Commonwealth v. Knecht, 1746 WDA 2018

219 A.3d 689

COMMONWEALTH of Pennsylvania

v.Donald T. KNECHT, Appellant

No. 1746 WDA 2018

Superior Court of Pennsylvania.

Submitted May 28, 2019

Filed September 18, 2019

Donald T. Knecht, appellant, pro se.

John W. Peck, II, District Attorney, and Judith P. Petrush, Assistant District Attorney, Greensburg, for Commonwealth, appellee.

BEFORE: OLSON, J., STABILE, J., and McLAUGHLIN, J.

OPINION BY McLAUGHLIN, J.:

Donald Knecht appeals from an order denying his Post Conviction Relief Act ("PCRA") petition. See 42 Pa.C.S.A. §§ 9541 - 9546. His counsel has filed Turner / Finley¹ brief and a petition to withdraw. We affirm the denial of the PCRA petition and grant counsel's request to withdraw.

Knecht pleaded guilty in February 2012 to multiple felonies, including involuntary deviate sexual intercourse with a child, indecent assault of a person less than 13 years of age, and 50 counts of possession of child pornography.² The court determined Knecht to be a sexually violent predator ("SVP") and sentenced Knecht in all to 12½ to 25 years in prison followed by five years of probation.

Five years after sentencing, Knecht filed a pro se PCRA petition. The court appointed counsel, who filed an amended PCRA petition. The PCRA court ultimately dismissed the petition as untimely, and Knecht appealed.

Knecht's counsel subsequently filed a brief pursuant to Turner / Finley and an application to withdraw as counsel. The brief identifies the following issue:

Whether the holding in Commonwealth v. Muniz [ 640 Pa. 699, 164 A.3d 1189 (2017),] finding SORNA to be violative of the constitutional right to be free of penal ex post facto laws[,] creates a constitutional right held to apply retroactively, thereby vesting a trial court with jurisdiction to rule on the merits of a PCRA petition filed as an exception under 42 P[a.]C.S.A. § 9545(b)(1)(iii) ?

Turner / Finley Br. at 7.

When presented with a brief pursuant to Turner / Finley , we first determine whether the brief meets the procedural requirements of Turner / Finley . See Commonwealth v. Wrecks , 931 A.2d 717, 721 (Pa.Super. 2007). A Turner / Finley brief must: (1) detail the nature and extent of counsel's review of the case; (2) list each issue the petitioner wishes to have reviewed; and (3) explain counsel's reasoning for concluding that the petitioner's issues are meritless. Commonwealth v. Pitts , 603 Pa. 1, 981 A.2d 875, 876 n.1 (2009). Counsel must also send a copy of the brief to the petitioner, along with a copy of the petition to withdraw, and inform the petitioner of the right to proceed pro se or to retain new counsel. Wrecks , 931 A.2d at 721. If the brief meets these requirements, we then conduct an independent review of the petitioner's issues. Commonwealth v. Muzzy , 141 A.3d 509, 511 (Pa.Super. 2016).

Here, counsel has substantially complied with the requirements of Turner / Finley . The brief contains counsel's certification that he conducted a "zealous and diligent review" and found no meritorious issues. Counsel explains the issue that Knecht desires to raise on appeal and explains that he considers Knecht's issue to be meritless because neither the Pennsylvania nor the United States Supreme Court has declared Muniz to apply retroactively. PCRA counsel filed a copy of the letter he sent to Knecht, explaining why he finds that Knecht's issue is meritless, and advising Knecht that he may proceed pro se or retain private counsel.

We now proceed to an independent review of Knecht's issue. Knecht contends that the PCRA court had jurisdiction because Muniz applies retroactively. We agree with PCRA counsel that this issue is meritless.

The "retroactive right" timeliness exception applies only if either the Supreme Court of the United States or the Supreme Court of Pennsylvania has held that the right at issue applies retroactively. 42 Pa.C.S.A. § 9545(b)(1)(iii) ; Commonwealth v. Abdul-Salaam , 571 Pa. 219, 812 A.2d 497, 501 (2002). Knecht contends that we held Muniz to apply retroactively in Commonwealth v. Rivera-Figueroa , 174 A.3d 674, 678 (Pa.Super. 2017). However, Rivera-Figueroa did not involve the "retroactive right" timeliness exception. The PCRA petition in that case was timely, and all we said in that case was that a timely PCRA petition could access the right announced in Muniz .

Here, unlike the petitioner in Rivera-Figueroa , Knecht seeks to invoke the "retroactive right" timeliness exception. Because neither the United States Supreme Court nor the Pennsylvania Supreme Court has held that Muniz applies retroactively, Knecht is not eligible for this timeliness exception. See Commonwealth v. Murphy , 180 A.3d 402, 405-06 (Pa.Super. 2018).

Order affirmed. Counsel's application to withdraw granted.

Judge Stabile joins the Opinion.

Judge Olson notes dissent.

1 Commonwealth v. Turner , 518 Pa. 491, 544 A.2d 927 (1988) ; Commonwealth v. Finley , 379 Pa.Super. 390, 550 A.2d 213 (1988) (en banc ).

2 See 18 Pa.C.S.A. §§ 3123(b), 3126(a)(7), and 6312(d), respectively.