J-S43018-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                         Appellee

                    v.

THOMAS C. O’NEAL

                         Appellant                   No. 2509 EDA 2014


                Appeal from the PCRA Order August 4, 2014
             In the Court of Common Pleas of Delaware County
            Criminal Division at No(s): CP-23-CR-0002789-1994


BEFORE: GANTMAN, P.J., PANELLA, J., and OLSON, J.

MEMORANDUM BY PANELLA, J.                           FILED AUGUST 18, 2015

      Appellant, Thomas C. O’Neal, appeals from the order dismissing his

petition filed pursuant to the Post Conviction Relief Act (“PCRA”) as untimely.

In addition, O’Neal’s court-appointed counsel, Henry DiBenedetto Forrest,

Esquire, has filed an application to withdraw his appearance pursuant to

Commonwealth        v.    Turner,    544   A.2d     927   (Pa.   1988),    and

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

review, we grant Attorney Forrest’s application to withdraw and affirm the

order dismissing O’Neal’s petition as untimely.

      After pleading guilty to a charge of murder in the first degree, O’Neal

was sentenced to life in prison on July 19, 1995. O’Neal was 17 years old at

the time of the offense.     Over the next 15 years, O’Neal filed several

unsuccessful PCRA petitions. This appeal concerns O’Neal’s fourth and fifth
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PCRA petitions, filed on August 21, 2012, and April 29, 2013,1 alleging that

he is entitled to relief pursuant to Miller v. Alabama, 132 S.Ct. 2455

(2012).

       We begin by addressing Attorney Forrest’s petition to withdraw. Our

Supreme Court has summarized the procedure for withdrawal of court-

appointed counsel in collateral attacks on criminal convictions as follows.

       Independent review of the record by competent counsel is
       required before withdrawal is permitted. Such independent
       review requires proof of:

       1) A “no-merit” letter by PCRA counsel detailing the nature and
          extent of his [or her] review;

       2) A “no-merit” letter by PCRA counsel listing each issue the
          petitioner wished to have reviewed;

       3) The PCRA counsel’s “explanation”, in the “no-merit” letter, of
          why the petitioner’s issues were meritless;

       4) The PCRA court conducting its own independent review of the
          record; and

       5) The PCRA court agreeing with counsel that the petition was
          meritless.



____________________________________________


1
   O’Neal’s fifth petition was filed pro se while the PCRA court was considering
his fourth petition, but was subsequently amended by prior counsel to
merely provide a more detailed argument under Miller. It appears that the
PCRA court treated the amended fifth petition as an amendment to the
fourth petition. As the Commonwealth has not objected, and given our
resolution of the only issue raised in the fourth and amended fifth petitions,
we need not address the propriety of this procedure. (In actuality, the pro se
filing is nothing more than an unauthorized supplemental petition. See
Commonwealth v. Reid, 99 A.3d 427, 437 (Pa. 2014).)




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Commonwealth v. Pitts, 981 A.2d 875, 876 n.1 (Pa. 2009) (citations

omitted). Additionally, this Court has added a requirement

     that    PCRA    counsel    who     seeks   to   withdraw     must
     contemporaneously serve a copy on the petitioner of counsel’s
     application to withdraw as counsel, and must supply to the
     petitioner both a copy of the “no-merit” letter and a statement
     advising the petitioner that, in the event that the court grants
     the application of counsel to withdraw, he or she has the right to
     proceed pro se or with the assistance of privately retained
     counsel.

Commonwealth v. Widgins, 29 A.3d 816, 818 (Pa. Super. 2011)

(emphasis omitted; citation omitted).     Counsel in this case has complied

with the mandates of Turner and Finley, as summarized in Pitts, as well as

complying with the mandate of Widgins. Thus, we must determine whether

we agree with counsel’s assessment of O’Neal’s claim.

     Our Supreme Court has held that the right announced in Miller does

not apply retroactively. See Commonwealth v. Cunningham, 81 A.3d 1,

10 (Pa. 2013).   We further note that this Court has held that a petitioner

cannot rely on Miller or 42 Pa.C.S.A. § 9545(b)(1)(iii) to establish

jurisdiction over an untimely PCRA petition.      See Commonwealth v.

Seskey, 86 A.3d 237, 243 (Pa. Super. 2014).          Thus, we concur with

counsel’s assessment that O’Neal’s sole issue on appeal is without merit.

Attorney Forrest has therefore established grounds for withdrawal.

     Our independent review of the record does not reveal any other

meritorious issues. As we conclude that O’Neal’s issue on appeal does not




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have any merit, we grant permission to withdraw and affirm the order of the

PCRA court.

      Order   affirmed.      Permission   to   withdraw   as   counsel   granted.

Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/18/2015




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