J-S31038-19
2019 PA Super 285
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
DONALD T. KNECHT :
:
Appellant : No. 1746 WDA 2018
Appeal from the Order Entered November 7, 2018
In the Court of Common Pleas of Westmoreland County Criminal Division
at No(s): CP-65-CR-0002804-2011,
CP-65-CR-0002805-2011
BEFORE: OLSON, J., STABILE, J., and McLAUGHLIN, J.
OPINION BY McLAUGHLIN, J.: FILED SEPTEMBER 18, 2019
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.
____________________________________________
1 Commonwealth 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(b), 3126(a)(7), and 6312(d), respectively.
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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[, 164
A.3d 1189 (Pa. 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,
981 A.2d 875,
876 n.1 (Pa. 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
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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, 812 A.2d 497, 501 (Pa.
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
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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.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/18/2019
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