J-S59003-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                     IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

ANGEL L. SOTO,

                            Appellant                 No. 2868 EDA 2016


                   Appeal from the PCRA Order July 25, 2016
             In the Court of Common Pleas of Northampton County
               Criminal Division at No(s): CP-48-CR-000299-1989


BEFORE: BENDER, P.J.E., OTT, J., and FITZGERALD, J.*

MEMORANDUM BY BENDER, P.J.E.:                      FILED OCTOBER 18, 2017

        Appellant, Angel L. Soto, appeals from the post-conviction court’s July

25, 2016 order denying, as untimely, his third petition for relief filed

pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546.

Additionally, Appellant’s counsel, Chad M. DiFelice, Esq., has filed a petition

to withdraw in accordance with Commonwealth v. Turner, 544 A.2d 927

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

1988) (en banc).       After careful review, we affirm the PCRA court’s order

denying Appellant’s petition and grant Attorney DiFelice’s petition to

withdraw.



____________________________________________


*   Former Justice specially assigned to the Superior Court.
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      A detailed recitation of the facts of Appellant’s case is unnecessary to

our disposition of his present appeal. We note, however, that Appellant and

his cousin, Luis Torres, planned and carried out the 1988 murder of

Nepomuceno Pacheco.       The motive for the murder was a drug-dealing

dispute.   On June 19, 1991, a jury convicted Appellant of first-degree

murder and criminal conspiracy. That same day, the jury recommended a

sentence of life imprisonment for Appellant’s murder conviction. The court

imposed that sentence, as well as a consecutive term of 5 to 10 years’

incarceration for Appellant’s conspiracy conviction.

      Appellant filed a timely direct appeal and, after this Court affirmed, our

Supreme Court denied his subsequent petition for allowance of appeal.

Commonwealth v. Soto, 693 A.2d 226 (Pa. Super. 1997), appeal denied,

705 A.2d 1308 (Pa. 1997).

             On August 25, 1998, [Appellant] filed his first PCRA
      petition. On January 27, 1999, the PCRA court dismissed the
      petition without a hearing. On February 11, 1999, [Appellant]
      filed a notice of appeal. On December 16, 1999, a panel of this
      Court vacated the PCRA court’s dismissal of [Appellant]’s petition
      and remanded for the appointment of new counsel. See
      Commonwealth v. Soto, 680 EDA 1999, [unpublished
      memorandum] at []6 (Pa. Super. [filed] Dec. 16, 1999).
      Between January 24, 2000, and July 17, 2006, [Appellant] was
      represented by three different court-appointed lawyers, and filed
      multiple amended PCRA petitions. Finally, on or about
      September 20, 2006, the PCRA court held an evidentiary hearing
      on [Appellant]’s first PCRA petition. On November 21, 2006, the
      PCRA court filed an order and opinion denying [Appellant]’s first
      PCRA petition. On December 8, 2006, [Appellant] filed a notice
      of appeal. On July 25, 2007, a panel of this Court issued a
      memorandum affirming the dismissal of [Appellant]’s first PCRA
      petition.    See Commonwealth v. Soto, 3427 EDA 2006,

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      [unpublished memorandum] at []17 (Pa. Super. [filed] Jul. 25,
      2007). On March 12, 2008, the Pennsylvania Supreme Court
      denied [Appellant]’s petition for allowance of appeal.
      Commonwealth v. Soto, 945 A.2d 170 (Pa. 2008) (table).

Commonwealth v. Soto, No. 2482 EDA 2013, unpublished memorandum

at 3-4 (Pa. Super. filed May 29, 2014). On May 8, 2012, Appellant filed a

second, pro se PCRA petition, which was ultimately deemed untimely and

dismissed on July 23, 2013. This Court affirmed on appeal. Id.

      On March 23, 2016, Appellant filed the pro se PCRA petition that

underlies the present appeal.    James Madsen, Esquire, was appointed to

represent Appellant, but on April 5, 2016, Appellant filed a pro se amended

petition. On May 19, 2016, Attorney Madsen filed a Turner/Finley petition

to withdraw with the PCRA.      On June 6, 2016, the PCRA court issued a

Pa.R.Crim.P. 907 notice of its intent to dismiss Appellant’s petition, to which

Appellant filed a timely, pro se response. Then, on July 25, 2016, the court

issued an order denying Appellant’s petition as being untimely filed.

However, the PCRA court did not rule on Attorney Madsen’s petition to

withdraw. As such, counsel filed a “Praecipe for Withdrawal of Appearance”

on August 11, 2016.       Still, the PCRA court failed to rule on Attorney

Madsen’s praecipe for withdrawal.

      Appellant then filed a timely, pro se notice of appeal on August 17,

2016. He also timely complied with the PCRA court’s order directing him to

file a Pa.R.A.P. 1925(b) concise statement of errors complained of on

appeal. On September 16, 2016, the court filed its Rule 1925(a) opinion.



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      On November 28, 2016, Attorney Madsen filed with this Court a

petition to withdraw. On December 19, 2016, this Court issued a per curiam

order granting Attorney Madsen’s petition, and directing that the PCRA court

appoint new counsel for Appellant. Thereafter, Attorney DiFelice entered his

appearance on Appellant’s behalf. However, counsel failed to file a brief on

Appellant’s behalf, compelling this Court to issue a per curiam order

remanding Appellant’s case for the filing of a brief by Attorney DiFelice.

      On May 24, 2017, Attorney DiFelice filed a petition to withdraw and an

accompanying brief. Upon review, this Court noticed that Attorney DiFelice

had not accurately advised Appellant of his immediate right to proceed pro

se or with privately retained counsel. See Commonwealth v. Muzzy, 141

A.3d 509, 512 (Pa. Super. 2016) (clarifying that, “in an appeal from the

denial of a PCRA petition, if counsel files a petition to withdraw as appellate

counsel in this Court, the letter to the client, inter alia, shall inform the PCRA

petitioner that upon the filing of counsel's petition to withdraw, the

petitioner-appellant has the immediate right to proceed in the appeal pro se

or through privately-retained counsel”).     Consequently, we issued another

per curiam order, directing Attorney DiFelice to send Appellant a corrected

letter within 14 days. On June 27, 2017, Attorney DiFelice filed a letter that

complied with Muzzy.      Appellant has not filed any response to counsel’s

petition to withdraw.

      Accordingly, we now review Attorney DiFelice’s petition to withdraw

and Turner/Finley brief. Initially, this Court has explained that:

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      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.

      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.

                                      ***

      [W]here counsel submits a petition and no-merit letter that ...
      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.

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

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

citations omitted)).

      Here, Attorney DiFelice has satisfied the procedural requirements for

withdrawal.    Specifically, he has set forth the two issues that Appellant

raised in his petition below, and explains why those claims are meritless. He

has   also    sent   Appellant   copies   of   his   petition   to   withdraw   and

Turner/Finley brief. Additionally, as discussed supra, Attorney DiFelice has

properly advised Appellant of his immediate right to proceed pro se or with

privately retained counsel. Accordingly, we will now review the merits of the

following two issues that Appellant seeks to assert herein:




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      I. Whether the PCRA court erred in denying the petition of
      Appellant [as being] untimely, in light of Missouri v. Frye, 132
      S.Ct. 1399 (2012)[,] and Montgomery v. Louisiana, 136 S.Ct.
      718 (2016), which Appellant contends announced a new legal
      right to be advised of plea offers entitling him to retroactive
      relief?

      II. Whether Appellant’s mandatory life sentence without the
      possibility of parole is illegal under Alleyne v. United States[,
      133 S.Ct. 2151 (2013),] as a violation of the Eighth
      Amendment[’s] prohibition on cruel and unusual punishment?

Appellant’s Brief at 5.

      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) (stating PCRA time limitations implicate our

jurisdiction and may not be altered or disregarded to address the merits of

the petition).   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:

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            (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. § 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).

      Here, Appellant’s judgment of sentence became final on March 31,

1998, at the expiration of the 90-day time-period for seeking review with the

United States Supreme Court of our Supreme Court’s denial of his petition

for allowance of appeal.     See 42 Pa.C.S. § 9545(b)(3) (stating that a

judgment of sentence becomes final at the conclusion of direct review or the

expiration of the time for seeking the review); Commonwealth v. Owens,

718 A.2d 330, 331 (Pa. Super. 1998) (directing that under the PCRA,

petitioner’s judgment of sentence becomes final ninety days after our

Supreme Court rejects his or her petition for allowance of appeal since

petitioner had ninety additional days to seek review with the United States

Supreme Court). Thus, Appellant’s current petition filed in March of 2016, is

patently untimely and, for this Court to have jurisdiction to review the merits


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thereof, Appellant must prove that he meets one of the exceptions to the

timeliness requirements set forth in 42 Pa.C.S. § 9545(b).

       Instantly, Appellant argues that he meets the ‘new retroactive right’

exception of section 9545(b)(1)(iii) for two different reasons.                   First, he

contends that the           United States       Supreme    Court announced a new

constitutional rule in Frye, by which trial counsel now has an affirmative

duty to communicate to a defendant any formal plea offer from the

prosecution.     Appellant claims that his trial counsel violated this rule, and

that   he   is   entitled    to   retroactive    application    of   Frye   pursuant     to

Montgomery v. Louisiana, 136 S.Ct. 718, 729 (2016) (holding “that when

a new substantive rule of constitutional law controls the outcome of a case,

the Constitution requires state collateral review courts to give retroactive

effect to that rule”). In other words, Appellant argues that viewing Frye and

Montgomery         together,      he   has    satisfied   the   exception    of    section

9545(b)(1)(iii).

       We disagree.     In Commonwealth v. Feliciano, 69 A.3d 1270 (Pa.

Super. 2013), we held that Frye did not create a new constitutional rule but,

instead, it “merely clarified that [the] well-established right [to effective

assistance of counsel during the plea bargaining process] ‘extends to the

negotiation and consideration of plea offers that lapse or are rejected.’”

Feliciano, 69 A.3d at 1276 (quoting Frye, 132 S.Ct. at 1409) (emphasis

added in Feliciano). Thus, Appellant cannot rely on Frye to satisfy the ‘new

rule’ component of section 9545(b)(1)(iii). See id. at 1277 (concluding that

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Feliciano could not rely on Frye to satisfy the timeliness exception of section

9545(b)(1)(iii)).

       Second, Appellant argues that he has satisfied the exception of section

9545(b)(1)(iii) because his mandatory sentence of life imprisonment,

without the possibility of parole, violates Alleyne’s new rule that “facts that

increase mandatory minimum sentences must be submitted to the jury” and

found beyond a reasonable doubt. Alleyne, 133 S.Ct. at 2163. Appellant

further maintains that Alleyne applies retroactively in light of Montgomery,

thus satisfying section 9545(b)(1)(iii).

       Again, we disagree. While our Supreme Court has acknowledged that

Alleyne did create a new constitutional rule, the Court expressly held that

Alleyne does not apply retroactively to cases pending on collateral review.

See Commonwealth v. Washington, 142 A.3d 810, 818-820 (Pa. 2016).

In so ruling, the Court specifically found that Alleyne does not constitute a

‘substantive rule’ that applies retroactively under Montgomery, because

“the Alleyne rule neither alters the range of conduct or the class of persons

punished by the law.” Id. at 818 (citing Montgomery, 136 S.Ct. at 729-

30).    Therefore, Appellant has failed to prove that Alleyne applies

retroactively to his case for purposes of satisfying the timeliness exception of

section 9545(b)(1)(iii).

       For these reasons, we agree with Attorney DiFelice that neither of

Appellant’s   two   issues   satisfy   the   ‘new   retroactive   right’   timeliness

exception. Accordingly, Appellant’s petition is untimely, and we affirm the

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PCRA court’s order denying it. We also grant Attorney DiFelice’s petition to

withdraw.

      Order     affirmed.   Petition    to      withdraw   granted.   Jurisdiction

relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/18/17




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