J-S32011-16



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                  IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                            Appellee

                       v.

ALEXANDER LOPEZ,

                            Appellant               No. 3032 EDA 2014


                  Appeal from the PCRA Order October 9, 2014
                 In the Court of Common Pleas of Lehigh County
                           Criminal Division at No(s):
                            CP-39-CR-0000380-2006
                            CP-39-CR-0000409-2006
                            CP-39-CR-0001785-2006
                            CP-39-CR-0001790-2006


BEFORE: BOWES, MUNDY AND PLATT,* JJ.

MEMORANDUM BY BOWES, J.:                              FILED MAY 19, 2016

       Alexander Lopez appeals from the October 9, 2014 order dismissing

his first PCRA petition as untimely. Counsel has filed a petition to withdraw

and a brief pursuant to Anders v. California, 386 U.S. 738 (1967).1 We

affirm and grant the petition to withdraw.


____________________________________________


1
   The proper procedure to withdraw in post-conviction relief matters is not
via an Anders brief. Rather, counsel is to submit a no-merit letter/brief
pursuant to the requirements of Commonwealth v. Turner, 544 A.2d 927
(Pa. 1988) and Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988)
(en banc). However, since the Anders procedures are viewed as affording
greater protection than those prescribed under Turner/Finley, the error
(Footnote Continued Next Page)


* Retired Senior Judge assigned to the Superior Court.
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      Appellant was charged with numerous drug-related and weapons

offenses in four criminal actions. On October 10, 2006, Appellant pled guilty

to possession of heroin at CR-380; firearms not to be carried without a

license at CR-409; possession with intent to deliver (cocaine) at CR-1785;

and possession of a controlled substance at CR-1790. Various other charges

were withdrawn.

      The court sentenced Appellant on November 17, 2006, and Appellant

did not file a direct appeal. Thus, his sentence became final under the PCRA

on December 18, 2006, at the expiration of the thirty-day period for filing an

appeal. 42 Pa.C.S. § 9545(b)(3).

      On July 18, 2014, Appellant filed a pro se Petition for Writ of Habeas

Corpus, which the trial court properly treated as a PCRA petition, and

counsel was appointed. On October 9, 2014, more than twenty days after

issuing Rule 907 notice, the court dismissed the petition as untimely.

      Appellant filed the instant appeal. The PCRA court filed its Pa.R.A.P.

1925(a) opinion on October 29, 2014.2 Counsel filed a petition to withdraw

and a brief in which he set forth his conclusion that the appeal was frivolous

                       _______________________
(Footnote Continued)

has no effect on this appeal.         Commonwealth v. Widgins, 29 A.3d 816,
817 n.2 (Pa.Super. 2011).
2
   Our review of the dockets reveals that the court did not order Appellant to
file a Pa.R.A.P. 1925(b) concise statement of errors complained of on
appeal.



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as it was time-barred and that the Supreme Court’s decision in Alleyne v.

United States, 133 S.Ct. 2151 (2013), which Appellant invoked in his PCRA

petition, did not constitute an exception to the PCRA time bar.

      As a preliminary matter, we must address whether PCRA counsel has

met the requirements of Commonwealth v. Turner, 544 A.2d 927 (Pa.

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

banc). Turner/Finley requires counsel to conduct an independent review

of the record before a PCRA court or appellate court can authorize an

attorney's withdrawal. Counsel must then file a "no-merit" letter detailing

the nature and extent of his review and list each issue the petitioner wishes

to   have   examined,     explaining    why   those   issues   are   meritless.

Commonwealth v. Freeland, 106 A.3d 768 (Pa.Super. 2014) (citations

omitted).   Counsel is required to contemporaneously serve upon his client

his no-merit letter and application to withdraw along with a statement that,

if the court granted counsel's withdrawal request, the client may proceed pro

se or with a privately retained attorney. Id. at 774. 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.       Only if the Court agrees with

counsel that the petition lacks merit, will counsel be permitted to withdraw.

      Here, we find that counsel has substantially complied with the

requirements of Turner/Finley. Counsel represented that he reviewed the

docket entries to ascertain the timing of critical events, the case files, the

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case law applicable to the PCRA timeliness exceptions, and spoke to his

client to ascertain facts that could give rise to any exceptions to the PCRA

one-year time-bar. Counsel advised Appellant in a letter that he could not

identify any issues of arguable merit, furnished him with a copy of his

petition to withdraw and the appellate brief, and advised him that he had the

right to retain other counsel or represent himself pro se and file a response

to the petition to withdraw. Appellant did not file a response.

      We now determine whether this appeal is indeed meritless.           The

standard of review regarding an order denying a petition under the PCRA is

whether the determination of the PCRA court is supported by the evidence of

record and is free from legal error. Commonwealth v. Wah, 42 A.3d 335,

335 (Pa.Super. 2012) (citations omitted).      The PCRA court dismissed the

petition as untimely. The PCRA court’s findings will not be disturbed unless

there is no support for the findings in the certified record. Id.

      The issue identified and addressed by counsel is “Whether an appeal of

a denial of a PCRA petition filed well beyond the one-year time limit and

where no exception exists is frivolous such that appointed counsel should be

granted permission to withdraw.”        Appellant’s brief at 5.     As counsel

correctly represents, the timeliness of a PCRA petition is jurisdictional.

Commonwealth v. Fahy, 737 A.2d 214 (Pa. 1999). A petitioner has one

year after his judgment of sentence becomes final to file such a petition. 42

Pa.C.S. § 9545(b)(1). We cannot consider a later-filed petition unless the

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petitioner pleads and proves one of the following exceptions: (1) that his

claim was not previously raised due to governmental interference; (2) the

claim is based on facts that could not have been ascertained through the

exercise of due diligence; or (3) the petition asserts a newly-recognized

constitutional right that has been held to apply retroactively by either the

Supreme Court of the United States or the Supreme Court of Pennsylvania.

42 Pa.C.S. § 9545(b)(1)(i-iii).         In addition, any petition invoking one of

these exceptions must be filed within sixty days of the date when it could

have been presented. 42 Pa.C.S. § 9545(b)(2).

       Counsel states that the record supports the trial court’s finding that

the within petition is untimely.        Appellant’s judgment of sentence became

final on December 17, 2006, when he did not appeal from the November 17,

2006 judgment of sentence. Thus, any PCRA petition, in order to be timely,

had to be filed prior to December 17, 2007. The instant petition was filed on

July 18, 2014, almost seven years after the judgment of sentence became

final, and it is patently untimely.        Appellant asserted that his petition fell

within the timeliness exception for newly-recognized constitutional rights

based on the United States Supreme Court decision in Alleyne, supra.3

____________________________________________


3
  In Alleyne v. United States, 133 S.Ct. 2151 (2013), the United States
Supreme Court held that the constitutional right to a jury trial requires any
fact, other than a prior conviction, that triggers a mandatory minimum
sentence to be proven beyond a reasonable doubt before the finder of fact.
(Footnote Continued Next Page)


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However, we agree with counsel that Alleyne does not render the within

petition timely.       Appellant failed to satisfy the threshold requirement of

asserting the statutory exception within sixty days of the date the claim

could have been presented.           Alleyne was decided on June 17, 2013, and

Appellant did not file the within petition until July 18, 2014, more than one

year after the United States Supreme Court decided Alleyne.

      Our review of the PCRA petition reveals that Appellant maintained that

his failure to file the petition within sixty days of the decision in Alleyne

should be excused as the prison computers had not been updated. This

argument is unavailing, as this Court held in Commonwealth v. Leggett,

16 A.3d 1144, 1146-47 (Pa.Super. 2011), that the sixty-day period for a

prisoner invoking an after-recognized constitutional right as an exception to

the PCRA time bar begins to run on the date the underlying judicial decision

is entered, not the date the decision became available in the prison library.

See also Commonwealth v. Baldwin, 789 A.2d 728, 731 (Pa.Super.

2001) (“Neither the court system nor the correctional system is obliged to

educate or update prisoners concerning changes in case law”). Accordingly,

Appellant’s attempt to avoid the time bar on this ground fails.


                       _______________________
(Footnote Continued)

Were we able to reach the merits, we would conclude that Alleyne is not
implicated on the facts herein. Appellant pled guilty and there is no
indication that any mandatory sentences were imposed.



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     Furthermore, even if Appellant could satisfy that threshold sixty-day

requirement, Alleyne does not satisfy the newly-recognized constitutional

right exception as it has not been held to apply retroactively by either the

Supreme Court of the United States or the Supreme Court of Pennsylvania.

In Commonwealth v. Miller, 102 A.3d 988, 995 (Pa.Super. 2014), this

Court concluded that since neither Court has held that Alleyne is to be

applied retroactively to cases in which the judgment of sentence has become

final, a PCRA petitioner cannot invoke Alleyne to assert a statutory

exception under § 9545(b)(1)(iii).

     After a thorough independent review of the record, we find no other

meritorious issues.

     Petition of Robert E. Sletvold, Esquire, to withdraw granted. Order

affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/19/2016




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