J-S57038-18


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,              :    IN THE SUPERIOR COURT OF
                                           :          PENNSYLVANIA
                  Appellee                 :
                                           :
                     v.                    :
                                           :
CHRISTOPHER HOLMES,                        :
                                           :
                  Appellant                :    No. 2313 EDA 2017

                 Appeal from the PCRA Order June 21, 2017
              in the Court of Common Pleas of Chester County
            Criminal Division at No(s): CP-15-CR-0004571-2011

BEFORE:     PANELLA, J., PLATT, J.* and STRASSBURGER, J.*

MEMORANDUM BY STRASSBURGER, J.:           FILED DECEMBER 04, 2018


      Christopher Holmes (Appellant) appeals from the June 21, 2017 order

which dismissed his petition filed pursuant to the Post Conviction Relief Act

(PCRA), 42 Pa.C.S. §§ 9541-9546.       Also before us is an application to

withdraw filed by Appellant’s counsel and a no-merit brief pursuant to

Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and Commonwealth

v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc). We affirm the order

dismissing the petition and grant counsel’s application to withdraw.

      We provide the following background. In October 2012, a jury convicted

Appellant of burglary, conspiracy to commit burglary, criminal trespass, and

theft by unlawful taking or disposition. On January 3, 2013, Appellant was

sentenced to an aggregate term of 13 to 30 years of incarceration. On May




*Retired Senior Judge assigned to the Superior Court.
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8, 2014, this Court affirmed his judgment of sentence. Commonwealth v.

Holmes, 104 A.3d 41 (Pa. Super. 2014) (unpublished memorandum).

         On June 27, 2014, Appellant filed a petition for leave to file nunc pro

tunc a petition for allowance of appeal with our Supreme Court at docket

number 100 MM 2014. On September 3, 2014, our Supreme Court granted

Appellant permission to do so, provided he file his petition for allowance of

appeal within 48 hours of the Supreme Court’s order. Appellant failed to do

so.      On September 27, 2014, Appellant filed a praecipe to discontinue,

requesting withdrawal of his appeal.1

         On September 16, 2015, Appellant pro se filed a PCRA petition.        On

October 7, 2015, the PCRA court appointed Attorney Robert Brendza to

represent Appellant, and Appellant filed an amended PCRA petition on

September 7, 2016.2        On October 21, 2016, the Commonwealth filed its

answer thereto, arguing that Appellant’s petition be dismissed as untimely

filed.    On November 1, 2016, the PCRA court ordered Appellant to file a

response/brief to the Commonwealth’s answer.          On November 29, 2016,

Attorney Brendza filed a letter with the PCRA court, explaining that he had

1 While Appellant labeled this as a request to withdraw his appeal, docket
number 100 MM 2014 of the Pennsylvania Supreme Court does not contain
any entry indicating that Appellant ever filed a petition for allowance of appeal.
Further, a comment in the September 27, 2014 entry for the praecipe to
discontinue indicates “Pursuant to the Praecipe to Discontinue[,] a Petition for
Allowance of Appeal will not be filed.” Docket Number 100 MM 2014.

2The record does not indicate the reason for the delay in filing the amended
petition.


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since learned that Appellant had never filed a petition for allowance of appeal

with the Pennsylvania Supreme Court, and thus, acknowledged that

Appellant’s PCRA petition was untimely filed. On January 24, 2017, the PCRA

court issued a notice pursuant to Pa.R.Crim.P. 907 informing Appellant that it

planned to dismiss his petition without a hearing.3 Although Appellant was

represented by counsel,4 Appellant pro se filed a response, claiming that he

had filed a petition for allowance of appeal with our Supreme Court. On April

27, 2017, the PCRA court, upon review of the record, “determined that there

[was] a genuine issue concerning whether or not [Appellant] filed and/or

perfected an appeal to the Pennsylvania Supreme Court” and ordered an

evidentiary hearing. Order, 4/27/2017, at 1. Such hearing was held on June

19, 2017, at which Appellant and his counsel appeared. On June 21, 2017,

the PCRA court dismissed Appellant’s PCRA petition as untimely filed.

      Appellant timely filed a notice of appeal. The PCRA court did not order

Appellant to file a concise statement of errors complained of on appeal

pursuant to Pa.R.A.P. 1925(b), and none was filed. The PCRA court complied

with Pa.R.A.P. 1925(a) by directing us to its June 21, 2017 order. Thereafter,

counsel sought from this Court leave to withdraw his representation of

3 The PCRA court issued what it termed an “Order/Notice” wherein it dismissed
Appellant’s PCRA petition as untimely filed, but also advised Appellant of its
intention to dismiss the petition without further proceedings pursuant to
Pa.R.Crim.P. 907. Order/Notice, 1/24/2017.

4 By PCRA court order filed February 14, 2017, Attorney C. Curtis Norcini
succeeded Attoreny Brendza in representing Appellant.


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Appellant pursuant to Turner/Finley. On November 7, 2018, Appellant filed

a response to counsel’s request to withdraw, claiming appellate counsel was

ineffective in failing to file a petition for allowance of appeal with our Supreme

Court and PCRA counsel was ineffective in failing to raise appellate counsel’s

ineffectiveness, and arguing that he had until September 30, 2015 to timely

file his PCRA petition.

      Before we may address the potential merit of Appellant’s petition, we

must determine if counsel has complied with the technical requirements of

Turner and Finley.

             … Turner/Finley counsel 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 the 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.

            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.

             However, where counsel submits a petition and no-merit
      letter that do satisfy the technical demands of Turner/Finley, the
      court—trial 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


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      withdraw and deny relief. By contrast, if the claims appear to
      have merit, the court will deny counsel’s request and grant relief,
      or at least instruct counsel to file an advocate’s brief.

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

omitted).

      We are satisfied that counsel has substantially complied with the

technical requirements of Turner and Finley.        However, before we may

consider the merits, we must first determine whether Appellant timely filed

his PCRA petition, as neither this Court nor the PCRA court has jurisdiction to

address the merits of an untimely-filed petition.        Commonwealth v.

Leggett, 16 A.3d 1144, 1145 (Pa. Super. 2011).

      Any PCRA petition, including second and subsequent petitions, must

either (1) be filed within one year of the judgment of sentence becoming final,

or (2) plead and prove a timeliness exception.        42 Pa.C.S. § 9545(b).

Furthermore, the petition “shall be filed within 60 days of the date the claim

could have been presented.” 42 Pa.C.S. § 9545(b)(2). “For purposes of [the

PCRA], 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).

      Here, we agree with the PCRA court’s determination that Appellant failed

to file timely his PCRA petition.




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             [Appellant] was sentenced on January 4, 2013. He filed an
      appeal to the Superior Court. On May 8, 2014, the Superior
      [C]ourt affirmed the conviction and sentence. On June 10, 2014,
      [Appellant] attempted to file a petition for allowance of appeal
      with the Pennsylvania Supreme Court, but said court rejected the
      filing because it was untimely filed.[5]         On June 27, 2014,
      [Appellant] filed a petition for leave to file a petition for allowance
      of appeal nunc pro tunc. On September 3, 2014, the Supreme
      Court granted the petition, but [Appellant] failed to file a petition
      for allowance of appeal. Therefore, an appeal to the Pennsylvania
      Supreme Court was not perfected.

             Pennsylvania courts are clear that an untimely filed appeal
      does not modify or extend the one-year period for filing a PCRA
      petition. See Commonwealth v. Brown, 943 A.2d 264, 268
      (Pa. 2008); [] Commonwealth v. Hutchins, 760 A.2d 50, 54
      (Pa. Super. 2000).

            Since an appeal was not perfected, [Appellant’]s judgment
      of sentence became final on June 8, 2014[6] and [Appellant’s]
      PCRA petition needed to be filed by June 8, 2015[7] in order to be

5 It appears that Appellant filed a petition for allowance of appeal that was
docketed on June 13, 2014, at Pennsylvania Supreme Court docket number
355 MT 2014. There are no other entries on said docket and the docket does
not indicate the disposition of said petition. Nonetheless, as discussed infra,
said petition was untimely filed as Appellant had until June 9, 2014, to file a
petition for allowance of appeal with our Supreme Court. Appellant concedes
said petition was untimely filed. See Appellant’s Response to Counsel’s
Application to Withdraw, 11/7/2018, at 5.

6 Thirty days from this Court’s May 8, 2014 memorandum affirming Appellant’s
judgment of sentence was June 7, 2014. Because that date fell on a Saturday,
Appellant had until June 9, 2014 to file a petition for allowance of appeal with
our Supreme Court. See 1 Pa.C.S. § 1908. Because Appellant did not timely
file a petition for allowance of appeal, nor did he file a petition for allowance
of appeal after our Supreme Court granted him leave to so file nunc pro tunc,
his judgment of sentence became final on June 9, 2014. This does not alter
our disposition, as Appellant’s PCRA petition was filed more than one year
after June 9, 2014.

7 As explained, supra, Appellant had until June 9, 2015 to file his PCRA
petition.


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        timely. [Appellant’s] PCRA petition was filed September 16, 2015.
        Accordingly, it is untimely.

PCRA Court Order, 6/21/2017, at 1-2, n.1 (unnecessary capitalization

omitted).     Our review of the certified record confirms the PCRA court’s

determination. Thus, Appellant’s September 16, 2015 PCRA petition is facially

untimely, and he was required to plead and prove an exception to the

timeliness requirements.8 Because Appellant failed to do so, the PCRA court

lacked jurisdiction to entertain Appellant’s untimely-filed petition.       See

Leggett, 16 A.3d at 1145.

        Based on the foregoing, Appellant is not entitled to relief. We therefore

affirm the order dismissing the PCRA petition and grant counsel’s application

to withdraw.

        Order affirmed. Application to withdraw granted.

Judgment Entered.




Joseph D. Seletyn, Esq.

Prothonotary


Date: 12/4/18




8   See 42 Pa.C.S. § 9545(b)(1)(i-iii).

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