Com. v. Venesky, J. ( 2018 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
JONATHAN VENESKY, :
:
Appellant : No. 102 EDA 2018
Appeal from the PCRA Order, December 4, 2017,
In the Court of Common Pleas of Chester County,
Criminal Division at No(s): CP-15-CR-0002345-2001,
CP-15-CR-0002346-2001.
BEFORE: GANTMAN, P.J., DUBOW, J., and KUNSELMAN, J.
MEMORANDUM BY KUNSELMAN, J.: FILED AUGUST 24, 2018
Jonathan Venesky appeals from the order denying as untimely his
second petition filed pursuant to the Post Conviction Relief Act (PCRA), 42
Pa.C.S.A. §§ 9541-9546. Venesky’s counsel has filed an application to
withdraw. We grant counsel’s application to withdraw and affirm the order
denying Venesky post-conviction relief.
The pertinent facts and procedural history are as follows: On November
14, 2001, Venesky entered a negotiated guilty plea of involuntary deviate
sexual intercourse at CP-15-CR-0002345-2001, and to rape at CP-15-CR-
0002346-2001. In accordance with the plea agreement, the trial court
sentenced him to an aggregate ten to twenty years of incarceration and a
consecutive five-year probationary term. The trial court also required Venesky
to register as a sex offender under a now expired version of Megan’s Law.
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Venesky filed a timely appeal to this Court. On October 16, 2003, this
Court affirmed Venesky’s judgment of sentence. See Commonwealth v.
Venesky, 839 A.2d 1165 (Pa. Super. 2001) (unpublished memorandum).
Venesky did not file a petition for allowance of appeal to the Pennsylvania
Supreme Court. On January 5, 2012, he filed a pro se PCRA petition, and the
PCRA court appointed counsel for him. On February 23, 2012, PCRA counsel
filed a “no-merit” letter and petition to withdraw pursuant to the dictates of
Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and Commonwealth
v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc). On April 13, 2012, the
PCRA court issued notice of intent to dismiss the petition pursuant to
Pa.R.Crim.P. 907. Venesky filed numerous responses. By order entered
March 21, 2013, the PCRA court dismissed Venesky’s first petition as untimely.
He did not file an appeal.
On August 24, 2017, Venesky filed a second counseled PCRA petition,
in which he challenged the applicability of sex offender registration in light of
the Pennsylvania Supreme Court’s decision in Commonwealth v. Muniz, 164
A.3d 1180 (Pa. 2017).1 The PCRA court held a hearing on December 4, 2017.
By order entered that same day, the PCRA court denied the petition. This
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1Although Venesky entitled this filing as a “Motion to Bar the Applicability of
Sex Offender Registration and/or Petition for Writ of Habeas Corpus,” the
PCRA Court properly treated it as a second PCRA petition. See infra.
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appeal follows. Both Venesky and the PCRA court have complied with
Pa.R.A.P. 1925.
In lieu of an advocate’s brief, Venesky’s counsel has filed an application
to withdraw, a copy of her no-merit letter, and accompanying argument
pursuant to the dictates of Turner/Finley, supra. According to counsel,
Venesky’s second petition is untimely, and Muniz does not establish an
exception to the PCRA’s time bar. Thus, we will assess counsel’s assertion
that the issue Venesky wishes to raise on appeal has no merit under a
Turner/Finley analysis.
This Court has summarized:
The Turner/Finley decisions provide the manner for
post[-]conviction counsel to withdraw from representation.
The holdings of those cases mandate an independent review
of the record by competent counsel before a PCRA court or
[an] appellate court can authorize an attorney’s withdrawal.
The necessary independent review requires counsel to file a
“no-merit” letter detailing the nature and extent of his [or
her] review and list each issue the petitioner wishes to have
examined, explaining why those issues are meritless. The
PCRA court, or an appellate court if the no-merit letter is filed
before it, see Turner, supra, then must conduct its own
independent evaluation of the record and agree with counsel
that the petition is without merit[.]
[T]his Court [has] imposed additional requirements on
counsel that closely track the procedure for withdrawing on
direct appeal. . . . [C]ounsel is required to
contemporaneously serve upon his [or her] client his [or her]
no merit letter and application to withdraw along with a
statement that if the court granted counsel’s withdraw
request, the client may proceed pro se or with a privately
retained attorney[.]
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Commonwealth v. Reed, 107 A.3d 137, 140 (Pa. Super. 2014) (citation
omitted). Counsel has complied with the mandates of Turner and Finley, as
summarized in Reed, supra. Thus, we must determine whether we agree
with counsel’s assessment of Venesky’s claim.
We must first determine whether Venesky’s counsel and the PCRA
correctly determined that Venesky’s second petition for post-conviction relief
was untimely filed. This Court’s standard of review regarding an order
dismissing a petition under the PCRA is to ascertain whether “the
determination of the PCRA court is supported by the evidence of record and is
free of legal error. The PCRA court’s findings will not be disturbed unless there
is no support for the findings in the certified record.” Commonwealth v.
Barndt, 74 A.3d 185, 191-92 (Pa. Super. 2013) (citations omitted).
Generally, a petition for relief under the PCRA, including a second or
subsequent petition, must be filed within one year of the date the judgment
is final unless the petition alleges, and the petitioner proves, that an exception
to the time for filing the petition, set forth at 42 Pa.C.S.A. sections
9545(b)(1)(i), (ii), and (iii), is met.2 42 Pa.C.S.A. § 9545. A PCRA petition
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2 The exceptions to the timeliness requirement are:
(i) the failure to raise the claim previously was the result of
interference of 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.
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invoking one of these statutory exceptions must “be filed within 60 days of
the date the claims could have been presented.” See Commonwealth v.
Hernandez, 79 A.3d 649, 651-52 (Pa. Super. 2013) (citations omitted); see
also 42 Pa.C.S.A. § 9545(b)(2). Asserted exceptions to the time restrictions
for a PCRA petition must be included in the petition, and may not be raised
for the first time on appeal. Commonwealth v. Furgess, 149 A.3d 90 (Pa.
Super. 2016).
Here, because Venesky did not seek further review after we affirmed his
judgment of sentence on October 16, 2003, his judgment of sentence became
final on November 17, 2003.3 Thus, for purposes of the PCRA’s time bar,
Venesky had to file his second petition by November 17, 2004. As he filed his
second petition in 2017, it is patently untimely, unless Venesky has satisfied
his burden of pleading and proving that one of the enumerated exceptions
applies. See Hernandez, supra.
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(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.A. §§ 9545(b)(1)(i), (ii), and (iii).
3 The thirtieth day fell on a Saturday. See 1 Pa.C.S.A. § 1908.
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Venesky has failed to prove any exception to the PCRA’s time bar.
Within his second PCRA petition, Venesky relied upon our Supreme Court’s
recent decision in Commonwealth v. Muniz, 164 A.3d 1180 (Pa. 2017), as
establishing a “new constitutional right” pursuant to 42 Pa.C.S.A. § 9545
(b)(1)(iii). Subsection 9545(b)(1)(iii) applies only when “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). This Court has reiterated:
Subsection (iii) of section 9545 has two requirements. First,
it provides that the right asserted is a constitutional right
that was recognized by the Supreme Court of the United
States or th[e Pennsylvania] Supreme Court after the time
period provided in this section. Second, it provides that the
right “has been held” by that court to apply retroactively.
The language “has been held” is the past tense. These
words mean that the action has already occurred, i.e., “that
court” has already held the new constitutional right to be
retroactive to cases on collateral review. By employing the
past tense in writing this provision, the legislature clearly
intended that the right was already recognized at the time
the petition was filed.
Commonwealth v. Garcia, 23 A.3d 1059, 1063 (Pa. Super. 2011) (citations
omitted).
Here, both Venesky’s counsel and the PCRA court have correctly
concluded that, because his second petition was untimely, and our Supreme
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Court has yet to hold that its decision in Muniz applies retroactively, Venesky
is not entitled to post-conviction relief.4 As this Court recently explained:
Here, we acknowledge that this 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. Supper. 2017).
However, because Appellant’s PCRA petition is untimely
(unlike the petition at issue in Rivera-Figueroa), he must
demonstrate that Muniz applies retroactively in order to
satisfy section 9545(b)(1)(iii). See [Commonwealth v.
Abdul-Salaam, 812 A.2d 497, 501 (Pa. 2002)]. Because
at this time, no such holding has been issued by our
Supreme Court, Appellant cannot rely on Muniz meet the
timeliness exception.
Commonwealth v. Murphy, 180 A.3d 402, 405-06 (Pa. Super. 2018)
(emphasis in original; footnote omitted). Here, Venesky’s second PCRA
petition is untimely. Thus, he cannot rely on Muniz to establish an exception
to the PCRA’s time bar.5
In sum, our review of the record supports counsel’s assessment that
Venesky’s appeal is wholly frivolous at this time based on current law. Thus,
we grant her application to withdraw. Moreover, because Venesky has not
established an exception to the PCRA’s time bar, the PCRA court correctly
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4Our review of the record supports the PCRA court’s finding that Venesky filed
his second PCRA petition within sixty days of the Muniz decision. See PCRA
Court Order, 12/4/17, at 1 n.1.
5 Importantly, the PCRA court denied Venesky’s petition without prejudice “to
raise his claims again (if and/or when) the Supreme Court makes its decision
in (Muniz) retroactive for the purposes of the time filing requirements of 42
Pa.C.S.A. § 9545.” See Order, 12/4/17, at 1.
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determined that it lacked jurisdiction to consider his second PCRA petition.
We therefore affirm its order denying post-conviction relief.
Application to withdraw granted. Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/24/2018
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