J-S62029-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA                       IN THE SUPERIOR COURT
                                                              OF
                                                         PENNSYLVANIA
                             Appellee

                        v.

 CARL DWAYNE BRIGGS

                             Appellant                 No. 538 MDA 2017


                    Appeal from the PCRA Order March 8, 2017
                  In the Court of Common Pleas of Mifflin County
               Criminal Division at No(s): CP-44-CR-0000331-2012

BEFORE: STABILE, J., MOULTON, J., and STRASSBURGER, J.*

MEMORANDUM BY MOULTON, J.:                        FILED DECEMBER 18, 2017

       Carl Dwayne Briggs appeals from the March 8, 2017 order entered in

the Mifflin County Court of Common Pleas dismissing as untimely his petition

filed under the Post Conviction Relief Act, 42 Pa.C.S. §§ 9541-46. On appeal,

counsel has filed an Anders1 brief and a petition to withdraw as counsel. We

affirm and grant counsel’s petition to withdraw.
____________________________________________


       *   Retired Senior Judge assigned to the Superior Court.

       1 Anders v. California, 386 U.S. 738 (1967). Because counsel seeks
to withdraw on appeal from a denial of PCRA relief, he should have filed a no-
merit brief pursuant to Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988)
and Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc),
rather than an Anders brief. However, “[b]ecause an Anders brief provides
greater protection to a defendant, this Court may accept an Anders brief in
lieu of a Turner/Finley letter.” Commonwealth v. Widgins, 29 A.3d 816,
817 n.2 (Pa.Super. 2011). We will refer to counsel’s brief as a Turner/Finley
brief.
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       On September 13, 2013, Briggs was found guilty of two counts of

involuntary manslaughter, one count of driving under the influence of alcohol

(“DUI”), two counts of homicide by vehicle while DUI, two counts of homicide

by vehicle, and one count of limitations on overtaking on the left. 2       On

November 22, 2013, the trial court sentenced Briggs to 6 to 12 years’

incarceration.     On April 23, 2015, this Court affirmed the judgment of

sentence. Briggs did not file a petition for allowance of appeal.

       On September 12, 2016,3 Briggs filed a pro se PCRA petition based on

Birchfield v. North Dakota, 136 S.Ct. 2160 (2016).            The PCRA court

appointed counsel. On February 16, 2017, the PCRA court held a hearing. On


____________________________________________


       18 Pa.C.S. § 2504, 75 Pa.C.S. §§ 3802(a)(1), 3735(a), 3732, and
       2

3305, respectively.

       3 Briggs dated the PCRA petition September 12, 2016 and it was filed
on September 19, 2016. Under the “prisoner mailbox rule,” which “applies to
all pro se legal filings by incarcerated litigants,” a document is deemed filed
on the date it is delivered to prison authorities or deposited in a prison
mailbox. See Thomas v. Elash, 781 A.2d 170, 176 (Pa.Super. 2001). “[A]n
incarcerated litigant must supply sufficient proof of the date of mailing.” Id.
“[A]ny reasonably verifiable evidence of the date that the prisoner deposits”
the document with prison authorities is acceptable. Commonwealth v.
Jones, 700 A.2d 423, 426 (Pa. 1997). “Where . . . the facts concerning
timeliness are in dispute, a remand for an evidentiary hearing may be
warranted.” Id. at 426 n.3. Here, it is unclear when Briggs deposited his
PCRA petition with prison authorities. However, because we conclude that
Briggs is not entitled to relief, we find that remand is unnecessary. See
Thomas, 781 A.2d at 176 (finding that, although questions regarding
timeliness of appellant’s post-trial motions existed because document
contained proof of service that was not notarized, remand to trial court for
evidentiary hearing was unnecessary because appellant was not entitled to
relief).


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March 8, 2017, the PCRA court dismissed the petition as untimely. Briggs filed

a timely notice of appeal.

      Before we may address the merits of Briggs’ appeal, we must determine

whether his PCRA counsel has satisfied the requirements for withdrawal under

Turner/Finley. Counsel must “file a ‘no-merit’ letter detailing the nature and

extent of his review and list each issue the petitioner wishes to have

examined, explaining why those issues are meritless.” Commonwealth v.

Rykard, 55 A.3d 1177, 1184 (Pa.Super. 2012).            Counsel also must serve

copies of the petition to withdraw and no-merit letter on the petitioner and

advise the petitioner that he or she has the right to proceed pro se or with

privately retained counsel. Commonwealth v. Widgins, 29 A.3d 816, 818

(Pa.Super. 2011).

      Taking together PCRA counsel’s petition to withdraw and his brief, we

conclude   that   he   has   substantially   complied    with   the   dictates   of

Turner/Finley. Counsel states that he “made a conscientious examination

of the record,” Pet. to Withdraw as Counsel at ¶ 1; that he conducted research;

Turner/Finley Br. at 8; and that he reached the determination that the

appeal is “wholly frivolous,” Pet. to Withdraw as Counsel at ¶ 1. PCRA counsel

mailed a copy of the petition and brief to Briggs and informed him that he




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could retain private counsel or proceed without counsel. Id. at ¶ 2.4 Further,

counsel’s Turner/Finley brief filed with this Court explained why the issue

raised in the PCRA petition lacked merit.5

       The issue raised in the 1925(b) statement, and re-iterated in the

Turner/Finley brief,6 was:

           The lower court erred in failing to find that [Briggs], being
           an inmate in a State Correctional Facility, and not being
           represented by counsel at the time, and not having direct
           access to information regarding Pennsylvania or United
           States Supreme Court decisions, did not file his Post
           Conviction Relief Petition within sixty (60) days of his
           learning of the Birchfield decision, dated June 23, 2016,
           rather than finding that because his Petition was filed more
           than sixty (60) days after June 23, 2016, his Petition was
           untimely, and that because it was jurisdictional in nature,
           his Petition had to be dismissed.

Turner/Finley Br. at Statement of Matters Complained of ¶ 1.

       Our standard of review from the denial of a PCRA petition “is limited to

examining whether the PCRA court’s determination is supported by the
____________________________________________


       On July 17, 2017, this Court issued an order permitting Briggs to file
       4

a response, either pro se or through privately-retained counsel, to the
Turner/Finley brief within 30 days. Briggs did not file a response.

       5Counsel, while providing little discussion, did state that he agreed with
the PCRA court that the PCRA petition was time barred because it was not filed
within the 60 day limit.

       6The Turner/Finley brief did not include a statement of issues
presented, but did state: “The only issue raised in the Statement of Matters
Complained Of is whether or not the lower court erred in finding that the 60
day limit found at 42 Pa.C.S. § 9545(b)(2) is jurisdictional in nature and
accordingly a PCRA court cannot hear untimely petitions.” Turner/Finley Br.
at 3.


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evidence of record and whether it is free of legal error.” Commonwealth v.

Ousley, 21 A.3d 1238, 1242 (Pa.Super. 2011).

      We must first determine whether Briggs’ PCRA petition is timely. A PCRA

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

final.” 42 Pa.C.S. § 9545(b)(1). A judgment is 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).

      This Court affirmed Briggs’ judgment of sentence on April 23, 2015.

Briggs did not file a petition for allowance of appeal. Thus, his judgment of

sentence became final 30 days later, on May 23, 2015. See Pa.R.A.P. 1113(a)

(providing that petition for allowance of appeal “shall be filed within 30 days

after the entry of the order of the Superior Court . . . sought to be reviewed”).

Briggs had one year from that date, or until May 23, 2016, to file a timely

PCRA petition. His current petition, filed on October 25, 2016, is therefore

facially untimely.

      To overcome the time bar, Briggs was required to plead and prove one

of the following exceptions: (i) unconstitutional interference by government

officials; (ii) newly discovered facts that could not have been previously

ascertained with due diligence; or (iii) a newly recognized constitutional right

that has been held to apply retroactively. See 42 Pa.C.S. § 9545(b)(1)(i)-

(iii). To invoke one of these exceptions, Briggs must have filed his petition


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within 60 days of the date the claim could have been presented.          See 42

Pa.C.S. § 9545(b)(2).

       Briggs maintains that he qualifies for the new-constitutional-right

exception to the PCRA time-bar, relying on Birchfield.7 However, neither the

United States Supreme Court nor the Pennsylvania Supreme Court has held

that Birchfield should apply retroactively to cases on post-collateral review.

Commonwealth v. Wilcox, ___ A.3d ___, 2017 PA Super 357, at *2 (Pa.

Super. Nov. 13, 2017).           Accordingly, Briggs has failed to establish the

applicability of the subsection 9545(b)(1)(iii) timeliness exception.        See

Commonwealth v. Abdul-Salaam, 812 A.2d 497, 502 (Pa. 2002) (“[T]he

language ‘has been held’ in 42 Pa.C.S. § 9545(b)(1)(iii) means that a

retroactivity determination must exist at the time that the petition is filed.”).

Therefore, the PCRA court did not err in dismissing Briggs PCRA petition as

untimely.


____________________________________________


       In Birchfield, the United States Supreme Court held that because “the
       7

taking of a blood sample” is a search within the meaning of the Fourth
Amendment to the United States Constitution, police officers may not compel
the taking of a blood sample without a search warrant, absent an applicable
exception. Birchfield, 136 S.Ct. at 2173, 2185. The Court held that,
although implied-consent laws that impose civil penalties and evidentiary
consequences for refusing to consent are constitutional, implied-consent laws
that “impose criminal penalties” for refusing to consent to a blood test are
unconstitutional because “motorists cannot be deemed to have consented to
submit to a blood test on pain of committing a criminal offense.” Id. at 2185-
86.     Further, in Commonwealth v. Evans, this Court reviewed
Pennsylvania’s implied-consent law and found that “the law undoubtedly
‘impose[s] criminal penalties on the refusal to submit to’” a blood test. 153
A.3d 323, 331 (Pa.Super. 2016) (quoting Birchfield, 136 S.Ct. at 2185-86).

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     Order affirmed. Petition to withdraw granted.




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/18/2017




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