J-S26024-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                         Appellee

                    v.

JAMES MANDEE FUTRELL

                         Appellant                   No. 1316 MDA 2014


                Appeal from the PCRA Order of July 18, 2014
                In the Court of Common Pleas of York County
              Criminal Division at No: CP-67-CR-0006077-2006


BEFORE: OTT, J., WECHT, J., and JENKINS, J.

MEMORANDUM BY WECHT, J.:                               FILED JULY 16, 2015

      James Futrell appeals the July 18, 2014 order that denied his petition

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

9541-46, in part as untimely.        Notably, the PCRA court also found that

Futrell was serving an illegal sentence, and modified Futrell’s sentence

downward to comply with our Crimes Code.

      Counsel for Futrell has filed with this Court a no-merit letter and a

petition to withdraw as counsel pursuant to Commonwealth v. Turner,

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

(Pa. Super. 1988) (en banc). For the reasons detailed herein, we agree with

counsel that Futrell’s appeal has no merit due to the untimeliness of Futrell’s

PCRA petition. However, we affirm the PCRA court’s order only in part, and

we vacate the order in part due to the PCRA court’s partial grant of relief
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without first having proper jurisdiction.        We grant counsel’s motion to

withdraw as counsel, but we also remand the case to the PCRA court with

instructions to re-impose the original judgment of sentence.

       On August 6, 2007, Futrell was convicted after a jury trial of

possession of a controlled substance with intent to deliver and criminal

conspiracy.1 On September 24, 2007, the trial court sentenced Futrell to six

to twelve years in prison. On direct appeal, a panel of this Court reproduced

the trial court’s summarization of the relevant facts underlying Futrell’s

convictions and sentence as follows:

       On June 28, 2006, Trooper Christopher C. Keppel of the
       Pennsylvania State Police was working with a cooperating source
       in setting up a drug transaction for two (2) ounces,
       approximately fifty-six (56) grams, of cocaine. Between 10:00
       p.m. and 11:00 p.m. that evening, Trooper Keppel’s source
       made a phone call to an individual named “Yaya” and ordered
       two (2) ounces of cocaine. The source and “Yaya” arranged to
       meet at an apartment complex parking lot in the 200 block of
       Park Street in York City. While surveying the arranged meeting
       place from the second floor of the apartment complex, Trooper
       Keppel observed a vehicle, occupied by two (2) individuals, back
       into the parking lot. At the same time, additional phone calls
       were made to “Yaya” who confirmed the location of the
       individuals bringing the cocaine. Trooper Keppel then alerted
       the surveillance team, made up of the York City Police
       Department and York City Drug Task Force, that the vehicle
       observed pulling into the lot was the target.

       Upon approaching the vehicle, Officers Scott Nadzom and [sic]
       Bushman of the York Police Department observed the two (2)
       individuals in the vehicle and a plastic bag containing a white,
       powdery substance next to a Bobcat police scanner on the center
____________________________________________


1
       35 P.S. § 780-113(a)(30); 18 Pa.C.S. § 903.



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      console of the vehicle. The officers then went to the passenger
      side of the vehicle and arrested an individual identified as Arthur
      Hines. Trooper Keppel had identified Mr. Hines as “Yaya” upon
      his arrival at the scene. After Mr. Hines was apprehended, police
      conducted a search of his person and seized the bag containing
      the white substance, police scanner, two (2) cell phones and five
      (5) bags of vegetable matter. It was later determined that the
      white, powdery substance in the plastic bag was cocaine,
      weighing 57.1 grams. The five (5) bags of vegetable matter
      were found to be marijuana, weighing 14.1 grams.

      At the same time, police apprehended the second individual in
      the vehicle[, Futrell. Futrell] was then taken to City Hall where
      he was strip-searched, as is customary for every suspect
      arrested for drugs. The search revealed that a large sandwich
      bag, containing eight (8) pieces of crack cocaine, had been
      hidden in [Futrell’s] rectum.       The eight pieces had been
      packaged in eight separate plastic baggies within the large
      sandwich bag. Lab results confirmed that the substances found
      in the plastic baggies were crack cocaine and had a total weight
      of 3.9 grams.

Commonwealth v. Futrell, No. 1809 MDA 2007, slip op. at 2 (Pa. Super.

Sept. 17, 2008) (quoting Trial Court Opinion, 1/9/2008, at 2-4).

      We affirmed Futrell’s judgment of sentence on direct appeal. Initially,

Futrell’s counsel did not file a petition for allowance of appeal with the

Pennsylvania Supreme Court.      Subsequently, Futrell filed a PCRA petition

seeking restoration of his right to file a petition for allowance of appeal. The

PCRA court granted the petition, and Futrell filed a timely petition with the

Supreme Court. The petition was denied on November 17, 2009.

      On November 9, 2010, Futrell filed a timely PCRA petition. After the

appointment of counsel and an evidentiary hearing, the PCRA court denied




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the petition. Futrell, representing himself,2 appealed the denial order to this

Court.    On February 10, 2012, we affirmed the PCRA court’s order in an

unpublished memorandum. See Commonwealth v. Futrell, No. 868 MDA

2011, slip op. at 1, 13 (Pa. Super. Feb. 10, 2012). On August 22, 2012, the

Pennsylvania Supreme Court declined Futrell’s request for allowance of

appeal.

       On December 17, 2013, Futrell filed another PCRA petition. Counsel

was appointed to represent Futrell. Counsel filed an amended PCRA petition.

Futrell also filed two supplemental motions of law, raising a multitude of

issues.    Within those filings, Futrell argued that his six to twelve-year

sentence was illegal because it exceeded the statutory maximum of ten

years. The PCRA court held a hearing on the petition on July 18, 2014, after

which the court dismissed Futrell’s petition as untimely.    However, despite

the finding of untimeliness, the court granted Futrell relief on his legality of

sentence claim, and resentenced him to five to ten years’ imprisonment.

       On August 1, 2014, Futrell filed a notice of appeal. In response, the

PCRA court directed Futrell to file a concise statement of errors complained

of on appeal pursuant to Pa.R.A.P. 1925(b). On September 10, 2014, Futrell
____________________________________________


2
      Futrell filed a motion to discharge counsel with the PCRA court. The
motion was granted. However, we then directed the PCRA court to hold a
hearing pursuant to Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998),
to ensure that Futrell’s election to represent himself was knowing, voluntary,
and intelligent. The PCRA court complied with our directive, and concluded
that Futrell made a valid waiver of counsel.



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filed a timely concise statement. On September 26, 2014, the PCRA court

issued an opinion pursuant to Pa.R.A.P. 1925(a).

     As noted above, counsel for Futrell has filed with this Court a

Turner/Finley no-merit letter.     We first consider whether counsel has

complied with the requirements that our courts have established in order for

appointed counsel to be released pursuant to Turner and Finley.            We

previously have explained this procedure as follows:

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

     Where counsel submits a petition and no-merit letter that satisfy
     the technical demands of Turner/Finley, the court — [PCRA]
     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) (citations

omitted).

     We conclude that PCRA counsel has substantially complied with the

technical requirements of Turner/Finley.     In his no-merit letter, counsel

sets forth the issues as to which Futrell seeks our review on appeal.      See


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No-Merit Letter, 11/30/2014, at 4. Counsel also has set forth the history of

Futrell’s case thoroughly. Id. at 4, and attachment. Futrell’s counsel also

has reviewed the applicable statutes, case law, and rules of procedure. Id.

at 1-5. In articulating his reasoning as to why he believes that Futrell is not

entitled to relief, counsel reviews the legal standards that are applicable to

the timeliness of a PCRA petition. Counsel ultimately concludes that Futrell’s

PCRA petition was untimely, rendering the PCRA court and this Court without

jurisdiction.   Id. at 5.     In addition, counsel also reviews the multitude of

claims that Futrell has raised throughout the entirety of the PCRA

proceedings, and demonstrates why those claims lack merit.

       Following a review of the record and the applicable law, Futrell’s

counsel ultimately has concluded that Futrell is not eligible for PCRA relief.

Id. at 5 (“On this basis, I must conclude that there is no merit to the issue

raised in this appeal, and I must petition the Superior Court to withdraw as

counsel.”). Accordingly, counsel has filed a motion to withdraw as counsel.

Additionally, counsel has sent a copy of the no-merit brief and counsel’s

motion to withdraw as counsel to Futrell. In the letter, counsel incorrectly

informed Futrell that, should this Court grant his motion to withdraw as

counsel, he has the right continue his appeal pro se, or may retain private

counsel at his own expense.3 Id. at 20.

____________________________________________


3
      When counsel filed his no-merit letter, this Court recognized the error
of counsel’s advice. Counsel incorrectly advised Futrell that he had the right
(Footnote Continued Next Page)


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      Based upon the foregoing, we conclude that PCRA counsel has

complied substantially with the Turner/Finley requirements.           See Doty,

supra. However, before passing upon PCRA counsel’s motion to withdraw,

we must conduct our own independent review of the record.

      Futrell has raised a multitude of issues throughout the PCRA

proceedings.     However, for the reasons detailed immediately below, we

conclude that Futrell’s PCRA petition was untimely, and that the PCRA court

did not have jurisdiction to resolve any of the issues presented by Futrell.

Thus, we need not list all of Futrell’s issues, nor do we need to address them

with any specificity, except for his claim that his petition is timely in light of

the United States Supreme Court’s decision in Alleyne v. United States,

133 S.Ct. 2151 (2013).

      The “standard of review for an order denying post-conviction relief is

limited to whether the record supports the PCRA court’s determination, and
                       _______________________
(Footnote Continued)

to proceed pro se or with private counsel should this Court grant his petition
to withdraw as counsel. Counsel should have instructed Futrell that he had
those options immediately, not only after we granted his motion to withdraw
as counsel. Recognizing this error, we afforded Futrell the opportunity to file
a response to Counsel’s no-merit letter and motion to withdraw as counsel.
Futrell filed a motion to remand the case for an evidentiary hearing. We
denied that motion, and gave Futrell a second chance to file an appropriate
response. Once again, instead of filing a response, Futrell asked this Court
to remand the case to the PCRA court so that he could raise additional
issues. We denied that motion as well. Consequently, even though counsel
gave Futrell incorrect advice, we conclude that he complied with
Turner/Finley substantially, because we afforded Futrell two chances to
respond to counsel’s filings, which is the option he would have had if counsel
had advised him correctly. Futrell elected not to respond.



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whether that decision is free of legal error.” Commonwealth v. Johnson,

945 A.2d 185, 188 (Pa. Super. 2008). The PCRA court’s findings “will not be

disturbed unless there is no support for the findings in the certified record.”

Id.

      The PCRA was amended in 1995 to include strict time limits on filings,

establishing that “[a]ny petition [filed under the PCRA] . . . shall be filed

within one year of the date the judgment becomes final.”         42 Pa.C.S. §

9545(b)(1). Under the PCRA, “[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.”       42 Pa.C.S. § 9545(b)(3).       It is well-

established that these time limits are jurisdictional, and are meant to be

both mandatory and applied literally by the courts to all PCRA petitions,

regardless of the potential merit of the claims asserted. Commonwealth v.

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

737 A.2d 214, 222 (Pa. 1999) (stating that a trial court has no authority to

extend filing periods except as the statute permits); see Commonwealth

v. Gamboa-Taylor, 753 A.2d 780, 783 (Pa. 2000).

      On November 17, 2009, the Pennsylvania Supreme Court denied

Futrell’s petition for allowance of appeal. Futrell had ninety days from that

day to file a petition for a writ of certiorari with the United States Supreme

Court. See U.S.Sup.Ct. Rule 13. Futrell’s judgement of sentence became


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final at the expiration of that time period, see 42 Pa.C.S. § 9545(b)(3), or

on or before February 15, 2010. To be timely, any PCRA petition must have

been filed within one year of that date, or on or before February 15, 2011.

The petition at issue in this case was filed on December 17, 2013, over two

and one-half years after the PCRA’s time limit expired.     Consequently, the

petition is facially untimely.


      Despite the untimeliness of the petition, there are three statutory

exceptions to this one-year time limit, which, when satisfied, permit a

defendant to file a PCRA petition more than one year after the underlying

judgment of sentence becomes final. These exceptions are as follows:

      (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.


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42 Pa.C.S. § 9545(b).        “[I]t is the appellant’s burden to allege and prove

that one of the timeliness exceptions applies.”            Commonwealth v.

Albrecht, 994 A.2d 1091, 1094 (Pa. 2010).

     Futrell has raised in these proceedings the potential applicability of

subsection    (iii),   the     newly-recognized,    and    retroactively-applied,

constitutional right exception, based upon the Supreme Court’s decision in

Alleyne, in which the Court held that “facts that increase mandatory

minimum sentences must be submitted to the jury” and must be found

beyond a reasonable doubt. Alleyne, supra at 2163.

     Subsection (iii) of Section 9545[ (b)(1) ] has two requirements.
     First, it provides that 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 provided
     in this section. Second, it provides that the right “has been
     held” by “that court” to apply retroactively. Thus, a petitioner
     must prove that there is a “new” constitutional right and that the
     right “has been held” by that court to apply retroactively. The
     language “has been held” is in the past tense. These words
     mean that the action has already occurred, i.e., “that court” has
     already held the new constitutional right to be retroactive to
     cases on collateral review. By employing the past tense in
     writing this provision, the legislature clearly intended that the
     right was already recognized at the time the petition was filed.

Commonwealth v. Seskey, 86 A.3d 237, 242-43 (Pa. Super. 2014)

(quoting Commonwealth v. Copenhefer, 941 A.2d 646, 649-50 (Pa.

2007)).

     Quite recently, in Commonwealth v. Miller, 102 A.3d 988 (Pa.

Super. 2014), this Court addressed the exact situation presented in the case

sub judice:     whether Alleyne could serve as the basis for applying

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subsection (iii) to an otherwise untimely PCRA petition.          We squarely

rejected the claim, holding that, even if Alleyne announced a new

constitutional right, to date, neither the United States Supreme Court nor

the Pennsylvania Supreme Court has held that the right applied retroactively

to an individual whose judgment of sentence has finalized. Miller, 102 A.3d

at 995.   Hence, subsection (iii) does not apply to Futrell, and his petition

remains untimely.

      Because the petition is untimely, we need not address the merits of

the myriad claims raised by Futrell throughout the proceedings. Similarly,

due to the untimeliness, we also have not detected any other issues of merit

during our independent review.         Therefore, we have completed our

Turner/Finley analysis and we agree with counsel that this appeal lacks

merit.

      Unfortunately, we have one other matter that we must discuss. Due

to the untimeliness of the petition, the PCRA court lacked jurisdiction entirely

over Futrell’s case.     This means that the PCRA court also lacked the

authority to modify Futrell’s sentence. Even though it appears that Futrell’s

sentence was illegal, a court nonetheless must have jurisdiction before it can

void a judgment of sentence and replace it anew. See Fahy, 737 A.2d at

223 (“Although legality of sentence is always subject to review within the

PCRA, claims must still first satisfy the PCRA’s time limits or one of the

exceptions thereto.”).   Consequently, we must vacate the PCRA’s order to

the extent that it vacated Futrell’s judgement of sentence and resentenced

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Futrell.   We remand this case to the PCRA court with instructions to re-

impose Futrell’s original sentence.

      PCRA order affirmed in part, reversed in part.   Case remanded for

proceedings consistent with this memorandum.     Jurisdiction relinquished.

Petition to withdraw as counsel granted.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/16/2015




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