J-S43042-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                            Appellee

                       v.

TIMOTHY DAVILA-SANTANA

                            Appellant               No. 20 MDA 2016


                 Appeal from the PCRA Order December 8, 2015
               in the Court of Common Pleas of Lancaster County
              Criminal Division at No(s): CP-36-CR-0003834-2011


BEFORE: GANTMAN, P.J., PANELLA, J., and JENKINS, J.

MEMORANDUM BY JENKINS, J.:                           FILED JULY 06, 2016

        Appellant Timothy Davila-Santana appeals from the order of the

Lancaster County Court of Common Pleas dismissing as untimely his petition

filed pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. § 9541

et seq. Appellant’s counsel filed a Turner/Finley1 no-merit brief with this

Court and a motion seeking permission to withdraw as counsel. We affirm

and grant counsel’s motion.

        On October 19, 2012, Appellant entered a negotiated guilty plea to

three counts of involuntary deviate sexual intercourse with a person less

than 16 years of age (“IDSI”),2 two counts of statutory sexual assault,3 and
____________________________________________


1
  Commonwealth v. Turner, 544 A.2d 927 (Pa.1988)                        and
Commonwealth v. Finley, 550 A.2d 213 (Pa.Super.1988) (en banc).
2
    18 Pa.C.S. § 3123(a)(7).
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one count of indecent assault of a person less than 16 years of age. 4 The

trial court sentenced Appellant pursuant to the negotiated agreement to an

aggregate term of 10 to 20 years’ incarceration.5     Appellant did not file a

direct appeal.

        On October 27, 2014, Appellant filed a pro se PCRA petition.      The

PCRA court appointed counsel, who filed an amended PCRA petition on

December 16, 2014, alleging Appellant received an illegal mandatory

minimum sentence pursuant to Alleyne v. United States, -- U.S. ---, 133

S.Ct. 2151 (2013).6 On February 23, 2015, the PCRA court filed a Rule 907

notice of intent to dismiss Appellant’s PCRA petition without a hearing (“Rule

907 notice”). On December 8, 2015, the PCRA court dismissed the petition.

        Appellant filed a notice of appeal on January 5, 2016, and a Pa.R.A.P.

1925(b) statement of errors complained of on appeal on January 21, 2016.

                       _______________________
(Footnote Continued)
3
    18 Pa.C.S. § 3122.1.
4
    18 Pa.C.S. § 3126(a)(8).
5
  The trial court sentenced Appellant to concurrent 10 to 20 year terms of
incarceration on each of the three IDSI convictions and a concurrent term of
3 to 12 months’ incarceration on the indecent assault of a person less than
16 years of age conviction. The two statutory sexual assault convictions
merged with the IDSI convictions for sentencing purposes.
6
  In Alleyne, the Supreme Court of the United States held that “[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, 133
S.Ct. at 2155.




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On January 26, 2015, the PCRA court filed a Pa.R.A.P. 1925(a) opinion that

adopted the court’s previously-filed Order and Opinion denying the petition.

See Opinion Pursuant to Pa.R.A.P. 1925(a), January 26, 2016 (“1925(a)

Opinion”). On March 23, 2016, counsel filed a Turner/Finley no-merit brief

with this Court together with an application seeking permission to withdraw

(“Application to Withdraw”). The Commonwealth did not file a brief.

      Before we may address the merits of Appellant’s claim, “we must

determine if counsel has satisfied the requirements to be permitted to

withdraw from further representation.” Commonwealth v. Freeland, 106

A.3d 768, 774 (Pa.Super.2014). Competent PCRA counsel must conduct an

independent review of the record before we can authorize counsel’s

withdrawal. Id. The independent review

      requires counsel to file a ‘no-merit’ letter detailing the nature
      and extent of his review and list[ing] each issue the petitioner
      wishes to have examined, explaining why those issues are
      meritless. The PCRA court, or an appellate court if the no-merit
      letter is filed before it, then must conduct its own independent
      evaluation of the record and agree with counsel that the petition
      is without merit.

Id. (internal citation omitted).

      PCRA counsel must also “serve a copy on the petitioner of counsel’s

application to withdraw as counsel, and must supply to the petitioner both a

copy of the ‘no-merit’ letter and a statement advising the petitioner that . . .

he or she has the right to proceed pro se or with the assistance of privately

retained counsel.” Widgins, 29 A.3d at 818 (quoting Commonwealth v.



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Friend,     896     A.2d    607     (Pa.Super.2006),        abrogated      in   part   by

Commonwealth v. Pitts, 981 A.2d 875, 876 (Pa.2009)).

       Counsel      has    substantially       complied     with     the    dictates   of

Turner/Finley. In the no-merit brief, counsel provides a summary of the

facts and procedural history of the case with citations to the record, refers to

evidence of record that might arguably support the issue raised on appeal,

provides citations to relevant case law, and states his conclusion that the

appeal is wholly frivolous and his reasons therefor.               See Turner/Finley

Brief, pp. 3-4. Additionally, counsel contemporaneously filed his Application

to Withdraw within the brief.7           The Application to Withdraw states that

counsel made a careful and conscientious review of the record, researched

the   issues     and   potential    issues     for   appeal,   and    stated    counsel’s

determination that Appellant’s appeal is without merit.                 See Application

Withdraw, ¶ 1 (Turner/Finley Brief, p. 5).                The Application to Withdraw

further explains that counsel notified Appellant of the withdrawal request

and sent Appellant a letter explaining his right to proceed pro se or with

new, privately-retained counsel to raise any additional points or arguments



____________________________________________


7
   Counsel included his Application to Withdraw as part of his no-merit brief.
See Turner/Finley Brief, p. 5. While the preferred practice is that counsel
file a separate motion to withdraw, because the Application to Withdraw is
proper and counsel’s letter to Appellant properly advises Appellant as
required and is attached to the brief, we accept counsel’s application as
properly filed and dispose of the same herein.



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that Appellant believed had merit.8 See id. at ¶¶ 2-3; see also Letter from

R. Russell Pugh, Esquire, to Timothy Davila-Santana, dated March 23, 2016

(Turner/Finley Brief, p. 7).              Accordingly, counsel has substantially

complied with the requirements of Turner and Finley.

       As Appellant filed neither a pro se brief nor a counseled brief with new,

privately-retained counsel, we review this appeal based on the issue of

arguable merit raised in the no-merit brief:

       Whether the post-conviction court erred when it denied post-
       conviction relief on the basis that the PCRA Petition was filed
       untimely?

Turner/Finley Brief, p. 2.

       Our well-settled standard of review for orders denying PCRA relief is

“to determine whether the determination of the PCRA court is supported by

the evidence of record and 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. Barndt, 74 A.3d 185, 191-192

(Pa.Super.2013) (internal quotations and citations omitted).

       “It is undisputed that a PCRA petition must be filed within one year of

the date that the judgment of sentence becomes final.” Commonwealth v.

Hernandez, 79 A.3d 649, 651 (Pa.Super.2013); 42 Pa.C.S. § 9545(b)(1).


____________________________________________


8
  The letter further makes clear that counsel supplied Appellant with a copy
of the no-merit brief. See Letter from R. Russell Pugh, Esquire, to Timothy
Davila-Santana, dated March 23, 2016.



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“This time requirement is mandatory and jurisdictional in nature, and the

court may not ignore it in order to reach the merits of a petition.”

Hernandez, 79 A.3d at 651 (citing Commonwealth v. Murray, 753 A.2d

201, 203 (Pa.2000)).     A judgment of sentence “becomes final at the

conclusion of direct review, including discretionary review in the Supreme

Court of the United States and the Supreme Court of Pennsylvania, or at the

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

However, a facially untimely petition may be received where any of the

PCRA’s three limited exceptions to the time for filing the petition are met.

Hernandez, 79 A.3d at 651 (footnote omitted). These exceptions include:

     (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.

42 Pa.C.S. § 9545(b)(1)(i)-(iii).   As our Supreme Court has repeatedly

stated, the petitioner maintains the burden of pleading and proving that one

of these exceptions applies.   Commonwealth v. Abu-Jamal, 941 A.2d

1263, 1268 (Pa.2008), cert. denied, 555 U.S. 916 (2008). Further,

     [a] petition invoking one of these exceptions must be filed within
     sixty days of the date the claim could first have been presented.

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       42 Pa.C.S. § 9545(b)(2).     In order to be entitled to the
       exceptions to the PCRA’s one-year filing deadline, the petitioner
       must plead and prove specific facts that demonstrate his claim
       was raised within the sixty-day time frame under section
       9545(b)(2).

Hernandez, 79 A.3d at 651-652 (internal quotations omitted).

       On October 19, 2012, Appellant entered a negotiated guilty plea. The

trial court sentenced Appellant on the same day. Because Appellant did not

file a direct appeal, his judgment of sentence became final thirty days later,

on November 19, 2012.9           See 42 Pa.C.S. § 9545(b)(3) (“For purposes of

this subchapter, a judgment becomes final at the conclusion of direct review,

including discretionary review in the Supreme Court of the United States and

the Supreme Court of Pennsylvania, or at the expiration of time for seeking

the review.”). Accordingly, Appellant had until November 19, 2013 to timely

file a PCRA petition.

       Appellant filed the instant petition on October 27, 2014, nearly a year

after the expiration of his PCRA limitations period. Accordingly, Appellant’s

petition is facially untimely. Thus, he must plead and prove that his petition

falls under one of the Section 9545 exceptions set forth in the PCRA. See

42 Pa.C.S. § 9545(b)(1)(i)-(iii). Appellant’s PCRA petition and the amended

PCRA petition suggest the Supreme Court of the United States’ decision in

Alleyne provides a time bar exception. However, Appellant failed to file the
____________________________________________


9
  The thirtieth day fell on November 18, 2012, a Sunday. Accordingly,
Appellant had until Monday, November 19, 2012 to timely file a direct
appeal.



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instant petition within 60 days of Alleyne, and therefore he cannot rely on

Alleyne for a PCRA time-bar exception.           See 42 Pa.C.S. § 9545(b)(2)

(petitions invoking exceptions must be filed within 60 days of the date the

claim could have been presented). Further, neither the Supreme Court of

the United States nor the Supreme Court of Pennsylvania has held Alleyne

to apply retroactively to matters on collateral appeal, and therefore Alleyne

cannot provide Appellant with a time-bar exception, even if properly pleaded

in his petition.      See Commonwealth v. Miller, 102 A.3d 988, 995

(Pa.Super.2014). (“[N]either 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.”).

       Because Appellant did not properly plead or prove a time-bar

exception based on Alleyne, because Alleyne does not provide a time-bar

exception, and because Appellant’s petition neither pleads nor proves any

other exception, the petition remains time-barred.10

       Order affirmed. Application to Withdraw granted.




____________________________________________


10
   We note that, although never waived, illegal sentence claims remain
subject to the PCRA’s timeliness requirements. See Commonwealth v.
Jackson, 30 A.3d 516, 521-22 (Pa.Super.2011).



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/6/2016




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