J-S23020-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA            :   IN THE SUPERIOR COURT OF
                                         :        PENNSYLVANIA
                                         :
               v.                        :
                                         :
                                         :
 FREDDIE MOULTRIE                        :
                                         :
                    Appellant            :   No. 527 EDA 2017

               Appeal from the PCRA Order January 4, 2017
 In the Court of Common Pleas of Philadelphia County Criminal Division at
                    No(s): CP-51-CR-0300071-2002,
                         CP-51-CR-0300081-2002


BEFORE:   SHOGAN, J., NICHOLS, J., and STEVENS*, P.J.E.

MEMORANDUM BY SHOGAN, J.:                            FILED JULY 27, 2018

     Freddie Moultrie (“Appellant”) appeals from the January 4, 2017 order

dismissing his petition filed pursuant to the Post Conviction Relief Act

(“PCRA”), 42 Pa.C.S. §§ 9541-9546.     Appellant’s PCRA counsel has filed a

petition to withdraw.   After careful review, we grant counsel’s petition to

withdraw and affirm the order of the PCRA court.

     The PCRA court set forth the following factual and procedural history:

           [Appellant] pled guilty to two counts of robbery, two counts
     of possessing instruments of crime, and one count of conspiracy
     before the Honorable Carolyn Engel Temin on September 26,
     2002.1 Appellant was sentenced to a term of eight (8) to twenty
     (20) years’ of incarceration.

           1   18 Pa.C.S.A. §§ 3701, 907, and 903, respectively.

           Appellant filed a timely direct appeal on October 23, 2002.
     This appeal was dismissed on April 9, 2003, for failure to file a
     brief. 3248 EDA 2002.          Appellant subsequently received

____________________________________
* Former Justice specially assigned to the Superior Court.
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     permission to file an appeal nunc pro tunc, and the judgment of
     sentence was affirmed by the Superior Court of Pennsylvania on
     March 23, 2006.2       Appellant did not seek relief with the
     Pennsylvania Supreme Court and consequently the judgment of
     sentence became final on April 22, 2006.

           2   Commonwealth v. Moultrie, No. 677 EDA 2005
               Slip Opinion at 6 (Pa. Super. March 23, 2006).

            Appellant filed a “petition for writ of habeas corpus” relief
     on April 24, 2013.3 On September 23, 2013, Appellant’s PCRA
     counsel filed a Finley4 letter and requested leave to withdraw from
     the case. Counsel’s letter indicated that petitioner’s claim was
     jurisdictionally time-barred and no exception applied. For this
     reason, and after a careful and independent review of the entire
     record, the petition was formally dismissed on December 16,
     2013. Appellant appealed, and the Superior Court affirmed this
     court’s dismissal on November 18, 2014. 176 EDA 2014.

           3   See Commonwealth v. Chester, 557 Pa. 358, 733
               A.2d 1242 (1999) (“Unless the PCRA could not
               provide for a potential remedy, the PCRA statute
               subsumes the writ of habeas corpus”)

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

            Appellant filed a second petition pro se on July 13, 2015.
     After a careful and independent review of the entire record, this
     court did not discern the existence of any exception to the timely
     requirement under the PCRA. As such, Appellant was given notice
     on December 22, 2015 of this court’s intention to dismiss the
     petition pursuant to Pa.R.Crim.P. 907. This court filed an opinion
     and order dismissing the petition with the Superior Court of
     Pennsylvania on January 21, 2016. Appellant filed [a subsequent]
     petition on September 28, 2016, [followed by a motion to amend
     the petition on November 28, 2016]. Notice was given on
     December 7, 2016 of this court’s intention to dismiss the petition
     pursuant to Pa.R.Crim.P. 907. As such, Appellant’s []a PCRA
     petition was dismissed by order of this court on January 4, 2017.

           Appellant then filed a timely pro se notice of appeal from
     this court’s order dismissing his petition on January 30, 2017.
     Appellate counsel was appointed on March 8, 2017. This court

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       ordered a Statement of Matters Complained of on Appeal pursuant
       to Pa.R.A.P. 1925(b) on March 8, 2017. A statement of intent to
       file an Anders/McClendon5 brief was filed on March 28, 2017. In
       that statement, appellate counsel avers he has reviewed the
       entire record and determined there are no meritorious, non-
       frivolous issues to raise on appeal.

              5   Anders v. California, 386 U.S. 738 (1967);
                  Commonwealth v. McClendon, 495 Pa. 467, 434
                  A.2d 1185 (1981).

PCRA Court Opinion, 6/29/17, at 1-3.

       Counsel for Appellant filed an Anders brief on November 27, 2017.1

Because a petition to withdraw from a PCRA proceeding requires a

Turner/Finley letter and analysis, we will proceed with our analysis pursuant

to that precedent.

             Prior to reviewing the merits of this appeal, we first decide
       whether counsel has fulfilled the procedural requirements for
       withdrawing as counsel. Commonwealth v. Daniels, 947 A.2d
       795, 797 (Pa.Super.2008). As we have explained:

              Counsel petitioning to withdraw from PCRA
              representation must proceed ... under [Turner,
              supra and Finley, supra 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.

____________________________________________


1   Counsel for Appellant filed an Anders brief, although a Turner/Finley
letter is the appropriate filing. See Commonwealth v. Turner, 544 A2d 927
(Pa. 1988); Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en
banc). “Because 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).

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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.

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

     In the instant case, counsel has complied with the requirements for

withdrawal from a collateral appeal.   Counsel filed a brief with this Court,

delineating the arguments Appellant sought to have reviewed and explained

why those issues did not have merit. Anders Brief, 11/27/17. Moreover,

counsel averred that he sent Appellant a copy of his Anders brief and sent

Appellant a letter advising him of his rights to proceed with new counsel or

pro se. Petition for Leave to Withdraw as Counsel, 11/27/17, exhibit A. Thus,

we will allow counsel to withdraw if we conclude that the issues raised on

appeal lack merit. We now turn to the issues presented by Appellant for our

review:

     Did the PCRA Court err when it construed [Appellant’s] pro se filing
     styled “Petition for a Writ of Habeas Corpus” as a petition seeking
     relief under the PCRA?

     Did the PCRA Court err when it dismissed [Appellant’s] PCRA
     petition without a hearing as untimely filed?

     Did the PCRA Court err when it did not grant relief under the PCRA
     where [Appellant] is subject to a probationary sentence greater
     than the lawful maximum on the charge of possessing an
     instrument of crime?

     Is [Appellant’s] PCRA petition timely filed due to the fact that the
     PCRA court and District Attorney’s Office willfully destroyed the
     guilty plea colloquy transcripts?


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Anders Brief at 5 (reordered for clarity).

      We first address Appellant’s claim that his Petition for a Writ of Habeas

Corpus was improperly construed as a PCRA petition. Preliminarily, we note

that it appears Appellant is referring to his second PCRA petition. That petition

was filed pro se in July of 2015, and styled as a “Writ of Habeas Corpus.” That

petition, which the PCRA court construed as a PCRA petition, was dismissed

on January 21, 2016. Appellant failed to appeal from the dismissal of that

petition. To the extent Appellant is appealing an issue relating to his July 2015

PCRA Petition, that appeal is patently untimely.         See Pa.R.A.P. 903(a)

(requiring that a notice of appeal shall be filed with thirty days after the entry

of the order from which the appeal is taken).        Indeed, “[t]he question of

timeliness of an appeal is jurisdictional.” Commonwealth v. Moir, 766 A.2d

1253, 1524 (Pa. Super. 2000). “In Order to preserve the right to appeal a

final order of the [PCRA] court, a notice of appeal must be filed within thirty

days of the entry of that order.” Id. Appellant failed to file a timely notice;

thus, we are without jurisdiction to entertain his argument that the PCRA court

erred when it construed his July 2015 petition as a PCRA petition

      We now turn to Appellant’s arguments that the PCRA court erred when

it dismissed his claims under the PCRA.

      We review an order dismissing a petition under the PCRA in the
      light most favorable to the prevailing party at the PCRA level.
      Commonwealth v. Burkett, 5 A.3d 1260, 1267 (Pa. Super.
      2010). This review is limited to the findings of the PCRA court and
      the evidence of record. Id. We will not disturb a PCRA court’s
      ruling if it is supported by evidence of record and is free of legal

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     error. Id. This Court may affirm a PCRA court’s decision on any
     grounds if the record supports it. Id. Further, we grant great
     deference to the factual findings of the PCRA court and will not
     disturb those findings unless they have no support in the record.
     Commonwealth v. Carter, 21 A.3d 680, 682 (Pa. Super. 2011).
     However, we afford no such deference to its legal conclusions.
     Commonwealth v. Paddy, 609 Pa. 272, 15 A.3d 431, 442
     (2011); Commonwealth v. Reaves, 592 Pa. 134, 923 A.2d
     1119, 1124 (2007). Where the petitioner raises questions of law,
     our standard of review is de novo and our scope of review plenary.
     Commonwealth v. Colavita, 606 Pa. 1, 993 A.2d 874, 886
     (2010).

Commonwealth v. Ford, 44 A.3d 1190, 1194 (Pa. Super. 2012).

     In order for a court to adjudicate a PCRA petition, the petitioner must

comply with the PCRA timeliness requirements.            Commonwealth v.

Jackson, 30 A.3d 516, 518 (Pa. Super. 2011). The time for filing is set forth

in 42 Pa.C.S §9545(b), which provides:

     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;

           (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


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            provided in this section and has been held by that court to
            apply retroactively.

42 Pa.C.S. § 9545(b).

      “[T]he time limitations pursuant to ... the PCRA are jurisdictional.”
      Commonwealth v. Fahy, 558 Pa. 313, 737 A.2d 214, 222
      (1999). “[Jurisdictional time] limitations are mandatory and
      interpreted literally; thus, a court has no authority to extend filing
      periods except as the statute permits.” Id. “If the petition is
      determined to be untimely, and no exception has been pled and
      proven, the petition must be dismissed without a hearing because
      Pennsylvania courts are without jurisdiction to consider the merits
      of the petition.” Commonwealth v. Perrin, 947 A.2d 1284,
      1285 (Pa.Super.2008).

Commonwealth v. Jackson, 30 A.3d at 519. Moreover, any claims invoking

an exception listed above must be made within sixty days of the date the claim

could have first been presented. 42 Pa.C.S. § 9545(b)(2). Finally, we note

that it is the petitioner’s burden to allege and prove that one of the exceptions

exists. Commonwealth v. Whitehawk, 143 A.3d 266, 269–270 (Pa. Super.

2016).

      Appellant’s judgment of sentence became final on April 22, 2006, when

the time for filing a direct appeal to our Supreme Court expired. PCRA Court

Opinion, 6/29/17, at 1; 42 Pa.C.S. § 9545(b). Thus, in order for Appellant’s

PCRA petition to be timely, it must have been filed by April 22, 2007.

Appellant’s current PCRA petition is beyond the one-year limitation; thus, this

Court is without jurisdiction to consider the merits of Appellant’s petition

unless it falls into one of the exceptions enumerated in 42 Pa.C.S. § 9545(b).




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       In his September 28, 2016 PCRA petition, Appellant asserts that his

sentence is illegal and unconstitutional pursuant to Alleyne 570 U.S. 99

(2013)2 and Commonwealth v. Hopkins, 117 A.3d 247 (Pa. 2015).3

Appellant further alleges that the Alleyne and Hopkins decisions constitute

newly discovered facts, satisfying the timeliness exception found in 42 Pa.C.S.

§ 8545(b)(ii). Appellant’s PCRA Petition, 9/28/16, at unnumbered 1–3. In his

“Motion for Leave to Amend Petition for Post Conviction Relief and Amend

PCRA Petition,” filed on November 28, 2016, Appellant argues similarly and

alleges that Commonwealth v. Newman, 99 A.3d 86 (Pa. Super. 2014) (en

banc),4 filed on August 20, 2014 satisfied the newly discovered facts exception

as well as the constitutional right exception set forth in 42 Pa.C.S.

§ 9545(b)(iii).

       Appellant’s arguments fail on several grounds. First, our Supreme Court

has held “that subsequent decisional law does not amount to a new fact under

section 9545(b)(1)(ii) of the PCRA.” Commonwealth v. Watts, 23 A.3d 980,

987 (Pa. 2011). Further, “a PCRA petition invoking one of these exceptions


____________________________________________


2 In Alleyne, the Supreme Court of the United States found that any fact that
increases the sentence for a given crime must be submitted to the jury.

3 In Hopkins, the Supreme Court of Pennsylvania found that under Alleyne,
the mandatory minimum sentencing scheme in 18 Pa.C.S. § 6317, relating to
drug-free school zones, ran afoul of Alleyne and found the statute to be
unconstitutional.

4 In Newman, the Superior Court, en banc, found that Alleyne applied
retroactively to cases on direct appeal when Alleyne as issued.

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must be filed within [sixty] days of the date the claims could have been

presented.” Commonwealth v. Brandon, 51 A.3d 231, 233–234 (Pa. Super.

2012). In the instant case, Alleyne was filed on June 17, 2013 and Hopkins

was filed on June 15, 2015; Appellant’s invocation of those cases in his

September 2016 PCRA petition is well beyond the sixty-day period. Similarly,

Commonwealth v. Newman, invoked in Appellant’s November 28, 2016

amended petition, was filed on August 20, 2014, again well beyond the sixty-

day allotted period. To the extent that Appellant argues that his sentence was

illegal and the issue of illegality of sentence cannot be waived, Anders Brief

at 51, it is well settled that “[a]lthough legality of sentence is always subject

to review within the PCRA, claims must still first satisfy the PCRA’s time limits

or one of the exceptions thereto.” Commonwealth v. Fowler, 930 A.2d 586,

592 (Pa. Super. 2007). Appellant’s PCRA petition is untimely, and he has

failed to prove any exception applies.

      Finally, Appellant argues that his petition is timely because the PCRA

court and district attorney’s office willfully destroyed his guilty plea colloquy

transcripts.   Anders Brief at 53.       Specifically, Appellant argues that the

alleged destruction of the transcripts constitutes governmental interference

pursuant to 42 Pa.C.S. § 9545(b)(1)(i). Id. Appellant’s claim fails on several

grounds. First, even assuming the guilty-plea-colloquy transcripts had been

“willfully destroyed,” Appellant cannot prove that he invoked this exception

within sixty days of becoming aware of the alleged interference.        Second,


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Appellant failed to raise this exception in his PCRA petition; “exceptions to the

time bar must be pled in the PCRA petition, and may not be raised for the first

time on appeal.”     Commonwealth v. Burton, 936 A.2d 521 (Pa. Super.

2007).     Finally, Appellant’s PCRA counsel averred that the colloquy and

transcripts have not, in fact, been destroyed but are located in a file

maintained by the Clerk of Courts for the Criminal Division of the Philadelphia

Court of Common Please. Anders Brief at 53.

        In conclusion, because Appellant’s PCRA petition was untimely and no

exceptions apply, the PCRA court correctly determined that it lacked

jurisdiction to address the issues presented and grant relief.               See

Commonwealth v. Fairiror, 809 A.2d 396, 398 (Pa. Super. 2002) (holding

that PCRA court lacks jurisdiction to hear untimely petition). Likewise, we lack

the authority to address the merits of any substantive claims raised in the

PCRA petition. See Commonwealth v. Bennett, 930 A.2d 1264, 1267 (Pa.

2007) (“[J]urisdictional time limits go to a court’s right or competency to

adjudicate a controversy.”). In addition, having determined that Appellant is

not entitled to PCRA relief, we allow counsel to withdraw.

        Petition to withdraw as counsel granted. Order affirmed.

        Judge Nichols did not participate in the consideration or decision of this

case.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/27/18




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