J-S74040-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT
                                                              OF
                                                         PENNSYLVANIA


                        v.

    GIOVANNI ORTIZ-CLAUDIO

                              Appellant                  No. 3 EDA 2017


               Appeal from the PCRA Order November 22, 2016
                 In the Court of Common Pleas of Bucks County
              Criminal Division at No(s): CP-09-CR-0001392-2008


BEFORE: BOWES, J., LAZARUS, J., and RANSOM, J.

MEMORANDUM BY RANSOM, J.:                          FILED FEBRUARY 12, 2018

        Appellant, Giovanni Ortiz-Claudio, appeals from the order entered

November 22, 2016, denying as untimely his petition for collateral relief filed

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

9546.    Additionally, appointed counsel, Stuart Wilder, Esq., has filed an

application to withdraw along with a letter of no merit pursuant to

Turner/Finley.1 We affirm, and grant counsel’s motion to withdraw.

        We adopt the following statement of facts from the PCRA court opinion,

which in turn is supported by the record.          See PCRA Court Op. (PCO),

7/10/2017, at 1-5.           Following a May 2008 bench trial, the court found
____________________________________________


1 See 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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Appellant guilty of firearms not to be carried without a license, possession with

intent to deliver (PWID), simple possession, possession of drug paraphernalia,

and resisting arrest.2 In August 2008, Appellant was sentenced to five to ten

years of incarceration on the firearms charge and a concurrent sentence of

four to eight years of incarceration on the PWID charge.

       Appellant timely appealed and, his judgment of sentence was affirmed.3

See Commonwealth v. Ortiz-Claudio, 26 A.3d 1194 (Pa. Super. 2011)

(unpublished memorandum), appeal denied, 24 A.3d 863 (Pa. 2011). He did

not seek certiorari with the United States Supreme Court. Accordingly, for

purposes of the PCRA, his sentence became final on October 17, 2011.4

       On August 12, 2016, Appellant filed a counseled motion seeking to

vacate his sentence and remand for resentencing, averring that the five to ten

year sentence was illegal. Appellant averred that firearms not to be carried

without a license, a felony of the third degree, carried a statutory maximum

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2See 18 Pa.C.S. § 6106(a)(1); 35 P.S. §§ 780-113(a)(30), (16), and (32);
18 Pa.C.S. § 5104, respectively.

3Appellant did not challenge the legality of his sentence on direct appeal. See
Ortiz-Claudio, 26 A.3d 1194, at *4.

4 Appellant’s judgment of sentence became final on October 17, 2011, at the
expiration of the ninety-day time period for seeking review with the United
States Supreme Court. See 42 Pa.C.S. § 9545(b)(3) (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) (noting that Sup.Ct.R. 13 grants an Appellant ninety days to
seek review with the United States Supreme Court). Thus, Appellant had until
October 17, 2012, to file a timely PCRA petition.


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of seven years. See 18 Pa.C.S. §§ 6106(a)(1), 1103(3). In response, the

Commonwealth argued that Appellant’s request was subsumed by the PCRA,

and that the petition was time-barred.

       Following an examination of the record, the PCRA court sent Appellant

notice of intent to dismiss pursuant to Pa.R.Crim.P. 907. Appellant filed a

response, arguing that a challenge to the legality of the sentence may never

be waived. Following a hearing, the court dismissed Appellant’s petition as

untimely and not subject to the time bar exceptions.        The court allowed

counsel to withdraw but appointed new counsel to assist Appellant in

perfecting his appeal.

       In response to the court’s Pa.R.A.P. 1925(b) order, counsel filed a

statement of intent to file an Anders5 brief in this Court. The court issued a

responsive opinion, finding all of Appellant’s issues waived for failure to

preserve them in his Pa.R.A.P. 1925(b) statement.

       In August 2017, counsel filed an application to withdraw with this Court,

attaching his Turner/Finley “no merit” letter with proof of notice to Appellant

that he had the right to proceed pro se or retain private counsel. Appellant

did not file a response.

       Before we may review the merits of Appellant's claims, we must

determine if counsel has satisfied the requirements to be permitted to

withdraw     from    further    representation.   Turner/Finley   requires   an
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5See Anders v. California, 87 S. Ct. 1936 (1967); Commonwealth v.
Santiago, 978 A.2d 349 (Pa. 2009).

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independent review of the record by competent counsel before a PCRA court

or this Court may authorize an attorney’s withdrawal. See Commonwealth

v. Freeland, 106 A.3d 768, 774 (Pa. Super. 2014).              “The necessary

independent review requires counsel to 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.”            Id.    The

reviewing court must then conduct its own independent evaluation of the

record and agree with counsel that the petition is without merit.      Id.   On

appeal from the denial of a PCRA, counsel is required to “contemporaneously

serve upon his client his no-merit letter and application to withdraw along with

a statement that if the court granted counsel's withdrawal request, the client

may proceed pro se or with a privately retained attorney.” Id.

      Here, we find that counsel has substantially complied with the

requirements of Turner/Finley and their progeny, detailing his review of the

record and conclusion that Appellant’s sole claim is meritless. Counsel also

notified Appellant, furnished him with a copy of this letter, and advised him of

his right to proceed pro se or to retain private counsel.      Attorney Wilder

additionally offered to assist Appellant in filing any response he wished to

make. Accordingly, we will grant counsel’s application to withdraw.

      Next, we proceed to our independent review of Appellant’s claims.

Attorney Wilder notes Appellant’s sole issue, “a real grievance,” namely, that

his sentence of five to ten years exceeds the statutory maximum of seven

years for a felony of the third degree. See Turner/Finley Letter, at 3.

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      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. See Commonwealth v.

Ragan, 923 A.2d 1169, 1170 (Pa. 2007).

      We begin by addressing the timeliness of Appellant’s petition, as the

PCRA time limitations implicate our jurisdiction and may not be altered or

disregarded   in   order   to   address   the   merits   of   his   claims.    See

Commonwealth v. Bennett, 930 A.2d 1264, 1267 (Pa. 2007). Under the

PCRA, any petition for relief, including second and subsequent petitions, must

be filed within one year of the date on which the judgment of sentence

becomes final. Id. There are three exceptions:

      (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 these

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

presented.” 42 Pa.C.S. § 9545(b)(2); see Commonwealth v. Gamboa-

Taylor, 753 A.2d 780, 783 (Pa. 2000).


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       Appellant’s petition is untimely.6 In the lower court, Appellant argued

that a challenge to an illegal sentence may not be waived.          See, e.g.,

Commonwealth v. Randal, 837 A.2d 1211, 1214 (Pa. Super. 2003).

However, the PCRA subsumes all challenges to the legality of the sentence,

and such challenges must still satisfy the PCRA’s time limits or one of the

exceptions thereto. See Commonwealth v. Fahy, 737 A.2d 214, 223 (Pa.

1999). Appellant does not plead or prove one of the time bar exceptions.

Accordingly, the PCRA court did not err in dismissing his petition despite the

illegality of his sentence. See Ragan, 923 A.2d at 1170; Fahy, 737 A.2d at

223.

       Thus, we agree with counsel that Appellant’s claim does not merit relief.

On independent review, we find no other claims of merit.

       Order affirmed.         Application to withdraw granted.     Jurisdiction

relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/12/18


____________________________________________


6Appellant’s petition is patently untimely. As noted above, Appellant had until
October 17, 2012, to file a timely PCRA petition. Appellant’s petition, filed
almost four years after that date, is untimely.

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