J-A21028-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                  IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                        Appellee

                   v.

ALAN LE GRANDE BARKMAN,

                        Appellant                   No. 1587 WDA 2016


             Appeal from the PCRA Order September 21, 2016
                In the Court of Common Pleas of Erie County
 Criminal Division at No(s): CP-25-CR-0001016-2014, CP-25-CR-0001850-
                     2014 and CP-25-CR-0002252-2012

BEFORE: BENDER, P.J.E., OLSON, J., and STABILE, J.

MEMORANDUM BY OLSON, J.:                      FILED SEPTEMBER 18, 2017

      Appellant, Alan Le Grande Barkman, appeals from the September 21,

2016 order dismissing his first petition filed pursuant to the Post-Conviction

Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546.      In this appeal from the

denial of PCRA relief, Appellant’s court-appointed counsel filed a petition to

withdraw as 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). As we conclude that counsel fulfilled

the procedural requirements of Turner/Finley, and this appeal is without

merit, we grant counsel’s petition to withdraw as counsel and affirm the

PCRA court’s order dismissing Appellant’s PCRA petition.
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        The factual background and procedural history of this case are as

follows. On May 28, 2012, a member of the Pennsylvania State Police pulled

Appellant over and determined that he was driving under the influence of

alcohol. On September 11, 2012, the Commonwealth charged Appellant via

criminal information with seven offenses including, inter alia, driving under

the influence of alcohol (“DUI”) – general impairment.1 On October 1, 2012,

Appellant pled guilty to, inter alia, DUI-general impairment and was

immediately sentenced to four years’ intermediate punishment.

        On March 16, 2014, a member of the Edinboro Police Department

pulled Appellant over and determined that he was driving under the

influence of alcohol. On May 4, 2014, a member of the Pennsylvania State

Police pulled Appellant over and determined that he was driving under the

influence of alcohol.     On May 19, 2014, the Commonwealth charged

Appellant via criminal information with, inter alia, DUI-highest rate2 for the

March 16 incident.      On August 20, 2014, the Commonwealth charged

Appellant via criminal information with, inter alia, DUI-highest rate for the

May 4 incident.

        On October 7, 2014, Appellant pled guilty to DUI-higher rate3 for the

March 16 incident and DUI-highest rate for the May 4 incident.             On


1
    75 Pa.C.S.A. § 3802(a)(1).
2
    75 Pa.C.S.A. § 3802(c).
3
    75 Pa.C.S.A. § 3802(b).


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December 3, 2014, the trial court revoked Appellant’s intermediate

punishment related to the DUI-general impairment conviction and re-

sentenced him to 24 to 60 months’ imprisonment.        The trial court also

sentenced Appellant to 16 to 60 months’ imprisonment each for the DUI-

higher rate and DUI-highest rate convictions.    The trial court ordered all

three sentences to run consecutively for an aggregate term of 56 to 180

months’ imprisonment.      The trial court found Appellant eligible for the

Recidivism Risk Reduction Initiative and, therefore, lowered the minimum

aggregate sentence to 42 months’ imprisonment.

     Appellant appealed the judgments of sentence for the DUI-higher rate

and DUI-highest rate convictions and this Court affirmed those judgments of

sentence.     See Commonwealth v. Barkman, 134 A.3d 99, 2015 WL

6000781 (Pa. Super. 2015) (unpublished memorandum). Appellant did not

appeal from the judgment of sentence for his DUI-general impairment re-

sentencing.

     On April 4, 2016, Appellant filed a pro se PCRA petition and counsel

was appointed. On July 21, 2016, the PCRA court issued notice of its intent

to dismiss the petition without an evidentiary hearing.   See Pa.R.Crim.P.

907(A).     On September 21, 2016, the PCRA court dismissed the petition.

This timely appeal followed.

     Counsel presents one issue in his Turner/Finley brief:

     [Was Appellant’s sentence legal?]



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See Turner/Finley Brief at 1-3.

      Prior to addressing the merits of the issue raised in counsel’s

Turner/Finley brief, we must determine whether he met the procedural

requirements to withdraw as counsel. Counsel seeking to withdraw in PCRA

proceedings

      must review the case zealously. Turner/Finley counsel must
      then submit a “no-merit” letter to the [PCRA] 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 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.

      Where counsel submits a petition and no-merit letter that satisfy
      the technical demands of Turner/Finley, the court — [PCRA]
      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
      withdraw and deny relief.

Commonwealth v. Muzzy, 141 A.3d 509, 510–511 (Pa. Super. 2016)

(ellipses and citation omitted). In this case, counsel fulfilled the procedural

requirements for withdrawing as PCRA counsel.

      Turning to the merits of this case, “Crucial to the determination of any

PCRA appeal is the timeliness of the underlying petition. Thus, we must first

determine     whether   the   instant    PCRA   petition   was   timely    filed.”

Commonwealth v. Brown, 141 A.3d 491, 499 (Pa. Super. 2016) (citation

omitted). The timeliness requirement for PCRA petitions “is mandatory and


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jurisdictional in nature[.]” Commonwealth v. Brown, 143 A.3d 418, 420

(Pa. Super. 2016) (citation omitted). Thus, we sua sponte concentrate our

attention on whether Appellant timely filed his PCRA petition and, if not,

whether he has raised a viable statutory exception to the PCRA’s timeliness

requirement.

      A PCRA petition is timely if it is “filed within one year of the date the

judgment [of sentence] becomes final.” 42 Pa.C.S.A. § 9545(b)(1).         “[A]

judgment 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.A. § 9545(b)(3).      Because Appellant did not file an

appeal from his re-sentencing for DUI-general impairment, that judgment of

sentence became final on January 2, 2015.4      Appellant’s PCRA petition was

filed on April 4, 2016. Thus, the petition was patently untimely.

      An untimely PCRA petition may be considered if one of the following

three 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

4
 If the Court of Common Pleas of Erie County were closed on January 2,
2015, it became final on January 5, 2015.



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      (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-iii).   If an exception applies, a PCRA petition

may be considered if it is filed “within 60 days of the date the claim could

have been presented.”     42 Pa.C.S.A. § 9545(b)(2).     “It is the petitioner’s

burden to plead and prove an exception to the PCRA-timeliness rule.”

Commonwealth v. Wiley, 966 A.2d 1153, 1158 (Pa. Super. 2009) (citation

omitted).

      As noted above, a petitioner must plead and prove the existence of a

timeliness exception in order for the PCRA court to have jurisdiction over an

untimely petition. Failure to plead the applicability of a timeliness exception

in the PCRA petition renders the PCRA court without jurisdiction to consider

the merits of the petition. See Commonwealth v. Derrickson, 923 A.2d

466, 468-469 (Pa. Super. 2007), appeal denied, 934 A.2d 72 (Pa. 2007). In

this case, Appellant’s PCRA petition did not allege that he satisfied one of the

PCRA’s timeliness exceptions.    As such, he failed to plead and prove the

applicability of a timeliness exception and the PCRA court lacked jurisdiction

over his untimely petition as it relates to the DUI-general impairment

conviction.




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       Appellant’s judgments of sentence for his DUI-higher rate and DUI-

highest rate convictions did not become final until November 16, 2015.5 As

such, Appellant’s PCRA petition was timely with respect to those two

convictions.   Therefore, we turn to the lone issue raised in counsel’s

Turner/Finley brief only as it relates to those two convictions.

       Our standard of review when determining if a sentence is illegal is de

novo and our scope of review is plenary. Commonwealth v. Brown, 159

A.3d 531, 532 (Pa. Super. 2017). As noted above, Appellant was sentenced

to a term of 16 to 60 months’ imprisonment for both his DUI-higher rate and

DUI-highest rate convictions.       In his pro se response to counsel’s

Turner/Finley letter, Appellant contends that his sentence for DUI-higher

rate was illegal because he only pled guilty to DUI-general impairment (first

offense).6

       The record belies Appellant’s assertion. At the plea hearing, Appellant

was asked how he pled to “driving under the influence, high rate of alcohol,

third offense[.]” N.T., 10/7/14, at 10-11. He responded, “Guilty.” Id. at


5
    November 14, 2015 was a Saturday.
6
  Appellant also argues that both his DUI-higher rate and DUI-highest rate
sentences were manifestly excessive, unreasonable, and inconsistent with
the objectives of the Sentencing Code. These discretionary aspects claims,
however, are not cognizable under the PCRA. Commonwealth v. Wrecks,
934 A.2d 1287, 1289 (Pa. Super. 2007); see 42 Pa.C.S.A. § 9543(a)(2).
Similarly, Appellant’s argument that the trial court violated the parties’ plea
agreement is not cognizable under the PCRA. Commonwealth v. Berry,
877 A.2d 479, 482-484 (Pa. Super. 2005); see 42 Pa.C.S.A. § 9543(a)(2).
As such, the PCRA court correctly denied relief on these claims.


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11. The statutory maximum penalty for DUI-higher rate (third offense) is

five years’ imprisonment.   See 75 Pa.C.S.A. § 3803(b)(3); 18 Pa.C.S.A.

§ 106(b)(6). As Appellant was sentenced to a maximum term of five years’

imprisonment, his sentence was legal.

     Appellant argues that his DUI-highest rate sentence was illegal

because it was not his third offense.   This argument is without merit.   As

noted above, Appellant was convicted of DUI-general impairment in 2012.

Moreover, Appellant was sentenced for DUI-higher rate on the same day as

he was sentenced for DUI-highest rate.       Therefore, that conviction was

included when calculating the number of prior DUI offenses. 75 Pa.C.S.A.

§ 3806(b)(3).   The statutory maximum penalty for DUI-highest rate (third

offense) is five years’ imprisonment.   See 75 Pa.C.S.A. § 3803(b)(4); 18

Pa.C.S.A. § 106(b)(6). As Appellant was sentenced to a maximum term of

five years’ imprisonment, his sentence was legal.

     In sum, the PCRA court lacked jurisdiction over Appellant’s PCRA

petition as it related to the re-sentencing for his DUI-general impairment

conviction. Appellant’s sentences for DUI-higher rate and DUI-highest rate

were legal.   As such, this appeal is without merit.   Accordingly, we grant

counsel’s petition to withdraw as counsel and affirm the PCRA court’s order

dismissing Appellant’s PCRA petition.

     Petition to withdraw as counsel granted. Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 9/18/2017




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