J-S58006-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

KEVIN EUGENE SMITH,

                            Appellant                No. 2265 MDA 2015


                Appeal from the PCRA Order November 25, 2015
               in the Court of Common Pleas of Schuylkill County
               Criminal Division at Nos.: CP-54-CR-0001353-2012
                            CP-54-CR-0001354-2012


BEFORE: GANTMAN, P.J., BOWES, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                           FILED OCTOBER 20, 2016

        Appellant, Kevin Eugene Smith, appeals pro se from the order denying

his second petition pursuant to the Post Conviction Relief Act (PCRA), 42

Pa.C.S.A. §§ 9541–9546, as untimely.1          Counsel appointed to represent

Appellant has filed both an Anders2 brief as well as a Turner/Finley3 “no

____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
   The PCRA court filed its order on November 25, 2015.         Appellant
erroneously asserts December 20, 2015 as the date of the order. We have
amended the caption accordingly.
2
    See Anders v. California, 386 U.S. 738 (1967).
3
  See Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988);
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
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merit” letter, along with a petition (captioned as a motion) for permission to

withdraw from further representation.4 We affirm the dismissal of the PCRA

petition, and grant counsel’s petition to withdraw.

       We take the factual and procedural history from the Rule 1925(a)

opinion filed by the PCRA court, and our independent review of the certified

record. (See PCRA Court Opinion, 3/07/16); see also Pa.R.A.P. 1925(a).

       On April 10, 2013, a jury convicted Appellant of two separate bank

robberies and related crimes.5 On May 29, 2013, the trial court imposed an

aggregate sentence of not less than forty-two nor more than eighty-four

months of incarceration in a state correctional institution.       Appellant’s

previous petition for PCRA relief was denied on January 27, 2014. However,

on the same date, the court separately granted Appellant’s petition for leave

to file a direct appeal nunc pro tunc. (See Order, 1/27/14).

       On direct appeal, this Court affirmed judgment of sentence, rejecting

Appellant’s challenge to the denial of his motion to suppress identification

evidence.      We also granted counsel permission to withdraw, and, on

independent review, found no non-frivolous issues preserved for appellate

review. (See Commonwealth v. Smith, No. 391 MDA 2014, unpublished
____________________________________________


4
 We may accept an Anders brief in lieu of a Turner/Finley letter. See
Commonwealth v. Widgins, 29 A.3d 816, 817 n.2 (Pa. Super 2011).
Appellant has not responded to the petition to withdraw.
5
 The jury also convicted Appellant of two counts of theft by unlawful taking
and two counts of receiving stolen property.



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memorandum at *8-*9, (Pa. Super. filed August 13, 2014)). Appellant did

not petition our Supreme Court for allowance of appeal. Appellant filed the

instant petition, pro se, on September 29, 2015.

       The PCRA court appointed counsel, Attorney Thomas J. Pellish, Esq.

After a hearing, the PCRA court determined that the petition was untimely,

and dismissed it, on November 25, 2015. (See N.T. Hearing, 11/25/15, at

4). Appellant filed a notice of appeal, pro se, on December 24, 2015.6

       Preliminarily, we observe that the only notice of appeal filed in this

case is the pro se notice filed by Appellant while he was still represented by

Attorney Pellish.      The Commonwealth argues that this purported pro se

notice of appeal, while Appellant was represented, is a legal nullity. (See

Commonwealth’s Brief, at 5-7). It maintains the appeal must be quashed.

(See id. at 5, 7). We are sympathetic to this argument.

       Our Supreme Court has long ruled that the prohibition against hybrid

representation precludes consideration of pro se filings while a petitioner is

represented by counsel.         See Commonwealth v. Jette, 23 A.3d 1032,

1044 (Pa. 2011) (“[T]he proper response to any pro se pleading is to refer

the pleading to counsel, and to take no further action on the pro se pleading

unless counsel forwards a motion. Moreover, once the brief has been filed,

any right to insist upon self-representation has expired.”) (citations
____________________________________________


6
  Appellant filed a pro se statement of errors on January 14, 2016.       The
PCRA court filed an opinion on March 7, 2016. See Pa.R.A.P. 1925.



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omitted); see also Commonwealth v. Ellis, 626 A.2d 1137, 1139 (Pa.

1993) (“[T]here is no right to hybrid representation either at trial or on

appeal”) (citation omitted).

      Therefore, here, the PCRA court should have forwarded Appellant’s

purported notice of appeal to counsel, and taken no further independent

action, unless and until counsel determined to file a notice of appeal or take

alternative steps.   However, the court accepted the notice of appeal and

directed Appellant, designated as “Defendant (Pro se),” to file a Rule

1925(b) statement of errors. (Order, 12/29/15). Appellant did so.

      This raises the question of whether, and to what extent, Appellant, or

counsel, placed reasonable reliance on the various actions of the PCRA court

in treating Appellant’s pro se notice of appeal (and his court-ordered

statement of errors) as proper and compliant.

      If we were to quash this now-counseled appeal, as the product of

prohibited hybrid representation, there is a strong possibility, if not a

probability, that yet another petition would be filed, and appointed counsel

would be put to the task of updating and largely duplicating much of the

work already done, either in a revised brief or in preparation of another

Turner/Finley no merit-letter.

      Therefore, to avoid further delay and the possibility of unproductive

repetition of effort, with the consequent dissipation of limited judicial

resources on review, and in the general interest of judicial economy, we


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shall “regard as done that which ought to have been done,” accept the

notice of appeal as if it were properly filed, and proceed to review the merit

of Appellant’s claims. Commonwealth v. Howard, 659 A.2d 1018, 1021

n.12 (Pa. Super. 1995) (citation omitted) (accepting notice of appeal despite

clerk of court’s failure to enter appealable order, and counsel’s failure to

praecipe for entry of appealable order); see also Pa.R.A.P. 105(a)

(providing for rules to be liberally construed in the interest of expediting

decisions or for other good cause shown).

       The sole question raised in the Anders brief, and Appellant’s pro se

concise statement of errors, is whether the PCRA petition was timely filed.

(See Anders Brief, at 3; Concise Statement, 1/14/16, at 1).7

             The standard of review for an order denying post-
       conviction relief is limited to whether the record supports the
       PCRA court’s determination, and whether that decision is free of
       legal error. The PCRA court’s findings will not be disturbed
       unless there is no support for the findings in the certified record.

Commonwealth v. Allen, 48 A.3d 1283, 1285 (Pa. Super. 2012) (citation

omitted).

       However, before we may proceed to review the merits of Appellant’s

PCRA petition, we must determine whether counsel has satisfied the

procedural requirements to withdraw from representation.

____________________________________________


7
  Accordingly, Appellant has waived any claims not raised in the concise
statement of errors, or any subsidiary issues.           See Pa.R.A.P.
1925(b)(4)(vii).



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      Counsel petitioning to withdraw from PCRA representation under

Turner, and Finley, must review the case zealously. See Commonwealth

v. Doty, 48 A.3d 451, 454 (Pa. Super 2012). Counsel must then submit a

“no-merit” letter to the 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. Where counsel submits a petition and no-merit letter that satisfy

the technical demands of Turner/Finley, the 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. See id. (citing Commonwealth v. Wrecks, 931 A.2d 717, 721

(Pa. Super. 2007)).

      Here, after reviewing the record and counsel’s petition to withdraw, we

find that PCRA appellate counsel has substantially complied with the

requirements of Turner and Finley, supra.           In the “no-merit” letter,

counsel detailed the nature and extent of his review, identified the issues

which Appellant raised in his pro se petition, and explained why he




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concluded that Appellant’s claims were frivolous, and untimely filed, with

none of the three statutory exceptions to the time-bar pleaded and proven.

       Moreover, counsel indicated that after his own independent review of

the record, he could not identify any meritorious issues to raise on

Appellant’s behalf to plead and prove that one of the PCRA timeliness

exceptions applied. Counsel also attached proof that he sent Appellant his

petition to withdraw along with his no-merit letter and instructed him he had

the right to retain counsel or proceed pro se.

       As   counsel    has   substantially   complied   with   the   Turner/Finley

requirements to withdraw from representation, we must now determine

whether the PCRA court correctly dismissed Appellant’s PCRA petition as

untimely filed without pleading an applicable statutory exception to the time-

bar.

       It is well-established that “[t]he PCRA’s timeliness requirements are

jurisdictional in nature and must be strictly construed; courts may not

address the merits of the issues raised in a petition if it is not timely filed.”

Commonwealth v. Leggett, 16 A.3d 1144, 1145 (Pa. Super. 2011)

(citations omitted).

       Generally, a PCRA petition must be filed within one year of the date

the judgment of sentence becomes final unless the petitioner meets his

burden to plead and prove one of the exceptions enumerated in 42 Pa.C.S.A.

§ 9545(b)(1)(i)–(iii), which include: (1) the petitioner’s inability to raise a


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claim as a result of governmental interference; (2) the discovery of

previously unknown facts or evidence that would have supported a claim; or

(3)     a    newly-recognized      constitutional   right.     See    42   Pa.C.S.A.

§ 9545(b)(1)(i)–(iii).8

        In this case, the trial court sentenced Appellant on May 29, 2013.

This Court affirmed the judgment of sentence, nunc pro tunc, on August 13,
____________________________________________


8
    In relevant part, section 9545 provides:

        (b) Time for filing petition.─

               (1) Any petition under this subchapter, including a second
        or subsequent petition, shall be filed within one year of the date
        the judgment becomes final, unless the petition alleges and the
        petitioner proves that:

                     (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 Supreme Court of Pennsylvania after the time period
            provided in this section and has been held by that court to
            apply retroactively.

              (2) Any petition invoking an exception provided in
        paragraph (1) shall be filed within 60 days of the date the claim
        could have been presented.

42 Pa.C.S.A. § 9545(b)(1), (2).



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2014. Appellant did not file a petition for allowance of appeal. Therefore,

his sentence became final on September 12, 2014. Accordingly, he had until

September 12, 2015 to file a timely PCRA petition.

      Appellant   filed   the   instant    petition   on   September   29,   2015.

Accordingly, his petition is facially untimely. Appellant fails to plead or prove

any of the statutory exceptions to the time-bar, apparently claiming only

that he misunderstood that the one-year filing period did not begin until his

personal receipt of the decision on direct appeal.          (See Commonwealth’s

Brief, at 9).

             It is well-settled that the PCRA’s time restrictions are
      jurisdictional in nature.      As such, this statutory time-bar
      implicates the court’s very power to adjudicate a controversy
      and prohibits a court from extending filing periods except as the
      statute permits.     Accordingly, the period for filing a PCRA
      petition is not subject to the doctrine of equitable tolling;
      instead, the time for filing a PCRA petition can be extended only
      by operation of one of the statutorily enumerated exceptions to
      the PCRA time-bar.

Commonwealth v. Robinson, No. 715 CAP, 2016 WL 3388402, at *5 (Pa.

filed June 20, 2016) (citations and internal quotation marks omitted).

      Here, the PCRA court properly dismissed Appellant’s PCRA petition as

untimely filed. On independent review, as in the direct appeal, we discern

no non-frivolous issues preserved for appeal.




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     Order affirmed. Counsel’s petition to withdraw granted.

     President Judge Gantman joins the Memorandum.

     Judge Bowes files a Concurring Memorandum.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/20/2016




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