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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                       IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA


                    v.

TROY SHAWN HOWARD,

                          Appellant                       No. 1560 WDA 2015


           Appeal from the PCRA Order entered August 25, 2015
            In the Court of Common Pleas of Allegheny County
           Criminal Division, at No(s): CP-02-CR-0007680-2011
                                       CP-02-CR-0010822-2010
                                       CP-02-CR-0014515-2010.


BEFORE: PANELLA, J., LAZARUS, J., and MUSMANNO, J.

MEMORANDUM BY PANELLA, J.:                        FILED SEPTEMBER 08, 2016

      Troy Shawn Howard (“Appellant”) appeals from the order denying as

untimely his second petition for relief pursuant to the Post Conviction Relief

Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. Appellant’s counsel has filed a

motion to withdraw. We affirm the order denying Appellant post-conviction

relief and grant counsel’s motion.

      On May 12, 2012, in exchange for Appellant’s entry of a guilty plea to

various   drug   and     related   charges   at   three   separate   dockets,   the

Commonwealth dropped other charges and agreed to an aggregate,

concurrent sentence of four to twelve years of imprisonment. On that same

date, the trial court accepted the plea, and imposed a sentence in
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accordance with its terms. Appellant filed neither a post-sentence motion nor

a direct appeal.

       On    August    8,    2013,    Appellant   filed   a   pro   se   “Petition   for

Modification/Reconsideration of Sentence nun pro tunc.” Treating the filing

as a PCRA petition, the PCRA court appointed counsel. Thereafter, the PCRA

court granted PCRA counsel several extensions of time. Ultimately, PCRA

counsel filed a “no-merit” letter and motion to withdraw pursuant to

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

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

PCRA court issued notice of its intent to dismiss Appellant’s petition because

it was untimely and no time-bar exceptions applied. In this same order, the

PCRA court granted PCRA counsel’s motion to withdraw. Appellant did not

file a response. By order entered August 12, 2014, the PCRA court denied

Appellant’s petition. Appellant did not appeal.1

       On July 6, 2015, Appellant filed a “Motion to Vacate Sentence,” which

the PCRA Court correctly treated as Appellant’s second PCRA petition. See

Commonwealth v. Peterkin, 722 A.2d 638, 639 n.1 (Pa. 1998) (stating

that the PCRA subsumes other post-conviction remedies). The PCRA court

issued notice of its intent to dismiss the petition as untimely. Appellant filed


____________________________________________


1
  Although a pro se notice of appeal from this order appears in the certified
record, it appears the filing was never forwarded to this Court.




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a timely pro se response. By order entered August 25, 2015, the PCRA court

dismissed Appellant’s second petition. This timely appeal follows. On

November 25, 2015, the PCRA court appointed present counsel.

        In lieu of an advocate’s brief, Appellant’s counsel has filed a purported

Anders2 brief and a petition to withdraw. Compliance with Anders applies

to counsel who seeks to withdraw from representation on direct appeal. This

appeal is here from a collateral proceeding. Counsel should have sought to

withdraw under Turner/Finley. But because Anders imposes stricter

requirements (that the appeal is frivolous) than those imposed when counsel

seeks to withdraw during the post-conviction Turner/Finley process (that

the issues on appeal have no merit) we may accept an Anders brief in lieu

of a Turner/Finley no merit letter. See, e.g., Commonwealth v.

Widgins, 29 A.3d 816, 817 n.2 (Pa. Super. 2011). Thus, we will assess

counsel’s assertion that the issue Appellant wishes to raise has no merit

under a Turner/Finley analysis.

              The Turner/Finley decisions provide the manner for
        post[-]conviction counsel to withdraw from representation. The
        holdings of those cases mandate an independent review of the
        record by competent counsel before a PCRA court or [an]
        appellate court can authorize an attorney’s withdrawal. The
        necessary independent review requires counsel to file a “no-
        merit” letter detailing the nature and extent of his [or her]
        review and list each issue the petitioner wishes to have
        examined, explaining why those issues are meritless. The PCRA
____________________________________________


2
    Anders v. California, 386 U.S. 738 (1967).




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      court, or an appellate court if the no-merit letter is filed before
      it, see Turner, supra, then must conduct its own independent
      evaluation of the record and agree with counsel that the petition
      is without merit[.]

            [T]his Court [has] imposed additional requirements on
      counsel that closely track the procedure for withdrawing on
      direct appeal. . . . [C]ounsel is required to contemporaneously
      serve upon his [or her] client his [or her] no merit letter and
      application to withdraw along with a statement that if the court
      granted counsel’s withdraw request, the client may proceed pro
      se or with a privately retained attorney[.]

Commonwealth v. Reed, 107 A.3d 137, 140 (Pa. Super. 2014) (citation

omitted). We must determine whether we agree with counsel’s assessment

of Appellant’s claim.

      PCRA counsel phrases the issue Appellant wished to raise on appeal as

follows:

      I.    Did the [PCRA] court impose illegal sentences pursuant to
            Alleyne v. United States, 133 S.Ct. 2151 (2013), in
            imposing concurrent terms of imprisonment based on the
            mandatory minimum sentence provisions under 18 Pa.C.S.
            §7508(a)(7) and (b) and/or 42 Pa.C.S. §9712.1; and was
            the [second PCRA petition] timely filed, or did an exception
            to the timeliness requirement apply?

Appellant’s Brief, at 4.

      This Court’s standard of review regarding an order dismissing 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. Halley, 870 A.2d 795, 799 n.2 (Pa. 2005). The PCRA

court’s findings will not be disturbed unless there is no support for the




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findings in the certified record. See Commonwealth v. Carr, 768 A.2d

1164, 1166 (Pa. Super. 2001).

      Because this is Appellant’s second petition for post-conviction relief, he

must meet a more stringent standard. “A second or any subsequent post-

conviction request for relief will not be entertained unless a strong prima

facie showing is offered to demonstrate that a miscarriage of justice may

have occurred.” Commonwealth v. Burkhardt, 833 A.2d 233, 236 (Pa.

Super. 2003) (en banc) (citations omitted). “A petitioner makes a prima

facie showing if he demonstrates that either the proceedings which resulted

in his conviction were so unfair that a miscarriage of justice occurred which

no civilized society could tolerate, or that he was innocent of the crimes for

which he was charged.” Id. (citations omitted).

      The timeliness of a post-conviction petition is jurisdictional.      See

Commonwealth v. Hernandez, 79 A.3d 649, 651 (Pa. Super. 2013).

Generally, a petition for relief under the PCRA, including a second or

subsequent petition, must be filed within one year of the date the judgment

is final, see 42 Pa.C.S.A. § 9545(b)(1), unless the petition alleges, and the

petitioner proves, that an exception to the timeliness requirement exists,

see 42 Pa.C.S.A. § 9545(b)(1)(i)-(iii). A PCRA petition invoking one of these

statutory exceptions must “be filed within 60 days of the date the claims

could have been presented.” Hernandez, 79 A.3d 651-52 (citations

omitted). See also 42 Pa.C.S.A. § 9545(b)(2).


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       Appellant’s judgment of sentence became final on June 1, 2012, when

the thirty-day time period for filing an appeal to this Court expired. See 42

Pa.C.S.A. § 9545(b)(3). Thus, Appellant had until June 1, 2013, to file a

timely PCRA petition. As Appellant filed the instant petition in 2015, it is

patently untimely unless he has satisfied his burden of pleading and proving

that one of the enumerated exceptions applies.

       According to Appellant, his latest PCRA petition is timely because he is

raising a claim that he received an illegal sentence in light of the United

States Supreme Court’s decision in Alleyne v. United States, 133 S.Ct.

2151 (2013). In Alleyne, the high court held that any fact that increased

the mandatory minimum sentence for a crime is an element thereof, which

must be submitted to a jury and found beyond a reasonable doubt.

       Appellant’s claim is devoid of merit for several reasons. There is no

indication in the record that the negotiated sentence imposed upon him

included any mandatory minimums.3              Even if applicable, Appellant’s claim

would still fail because he did not file his petition within sixty days of the

2013 Alleyne decision. Finally, our Supreme Court recently held that

“Alleyne does not apply retroactively to cases pending on collateral
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3
  As noted by the Commonwealth, the sentencing transcript is not found in
the certified record. See Commonwealth’s Brief, at 4 n.1. We remind
Appellant that it is his responsibility to ensure the presence of all relevant
transcripts in the record. See Commonwealth v. Preston, 904 A.2d 1 (Pa.
Super. 2006).




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review….” Commonwealth v. Washington, ___ A.3d ___, ___, 2016 WL

3909088, *8 (Pa., filed July 19, 2016).

      Thus, for all of these reasons, we affirm the PCRA court’s order

dismissing Appellant’s serial PCRA petition. In addition, as our independent

review of the record reveals no other issue of arguable merit, we grant

counsel’s petition to withdraw.

      Order affirmed. Petition to withdraw as counsel granted.




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/8/2016




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