J-S15005-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                            Appellee

                       v.

GEORGE F. SIMS, JR.

                            Appellant              No. 1366 MDA 2014


                  Appeal from the PCRA Order June 24, 2014
               In the Court of Common Pleas of Luzerne County
              Criminal Division at No(s): CP-40-CR-0001235-2008


BEFORE: LAZARUS, J., WECHT, J., and JENKINS, J.

MEMORANDUM BY LAZARUS, J.:                        FILED MARCH 13, 2015

        George F. Sims, Jr., appeals from the order entered in the Court of

Common Pleas of Luzerne County dismissing his petition filed under the Post

Conviction Relief Act (PCRA).1 Counsel for Sims has filed with this Court a

Turner/Finley brief and a petition to withdraw as counsel.2       After our

review we affirm the PCRA court’s order and grant counsel’s petition to

withdraw.



____________________________________________


1
    42 Pa.C.S. §§ 9541-9546.
2
 The proper mechanism for withdrawal on appeal from the denial of a PCRA
petition is to file a no-merit letter. See Commonwealth v. Turner, 544
A.2d 917 (Pa. 1988); Commonwealth v. Finley, 550 A.2d 213 (Pa. Super.
1988). Nevertheless, we will accept the brief in lieu of a letter. See
Commonwealth v. Widgens, 29 A.3d 816, 817 n.2 (Pa. Super. 2011).
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        On January 12, 2009, Sims pled guilty to two counts of arson.        On

March 16, 2009, the court sentenced him to 72-240 months’ imprisonment

on count 1, and to a consecutive sentence of 21-42 month’s imprisonment

on count 2, followed by 60 months’ probation. The sentence fell within the

standard range of the sentencing guidelines.

        Following reinstatement of his appellate rights, Sims filed a timely

notice of appeal on June 24, 2010. This Court affirmed Sims’ judgment of

sentence on March 11, 2011. Commonwealth v. Sims, 26 A.3d 1189 (Pa.

Super. 2011 (unpublished memorandum).            On March 31, 2011, Sims

transmitted to the trial court a pro se motion for reconsideration of sentence

nunc pro tunc, which on April 18, 2011, the court directed be treated as a

PCRA petition.

        On August 5, 2011, the court appointed counsel, who filed a

supplemental PCRA petition.       At a hearing on March 29, 2012, the

Commonwealth and Sims agreed that Sims had requested his counsel file a

timely motion for reconsideration of sentence, which counsel failed to do.

The trial court determined that Sims was not prejudiced by counsel’s failure

to file the motion, and on April 24, 2012, it denied his request for PCRA

relief. Sims filed an appeal, and our Court affirmed the trial court on April 5,

2013.      Commonwealth v. Sims, 75 A.3d 546 (Pa. Super. 2013)

(unpublished memorandum).         Our Supreme Court denied allowance of

appeal on November 13, 2013. Commonwealth v. Sims, 80 A.3d 777 (Pa.

2013).

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        On February 24, 2014, Sims transmitted to the court a pro se “motion

to consolidate sentencing cases under Rule 701 Pa.R.Crim.P.” 3           In the

motion, he seeks the court’s “mercy to run his sentences concurrent [sic],

modify, and/or to reduce the sentences imposed.”         Motion to Consolidate,

2/24/14, at 1. By order filed March 18, 2014, the court noted that Rule 701

did not apply to this matter, and directed that the motion be filed as a PCRA

petition. In the same order, the court notified Sims of its intent to dismiss

the petition without a hearing within 20 days pursuant to Pa.R.Crim.P. 907.

On March 24, 2014, Sims filed a motion for a new trial, which by order dated

April 1, 2014, the court directed to be filed as a supplement to his PCRA

petition.

        On June 13, 2013, court-appointed counsel filed a “Supplement to

PCRA Petition” asserting ineffective assistance of trial counsel and asking the

court to permit Sims to withdraw his guilty plea.




____________________________________________


3
    Rule 701, which governs pleas of guilty to multiple offenses, provides:

        (A)   Before the imposition of sentence, the defendant may
              plead guilty to other offenses that the defendant
              committed within the jurisdiction of the sentencing court.

        (B)   When such pleas are accepted, the court shall sentence
              the defendant for all the offenses.

Pa.R.Crim.P. 701.




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        The court dismissed the PCRA petition as untimely on June 24, 2014,

and on July 21, 2014, Sims’ counsel filed a notice of appeal. The trial court

filed its Pa.R.A.P. 1925(a) opinion on September 18, 2014.

        The sole issue raised on appeal is whether the trial court erred by

dismissing Sims’ PCRA petition.

        Our standard of review regarding a PCRA court’s order is whether the

determination of the PCRA court is supported by the evidence of record and

is free of legal error. The PCRA court’s findings will not be disturbed unless

there    is   no   support   for   those   findings   in   the   certified   record.

Commonwealth v. Garcia, 23 A.3d 1059, 1061 (Pa. Super. 2011) (citing

Commonwealth v. Smith, 995 A.2d 1143, 1149 (Pa. 2010)).

        First, we determine whether PCRA counsel has complied with the

technical requirements of Turner/Finley:

        Counsel petitioning to withdraw from PCRA representation must
        proceed under [Turner/Finley 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.
        Where 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.



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

omitted).    If counsel’s petition and no-merit letter satisfy Turner/Finley,

we then conduct an independent review of the merits of the case.         If this

Court agrees with counsel that the claims are meritless, we will permit

counsel to withdraw and deny relief. Commonwealth v. Wrecks, 931 A.2d

717, 721 (Pa. Super. 2007) (citing Commonwealth v. Mosteller, 633 A.2d

615, 617 (Pa. Super. 1993)).

      Here, Sims’ counsel has complied with the technical requirements of

Turner/Finley. He forwarded to Sims a copy of the brief and the petition to

withdraw along with a letter informing him of his right to hire private counsel

or proceed pro se.     In his brief, counsel sets forth the claims that Sims

sought to raise before this Court. Counsel also sets forth the background of

the case, and an explanation as to why the record does not support the

claims raised by Sims in his PCRA petition. Specifically, counsel concludes

Sims’ petition is untimely on its face.

      A PCRA petition, including a second or subsequent petition, must be

filed within one year of the date the underlying judgment becomes final. 42

Pa.C.S. § 9545(b)(1); Commonwealth v. Bretz, 830 A.2d 1273 (Pa.

Super. 2003); Commonwealth v. Vega, 754 A.2d 714 (Pa. Super. 2000).

A judgment is deemed 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

review.”    42 Pa.C.S. § 9545(b)(3).      Here, Sims did not file a petition for

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allowance of appeal from this Court’s order affirming his judgment of

sentence.    Therefore, his judgment became final 30 days after March 11,

2011, on April 10, 2011.       Sims had one year from that date to file his

petition.   Since the instant petition was filed on February 24, 2014, it is

untimely on its face.

        Section 9545(b)(1) of the PCRA provides limited exceptions to the

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

42 Pa.C.S. § 9545(b)(1).

        Because Sims did not allege any of these exceptions, counsel

concluded that Sims was not eligible for PCRA relief.

        We agree with counsel’s assessment that Sims’ claims are meritless.

Furthermore, our independent review of the certified record has uncovered

no additional meritorious issues. Thus, we affirm the PCRA court’s order and

we grant counsel’s petition to withdraw.


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     Order affirmed. Petition to withdraw granted.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/13/2015




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