J-S10009-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                       IN THE SUPERIOR COURT OF
                                                          PENNSYLVANIA
                             Appellee

                       v.

RENEAU JEAN JACQUES,

                             Appellant                   No. 577 EDA 2016

            Appeal from the PCRA Order Entered January 15, 2016
               In the Court of Common Pleas of Monroe County
             Criminal Division at No(s): CP-45-CR-0001292-2008


BEFORE: BENDER, P.J.E., DUBOW, J., and SOLANO, J.

MEMORANDUM BY BENDER, P.J.E.:                          FILED MARCH 08, 2017

        Appellant, Reneau Jean Jacques, appeals from the January 15, 2016

order dismissing, as untimely, his petition filed pursuant to the Post

Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-9546.                Appellant

contends that his 2009 sentence is illegal pursuant to Alleyne v. U.S., 133

S.Ct. 2151 (2013).          Additionally, Appellant’s counsel, Hillary A. Madden,

Esq., has filed an application to withdraw from representing Appellant, along

with what appears to be an Anders1-styled brief. While a Turner/Finley2

‘no-merit’ letter is the appropriate filing when counsel seeks to withdraw on

appeal from the denial of PCRA relief, we will accept Attorney Madden’s
____________________________________________


1
    Anders v. California, 386 U.S. 738 (1967).
2
  Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth
v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
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Anders brief in lieu of a Turner/Finley letter.      See Commonwealth v.

Widgins, 29 A.3d 816, 817 n.2 (Pa. Super. 2011) (“Because an Anders

brief provides greater protection to a defendant, this Court may accept an

Anders brief in lieu of a Turner/Finley letter.”) (citation omitted).    After

careful review, we agree with Attorney Madden and the PCRA court that

Appellant’s issue is meritless. Thus, we affirm the order dismissing

Appellant’s PCRA petition and grant counsel’s application to withdraw.

      The factual history of Appellant’s case is not germane to this appeal.

Briefly, as we noted during Appellant’s direct appeal:

      By virtue of executing a written guilty plea colloquy form,
      executed on January 6, 2009, [A]ppellant admitted that:

         On August 28, 2008, in the Walmart parking lot in East
         Stroudsburg, PA, in the course of trying to commit a theft
         – the attempted robbery – I intentionally attempted to
         cause or threatened immediate serious bodily injury upon
         the victim by pointin [sic] a handgun at him, firing the
         weapon in his direction which hit his car door window.
         Bodily injury was caused as a result of the shattered glass
         from the window striking the victim.

Commonwealth v. Jacques, 1144 EDA 2009, unpublished memorandum

at 1 (Pa. Super. filed March 30, 2010). Following his guilty plea, on March

18, 2009, the trial court sentenced Appellant “to 78 to 156 months’

imprisonment on the aggravated assault charge and 60 to 120 months’

imprisonment on the attempted robbery charge.            Both sentences were

ordered to be served consecutively.”     Id. at 2.   Appellant challenged the

discretionary aspects of his sentence on direct appeal; however, this Court

affirmed his judgment of sentence, and our Supreme Court denied review.

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Commonwealth v. Jacques, 996 A.2d 545 (Pa. Super. 2010) (unpublished

memorandum), appeal denied, 5 A.3d 818 (Pa. 2010).

      On June 10, 2015, Appellant filed a pro se PCRA petition, his first.

Donald M. Leeth, Esq., was appointed to represent him. Attorney Leeth did

not file an amended petition on Appellant’s behalf. A PCRA hearing was held

on September 17, 2015, at which time Appellant expressed that he only

wanted to pursue an Alleyne-based illegal sentencing claim.      On January

15, 2016, the PCRA court issued an opinion and order dismissing Appellant’s

petition.   Attorney Leeth was permitted to withdraw after filing a timely

appeal on Appellant’s behalf, at which point the PCRA court appointed

Attorney Madden as appellate counsel.     Appellant then filed a counseled,

court-ordered Pa.R.A.P. 1925(b) statement on March 8, 2016. On March 17,

2016, the PCRA court issued a statement pursuant to Rule 1925(a)

indicating that Appellant’s claim had been adequately addressed in the

court’s January 15, 2016 opinion.

      On September 17, 2016, Attorney Madden filed an Anders brief in lieu

of a Turner/Finley letter and an application to withdraw as Appellant’s

counsel.    The latter filing contained a copy of the letter which Attorney

Madden provided to Appellant pursuant to her responsibilities under Turner

and Finley.    However, this Court recognized a defect in Attorney Madden’s

letter, as she had improperly advised Appellant that his right to proceed pro

se or with private counsel was contingent upon this Court’s granting of her

motion to withdraw. Thus, on October 31, 2016, this Court issued an order

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directing Attorney Madden to properly advise Appellant of his rights in a new

letter, and she was so advised again on December 20, 2016, as Attorney

Madden initially failed to comply with our October 31, 2016 order.       See

Order, 10/31/16, at 1 (single page); Order, 12/20/16, at 1 (single page).

Attorney Madden finally complied with our orders on January 3, 2017.3

       We now turn to consider Attorney Madden’s application to withdraw.

       In Commonwealth v. Pitts, 603 Pa. 1, 981 A.2d 875 (2009),
       our Pennsylvania Supreme Court stated that

          [i]ndependent review of the record by competent counsel
          is required before withdrawal is permitted. Turner, at 928
          (citing []Finley, 481 U.S. [at] 558[]). Such independent
          review requires proof of:

          1) A “no-merit” letter by PC[R]A counsel detailing the
          nature and extent of his review;

          2) The “no-merit” letter by PC[R]A counsel listing each
          issue the petitioner wished to have reviewed;

          3) The PC[R]A counsel's “explanation”, in the “no-merit”
          letter, of why the petitioner's issues were meritless;

          4) The PC[R]A court conducting its own independent
          review of the record; and

          5) The PC[R]A court agreeing with counsel that the petition
          was meritless.

       Pitts, 981 A.2d at 876 n. 1 (quoting Finley, 550 A.2d at 215).

       In Commonwealth v. Friend, 896 A.2d 607 (Pa. Super. 2006),
       this Court had imposed an additional requirement for counsel
       seeking to withdraw in collateral proceedings:
____________________________________________


3
  Attorney Madden indicated that her delay in responding to this Court’s
initial order was due to the fact that her maternity leave began just prior to
the date the order was issued.



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          Consequently, we here announce a further prerequisite
          which must hereafter attend an application by counsel to
          withdraw from representing a PCRA petitioner, namely,
          that PCRA counsel who seeks to withdraw must
          contemporaneously serve a copy on the petitioner of
          counsel's application to withdraw as counsel, and must
          supply to the petitioner both a copy of the “no-merit” letter
          and a statement advising the petitioner that, in the event
          that the court grants the application of counsel to
          withdraw, he or she has the right to proceed pro se or with
          the assistance of privately retained counsel.

       Id. at 614 (emphasis in original).

Commonwealth v. Widgins, 29 A.3d 816, 817–18 (Pa. Super. 2011).

       Here, in regard to both her letter to Appellant and in her brief to this

Court, we find that Attorney Madden detailed the nature and extent of her

review - which was confined to Appellant’s Alleyne-based illegal sentencing

claim - and she explained her belief that Appellant’s claim is meritless -

which was also the conclusion reached by the PCRA court.                   Following

Attorney Madden’s delayed compliance with our October 31 and December

20, 2016 orders, we also find her compliant with the additional Friend

requirement(s). Accordingly, we now conduct an independent review of the

record to determine if Appellant’s illegal sentencing claim is meritless. 4

       Appellant was sentenced to a five-year mandatory minimum term of

incarceration    pursuant      to   42   Pa.C.S.   §   9712   (defining   mandatory

“[s]entences for offenses committed with firearms”). In Commonwealth v.
____________________________________________


4
  We note that since Attorney Madden complied with these orders, Appellant
has not made any pro se filings with this Court, nor have any private
attorneys entered their appearance on his behalf.



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Valentine, 101 A.3d 801 (Pa. Super. 2014), this Court held that Section

9712 is unconstitutional in light of Alleyne and Commonwealth v.

Newman, 99 A.3d 86 (Pa. Super. 2014) (en banc).             Accordingly, in his

PCRA petition, Appellant seeks retroactive relief for his mandatory sentence.

      This Court's standard of review regarding an order denying a petition

under the PCRA is whether the determination of the PCRA court is supported

by the evidence of record and is free of legal error.      Commonwealth v.

Ragan, 923 A.2d 1169, 1170 (Pa. 2007). We must begin by addressing the

timeliness of Appellant's petition, because the PCRA time limitations

implicate our jurisdiction and may not be altered or disregarded in order to

address the merits of a petition.    Commonwealth v. Bennett, 930 A.2d

1264, 1267 (Pa. 2007).     Under the PCRA, any petition for post-conviction

relief, including a second or subsequent one, must be filed within one year of

the date the judgment of sentence becomes final, unless one of the following

exceptions set forth in 42 Pa.C.S. § 9545(b)(1)(i)-(iii) applies:

      (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;




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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. § 9545(b)(1)(i)-(iii).   Any petition attempting to invoke one of

these exceptions “shall be filed within 60 days of the date the claim could

have been presented.” 42 Pa.C.S. § 9545(b)(2).

      Appellant’s PCRA petition is patently untimely. Because Appellant did

not seek review in the Supreme Court of the United States following the

denial of his petition for allowance of appeal to our Supreme Court, his

sentence became final 90 days after that denial.            Thus, to be timely,

Appellant was required to file a PCRA petition by the end of 2011.

Appellant’s petition was not filed until 2015; therefore, he must avail himself

of one of the PCRA’s timeliness exceptions to be entitled to relief.

      The only potentially applicable exception to Appellant’s claim is set

forth in Section 9545(b)(1)(iii), otherwise known as the retroactivity

exception.      Thus, in order to be entitled to relief for his (now) illegal

sentence, Appellant must establish that the holding in Alleyne applies

retroactively. However, in Commonwealth v. Washington, 142 A.3d 810,

820 (Pa. 2016), our Supreme Court held “that Alleyne does not apply

retroactively     to   cases   pending    on   collateral   review.”    Accord

Commonwealth v. Ciccone, --- A.3d ---, 2016 WL 7217269 (Pa. Super.


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2016) (en banc) (recognizing Washington’s holding that the rule in

Alleyne is not retroactive, and also that Alleyne’s Pennsylvania progeny

(Valentine, Newman, et. al.), while having invalidated Pennsylvania’s

Alleyne-offending mandatory minimum sentencing statutes, did not render

those statutes void ab initio).

      Given the decision by our Supreme Court in Washington, and our

own decision in Ciccone, it is clear that Appellant cannot avail himself of the

retroactivity exception to the PCRA’s timeliness requirement premised on his

Alleyne-based illegal sentencing claim. As such, the courts of Pennsylvania

lack jurisdiction to entertain his claim. Thus, we are compelled to agree with

the PCRA court and Attorney Madden that Appellant’s sole claim presented

for our review is meritless.      Accordingly, we grant Attorney Madden’s

application to withdraw, and affirm the PCRA court’s order denying

Appellant’s petition.

      Order affirmed. Application to withdraw as counsel granted.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/8/2017




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