J-S62030-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA                       IN THE SUPERIOR COURT
                                                              OF
                                                         PENNSYLVANIA
                             Appellee

                        v.

 HERBERT J. WILLIAMS

                             Appellant                 No. 380 MDA 2017


                  Appeal from the PCRA Order January 31, 2017
                In the Court of Common Pleas of Luzerne County
               Criminal Division at No(s): CP-40-CR-0004045-2013


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

MEMORANDUM BY MOULTON, J.:                        FILED DECEMBER 15, 2017

       Herbert J. Williams appeals from the January 31, 2017 order of the

Luzerne County Court of Common Pleas dismissing his first petition filed under

the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-46. On appeal,

counsel has filed a Turner/Finley 1 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.

       1On appeal, counsel filed a brief pursuant to Anders v. California, 386
U.S. 738 (1967), and a petition to withdraw as counsel. While counsel should
have filed a 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), “an Anders brief provides greater protection to a
defendant[. Therefore,] 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 the brief as a Turner/Finley brief.
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      On June 16, 2014, Williams pled guilty to possession with intent to

deliver, 35 P.S. § 780-113(a)(30).       On August 8, 2014, the trial court

sentenced Williams to 5 to 10 years’ incarceration. Williams did not appeal

from his judgment of sentence. On July 19, 2016, Williams filed, pro se, his

first PCRA petition. Following appointment of counsel, on January 31, 2017,

the PCRA court held a hearing on Williams’ petition. That same day, the PCRA

court dismissed Williams’ petition. Williams filed a timely notice of appeal.

      Before we may address the merits of Williams’ 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 has the right to proceed pro se or

with privately retained counsel. See Commonwealth v. Widgins, 29 A.3d

816, 818 (Pa.Super. 2011).

      In his petition to withdraw, PCRA counsel states that upon review of the

record, he “concludes that this appeal is wholly frivolous and that no

meritorious issues exist.” Pet. to Withdraw, 7/24/17, ¶ 3. PCRA counsel also

mailed a copy of the petition and brief to Williams and informed him that, if

he wished to continue the appeal, Williams could retain private counsel or

proceed pro se.      See Ltr. to Williams, 7/24/17.         Further, counsel’s

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Turner/Finley brief filed with this Court explained why the issue raised in the

PCRA petition lacked merit. Williams has not filed a pro se response to PCRA

counsel’s petition to withdraw. We conclude that PCRA counsel has complied

with the dictates of Turner/Finley.     Therefore, we will address the issue

raised in the Turner/Finley brief.

      PCRA counsel raises the following issue in his Turner/Finley brief:

“Whether [Williams’] PCRA [petition] was filed [o]n a timely basis and whether

the decision issued in Alleyne v. United States[, 570 U.S. 99 (2013)]

renders [Williams’] sentence unconstitutional.” Turner/Finley Br. at 1.

      Our review of an order denying PCRA relief is limited to determining

“whether the decision of the PCRA court is supported by the evidence of record

and is free of legal error.” Commonwealth v. Melendez–Negron, 123 A.3d

1087, 1090 (Pa.Super. 2015). We will not disturb the PCRA court’s factual

findings “unless there is no support for [those] findings in the certified

record.” Id.

      We must first determine whether Williams’ 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).




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      The trial court sentenced Williams on August 8, 2014. Williams did not

file a direct appeal. Therefore, his judgment of sentence became final 30 days

later, on September 8, 2014. See Pa.R.A.P. 903 (providing that notice of

appeal “shall be filed within 30 days after the entry of the order from which

the appeal is taken”).     Williams had one year from that date, or until

September 8, 2015, to file a timely PCRA petition. His current petition, filed

on July 19, 2016, is therefore facially untimely.

      To overcome the time bar, Williams 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, Williams must have

filed his petition within 60 days of the date the claim could have been

presented. See 42 Pa.C.S. § 9545(b)(2).

      Williams attempts to invoke the new constitutional right exception based

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

2013. The trial court sentenced Williams on August 8, 2014. Thus, the

constitutional right announced by the Alleyne Court was recognized prior to

his sentencing. Accordingly, Williams may not invoke the new constitutional

right exception as an exception to the PCRA time bar.




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     Accordingly, we conclude that Williams has failed to prove an exception

to the PCRA time bar. Therefore, the PCRA court did not err in dismissing

Williams’ PCRA petition as untimely.

     Order affirmed. Petition to withdraw granted.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/15/2017




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