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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.                     :
                                            :
MARK A. NOLT,                               :
                                            :
                           Appellant        :     No. 1755 MDA 2016

                 Appeal from the PCRA Order September 23, 2016
                In the Court of Common Pleas of Lancaster County
               Criminal Division at No(s): CP-36-CR-0003528-2012
                                           CP-36-CR-0003543-2012
                                           CP-36-CR-0005510-2011
                                           CP-36-CR-0005527-2011

BEFORE: BOWES, J., DUBOW, J., and FITZGERALD, J.*

MEMORANDUM BY DUBOW, J.:                                 FILED MAY 10, 2017

         Appellant, Mark A. Nolt, appeals from the September 23, 2016 Order

entered in the Lancaster County Court of Common Pleas dismissing his first

Petition filed under the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§

9541-9546.       Additionally, Appellant’s appointed counsel, R. Russell Pugh,

Esquire, has filed a Petition to Withdraw and an accompanying no-merit

letter pursuant to Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988),

and Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).

After careful review, we grant Attorney Pugh’s Petition to Withdraw and

affirm.




*
    Former Justice specially assigned to the Superior Court.
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        On March 14, 2013, Appellant entered a negotiated guilty plea to

numerous violations of the Controlled Substance, Drug, Device, and

Cosmetic Act related to four separate dockets, including Possession With

Intent to Deliver (“PWID”)1 heroin and oxycodone.            The trial court

immediately imposed an aggregate term of five to ten years’ incarceration.2

Appellant did not file a direct appeal.3   Appellant’s Judgment of Sentence,

therefore, did not become final until April 15, 2013.4      See 42 Pa.C.S. §

9545(b)(3); Pa.R.A.P. 903(a); Pa.R.Crim.P. 720(A)(3).

        On August 24, 2015, Appellant filed the instant pro se PCRA Petition,

his first, raising numerous claims, including that his sentence is illegal

pursuant to Alleyne v. United States, 133 S.Ct. 2151 (2013), and

Commonwealth v. Hopkins, 117 A.3d 247 (Pa. 2015).             On October 13,

2015, the PCRA court appointed Attorney Pugh as counsel. Attorney Pugh

filed an Amended PCRA Petition on December 10, 2015, alleging that

1
    35 P.S. § 780-113(a)(30).
2
  We incorporate the trial court’s helpful summary of the convictions for each
Information, together with the corresponding sentence for each count. Trial
Court Opinion, 9/23/16, at 1-2.
3
  On October 7, 2013, Appellant filed a “Motion for Return of Property”
challenging deductions of money from his prison account. The trial court
dismissed this Motion on jurisdictional grounds and directed Appellant to file
a civil lawsuit in Commonwealth Court. Appellant filed a direct appeal, which
this Court dismissed due to Appellant’s failure to file a Brief.         See
Commonwealth v. Nolt, No. 2144 MDA 2013 (Pa. Super. filed August 5,
2014).
4
    April 13, 2013, was a Saturday. See 1 Pa.C.S. § 1908.



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Appellant’s trial counsel failed to file a direct appeal following the guilty plea,

despite Appellant’s purported request to do so.         On January 7, 2016, the

Commonwealth filed an Answer to Appellant’s Amended PCRA Petition.

      On September 23, 2016, the PCRA court dismissed Appellant’s Petition

without a hearing. On October 21, 2016, Appellant filed a Notice of Appeal.

Both Appellant and the PCRA court complied with Pa.R.A.P. 1925.

      On February 21, 2017, Attorney Pugh filed a Turner/Finley no-merit

letter in the form of an Appellant’s Brief, noting trial counsel’s failure to file a

direct appeal following Appellant’s guilty plea. Counsel, however, concluded

that there were no non-frivolous issues to be raised on appeal since the

PCRA Petition was untimely. Appellant did not file a response.

      Appellant presents one issue for our review:

      Whether the post-conviction court erred when it denied post-
      conviction relief on the basis that the PCRA Petition was filed
      untimely?

Appellant’s Brief at 2.

      Before we consider Appellant’s arguments, we must review Attorney

Pugh’s     request    to   withdraw   from    representation.           Pursuant   to

Turner/Finley, independent review of the record by competent counsel is

required     before    withdrawal     on   collateral    appeal    is     permitted.

Commonwealth v. Pitts, 981 A.2d 875, 876 n.1 (Pa. 2009).                  Counsel is

then required to submit a “no merit” letter (1) detailing the nature and

extent of his or her review; (2) listing each issue the petitioner wished to



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have reviewed; and (3) providing an explanation of why the petitioner’s

issues were meritless.     Id.    The court then conducts its own independent

review of the record to determine if the Petition is meritless. Id. “Counsel

must also send to the petitioner: (1) a copy of the ‘no-merit’ letter/brief; (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.”

Commonwealth v. Wrecks, 931 A.2d 717, 721 (Pa. Super. 2007) (citation

omitted).

      Our review of the record discloses that Attorney Pugh has complied

with each of the above requirements.            In addition, Attorney Pugh sent

Appellant copies of the Turner/Finley no-merit letter and Petition to

Withdraw, and advised him of his rights in lieu of representation in the event

that the court granted Attorney Pugh permission to withdraw.                    See

Commonwealth v. Widgins, 29 A.3d 816, 818 (Pa. Super. 2011). Since

Attorney Pugh has complied with the Turner/Finley requirements, we now

proceed with our independent review of the record and the merits of

Appellant’s claims.

      We review the denial of a PCRA Petition to determine whether the

record supports the PCRA court’s findings and whether its Order is otherwise

free of legal error.     Commonwealth v. Fears, 86 A.3d 795, 803 (Pa.

2014).   Before addressing the merits of Appellant’s claims, we must first

determine whether we have jurisdiction to entertain the underlying PCRA



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Petition. See Commonwealth v. Hackett, 956 A.2d 978, 983 (Pa. 2008)

(explaining that the timeliness of a PCRA Petition is a jurisdictional

requisite).

      Under the PCRA, any Petition “including a second or subsequent

petition, shall be filed within one year of the date the judgment becomes

final[.]” 42 Pa.C.S. § 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. §

9545(b)(3). The PCRA’s timeliness requirements are jurisdictional in nature,

and a court may not address the merits of the issues raised if the PCRA

petition was not timely filed. Commonwealth v. Albrecht, 994 A.2d 1091,

1093 (Pa. 2010).

      Here, Appellant’s Judgment of Sentence became final on April 15,

2013, upon expiration of the time to file a direct appeal. See 42 Pa.C.S. §

9545(b)(3); Pa.R.A.P. 903(a); Pa.R.Crim.P. 720(A)(3).         In order to be

timely, Appellant needed to submit his PCRA Petition by April 15, 2014. 42

Pa.C.S. § 9545(b)(1). Appellant filed this PCRA Petition on August 24, 2015,

more than 16 months too late and more than two years after his Judgment

of Sentence became final. Appellant’s Petition is, thus, facially untimely.




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      Pennsylvania courts may consider an untimely PCRA Petition, however,

if the appellant pleads and proves one of the three exceptions set forth in 42

Pa.C.S. § 9545(b), which provides the following:

      (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 60 days of the date the claim could have
      been presented.

42 Pa.C.S. § 9545(b)(1)-(2).     See, e.g., Commonwealth v. Lark, 746

A.2d 585, 588 (Pa. 2000) (reviewing specific facts that demonstrated the

claim had been timely raised within 60-day timeframe).

      Appellant’s counsel did not assert any of the timeliness exceptions in

the Turner/Finley Brief. Nevertheless, Appellant’s pro se Petition claimed

that his sentence is illegal pursuant to Alleyne v. United States, 133 S.Ct.


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2151 (2013), and Commonwealth v. Hopkins, 117 A.3d 247 (Pa. 2015).

This constitutes an attempt to invoke the timeliness exception under Section

9545(b)(1)(iii) to challenge the legality of his sentence.

      Although a legality of sentence claim cannot be waived, it must be

raised in a timely PCRA Petition. Commonwealth v. Jones, 932 A.2d 179,

182 (Pa. Super. 2007); 42 Pa.C.S. § 9545(b)(2); Commonwealth v. Fahy,

737 A.2d 214, 223 (Pa. 1999) (“Although legality of sentence is always

subject to review within the PCRA, claims must still first satisfy the PCRA’s

time limits or one of the exceptions thereto”).

      The United States Supreme Court decided Alleyne on June 17, 2013.

In order to invoke the “constitutional right” exception under 42 Pa.C.S. §

9545(b)(1)(iii), Appellant needed to submit his PCRA petition within 60 days

of June 17, 2013.5 See Commonwealth v. Boyd, 923 A.2d 513, 517 (Pa.

Super. 2007) (stating that the 60-day period begins to run upon the date of

the underlying judicial decision).     Appellant filed this PCRA Petition on

August 24, 2015, well after 60 days of the Alleyne decision.




5
  This Court applied Alleyne in Hopkins, supra, on June 15, 2015.
However, this Court recently reiterated that “the Hopkins decision did not
announce a ‘new rule,’ [for purposes of 42 Pa.C.S. § 9545(b)(1)(iii)] but
rather simply assessed the validity of Section 6317 under Alleyne and
concluded that particular mandatory minimum sentencing statute was
unconstitutional.” Commonwealth v. Whitehawk, 146 A.3d 266, 271 (Pa.
Super. 2016). Accordingly, Appellant’s attempt to rely on Hopkins to
calculate the 60-day period is misplaced.



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      Moreover, our Supreme Court has recently reiterated that Alleyne

does not apply retroactively on post-conviction collateral review.           See

Commonwealth v. Washington, 142 A.3d 810, 820 (Pa. 2016).

      Appellant also failed to plead and prove that he filed his PCRA Petition

within 60 days of the date he could have presented his claim (i.e., when he

first learned of counsel’s failure to file the direct appeal he allegedly

requested).    Accordingly, Appellant has failed to plead and prove that he

filed his untimely PCRA Petition “within 60 days of the date the claim could

have been presented.” 42 Pa.C.S. § 9545(b)(2). Since Appellant is unable

to satisfy the 60-day rule, he is unable to satisfy any of the three timeliness

exceptions. The PCRA court, therefore, properly dismissed Appellant’s PCRA

Petition as untimely.

      The record supports the PCRA court’s findings and its Order is

otherwise free of legal error. We, thus, affirm the denial of PCRA relief.

      Order affirmed. Petition to Withdraw granted.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 5/10/2017




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