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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA                :   IN THE SUPERIOR COURT OF
                                                          PENNSYLVANIA

                 v.


    TAHIJ A. JOHNSON

                         Appellant              :   No. 193 MDA 2019

              Appeal from the PCRA Order Entered January 4, 2019
      In the Court of Common Pleas of Luzerne County Criminal Division at
                        No(s): CP-40-CR-0000899-2013
BEFORE:       LAZARUS, J., MURRAY, J., and STRASSBURGER*, J.

MEMORANDUM BY MURRAY, J.:                                   FILED JULY 31, 2019

        Tahij A. Johnson (Appellant) appeals from the order denying as untimely

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

Pa.C.S.A. §§ 9541-9546. In this appeal, Appellant's court -appointed counsel

(PCRA Appellate Counsel) filed a petition to withdraw as counsel and a no -

merit letter pursuant to Commonwealth v. Turner, 544 A.2d 927 (Pa.

1988), and Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en

banc).      Because we conclude that PCRA Appellate Counsel fulfilled the

procedural requirements of Turner/Finley, and his petition is untimely, we

affirm the PCRA court's order denying Appellant's PCRA petition and grant

PCRA    Appellate Counsel's petition to withdraw.

         On April 9, 2014, a    jury found Appellant guilty of aggravated assault,
simple assault, and resisting arrest. On May 9, 2014, the trial court sentenced

Appellant to     7   to 14 years of incarceration, followed by 2 years of probation.

* Retired Senior Judge assigned to the Superior Court.
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On May 19, 2014, Appellant filed post -sentence motions, which the        trial court

denied on May 29, 2014. Appellant timely appealed to this Court.

        On September 8, 2015, this Court affirmed Appellant's          judgment of

sentence. See Commonwealth v. Johnson, 1334 MDA 2014 (Pa. Super.

Sept. 8, 2015) (unpublished memorandum). Approximately 19 months later,

on April 11, 2017, Appellant filed a "Petition For Leave To File Petition For

Allowance Of Appeal Nunc Pro Tunc[,]" which the Supreme Court denied on

June 22, 2017.

        On September 17, 2018, Appellant filed a pro se PCRA petition.            The

PCRA    court appointed counsel and on December 3, 2018, Appellant's counsel

filed   a   motion to withdraw as counsel and     a   no -merit   letter pursuant to

Turner/Finley.       On January 4, 2019, the PCRA court held a hearing on

Appellant's PCRA petition.       The same day, the PCRA court issued orders

denying Appellant's PCRA petition as untimely and granting counsel's motion

to withdraw.

        On January 31, 2019, the PCRA court appointed PCRA Appellate Counsel

to represent Appellant for this appeal. The same day, Appellant filed       a   notice

of appeal from the order denying his PCRA petition as untimely.            Both the

PCRA    court and Appellant have complied with Pa.R.A.P. 1925.

        On June 3, 2019 PCRA Appellate Counsel filed a petition to         withdraw

with this Court, attaching   a    Turner/Finley   no -merit brief, with notice to

Appellant that he had the right to proceed pro se or retain private counsel.


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Accordingly,      we    must determine      if   PCRA   Counsel   has   satisfied   the

requirements to be permitted to withdraw from further representation.

        Pursuant to Turner/Finley, an "[i]ndependent review of the record by

competent counsel        is   required before withdrawal [on collateral review] is

permitted." Commonwealth v. Pitts, 981 A.2d 875, 876 n.1 (Pa. 2009). In

Pitts, our Supreme Court explained that independent review requires proof
of:

        1. A"no merit" letter by PC[R]A counsel detailing the nature and
           extent of his review;

        2. The "no  merit" letter by PC[R]A counsel listing each issue the
           petitioner wished to have reviewed;

        3. The PC[R]A counsel's   "explanation", in the "no merit" letter, of
           why the petitioner's issues were meritless;

        4. The PC[R]A court conducting its own independent review of the
           record; and

        5. The PC[R]A     court agreeing with counsel that the petition was
           meritless.

Id. (citation    and brackets omitted).

        Additionally:

        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.

        If counsel fails to satisfy the foregoing technical prerequisites of
        Turner/Finley, the court will not reach the merits of the
        underlying claims but, rather, will merely deny counsel's request
        to withdraw. Upon doing so, the court will then take appropriate
        steps, such as directing counsel to file a proper Turner/Finley
        request or an advocate's brief.

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        However, where counsel submits a petition and no -merit letter
        that do 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.

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

omitted).

        Here, PCRA Appellate Counsel filed          a   no -merit brief and petition to

withdraw that state the nature and extent of his review of the case; he listed

the issues for which Appellant sought review, explained why and how

Appellant's claims lack merit, and requested permission to withdraw.                   See

Turner/Finley Brief, 6/3/19; Petition to Withdraw           as Counsel,   6/3/19.     PCRA

Appellate Counsel also sent Appellant        a   copy of the no -merit brief,   a   copy of

the petition to withdraw, and       a   statement advising Appellant of the right to

proceed pro se or by privately retained counsel. Thus, the record reflects that

PCRA Counsel     submitted   a   petition to withdraw and no -merit brief that satisfy

the technical demands of Turner/Finley.                 We now turn to our review of

Appellant's claims to ascertain whether he is entitled to relief.

        Prior to determining the merits of Appellant's appeal, we must

determine whether we have jurisdiction to decide his claims. "Pennsylvania

law makes clear no court has jurisdiction to hear an untimely PCRA petition."

Commonwealth v. Monaco, 996 A.2d 1076, 1079                        (Pa.   Super. 2010)

(quoting Commonwealth v. Robinson, 837 A.2d 1157, 1161 (Pa. 2003)).



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        A   petitioner must file    a PCRA   petition within one year of the date on

which the petitioner's judgment became final, unless one of the three

statutory exceptions applies:

        (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.A.     §   9545(b)(1). A petitioner must file      a   petition invoking one of

these exceptions "within 60 days of the date the claim could have been

presented." 42 Pa.C.S.A.        §   9545(b)(2).1 If   a   petition   is   untimely, and the

petitioner has not pled and proven any exception, "neither this Court nor the

trial court has jurisdiction over the petition. Without jurisdiction, we simply

do    not have the legal authority to address the substantive claims.'

Commonwealth v. Derrickson, 923 A.2d 466, 468                             (Pa. Super.   2007)

(quoting Commonwealth v. Chester, 895 A.2d 520, 522 (Pa. 2006)).




1  We note that Act 146 of 2018 amended 42 Pa.C.S.A. §9545(b)(2), effective
December 24, 2018, and now provides that a PCRA petition invoking a
timeliness exception must be filed within one year of the date the claim could
have been presented. This amendment has no effect on our disposition.

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           In this case, the trial court sentenced Appellant on May 9, 2014. This

Court affirmed Appellant's judgment of sentence on September 8, 2015. See

Johnson, 1334          MDA 2014.               Appellant had 30 days from the date of the

Superior Court's order, or October 8, 2015, to file                      a   petition for allowance of

appeal with the Supreme Court. See Pa.R.A.P. 1113(a) ("Except as otherwise

prescribed by this rule,      a   petition for allowance of appeal shall be filed with

the Prothonotary of the Supreme Court within 30 days after the entry of the

order of the Superior Court        .   .   .   sought to be reviewed."). Appellant, however,

did not file    a   petition for allowance of appeal until April 11, 2017, well after

the 30 -day period for filing                  a   petition for allowance of appeal.                      Thus,

notwithstanding his untimely filed "Petition For Leave To File Petition For

Allowance Of Appeal Nunc Pro Tunc[,]" Appellant's judgment of sentence

became final on October 8, 2015.                     See 42 Pa.C.S.A.          §   9545(b)(3) (stating

that   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").             As explained above, Appellant had one year                             -   until

Monday, October 10, 20162                  -    to file   a   timely   PCRA   petition.       Accordingly,

Appellant's PCRA petition, which he filed on September 17, 2018,                                  is   untimely,




2  October 8, 2016 was a Saturday. See 1 Pa.C.S.A. § 1908 ("Whenever the
last day of any such period shall fall on Saturday or Sunday,  such day                   .   .    .


shall be omitted from the computation.").

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and we lack jurisdiction to decide Appellant's appeal unless he pled and proved

one of the three timeliness exceptions of section          9545(b)(1).     See

Derrickson, 923 A.2d at 468.
        Appellant did not attempt to plead or prove any of the timeliness

exceptions of Section 9545(b)(1) in his PCRA petition.     See PCRA Petition,

9/17/18.     As Appellant has failed to plead and prove an exception under

section 9545(b)(1), we are without jurisdiction to address the merits of his

appeal. See id.

        For these reasons, we agree with the PCRA court and PCRA Appellate

Counsel that there are no meritorious issues that Appellant could pursue on

collateral review, and affirm the order dismissing his PCRA petition.

        Order affirmed. Petition to withdraw granted.



Judgment Entered.




J    seph D. Seletyn,
Prothonotary
Date: 7/31/2019




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