J-S08035-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                           :        PENNSYLVANIA
                    Appellee               :
                                           :
               v.                          :
                                           :
                                           :
ANDREW JEROME WURST                        :
                                           :
                    Appellant                       No. 998 WDA 2016

                    Appeal from the PCRA Order June 6, 2016
                  In the Court of Common Pleas of Erie County
              Criminal Division at No(s): CP-25-CR-0001337-1998


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

MEMORANDUM BY GANTMAN, P.J.:                      FILED JANUARY 26, 2017

      Appellant, Andrew Jerome Wurst, appeals pro se from the order

entered in the Allegheny County Court of Common Pleas, which denied his

first petition filed under the Post Conviction Relief Act (“PCRA”), at 42

Pa.C.S.A. §§ 9541-9546. On September 9, 1999, Appellant entered an open

guilty plea to one count of third-degree murder, two counts of attempted

murder, and related offenses arising from his involvement in a shooting

death on April 24, 1998.        Appellant was 14 years old at the time of the

incident.    On September 9, 1999, the court sentenced Appellant to an

aggregate term of 30-60 years’ incarceration. Appellant did not seek direct

review.     Appellant filed the current PCRA petition on March 16, 2016, and

the PCRA court appointed counsel, who, on May 9, 2016, filed a petition to

withdraw and a “no-merit” letter pursuant to Commonwealth v. Turner,
J-S08035-17


518 Pa. 491, 544 A.2d 927 (1988) and Commonwealth v. Finley, 550

A.2d 213 (Pa.Super. 1988) (en banc). The PCRA court did not rule on PCRA

counsel’s petition to withdraw.    The PCRA court issued Rule 907 notice on

May 10, 2016, and denied Appellant’s petition on June 6, 2016. Appellant

timely filed a counseled notice of appeal on July 5, 2016, and on July 6,

2016, the PCRA court ordered Appellant to file a Rule 1925(b) statement.

On July 27, 2016, in lieu of a Rule 1925(b) statement, PCRA counsel filed a

Rule 1925(c)(4) statement of intent to file a Turner/Finley brief and

petition to withdraw. Counsel filed his petition to withdraw as counsel with

this Court on November 16, 2016.

     Preliminarily, before counsel can be permitted to withdraw from

representing a petitioner under the PCRA, counsel must file a “no-merit”

brief or letter pursuant to Turner and Finley.          Commonwealth v.

Karanicolas, 836 A.2d 940 (Pa.Super. 2003).

        [C]ounsel must…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 the petitioner wants to have reviewed,
        explaining why and how those issues lack merit, and
        requesting permission to withdraw.

Commonwealth v. Wrecks, 931 A.2d 717, 721 (Pa.Super. 2007). Counsel

must also send to the petitioner a copy of the “no-merit” letter or brief and

motion to withdraw and advise petitioner of his right to proceed pro se or

with privately retained counsel.    Id.   “Substantial compliance with these

requirements will satisfy the criteria.” Karanicolas, supra at 947.

                                     -2-
J-S08035-17


      Instantly, PCRA counsel’s motion to withdraw and Turner/Finley brief

detail the nature of counsel’s review and explain why Appellant’s issue lacks

merit.   Counsel’s brief also demonstrates he reviewed the certified record

and determined the record was devoid of meritorious issues for appeal.

Counsel notified Appellant of counsel’s request to withdraw and advised

Appellant regarding his rights. Thus, counsel substantially complied with the

Turner/Finley requirements. See Wrecks, supra; Karanicolas, supra.

      The timeliness of a PCRA petition is a jurisdictional requisite.

Commonwealth v. Turner, 73 A.3d 1283 (Pa.Super. 2013), appeal denied,

625 Pa. 649, 91 A.3d 162 (2014). A PCRA petition must be filed within one

year of the date the underlying judgment becomes final.         42 Pa.C.S.A §

9545(b)(1). A judgment is deemed final at the conclusion of direct review or

at the expiration of time for seeking review.     42 Pa.C.S.A. § 9545(b)(3).

The three statutory exceptions to the timeliness provisions in the PCRA allow

for very limited circumstances under which the late filing of a petition will be

excused.   42 Pa.C.S.A. § 9545(b)(1).      A petitioner asserting a timeliness

exception must file a petition within sixty days of the date the claim could

have been presented.      42 Pa.C.S.A. § 9545(b)(2).      When asserting the

newly created constitutional right exception under Section 9545(b)(1)(iii), “a

petitioner must prove that there is a new constitutional right and that the

right has been held by that court to apply retroactively.” Commonwealth

v. Chambers, 35 A.3d 34, 41 (Pa.Super. 2011), appeal denied, 616 Pa.


                                     -3-
J-S08035-17


625, 46 A.3d 715 (2012) (internal quotations omitted).

       Instantly, Appellant relies upon two United States Supreme Court

decisions as the bases for an exception to the PCRA timeliness requirement

as well as for substantive PCRA relief: Miller v. Alabama, ___ U.S. ___,

132 S.Ct. 2455, 183 L.Ed.2d 407 (2012) (ruling unconstitutional mandatory

life without possibility of parole (“LWOP”) sentences for juvenile offenders),

and Montgomery v. Louisiana ___ U.S. ___, 136 S.Ct. 718, 193 L.Ed.2d

599 (filed January 25, 2016, and revised on January 27, 2016) (holding

Miller applies retroactively to cases on collateral review). Appellant filed the

current PCRA petition on March 16, 2016, within sixty days of the

Montgomery decision.         See Commonwealth v. Secreti, 134 A.3d 77

(Pa.Super. 2016) (holding date of Montgomery decision controls for

juveniles, who received LWOP sentences, for purposes of 60-day rule in 42

Pa.C.S.A. § 9545(b)(2)). Appellant also correctly observes that mandatory

LWOP     sentences   for    juvenile    offenders    are       unconstitutional   under

Montgomery/Miller. See id. (holding retroactivity under Montgomery is

effective as of date of Miller decision; orders denying PCRA relief in cases

involving   Montgomery/Miller          must   be    reversed      and   remanded    for

resentencing   consistent    with   this   new     rule   of    substantive   law   and

Commonwealth v. Batts, 620 Pa. 115, 131-32, 66 A.3d 286, 296 (2013)).

Appellant, however, did not receive a LWOP sentence; he received an

aggregate sentence of 30-60 years’ incarceration.              Therefore, Appellant is


                                        -4-
J-S08035-17


not entitled to PCRA relief under Montgomery/Miller.       Accordingly, we

affirm the PCRA court’s order denying PCRA relief and grant PCRA counsel’s

petition to withdraw.

      Order affirmed. Counsel’s motion to withdraw is granted.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/26/2017




                                   -5-
