J-S82002-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

SAMUEL ELWOOD DULIO

                            Appellant                 No. 743 MDA 2016


                    Appeal from the PCRA Order May 2, 2016
               In the Court of Common Pleas of Lancaster County
              Criminal Division at No(s): CP-36-CR-0001122-2012


BEFORE: OTT, J., DUBOW, J., and PLATT, J.*

MEMORANDUM BY OTT, J.:                            FILED JANUARY 09, 2017

        Samuel Elwood Dulio appeals from the order entered May 2, 2016, in

the Lancaster County Court of Common Pleas, denying his first petition for

collateral relief filed pursuant to the Post Conviction Relief Act (“PCRA”).1

Dulio seeks relief from the judgment of sentence of an aggregate five to 10

years’ imprisonment imposed November 6, 2012, following his negotiated

guilty plea to charges of possession with intent to deliver cocaine and

marijuana, and persons not to possess firearms.2       Contemporaneous with


____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
    42 Pa.C.S. §§ 9541-9546.
2
    See 35 P.S. § 780-113(a)(3), and 18 Pa.C.S. § 6105, respectively.
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this appeal, appointed counsel has filed a Turner/Finley3 “no merit” letter

and a motion seeking leave to withdraw from representation.         For the

reasons set forth below, we affirm the order on appeal, and grant counsel’s

motion to withdraw.

       The relevant facts and procedural history underlying this appeal were

aptly summarized by the PCRA court as follows:

              The Pennsylvania Office of Attorney General charged
       [Dulio] with the offenses of Possession with Intent to Deliver
       Marijuana, Possession with intent to Deliver Cocaine, and
       Persons Not to Possess a Firearm. These offenses allegedly
       occurred on December 1, 2011, when [Dulio] was found to be in
       possession of approximately 89.9 grams of cocaine. Police then
       located approximately three pounds of marijuana and a .40
       caliber Smith & Wesson firearm in the garage of [Dulio’s]
       mother, based on a statement [Dulio] gave to police. Because
       [Dulio] had at least one prior felony drug conviction, he was
       ineligible to possess the firearm.

             On November 6, 2012, [Dulio] appeared before the
       Honorable Judge Louis J. Farina and entered into a guilty plea
       pursuant to a negotiated plea agreement with the following
       terms: (Count 1) Possession with Intent to Deliver Marijuana: 5
       to 10 years imprisonment;2 (Count 2) Possession with Intent to
       Deliver Cocaine: 5 to 10 years imprisonment;3 and (Count 3)
       Persons Not to Possess: 5 to 10 years imprisonment. All
       sentences were made concurrent to one another, so the
       aggregate sentence was imprisonment of not less than 5 years
       nor more than 10 years in the State Correctional Institution
       (“SCI”).

       __________


____________________________________________


3
  Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).



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        2
          The Commonwealth filed a Notice of [I]ntent to seek a
        mandatory iminimum of at least five years incarceration
        for the crime of Possession with Intent to Deliver
        Marijuana involving a firearm, pursuant to 42 Pa.C.S.A. §
        9712.1.
        3
          The Sentencing Guideline Worksheet indicates the
        Commonwealth invoked a five year mandatory minimum
        sentence on the charge of Possession with Intent to Deliver
        Cocaine based on the weight and [Dulio’s] prior felony
        drug conviction, pursuant to 18 Pa.C.S.A. § 7508(a)(3).

     __________

           On November 13, 2012, [Dulio] filed a counseled Motion to
     Withdraw Guilty Plea & to Appoint New Counsel, claiming
     dissatisfaction with trial counsel and a guilty plea that was not
     knowing or voluntary on his part. On November 26, 2012, Judge
     Farina denied said Motion, noting the grounds asserted
     amounted to claims of ineffective assistance of counsel which
     should be addressed through collateral review. Thereafter, on
     May 20, 2013, [Dulio] filed a pro se Motion for
     Reconsideration/Modification of Sentence – Nunc Pro Tunc.4
     [Dulio’s] Motion was denied on May 24, 2013.

     __________
        4
          In his Motion, [Dulio] did not deny involvement in the
        crimes, he did not allege any improprieties with trial
        counsel or the guilty plea proceeding, and he did not claim
        he received an illegal sentence. Rather, [Dulio] asserted
        he was a changed person, and for that reason he was
        asking for a reduced sentence.

     __________

            On December 21, 2015, [Dulio] filed a pro se PCRA
     petition alleging that trial counsel provided ineffective assistance
     of counsel, the sentence imposed was greater than the lawful
     maximum, a violation of the Pennsylvania and United States
     Constitutions occurred such that no reliable adjudication of guilt
     or innocence could have taken place, and mandatory minimum
     sentences were imposed that have since been declared
     unconstitutional.




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             On December 22, 2015, PCRA counsel was appointed to
       represent [Dulio]. On March 23, 2016, PCRA counsel filed an
       Amended PCRA Motion asserting [Dulio] was subject to
       mandatory minimum sentences that have since been declared
       unconstitutional in the United States Supreme Court case of
       Alleyne v. United States, 133 S.Ct. 2151 (2013), which was
       decided on June 17, 2013. Moreover, it was alleged that trial
       counsel provided ineffective assistance of counsel for failing to
       raise this issue in a post-sentence motion or on appeal.
       According to counsel, “[Dulio] would not have pleaded guilty but
       for the fact that such mandatory minimum sentences were
       applicable at the time of his plea.” On March 24, 2016, the
       Commonwealth filed a Response to the Amended PCRA Motion
       opposing the requested relief and asking for dismissal of the
       action without a hearing.

              Pursuant to Pennsylvania Rule of Criminal Procedure 907,
       [the PCRA court] conducted an independent review of the
       record. On April 4, 2015, the Court issued a Rule 907 Notice
       concluding that [Dulio’s] amended PCRA Motion was patently
       frivolous, the allegations were not supported by the record, and
       the Court intended to dismiss the petition without a hearing
       because there were no genuine issues concerning any material
       fact. Thereafter, on May [2], 2016, the Court filed an Order
       dismissing [Dulio’s] amended PCRA motion.

PCRA Court Opinion, 5/24/2016, at 1-4 (record citations and some footnotes

omitted). This timely appeal followed.4

       Prior to addressing the merits of Dulio’s appeal, we must first consider

whether counsel has fulfilled the procedural requirements for withdrawal as

outlined in Turner/Finley:


____________________________________________


4
  On May 6, 2016, the PCRA court ordered Dulio to file a concise statement
of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). Dulio
complied with the court’s directive, and filed a concise statement on May 18,
2016.




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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) (quotation

omitted).

      Here,    counsel   has   complied    with   the    procedural   aspects   of

Turner/Finley by filing a “no merit” letter and motion to withdraw, and

providing Dulio with a copy of both filings.      See Motion to Withdraw as

Counsel, 8/16/2016; Statement, 8/16/2016.               We note, however, that

counsel incorrectly informed Dulio that Dulio had the right to proceed pro se

or with privately retained counsel “[i]n the event the Court grants the Motion

to Withdraw.”    Statement, 8/16/2016.       Therefore, this Court entered an

order on August 19, 2016, providing Dulio with 30 days to file a response,

either pro se or via privately retained counsel, to PCRA counsel’s “no merit”

letter.     See Order, 8/19/2016.         Dulio has filed no response, and,

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accordingly, we proceed to a consideration of whether the court erred in

dismissing Dulio’s PCRA petition. See Doty, supra.

       In his amended petition, Dulio asserted the two mandatory minimum

sentences5 imposed on his convictions of possession with intent to deliver

controlled substances are illegal under Alleyne, supra, and that he would

not have pled guilty “but for the fact that such mandatory minimum

sentences were applicable at the time of his plea.”       Amended Motion for

Post-Conviction Collateral Relief, 3/23/2016, at 4. Further, he claimed plea

counsel was ineffective for failing to raise this issue in either a post-sentence

motion or direct appeal. See id.

       Our review of an order denying PCRA relief is well-established:       “In

reviewing the denial of PCRA relief, we examine whether the PCRA court’s

determination is supported by the record and free of legal error.”

Commonwealth v. Mitchell, 141 A.3d 1277, 1283–1284 (Pa. 2016)

(internal punctuation and citation omitted).      Further, a PCRA court may

dismiss a petition “without an evidentiary hearing if there are no genuine

issues of material fact and the petitioner is not entitled to relief.”       Id.

(citations omitted).


____________________________________________


5
   See 18 Pa.C.S. § 7508(a)(3)(ii) (mandatory five-year sentence for
conviction of possession with intent to deliver at least 10 and less than 100
grams of cocaine with prior drug trafficking conviction); and 42 Pa.C.S. §
9712.1(a) (mandatory five-year sentence for conviction of possession with
intent to deliver controlled substance while in possession of a firearm).



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      Here, the PCRA court determined Dulio’s petition was untimely filed.

We agree.    Pursuant to Section 9545(b)(1), a PCRA petition must be filed

within one year of the date the judgment of sentence becomes final. See 42

Pa.C.S. 9545(b)(1).    Dulio’s judgment of sentence was final on December

26, 2012, 30 days after the trial court denied his post-sentence motion, and

Dulio failed to file a direct appeal. See id. at § 9545(b)(3). Therefore, he

had until December 26, 2013, to file a timely petition, and the one before

us, filed nearly two years later, is facially untimely.

      However, the PCRA provides that an otherwise untimely petition is not

time-barred if a petitioner pleads and proves the applicability of one of three

time-for-filing exceptions:    (1) interference by government officials, (2)

newly-discovered evidence, or (3) a newly-recognized constitutional right

which had been applied retroactively. See 42 Pa.C.S. §§ 9545(b)(1)(i)-(iii).

Any petition invoking one of these exceptions must be filed “within 60 days

of the date the claim could have been presented.” Id. at § 9545(b)(2).

      In the present case, Dulio’s primary claim is a challenge to the legality

of this sentence based upon Alleyne, supra. In Alleyne, the United States

Supreme Court held “[a]ny fact that, by law, increases the penalty for a

crime is an ‘element’ that must be submitted to the jury and found beyond a

reasonable doubt.”     Alleyne, supra, 133 S. Ct. at 2155.     In interpreting

that decision, the courts of this Commonwealth have determined that our

mandatory minimum sentencing statutes, including Sections 9712.1 and

7508, are unconstitutional because the language of those statutes “permits

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the trial court, as opposed to the jury, to increase the defendant’s minimum

sentence     based    upon     a   preponderance   of   the   evidence”   standard.

Commonwealth v. Newman, 99 A.3d 86, 98 (Pa. Super. 2014) (en banc)

(invalidating 42 Pa.C.S. § 9712.1), appeal denied, 121 A.3d 247 (Pa. 2015);

Commonwealth v. Mosley, 114 A.3d 1072, 1087-1091 (Pa. Super. 2015)

(invalidating 18 Pa.C.S. § 7508).

       Moreover, the en banc panel in Newman, supra, held that an

Alleyne challenge “implicates the legality of the sentence, and cannot be

waived on appeal.”        Newman, supra, 99 A.3d at 90.6          Nevertheless, in

order to obtain collateral relief based upon a legality of sentencing issue, a

petitioner must “still first satisfy the PCRA’s time limits or one of the

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

1999).

       However, the Alleyne decision does not satisfy any of the exceptions

to the time-bar. Indeed, this Court has “expressly rejected the notion that

judicial decisions can be considered newly-discovered facts which would

invoke the protections afforded by section 9545(b)(1)(ii).” Commonwealth

____________________________________________


6
  We note the Pennsylvania Supreme Court granted allowance of appeal in
Commonwealth v. Barnes, 122 A.3d 1034, 1035 (Pa. 2015), to
determine, inter alia, “[w]hether a challenge to a sentence pursuant to
Alleyne … implicates the legality of the sentence and is therefore non-
waivable.” The case was argued before the Court in September of 2016, but
to date, no decision has been filed. See 36 EAP 2015.




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v. Cintora, 69 A.3d 759, 763 (Pa. Super. 2013), appeal denied, 81 A.3d 75

(Pa. 2013).     Moreover, in Commonwealth v. Miller, 102 A.3d 988 (Pa.

Super. 2014), a panel of this Court held that an Alleyne challenge cannot

satisfy the timing exception in Section 9545(b)(1)(iii) because “neither our

Supreme Court, nor the United States Supreme Court has held that Alleyne

is to be applied retroactively to cases in which the judgment of sentence had

become final.”7 Id. at 995. Further, Dulio did not meet the 60-day filing

requirement in Section 9545(b)(2), since his petition was filed two and one-

half years after the Supreme Court handed down Alleyne on June 13, 2013.

See 42 Pa.C.S. § 9545(b)(2).             Therefore, Dulio’s Alleyne claim cannot

overcome the time-bar.

       Nevertheless, Dulio asserted his petition was timely because he filed it

within   60   days    of   the   United    States   Supreme   Court’s   decision   in

Montgomery v. Louisiana, 136 S.Ct. 718 (U.S. 2016).                 See Amended

Motion for Post-Conviction Collateral Relief, 3/23/2016, at 4-5.                   In

Montgomery, the United States Supreme Court held its prior decision

Miller v. Alabama, 132 S.Ct. 2455 (U.S. 2012), should be given retroactive
____________________________________________


7
  Recently, in Commonwealth v. Washington, 142 A.3d 810 (Pa. 2016),
the Pennsylvania Supreme Court went one step further and definitively held
that “Alleyne does not apply retroactively to cases pending on collateral
review.” Id. at 820. But see Commonwealth v. Ruiz, 131 A.3d 54, 59-
60 (Pa. Super. 2015) (invalidating sentence on PCRA review as violative of
Alleyne; not retroactive application of Alleyne because defendant’s
judgment of sentence was not final when Alleyne was decided).




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effect. See Montgomery, supra, 136 S.Ct. at 736. In Miller, the Court

held that mandatory life imprisonment without parole for juvenile offenders

violated    the   constitutional      provision    prohibiting   cruel    and   unusual

punishment.       Miller, supra, 132 S.Ct. at 2460.                   Dulio argued the

“reasoning” in the Montgomery case for giving retroactive effect to the

Miller decision should be applied herein.           See Amended Motion for Post-

Conviction    Collateral    Relief,   3/23/2016,     at   5.     We    disagree.   The

Montgomery decision has no bearing on the retroactive application of

Alleyne.8 See PCRA Court Opinion, 5/24/2016, at 8-9.

       Neither does Dulio’s claim of plea counsel’s ineffectiveness meet any of

the time-for-filing exceptions.         First, Section 9545 specifically excludes

defense counsel from the definition of “government officials” in Section

9545(b)(1)(i).     See 42 Pa.C.S. § 9545(b)(4).            Moreover, Dulio does not

claim he recently learned of plea counsel’s failure to file a direct appeal

and/or post-sentence motion in order to satisfy the newly discovered facts

exception, and counsel’s ineffectiveness does not constitute a newly

recognized constitutional right.

       Therefore, we conclude the PCRA court’s determination that Dulio’s

petition was untimely filed, and he failed to plead and prove any of the time
____________________________________________


8
  We note, too, the Washington Court specifically considered Montgomery
in concluding that Alleyne should not be applied retroactively to sentences
on collateral appeal. See Washington, supra.




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for filing exceptions is supported by the record, and Dulio is, accordingly,

entitled to no relief. Further, because we agree with counsel’s assessment

that there are no meritorious issues for appeal, we grant counsel’s motion to

withdraw.

     Order affirmed. Motion for leave to withdraw as counsel granted.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/9/2017




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