J-S58028-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA,                   IN THE SUPERIOR COURT
                                                       OF PENNSYLVANIA
                             Appellee

                        v.

    HECTOR VARGAS-TORRES, JR.,

                             Appellant                 No. 652 MDA 2017


                   Appeal from the PCRA Order March 20, 2017
              In the Court of Common Pleas of Cumberland County
              Criminal Division at No(s): CP-21-CR-0003636-2014


BEFORE: GANTMAN, P.J., SHOGAN, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY SHOGAN, J.:                            FILED MARCH 23, 2018

        Appellant, Hector Vargas-Torres, Jr., appeals from the order denying his

petition filed pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.

§§ 9541-9546. In addition, counsel for Appellant has filed a no-merit letter

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

Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc), in

which she requests that she be permitted to withdraw as counsel. We grant

counsel’s application to withdraw and affirm the order of the PCRA court, albeit

on the basis that the PCRA petition is untimely.1



____________________________________________


1 See Commonwealth v. Fisher, 870 A.2d 864, 870 n.11 (Pa. 2005)
(appellate court may affirm the decision of the PCRA court if there is any basis
on the record to support the PCRA court’s action, even if the appellate court
relies on a different basis in its decision to affirm).
J-S58028-17


     In an unpublished memorandum disposing of Appellant’s direct appeal,

this Court summarized the history of this case as follows:

           Appellant was charged in this action with one count of
     aggravated harassment by a prisoner, a felony carrying a
     maximum sentence of seven years imprisonment. On August 20,
     2015, Appellant entered a negotiated guilty plea to a reduced
     charge of simple assault (placing someone in fear by physical
     menace), in exchange for a sentence of one to two years
     imprisonment. The sentence was to “run consecutively to any
     sentence that [Appellant was] presently serving.” N.T. Guilty
     Plea, 8/20/15, at 5. At that time, Appellant admitted to the
     following. On August 21, 2014, he was incarcerated at the State
     Correctional Institution--Camp Hill. Appellant had been placing a
     covering over his cell door that prevented correctional officers
     from viewing the inside of his cell. Appellant continued to place
     the obstruction over his cell door even though he had been
     repeatedly warned that he was not permitted to do so. On August
     21, 2014, Correctional Officer Brent McBeth, as a security
     precaution, was installing plexiglass inside Appellant’s cell when
     Appellant spit on him, striking Correctional Officer McBeth’s chest
     and forearm.

             On August 20, 2015, after accepting the guilty plea, the
     [trial] court imposed the negotiated sentence of one to two years
     in jail, and Appellant was apprised of his post-sentence rights. Id.
     at 7-8. On September 8, 2015, Appellant filed a motion seeking
     credit for time served from October 21, 2014, when he was
     arrested for the present crime, to August 20, 2015. The motion
     did not seek any form of PCRA relief, and Appellant did not ask to
     file the motion nunc pro tunc.

           Following a hearing, the court denied the motion on
     November 2, 2015, after the period for filing a direct appeal from
     the August 20, 2015 judgment of sentence expired. The court
     found that any time Appellant spent in jail prior to August 20,
     2015, had been credited to sentences imposed in other matters.
     Appellant filed this appeal from the judgment of sentence imposed
     on August 20, 2015.

Commonwealth v. Vargas-Torres, 2009 MDA 2015, 159 A.3d 53 (Pa.

Super. filed October 24, 2016) (unpublished memorandum at 1-2).

                                    -2-
J-S58028-17


Ultimately, we quashed Appellant’s direct appeal as having been untimely

filed. Id. at 5.

      On November 16, 2016, Appellant filed the instant PCRA petition, pro

se. On the same day, the PCRA court appointed Katie Maxwell, Esquire, to

represent Appellant. PCRA counsel did not file an amended PCRA petition, but

instead filed a motion requesting the PCRA court to hold a hearing on the

matter. The request for a hearing was granted, and a PCRA hearing was held

on March 20, 2017. At the conclusion of the hearing, the PCRA court entered

an order denying PCRA relief. This timely appeal followed.

      On April 13, 2017, the PCRA court entered an order directing Appellant

to file, within twenty-one days, a concise statement of errors pursuant to

pursuant to Pa.R.A.P. 1925(b).     On May 5, 2017, PCRA counsel filed a

statement of intent to file a Turner/Finley document. The PCRA court filed

an opinion pursuant to Pa.R.A.P. 1925(a) on May 26, 2017.

      On June 26, 2017, PCRA counsel filed a no-merit letter with this Court

requesting permission to withdraw. However, PCRA counsel did not attach a

copy of the letter advising Appellant of his rights pursuant to Commonwealth

v. Friend, 896 A.2d 607, 614 (Pa. Super. 2006), regarding notifying Appellant

of his right to proceed pro se or proceed with a private attorney.       See

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

Friend).




                                    -3-
J-S58028-17


       Cognizant of this deficiency, this Court entered an order on June 30,

2017, directing PCRA counsel to notify Appellant as required by the relevant

case law, and to file a copy of the notification with this Court within ten days.

PCRA counsel failed to comply with our directive, and on July 13, 2017, we

issued a second order reminding counsel of her obligation and directing her to

file a copy of the notification within seven days. Again, PCRA counsel failed

to comply with our order.

       On July 27, 2017, PCRA counsel filed a motion seeking a continuance in

which to file with this Court the required notification to Appellant. Also on July

27, 2017, this Court entered an order granting the continuance and directing

that the notification be filed on or before August 3, 2017. The record was

devoid of any evidence that PCRA counsel complied with this Court’s directive.

       Therefore, on January 3, 2018, this panel entered an order directing

PCRA counsel to file with this Court a copy of the letter notifying Appellant of

his immediate right to proceed pro se or with newly retained counsel within

fourteen days of the date of the order. PCRA counsel has complied with our

directive. Appellant has not filed a response with this Court. This matter is

now ripe for our disposition.2




____________________________________________


2 We note our displeasure with the fact that PCRA counsel repeatedly ignored
the directives of this Court. We warn counsel, as we did in our Order dated
January 3, 2018, that failure to comply with this Court’s orders may ultimately
result in the withholding of counsel fees and referral for disciplinary action.

                                           -4-
J-S58028-17


      Prior to addressing the merits of Appellant’s claim on appeal, we must

first decide whether counsel has fulfilled the procedural requirements for

withdrawing her representation. Commonwealth v. Daniels, 947 A.2d 795,

797 (Pa. Super. 2008). This Court has listed the following conditions to be

met by counsel in seeking to withdraw in a collateral appeal:

             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) (citation

omitted) (brackets in original).

      In the application filed with this Court, counsel explained that she had

been appointed to represent Appellant at the PCRA proceedings and that she

reviewed the case, evaluated the issues, conducted an independent review of

the record, and concluded there were no issues of merit. Counsel also listed

                                      -5-
J-S58028-17


the issues relevant to this appeal in her no-merit letter and explained why the

appeal is without merit. In addition, counsel averred that she served upon

Appellant a copy of the application to withdraw, the “no-merit” letter, and a

letter addressed to Appellant accompanying those documents. Thus, we will

allow counsel to withdraw if, after our review, we conclude that the issues

relevant to this appeal lack merit.

      We have discerned the following issues noted by PCRA counsel on behalf

of Appellant in the Turner/Finley letter: whether trial counsel was ineffective

for proceeding with Appellant’s preliminary hearing in the absence of an

assistant district attorney; whether trial counsel was ineffective for failing to

obtain a video of the incident; and whether Appellant’s negotiated guilty plea

was knowingly, intelligently, and voluntarily entered due to trial counsel’s

ineffective assistance. Turner/Finley Letter, at 2.

      When reviewing the propriety of an order denying PCRA relief, we

consider the record “in the light most favorable to the prevailing party at the

PCRA level.”   Commonwealth v. Stultz, 114 A.3d 865, 872 (Pa. Super.

2015) (quoting Commonwealth v. Henkel, 90 A.3d 16, 20 (Pa. Super. 2014)

(en banc)).    This Court is limited to determining whether the evidence of

record supports the conclusions of the PCRA court and whether the ruling is

free of legal error. Commonwealth v. Rykard, 55 A.3d 1177, 1183 (Pa.

Super. 2012). We grant great deference to the PCRA court’s findings that are

supported in the record and will not disturb them unless they have no support


                                      -6-
J-S58028-17


in the certified record. Commonwealth v. Rigg, 84 A.3d 1080, 1084 (Pa.

Super. 2014).

       However, as a prefatory matter, we must address whether Appellant

satisfied the timeliness requirements of the PCRA. A judgment of sentence

“becomes 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 the review.” 42 Pa.C.S.

§ 9545(b)(3).       This time requirement is mandatory and jurisdictional in

nature, and the court may not ignore it in order to reach the merits of the

petition. Commonwealth v. Cintora, 69 A.3d 759, 762 (Pa. Super. 2013).

       An untimely petition may be received when the petition alleges, and the

petitioner proves, that any of the three limited exceptions to the time for filing

the petition, set forth at 42 Pa.C.S. § 9545(b)(1)(i), (ii), and (iii), is met. 3 A




____________________________________________


3   The exceptions to the timeliness requirement are:

       (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



                                           -7-
J-S58028-17


petition invoking one of these exceptions must be filed within sixty days of the

date the claim could first have been presented. 42 Pa.C.S. § 9545(b)(2). In

order to be entitled to the exceptions to the PCRA’s one-year filing deadline,

“the petitioner must plead and prove specific facts that demonstrate his claim

was raised within the sixty-day time frame” under section 9545(b)(2).

Commonwealth v. Carr, 768 A.2d 1164, 1167 (Pa. Super. 2001).

       Our review of the record reflects that Appellant’s judgment of sentence

became final on Monday, September 21, 2015,4 thirty days after the trial court

imposed the judgment of sentence, and Appellant failed to file a timely direct

appeal with this Court.       42 Pa.C.S. § 9545(b)(3); Pa.R.A.P. 903(a).      See

Commonwealth v. Hutchins, 760 A.2d 50, 54 (Pa. Super. 2000) (reiterating

that judgment of sentence becomes final upon conclusion of direct review or

upon expiration of time for seeking review and holding the appellant’s

judgment of sentence became final after the expiration of the thirty-day period

in which the appellant was permitted to seek further review in our Supreme

Court).      See     also    Vargas-Torres,      2009   MDA   2015   (unpublished

____________________________________________


       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), (ii), and (iii).
4 We note that a direct appeal needed to be filed on or before Monday,
September 21, 2015, because September 19, 2015, was a Saturday. See 1
Pa.C.S. § 1908 (stating that, for computations of time, whenever the last day
of any such period shall fall on Saturday or Sunday, or a legal holiday, such
day shall be omitted from the computation). See also Pa.R.A.P. 107;
Pa.R.A.P. 903, note.

                                           -8-
J-S58028-17


memorandum at 5) (quashing Appellant’s direct appeal as having been

untimely filed). Thus, in order to be timely under the PCRA, Appellant needed

to file his PCRA petition on or before September 21, 2016. Appellant did not

file the PCRA petition until November 16, 2016. Accordingly, the instant PCRA

petition is patently untimely.

      As stated, if a petitioner does not file a timely PCRA petition, his petition

may nevertheless be received under any of the three limited exceptions to the

timeliness requirements of the PCRA. 42 Pa.C.S. § 9545(b)(1). If a petitioner

asserts one of these exceptions, he must file his petition within sixty days of

the date that the exception could be asserted. 42 Pa.C.S. § 9545(b)(2).

      Appellant does not specifically allege that the delay in filing his PCRA

petition was due to interference by governmental officials, that the facts

underlying his petition were unknown to him and could not have been

ascertained by the exercise of due diligence, or that the right he has asserted

is a retroactive constitutional right. 42 Pa.C.S. § 9545(b)(1)(i)-(iii). Thus,

Appellant fails to invoke any of the timeliness exceptions contained in the

PCRA. Therefore, the instant PCRA petition remains time-barred.

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

exceptions apply, the PCRA court 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


                                      -9-
J-S58028-17


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.”). Furthermore,

upon our independent review, no relief is due.     Having determined that

Appellant is not entitled to PCRA relief, we allow counsel to withdraw under

the precepts of Turner/Finley.

     Application to withdraw granted. Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 03/23/2018




                                   - 10 -
