J-S34005-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                        Appellee

                   v.

ELIUD MONET RODRIGUEZ, SR.

                        Appellant                   No. 1799 MDA 2015


               Appeal from the PCRA Order October 14, 2015
             In the Court of Common Pleas of Lancaster County
            Criminal Division at No(s): CP-36-CR-0000206-2012
                                        CP-36-CR-0000207-2012
                                        CP-36-CR-0000208-2012
                                        CP-36-CR-0000213-2012
                                        CP-36-CR-0000220-2012


BEFORE: PANELLA, J., STABILE, J., and JENKINS, J.

MEMORANDUM BY PANELLA, J.                             FILED JUNE 23, 2016

      Appellant, Eliud Monet Rodriguez, Sr., appeals from the order

dismissing as untimely his petition pursuant to the Post Conviction Relief Act

(“PCRA”). Additionally, Rodriguez’s court-appointed counsel, Christopher P.

Lyden, Esquire, has filed an application to withdraw as counsel. After careful

review, we affirm the PCRA court’s order and grant Attorney Lyden’s

application to withdraw as counsel.

      Rodriguez pled guilty to various cocaine trafficking offenses on January

9, 2013, and the trial court sentenced him immediately after the guilty plea.

Of relevance to this appeal, the trial court imposed five concurrent

mandatory minimum sentences based upon the weight of the cocaine at
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issue pursuant to 18 Pa.C.S.A. § 7508. Furthermore, the trial court imposed

a mandatory minimum sentence based upon Rodriguez’s possession of a

firearm pursuant to 18 Pa.C.S.A. § 9712.1.

     Rodriguez did not file a direct appeal, but filed this, his first pro se

PCRA petition on July 21, 2014. Attorney Lyden was appointed to represent

Rodriguez and subsequently filed an amended PCRA petition. After notice of

its intent to dismiss the PCRA petition, the PCRA court dismissed the petition

on October 14, 2015. This timely appeal followed.

     We will first address counsel’s motion to withdraw. Pennsylvania law

requires counsel seeking to withdraw from representing a petitioner under

the PCRA to file a ‘no-merit’ letter pursuant to Commonwealth v. Turner,

544 A.2d 927 (Pa. 1988), and Commonwealth v. Finley, 550 A.2d 213

(1988) (en banc). See Commonwealth v. Karanicolas, 836 A.2d 940, 947

(Pa. Super. 2003).

     Counsel petitioning to withdraw from PCRA representation must
     proceed ... under [Turner and Finley 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.

                                    ***



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       [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).

       Here,    counsel     has     complied     with   the   foregoing   procedural

requirements.1 Accordingly, we will proceed to examine whether the issue

counsel raises on appeal has merit.

       Rodriguez contends that the PCRA court erred in concluding that he is

not entitled to re-sentencing pursuant to Alleyne v. United States, 133

S.Ct. 2151 (U.S. 2013), Commonwealth v. Newman, 99 A.3d 86 (Pa.

Super. 2014) (en banc), appeal denied, 121 A.3d 496 (Pa. 2015), and

Commonwealth v. Hopkins, 117 A.3d 247 (Pa. 2015). However, it is

settled that Alleyne does not rescue an untimely petition from the

timeliness requirements of the PCRA. See Commonwealth v. Miller, 102

A.3d 988, 995-996 (Pa. Super. 2014). “The PCRA timeliness requirements

are jurisdictional in nature and, accordingly, a court cannot hear untimely

____________________________________________


1
  We note that although counsel incorrectly submitted his Turner/Finley
letter as a brief pursuant to the requirements of Anders v. California, 386
U.S. 738 (1967), the procedure to withdraw from a direct appeal imposes
stricter requirements than those imposed in a Turner/Finley withdrawal.
See Commonwealth v. Fusselman, 866 A.2d 1109, 1111 n.3 (Pa. Super.
2004).



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PCRA petitions.” Commonwealth v. Flanagan, 854 A.2d 489, 509 (Pa.

2004) (citations omitted).

      A PCRA petition must be filed within one year of the date that the

judgment of sentence becomes final. See 42 Pa.C.S.A. § 9545(b)(1). A

judgment becomes final at the expiration of time for seeking review. See 42

Pa.C.S.A. § 9545(b)(3). Thus, Rodriguez’s judgment of sentence became

final on February 8, 2013, and he had until Monday, February 10, 2014, to

file a timely PCRA petition. Rodriguez did not file the instant petition until

July 21, 2014, and it is therefore patently untimely. Pursuant to Miller, the

PCRA court was without jurisdiction to grant Rodriguez the relief requested.

      We have conducted an independent review of the record and found no

other issues of merit. Based on the foregoing, we agree with counsel’s

conclusion that the appeal lacks merit. Accordingly, we affirm the order of

the PCRA court dismissing Rodriguez’s PCRA petition and furthermore grant

counsel’s application to withdraw.

      Order affirmed. Petition to withdraw as counsel is granted.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/23/2016




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