J-S64007-16


NON -PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA                      1   IN THE SUPERIOR COURT OF
                                                            PENNSYLVANIA
                           Appellee

                      v.

ALLEN M. BACHMANN

                           Appellant                        No. 297 EDA 2016


              Appeal from the PCRA Order Entered January 14, 2016
                 In the Court of Common Pleas of Bucks County
                Criminal Division at No: CP- 09 -CR- 0007611 -2008

BEFORE:       STABILE, SOLANO, JJ., and STEVENS, P.J.E.*

MEMORANDUM BY STABILE, J.:                            FILED NOVEMBER 08, 2016

        Appellant, Allen   M.   Bachmann, appeals from the January 14, 2016

order dismissing his petition pursuant to the Post Conviction Relief Act

( "PCRA "),   42 Pa.C.S.A. §§ 9541 -46. Counsel has filed      a no   merit letter and

petition to withdraw pursuant to Commonwealth v. Turner, 544 A.2d 927

(Pa. 1988) and     Commonwealth v. Finley, 479 A.2d 568           (Pa. Super. 1984)

(en banc). We affirm the order and grant the petition to withdraw.

        On May 5, 2009, Appellant pled          guilty to stalking, simple assault,

harassment, criminal trespass, and indecent exposure.            On June 30, 2009,

the trial court imposed an aggregate     31/2   to 7 years of incarceration followed

by ten years of probation. Appellant did not file      a   direct appeal. On August


*   Former Justice specially assigned to the Superior Court.
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10, 2012, more than three years after his judgment of sentence became

final, Appellant filed his first pro se PCRA petition.'              The PCRA court

subsequently appointed counsel.             The Commonwealth filed       a   motion to

dismiss the petition on December 8, 2015.               The PCRA court entered the

order on appeal on January 14, 2016, dismissing Appellant's petition. This

timely appeal followed.

          First, we consider counsel's Turner/Finley no merit letter and petition

to withdraw.        Turner/Finley requires       an "independent review of the record

by competent counsel before          a PCRA   court or appellate court can authorize

an attorney's withdrawal."          Commonwealth v. Freeland, 106 A.3d 768,
774 (Pa. Super. 2014). "The necessary independent review requires counsel

to 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."       Id. Further,
                Counsel must [...] 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.




I.
   Appellant styled the petition as a petition to modify or correct his sentence
under the PCRA. Several months earlier, on April 9, 2012, Appellant filed a
petition to modify his sentence nunc pro tunc. The trial court properly
treated these filings as PCRA petitions, as the PCRA is the sole means of
obtaining collateral relief. 42 Pa.C.S.A. § 9542; Commonwealth v. Kubis,
808 A.2d 196, 199 (Pa. Super. 2002), appeal denied, 813 A.2d 839 (Pa.
2002). Both were patently untimely.


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             If counsel fails to satisfy the foregoing technical
       prerequisites of Turner/Finley, the court will not reach the
       merits of the underlying claims but, rather, will merely deny
       counsel's request to withdraw. Upon doing so, the court will
       then take appropriate steps, such as directing counsel to file a
       proper Turner/ Finley request or an advocate's brief.

              However, where counsel submits a petition and no -merit
       letter that do satisfy the technical demands of Turner/Finley,
       the court -trial 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. By contrast, if the claims
       appear to have merit, the court will deny counsel's request and
       grant relief, or at least instruct counsel to file an advocate's
       brief.

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

       Counsel's petition to withdraw and no merit letter comply with the

foregoing.         Next,    we   consider        the   PCRA's   jurisdictional    timeliness

requirements.       Counsel explained in her no merit letter that Appellant's pro

se petition was untimely. The court dismissed the petition on that basis.

       The PCRA requires any petition thereunder to be filed within one year

of the date on which his judgment of sentence becomes final. 42 Pa.C.S.A.

§   9545(b)(1); Commonwealth v. Albrecht, 994 A.2d 1091, 1093 (Pa.

2010).    If, as    is   presently the case, the petition       is   facially untimely, the

petitioner must plead and prove the applicability of one of the three

statutory exceptions to the one -year time bar. Id. Failure to do                so deprives

the PCRA court of jurisdiction. This        is   true even if the petition challenges the

legality of the petitioner's sentence.            Commonwealth v. Fahy, 737 A.2d
214, 223 (Pa. 1999).          Here, Appellant's petition is facially untimely, he did


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not plead the applicability of any of the timeliness exceptions, and we

discern no basis upon which he could have done so. We therefore affirm the

PCRA    court's order and grant the petition to withdraw.

        Order affirmed. Petition to withdraw granted.

Judgment Entered.



    /
J   seph D. Seletyn,
Prothonotary


Date: 11/8/2016




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