J-S61017-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                            IN THE SUPERIOR COURT OF
                                                              PENNSYLVANIA
                             Appellee

                       v.

DANIEL WALTON

                             Appellant                        No. 361 MDA 2015


                 Appeal from the Order of November 26, 2014
             In the Court of Common Pleas of Lackawanna County
            Criminal Division at Nos.:   CP-35-CR-0003298-2007
                                         CP-35-CR-0003301-2007


BEFORE: PANELLA, J., WECHT, J., and STRASSBURGER, J.*

MEMORANDUM BY WECHT, J.:                                FILED DECEMBER 08, 2015

       Daniel Walton appeals the November 26, 2014 order that denied his

“Petition   for   a   Writ   of   Habeas       Corpus   ad   Testificandum   via   Video

Conference.” Walton’s counsel has filed an Anders1 brief and a petition to

withdraw as counsel. We grant counsel’s petition and we affirm the order.

       A prior panel of this Court summarized the history of this case as

follows:


____________________________________________


*
       Retired Senior Judge assigned to the Superior Court.
1
       Anders v. California, 386 U.S. 738 (1967). However, as discussed
infra, counsel should have filed a 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). Regardless, our resolution of this case
does not change.
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      Following a jury trial on October 8, 2008, Walton was convicted
      of two counts of delivery of a controlled substance (cocaine), two
      counts of possession with intent to deliver a controlled substance
      (cocaine), two counts of unlawful possession of a controlled
      substance, and two counts of criminal conspiracy. On January
      23, 2009, following review of a pre-sentence investigation
      report, the trial court sentenced Walton to an aggregate term of
      six to twelve years’ imprisonment. On January 29, 2009, Walton
      filed a Motion for Reconsideration of Sentence, which the trial
      court denied on February 18, 2009. On appeal, this Court
      affirmed Walton’s judgment of sentence.

      On November 1, 2010, Walton filed a pro se [petition filed
      pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A.
      §§ 9541-46] which alleged Walton’s innocence of the charges for
      which he was convicted.

Commonwealth v. Walton, 1000 MDA 2012, slip op. at 1-2 (Pa. Super.

May 29, 2013) (citations omitted).

      On May 17, 2012, the PCRA court dismissed Walton’s petition. On May

29, 2013, we affirmed the denial of Walton’s PCRA petition. On August 5,

2014, Walton filed a “Motion for a New Trial or Re-Sentencing Based upon

Newly Recognized Constitutional Right; Alternatively for Post Conviction

Collateral Relief or Alternatively, for Writ of Habeas Corpus.” In that motion,

Walton asserted that the United States Supreme Court’s decision in Alleyne

v. United States, 133 S.Ct. 2151 (2013) would provide him relief, and that

his motion was timely under the newly recognized constitutional right

exception to the PCRA. On September 17, 2014, Walton filed his “Petition

for a Writ of Habeas Corpus ad Testificandum via Video Conference,” in

which he sought a video conference with the trial court to discuss a new




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sentence, and in which he cited the same newly recognized constitutional

right exception to the PCRA.

       On November 26, 2014, the PCRA court dismissed Walton’s September

17 motion, stating that, because Walton’s case was not on direct appeal,

Alleyne would not provide him relief.2 On February 9, 2015, Walton filed a

motion with this Court in which he indicated that he attempted to file a

notice of appeal in the trial court, but was unable to do so. We granted the

motion, and deemed the notice of appeal to have been filed timely on

December 14, 2014. On March 9, 2015, the PCRA court appointed appellate

counsel for Walton and ordered a concise statement of errors complained of

on appeal pursuant to Pa.R.A.P. 1925(b).         After seeking and receiving an

extension of time, Walton filed his concise statement. On October 19, 2015,

the PCRA court filed an opinion pursuant to Pa.R.A.P. 1925(a).
____________________________________________


2
      The November 26, 2014 order did not dispose of Walton’s August 5,
2014 motion and we find nothing in the record to suggest that the PCRA
court has ever ruled upon that motion. We must consider whether the PCRA
court could rule upon the September 17 petition and whether we can dispose
of Walton’s appeal, without the court ruling on the August 5 motion. A PCRA
court may not entertain a PCRA petition while a prior petition is on appeal.
Commonwealth v. Lark, 746 A.2d 585, 588 (Pa. 2000). Recently, our
Supreme Court declined to extend Lark to a case in which the PCRA court
held one PCRA petition in abeyance while ruling upon a second petition.
Commonwealth v. Porter, 35 A.3d 4, 14 (Pa. 2012). While not directly on
point, Porter indicates that, if a first petition is not yet appealed, the PCRA
court may consider a second petition. Therefore, we may consider this
appeal even though the August 5 motion is still pending before the PCRA
court. However, pursuant to Lark, the PCRA court cannot dispose of the
August 5 motion until this appeal had concluded and the time in which the
parties can seek further review has ended.



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     Counsel for Walton raises one issue on appeal:

     Whether the lower court abused its discretion and committed an
     error of law when it denied [Walton’s] petition for writ of habeas
     corpus     based  upon     the   recent    court    decisions   in
     Commonwealth v. Newman, 99 A.3d 86 (Pa. Super. 2014)
     and Alleyne v. United States, 133 S.Ct. 2151, 186 L. Ed 2d
     314 (2013), and their progeny declaring mandatory minimum
     sentences unconstitutional?

Anders Brief at 4.

     Before reaching Walton’s issue on appeal, we must address appointed

counsel’s petition to withdraw as counsel.       Appointed counsel, Attorney

Donna DeVita, has filed a brief pursuant to Anders v. California, 386 U.S.

738 (1967) and Commonwealth v. Santiago, 978 A.2d 349, 361 (Pa.

2009).    As discussed, infra, Walton seeks PCRA relief.           Therefore,

Commonwealth         v.   Turner,   544   A.2d     927   (Pa.   1988),     and

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

control the procedure for withdrawing as appointed counsel.         However,

because the Anders/Santiago procedure provides greater protection, we

may accept an Anders brief in lieu of a Turner/Finley no-merit brief. See

Commonwealth v. Widgins, 29 A.3d 816, 817 n.2 (Pa. Super. 2011).

     Pursuant to Turner and Finley:

     [c]ounsel petitioning to withdraw from PCRA representation must
     proceed under [Turner/Finley and] . . . must review the case
     zealously. Turner/Finley counsel must then submit a “no-
     merit” letter to the trial court, or brief on appeal to this Court,
     detailing the nature and extent of counsel’s diligent review of the
     case, listing the issues which petitioner wants to have reviewed,
     explaining why and how those issues lack merit, and requesting
     permission to withdraw.

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      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.

      Where counsel submits a petition and no-merit letter that satisfy
      the technical demands of Turner/Finley, the court — [PCRA]
      court or this Court — must then conduct its own review of the
      merits of the case. If the court agrees with counsel that the
      claims are without merit, the court will permit counsel to
      withdraw and deny relief.

Commonwealth v. Doty, 48 A.3d 451, 454 (Pa. Super. 2012) (citations

omitted).

      Here, Attorney DeVita has filed a brief that detailed her review of the

case, listed the issue Walton sought to have reviewed, and explained why

the issue lacks merit.   Attorney DeVita has filed a petition to withdraw as

counsel.    Accompanying that petition is a copy of her letter to Walton in

which she outlined the procedure for withdrawal, advised Walton that he

could seek new counsel or file a pro se response to her Anders brief, and

provided Walton with a copy of the petition to withdraw and the brief.

Therefore, Attorney DeVita has complied with the technical requirements of

Turner/Finley. We now must conduct our independent review of the case.

      First, we address whether Walton’s purported petition for a writ of

habeas corpus should have been construed as a PCRA petition.             Walton

sought a modified sentence in his petition for writ of habeas corpus,

contending that the mandatory minimum sentence that he received was

unconstitutional pursuant to Alleyne. The PCRA is the exclusive means for

obtaining post-conviction collateral relief regardless of how a petitioner titled

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the filing. Commonwealth v. Kutnyak, 781 A.2d 1259, 1261 (Pa. Super.

2001). The writ of habeas corpus is not available when there is a remedy

under the PCRA.     Commonwealth v. Peterkin, 722 A.2d 638, 640 (Pa.

1998).

      Here, Walton’s claim is cognizable under the PCRA.       See 42 Pa.C.S

§ 9543(a)(2)(i)(“A violation of the Constitution of this Commonwealth or the

Constitution or laws of the United States which, in the circumstances of the

particular case, so undermined the truth-determining process that no

reliable adjudication of guilt or innocence could have taken place”);      see

also Commonwealth v. Guthrie, 749 A.2d 502, 503 (Pa. Super. 2000)

(concluding motion to correct illegal sentence had to be treated as petition

filed pursuant to PCRA). Therefore, Walton’s petition should be treated as a

PCRA petition.   Further, Walton implicitly recognized that he was seeking

relief pursuant to the PCRA because his pleading contains citations to the

PCRA.

      As a PCRA, a petition must be timely for this Court, or any court, to

have jurisdiction. The PCRA time limits are jurisdictional in nature and must

be strictly construed.   Commonwealth v. Abu-Jamal, 941 A.2d 1263,

1267 (Pa. 2008). A court may not address the merits of an issue raised in a

PCRA petition if it is not timely filed.   Id. at 1267-68.   All PCRA petitions

“shall be filed within one year of the date the judgment becomes final.” 42

Pa.C.S. § 9545(b)(1). A judgment becomes final at the conclusion of direct




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review or when the time period to obtain direct review ends. 42 Pa.C.S.A.

§ 9545(b)(3).

      On September 10, 2010, this Court affirmed Walton’s judgment of

sentence.   He did not seek review in the Pennsylvania Supreme Court.

Thus, his judgment became final on or about October 10, 2010, at the

expiration of the time in which he could have sought further review.         A

timely PCRA petition must have been filed on or about October 10, 2011.

Although, Walton’s first PCRA petition was timely, the instant petition was

not filed until September 1, 2014.     Therefore, Walton’s petition facially is

untimely.

      However, Walton can overcome the timeliness requirement if, in his

petition, he alleged and proved one of the following exceptions to the PCRA

time bar:

      (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.

42 Pa.C.S.A. § 9545(b)(1)(i)-(iii).




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      In his petition, Walton pled the third exception to the PCRA’s time bar.

He argues that his petition should be considered timely because Alleyne and

Commonwealth v. Newman, 99 A.3d 86 (Pa. Super. 2014), have

recognized a new constitutional right. Anders Brief at 6. Therefore, Walton

contends that his petition should be considered to meet the third exception

to the PCRA’s time bar.

      In Alleyne, the United States Supreme Court held that any fact that

increases the mandatory minimum sentence for a crime is an “element” of

the crime, not a “sentencing factor,” that must be submitted to a jury to

determine the validity thereof.     Alleyne, 133 S.Ct. at 2162.          Despite

Alleyne’s holding, we previously have rejected the type of claim Walton

raises in the context of an untimely PCRA petition:

         Subsection [(b)(1)(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 [the Supreme Court of
         Pennsylvania] after the time provided in this section.
         Second, it provides that the right “has been held” by “that
         court” to apply retroactively. Thus, a petitioner must
         prove that there is a “new” constitutional right and that the
         right “has been held” by that court to apply retroactively.
         The language “has been held” is in 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.

                                    ***

         Even assuming that Alleyne did announce a new
         constitutional right, neither our Supreme Court, nor the
         United States Supreme Court has held that Alleyne is to
         be applied retroactively to cases in which the judgment of


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          sentence had become final. This is fatal to Appellant’s
          argument regarding the PCRA time-bar.

Commonwealth v. Miller, 102 A.3d 988, 994-95 (Pa. Super. 2014).

       Since     Miller   was   decided,       neither   the   United   States   nor   the

Pennsylvania Supreme Court has held that Alleyne must be applied

retroactively.     Therefore, Walton cannot satisfy the requirements for the

exception to the PCRA’s time bar. His PCRA petition is untimely.

       Our independent review of the record3 has shown that Walton was not

provided with notice of the PCRA court’s intention to dismiss his petition

without a hearing pursuant to Pa.R.Crim.P. 907. Presumably, this is because

the PCRA court did not explicitly treat Walton’s petition as a PCRA petition.

However, the failure to provide a Rule 907 notice does not afford relief when

a PCRA petition is patently untimely. See Commonwealth v. Lawson, 90

A.3d 1, 5 (Pa. Super. 2014).

____________________________________________


3
       The learned concurrence correctly observes that issues not preserved
in the PCRA petition cannot be raised on appeal.            However, as the
concurrence acknowledges, there are issues that cannot be waived even if
not raised in the PCRA petition, such as legality of sentence and jurisdiction.
See Concurring Memorandum at 5 n.3. While the right to counsel in pursuit
of PCRA claims is statutory, it cannot be gainsaid that, the right having been
legislated, it must be vindicated. That is, the right to counsel is no right if
counsel is ineffective. See Commonwealth v. Haag, 809 A.2d 271, 283
(Pa. 2002) (“Pursuant to our procedural rules, not only does a PCRA
petitioner have the ‘right’ to counsel, but also he or she has the ‘right’ to
effective assistance of counsel.”). It is incumbent upon this Court to review
the record and ensure that PCRA counsel has been effective and has not
overlooked any non-waivable issues before permitting that counsel to
withdraw.



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      Because our independent review has revealed no meritorious issues,

we grant Attorney DeVita’s petition to withdraw as counsel. The court did not

err in denying Walton’s petition.

      Order affirmed. Petition to withdraw as counsel granted.

      Judge Panella joins the memorandum.

      Judge Strassburger files a concurring memorandum.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/8/2015




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