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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.                         :
                                         :
                                         :
 BRANDON DEVALLE,                        :
                                         :
                   Appellant             :   No. 1511 EDA 2017

                 Appeal from the PCRA Order April 11, 2017
            In the Court of Common Pleas of Philadelphia County
             Criminal Division at No.: CP-51-CR-1207903-2000

BEFORE: GANTMAN, P.J., DUBOW, J., and KUNSELMAN, J.

MEMORANDUM BY DUBOW, J.:                       FILED NOVEMBER 13, 2018

      Appellant, Brandon Devalle, appeals from the April 11, 2017 Order

entered in the Philadelphia County Court of Common Pleas dismissing as

untimely his third Petition filed pursuant to the Post Conviction Relief Act

(“PCRA”), 42 Pa.C.S. §§ 9541-9546.       Additionally, Appellant’s appointed

counsel, Daniel A. Alvarez, Esquire, has filed a Petition to Withdraw and an

accompanying 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). After careful review, we grant Attorney Alvarez’s

Petition to Withdraw and affirm.

      The underlying facts are not relevant to the instant appeal. Briefly, on

August 28, 2001, a jury convicted Appellant in absentia of Criminal Conspiracy
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and Possession of a Controlled Substance with Intent to Deliver (“PWID”).1

On October 15, 2001, the trial court sentenced Appellant to an aggregate term

of 15 to 30 years’ incarceration.              Appellant did not file a direct appeal.

Appellant’s Judgment of Sentence became final 30 days later on November

14, 2001, upon expiration of the time to file a direct appeal. See Pa.R.A.P.

903(a); 42 Pa.C.S. § 9545(b)(3).

        Appellant’s first and second PCRA Petitions garnered no relief.            On

February 9, 2016, Appellant filed the instant PCRA Petition, his third.2 In this

Petition, Appellant alleged that he is serving an illegal mandatory minimum

sentence pursuant to Alleyne v. United States, 570 U.S. 99 (2013)3 and

Montgomery v. Louisiana, 136 S.Ct. 718, 193 L.Ed.2d 599 (2016).4 On

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

2 Appellant alternatively titled his filing as a “Petition for Writ of Habeas Corpus
Relief.” The PCRA court properly treated Appellant’s filing as a PCRA Petition.
See Commonwealth v. Taylor, 65 A.3d 462, 466 (Pa. Super. 2013) (holding
that “a defendant cannot escape the PCRA time-bar by titling his petition or
motion as a writ of habeas corpus.”).

3 On June 17, 2013, the U.S. Supreme Court held in Alleyne, that, other than
the fact of a prior conviction, any fact that increases the penalty for a crime
beyond the prescribed statutory minimum must be submitted to a jury and
proved beyond a reasonable doubt. Alleyne, 750 U.S. at 114-15.

4 In Miller v. Alabama, 567 U.S. 460, 470 (2012), the U.S. Supreme Court
held that it is unconstitutional for state courts to impose an automatic life
sentence without possibility of parole upon a homicide defendant for a murder
committed while the defendant was under eighteen years old. The U.S.
Supreme Court held in Montgomery that its decision in Miller applies
retroactively. Montgomery, 136 S.Ct. at 732. Appellant, a drug offender who



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August 9, 2016, the PCRA court issued a Notice of Intent to Dismiss Appellant’s

PCRA Petition pursuant to Pa.R.Crim.P. 907 as untimely. On August 16, 2016,

Appellant filed a Response to this Notice.       On April 11, 2017, the court

dismissed Appellant’s Petition.

       This timely appeal followed. The PCRA court filed a Pa.R.A.P. 1925(a)

Opinion, but did not order Appellant to file a Rule 1925(b) Statement of Errors.

       On March 9, 2018, Attorney Alvarez filed a Turner/Finley no-merit

letter, concluding that there were no non-frivolous issues to be raised on

appeal since the PCRA Petition was untimely. Appellant filed a pro se Brief in

response on March 23, 2018.

       Appellant raises the following three issues in his pro se Brief:

       [1.] Does not the recent decision of the Pennsylvania Supreme
       Court in Commonwealth v. Batts, No. 45 MAP 2016 (June 27,
       2017), which held that it is manifestly the province of the General
       Assembly to determine what new sentencing procedures must be
       created in order to impose additional facts as elements in violation
       of the Sixth Amendment jury-trial jurisprudence, and mandatory
       minimum sentences following Batt’s [sic] citing, Alleyne,
       Newman Watley, Hopkins, and Wolfe's severability?

       [2.] By relying upon the Pennsylvania Supreme Court’s recent
       developments in the area of severability, does not the
       Pennsylvania Supreme Court in Commonwealth v. Batts, No. 45
       MAP 2016 (June 27, 2017), constitute interference by
       governmental officials within the meaning of the Pennsylvania


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is not serving an automatic life sentence without possibility of parole for a
murder committed while the defendant was under eighteen years old,
nevertheless invoked Montgomery in his PCRA Petition and throughout the
lower court proceedings. However, on appeal Appellant presents a new theory
relying on Commonwealth v. Batts, 163 A.3d 410 (Pa. 2017).

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      Post Conviction Relief Act, an exception to the time constraints
      under that Act, 42 Pa.C.S. § 9545(b)(1)(i)?

      [3.] By applying the Pennsylvania Supreme Court’s recent
      severability holding in Commonwealth v. Batts, No. 45 MAP
      2016 (June 27, 2017) does not the Pennsylvania Supreme Court
      establish an exception to the time constraints under the
      Pennsylvania Post Conviction Relief Act, 42 Pa.C.S. §
      9545(b)(1)(i)?

Appellant’s Brief at iii.

      Before we consider Appellant’s arguments, we must review Attorney

Alvarez’s   request     to   withdraw    from     representation.        Pursuant   to

Turner/Finley, independent review of the record by competent counsel is

required     before    withdrawal       on   collateral   appeal    is     permitted.

Commonwealth v. Pitts, 981 A.2d 875, 876 n.1 (Pa. 2009). Counsel is then

required to submit a “no merit” letter (1) detailing the nature and extent of

his or her review; (2) listing each issue the petitioner wished to have

reviewed; and (3) providing an explanation of why the petitioner’s issues were

meritless. Id. The court then conducts its own independent review of the

record to determine if the Petition is meritless. Id. “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.” Commonwealth v. Wrecks, 931

A.2d 717, 721 (Pa. Super. 2007) (citation omitted).

      Our review of the record discloses that Attorney Alvarez has complied

with each of the above requirements.            In addition, Attorney Alvarez sent


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Appellant copies of the Turner/Finley no-merit letter and Petition to

Withdraw, and advised him of his rights in lieu of representation.           See

Commonwealth v. Widgins, 29 A.3d 816, 818 (Pa. Super. 2011). Since

Attorney Alvarez has complied with the Turner/Finley requirements, we now

proceed with our independent review of the record and the merits of

Appellant’s claims.

      We review the denial of a PCRA petition to determine whether the record

supports the PCRA court’s findings and whether its Order is otherwise free of

legal error. Commonwealth v. Fears, 86 A.3d 795, 803 (Pa. 2014). There

is no right to a PCRA hearing; a hearing is unnecessary where the PCRA court

can determine from the record that there are no genuine issues of material

fact. Commonwealth v. Jones, 942 A.2d 903, 906 (Pa. Super. 2008).

      Before addressing the merits of Appellant’s claims, we must first

determine whether we have jurisdiction to entertain the underlying PCRA

Petition. See Commonwealth v. Hackett, 956 A.2d 978, 983 (Pa. 2008)

(explaining that the timeliness of a PCRA petition is a jurisdictional requisite).

      Under the PCRA, any petition “including a second or subsequent petition,

shall be filed within one year of the date the judgment becomes final[.]” 42

Pa.C.S. § 9545(b)(1).      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). The


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statutory    exceptions     to   the    timeliness   provisions   allow    very   limited

circumstances to excuse the late filing of a petition; a petitioner asserting an

exception must file a petition within 60 days of the date the claim could have

been presented. See 42 Pa.C.S. § 9545(b)(1)-(2).

       Here, Appellant’s Judgment of Sentence became final on November 14,

2001, upon expiration of the time to file a direct appeal.                See Pa.R.A.P.

903(a); 42 Pa.C.S. § 9545(b)(3). In order to be timely, Appellant must have

submitted his PCRA Petition by November 14, 2002. Appellant filed the instant

PCRA on February 9, 2016, over 14 years after his Judgment of Sentence

became final. The PCRA court properly concluded that Appellant’s Petition is

facially untimely. PCRA Court Opinion, 4/11/17, at 3.

       Appellant, for the first time on appeal, only attempts to invoke the

timeliness     exception      for      government     interference    under       Section

9545(b)(1)(i).5     This argument is waived for failure to raise it in his PCRA

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5 In his PCRA Petition and throughout the lower court proceedings, Appellant
sought to invoke the timeliness exception under Section 9545(b)(1)(iii),
alleging that his illegal sentence claim is based on a newly recognized
constitutional right as provided in Alleyne, which he asserts is retroactive in
application. In his Turner/Finley no-merit letter, Attorney Alvarez noted that
Appellant sought to invoke the timeliness exception under Section
9545(b)(1)(iii), and this is the only timeliness exception that the PCRA court
addressed in its Opinion. As also noted by counsel, however, this claim fails.
A legality of sentencing issue must be raised in a timely filed PCRA Petition
over which we have jurisdiction. See 42 Pa.C.S. § 9545(b); Commonwealth
v. Miller, 102 A.3d 988, 995-96 (Pa. Super. 2014) (explaining that the
decision in Alleyne does not invalidate a mandatory minimum sentence when
presented in an untimely PCRA Petition). Moreover, our Supreme Court has



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pleadings or in the PCRA court.6 See Pa.R.Crim.P. 902(B) (stating that that

failure to state each ground relied upon in support of the requested relief in

the PCRA petition “shall preclude the defendant from raising that ground in

any proceeding for post-conviction collateral relief.”); Pa.R.A.P. 302(a)

(“Issues not raised in the lower court are waived and cannot be raised for the

first time on appeal.”); Commonwealth v. Burton, 936 A.2d 521, 525 (Pa.

Super. 2007) (“exceptions to the time bar must be pled in the PCRA petition,

and may not be raised for the first time on appeal.”).

       Accordingly, the PCRA court properly concluded that Appellant failed to

plead and prove any of the timeliness exceptions provided in 42 Pa.C.S. §

9545(b)(1), and properly dismissed Appellant’s Petition as untimely.      See

PCRA Court Opinion at 3-5.

       The record supports the PCRA court’s findings and its Order is otherwise

free of legal error. We, thus, affirm the denial of PCRA relief.




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reiterated that Alleyne does not apply retroactively on post-conviction
collateral review. See Commonwealth v. Washington, 142 A.3d 810, 820
(Pa. 2016).

6 In this appeal, Appellant attempts to rely on Batts to maneuver around the
timeliness requirements. On June 26, 2017, the Pennsylvania Superior Court
addressed in Batts the procedural requirements for sentencing a juvenile
homicide defendant in light of the U.S. Supreme Court precedents in Miller
and Montgomery. Batts, 163 A.3d at 443-44. This Court decided Batts
after Appellant had filed his PCRA Petition and two months after the PCRA
court dismissed this Petition.      Accordingly, Appellant has waived this
argument. Pa.R.Crim.P. 902(B); Pa.R.A.P. 302(a); Burton, 936 A.2d at 525.

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     Order affirmed. Petition to Withdraw granted.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/13/18




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