 2020)
(recognizing that challenges to changes in sex offender registration statutes,
which may occur years after the petitioners’ judgment of sentence has become
final, may not meet the PCRA’s timeliness requirements); see also Greco,
203 A.3d at 1125 (stating post-conviction petition seeking declaration of
reporting requirements, filed in the Court of Common Pleas against the
Commonwealth, is subsumed by the PCRA).
12In his Amended Petition, Frost actually requested the PCRA court declare
that he would be subject to Subchapter I upon his release from prison.
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Accordingly, we conclude that Frost’s PCRA petition is untimely, and our
independent review does not reveal any colorable issues. Although we do not
reach the merits of the claim, we recognize that subsequent to Frost’s
commencement of this appeal, our Supreme Court established that
Subchapter I is not punitive, and so its application does not support ex post
facto or double jeopardy claims. See Lacombe, 2020 WL 4150283, at *3 n.5,
*18. We therefore affirm the PCRA court’s order denying Frost relief and grant
counsel’s Motion for Leave to Withdraw.
Order affirmed. Motion for Leave to Withdraw granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/10/2020
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