J-S46005-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,            :     IN THE SUPERIOR COURT OF
                                         :          PENNSYLVANIA
                        Appellee         :
                                         :
            v.                           :
                                         :
RICHARD W. GIBBS,                        :
                                         :
                        Appellant        :     No. 1808 MDA 2013


            Appeal from the Order Entered September 12, 2013,
           In the Court of Common Pleas of Cumberland County,
             Criminal Division, at No. CP-21-CR-0002421-2007.


BEFORE: SHOGAN, LAZARUS and MUSMANNO, JJ

MEMORANDUM BY SHOGAN, J.:                          FILED AUGUST 22, 2014

      Appellant, Richard W. Gibbs, appeals from the order denying his

petition for relief filed pursuant to the Post Conviction Relie

42 Pa.C.S.A. §§ 9541-9546. In addition, counsel has filed a petition seeking



the PCRA court.

      The PCRA court summarized the history of this case as follows:

      On March 13, 2008 [Appellant] pleaded guilty to 14 counts of
      possessing sexually explicit computer images of children under
      the age of 18. On July 22, 2008 [Appellant] was sentenced to
      undergo imprisonment in a state correctional institution for 1 to
      7 years on each count. The sentences were made to run
      concurrent to each other but consecutive to any other sentence
      he was serving. No direct appeal was filed.

             On June 13, 2012 [Appellant] filed a nineteen page pro se
      petition asking for relief under the Post Conviction Relief Act.
J-S46005-14



     We appointed the public defender to represent him; granted
     counsel 90 days to file an amended petition, and scheduled an
     evidentiary hearing for November 5, 2012.

           While counsel did not file an amended petition, the
     evidentiary hearing took place as scheduled. At the outset we
     asked counsel to summarize the issues which entitled his client
     to relief. While there were several issues, they all revolved
     around the alleged ineffectiveness of prior counsel.

           [Appellant] was the only witness to testify in support of his

     representation. Chief among them was the failure to file a
     motion to dismiss. [Appellant] contended that dismissal was
     required because the pictures were obtained from a website



     that he might have his own expert review the computer images.
     We continued the hearing to January 7, 2013.


                                                                    -
     assigned to another attorney in the office. On December 6,
     2012 she requested that the November 5, 2012 hearing be
     transcribed and that the January hearing be continued generally.
     We granted both requests.


     to compel discovery. Specifically she requested that she be
     given a
     been seized by the Commonwealth.               The Commonwealth
     opposed the request. On March 8, 2013 after reviewing the
     briefs filed by the parties in support of their respective positions
     and having heard argumen
     motion. We directed the Commonwealth to provide a copy of
     the hard drive to be reviewed by the defense expert.

          On April 3, 2013 the Commonwealth appealed from our
     order compelling discovery.  On September 5, 2013 the
     Commonwealth withdrew its appeal. Immediately thereafter it




                                      -2-
J-S46005-14



     Based upon the above procedural and factual background, we
     granted the motion.

PCRA Court Opinion, 1/17/14, at 1-3 (footnotes omitted). This timely appeal

followed.

                                                  filed a motion to withdraw

as counsel; she also filed with this Court a sufficient Turner/Finley

document.1, 2 When counsel seeks to withdraw representation in a collateral

appeal, the following conditions must be met:

     1)     As part of an application to withdraw as counsel, PCRA
                                                -

     2)                                 -
     the petitioner wishes to have reviewed, and detail the nature

     claims,

     3)                                              -


     4)     PCRA counsel must contemporaneously forward to the
     petitioner a copy of the application to withdraw, which must

1
  Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth
v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
2
  Counsel has requested leave to withdraw and filed a brief under Anders v.
California, 386 U.S. 738 (1967), and Commonwealth v. McClendon, 434
A.2d 1185 (Pa. 1981), apparently in the mistaken belief that an appeal from
the denial of a PCRA petition required that filing. However, because counsel
is requesting leave to withdraw from her position as PCRA counsel, the

less stringent requirements set forth in Turner and Finley.          See
Commonwealth v. Fusselman, 866 A.2d 1109, 1111 n.3 (Pa. Super.
2004) (noting that because an Anders brief provides greater protection to
the defendant, we may accept an Anders brief in lieu of a Turner/Finley
letter).

                                     -3-
J-S46005-14



                                             -
      statement advising the PCRA petitioner that, in the event the
      trial court grants the application of counsel to withdraw, the
      petitioner has the right to proceed pro se, or with the assistance
      of privately retained counsel;

      5)    The court must conduct its own independent review of the
      record in light of the PCRA petition and the issues set forth
      therein, as well as of the contents of the petition of PCRA
      counsel to withdraw; and

      6)    The court must agree with counsel that the petition is
      meritless.

Commonwealth v. Daniels, 947 A.2d 795, 798 (Pa. Super. 2008) (internal

punctuation marks omitted) (citing Commonwealth v. Friend, 896 A.2d

607, 615 (Pa. Super. 2006)).

      In the present case, counsel has complied with the requirements for

withdrawal from a collateral appeal.      In the motion filed with this Court,

counsel alleged that she has reviewed the case, evaluated the issues, and

concluded that the appeal is frivolous.      Counsel has also listed the issues

relevant to this appeal, and explained why, in her opinion, they are without

merit. In addition, counsel has included a letter sent to Appellant containing

a copy of her motion to withdraw and a statement advising Appellant of his

right to proceed pro se or through privately retained counsel. Thus, we will

allow counsel to withdraw if, after our review, we conclude that the issue

relevant to this appeal lacks merit.

      We have discerned the following issue, which is presented by PCRA

counsel on behalf of Appellant:


                                       -4-
J-S46005-14



      1.
      motion to dismiss due to timeliness.



      Our standard of review of an order denying PCRA relief is whether the



                                             Commonwealth v. Phillips, 31

A.3d 317, 319 (Pa. Super. 2011) (citing Commonwealth v. Berry, 877

A.2d 479, 482 (Pa. Super. 200

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

Id. (citing Commonwealth v. Carr, 768 A.2d 1164, 1166 (Pa. Super.

2001)).

      Initially, we must determine whether this matter is properly before us.

We begin by considering whether the PCRA court accurately considered



      The scope of the PCRA is explicitly defined as follows:

      This subchapter provides for an action by which persons
      convicted of crimes they did not commit and persons serving
      illegal sentences may obtain collateral relief.       The action
      established in this subchapter shall be the sole means of
      obtaining collateral relief and encompasses all other
      common law and statutory remedies for the same purpose
      that exist when this subchapter takes effect, including
      habeas corpus and coram nobis. This subchapter is not
      intended to limit the availability of remedies in the trial court or
      on direct appeal from the judgment of sentence, to provide a
      means for raising issues waived in prior proceedings or to
      provide relief from collateral consequences of a criminal
      conviction.


                                       -5-
J-S46005-14




42 Pa.C.S.A. § 9542 (emphasis added).

      The plain language of the statute above demonstrates that the General

Assembly intended that claims that could be brought under the PCRA must

be brought under that Act. Commonwealth v. Hall, 771 A.2d 1232, 1235

(Pa. 2001) (emphasis in original).

cognizable under the PCRA, the common law and statutory remedies now

                                                                            Id.

at 1235 (citations omitted). By its own language, and by judicial decisions

interpreting such language, the PCRA provides the sole means for obtaining

state collateral relief. Commonwealth v. Yarris, 731 A.2d 581, 586 (Pa.

1999) (citations omitted). Thus, it is well settled that any collateral petition

raising issues with respect to remedies offered under the PCRA will be

considered to be a PCRA petition.     Commonwealth v. Deaner, 779 A.2d

578, 580 (Pa. Super. 2001).

      The question then is whether the particular claims at issue in

                      i.e.

                                                                            ere

available to him under the PCRA.     Writ of Habeas Corpus (Post Conviction

Relief), 6/13/12. The relevant portion of the PCRA provides as follows:

      (a) General rule.--To be eligible for relief under this
      subchapter, the petitioner must plead and prove by a
      preponderance of the evidence all of the following:


                                       -6-
J-S46005-14




                                     * * *

            (2) That the conviction or sentence resulted from
            one or more of the following:

                                     * * *

                  (ii) Ineffective assistance of counsel
                  which, in the circumstances of the
                  particular case, so undermined the truth-
                  determining process that no reliable
                  adjudication of guilt or innocence could
                  have taken place.

                  (iii) A plea of guilty unlawfully induced
                  where the circumstances make it likely
                  that    the    inducement   caused    the
                  petitioner to plead guilty and the
                  petitioner is innocent.

42 Pa.C.S.A. § 9543(a)(2)(ii-iii).   The statute in this matter indicates that

claims of ineffective assistance of counsel and claims which challenge the

lawfulness of a guilty plea are cognizable under the PCRA. Id.

      Because such claims are cognizable under the PCRA, Appellant is



the PCRA court had no authority to entertain the claims except under the

strictures of the PCRA.

      A PCRA petition must be filed within one year of the date that the

judgment of sentence becomes final. 42 Pa.C.S.A. § 9545(b)(1). This time

requirement is mandatory and jurisdictional in nature and the court may not

ignore it in order to reach the merits of the petition.   Commonwealth v.


                                       -7-
J-S46005-14



Murray

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 ti

9545(b)(3).

        However, an untimely petition may be received when the petition

alleges, and the petitioner proves, that any of the three limited exceptions to

the time for filing the petition, set forth at 42 Pa.C.S.A. § 9545(b)(1)(i), (ii),

and (iii), is met.3 A petition invoking one of these exceptions must be filed

within sixty days of the date the claim could first have been presented. 42

Pa.C.S.A. § 9545(b)(2).      In order to be entitled to the exceptions to the



3
    The exceptions to the timeliness requirement are:

        (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)(i), (ii), and (iii).



                                        -8-
J-S46005-14



            -

specific facts that demonstrate his claim was raised within the sixty-day time

                                   Carr, 768 A.2d at 1167.

      Our review of the record reflects that Appellan

became final on August 21, 2008, thirty days after the trial court imposed

the judgment of sentence and Appellant failed to file a direct appeal with this

Court. See 42 Pa.C.S.A. § 9545(b)(3); Pa.R.A.P. 903(a). Thus, in order to

be timely, Appellant needed to file his PCRA petition on or before August 21,

2009. Appellant did not file the instant PCRA petition until June 13, 2012.



      As previously stated, if a petitioner does not file a timely PCRA

petition, his petition may be received under any of the three limited

exceptions to the timeliness requirements of the PCRA.        42 Pa.C.S.A. §

9545(b)(1). The record reflects that Appellant did not specifically raise any

of the timeliness exceptions in his PCRA petition.4     Consequently, because

the PCRA petition was untimely and no exceptions apply, the PCRA court



4
  We note that in the appellate brief filed by PCRA counsel there is a
discussion presented pertaining to whether Appellant raised the first
exception to the timeliness requirements of the PCRA, i.e., interference by

11-15. However, as the PCRA
neither an allegation in the petition nor evidence at the hearing that any

effectiveness of his counsel before the August 2[1], 2009 fili
PCRA Court Opinion, 1/17/14, at 3.

                                      -9-
J-S46005-14



lacked jurisdiction to address the claims presented and grant relief.     See

Commonwealth v. Fairiror, 809 A.2d 396, 398 (Pa. Super. 2002) (holding

that PCRA court lacks jurisdiction to hear untimely petition). Likewise, we

lack jurisdiction to reach the merits of the appeal. See Commonwealth v.

Johnson, 803 A.2d 1291, 1294 (Pa. Super. 2002) (holding that Superior

Court lacks jurisdiction to reach merits of appeal from untimely PCRA

petition).   Also, having conducted an independent review of the record in

light of the PCRA petitions and the issues set forth therein, as well as the

                                            we agree that the PCRA petition is

meritless and allow counsel to withdraw.

      Motion to withdraw granted. Order affirmed.




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 8/22/2014




                                     -10-
