J-A28013-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT
                                                             OF
                                                        PENNSYLVANIA
                             Appellee

                        v.

    COREY MAEWEATHER

                             Appellant                No. 1800 EDA 2019


                   Appeal from the PCRA Order May 10, 2019
             In the Court of Common Pleas of Northampton County
                Criminal Division at No(s): CP-48-CR-2684-1996


BEFORE: BEFORE: PANELLA, P.J., STABILE, J., and STEVENS, P.J.E.*

MEMORANDUM BY PANELLA, P.J.                           FILED MARCH 03, 2020

        Corey Maeweather appeals from the order of the Court of Common Pleas

of Northampton County (PCRA Court) denying as untimely his “Motion to

Modify Sentence – Nun Pro Tunc” seeking a modification of his sentence. The

motion was filed on March 29, 2019. Maeweather had been sentenced on July

10, 1998, following a guilty plea and degree-of-guilt hearing. The court

sentenced him to life without parole on the charge of first-degree murder, 18

Pa.C.S.A. § 2502(a), with an additional 10 to 20 years’ incarceration on the

charges of kidnapping, 18 P.S. § 2901, and conspiracy to commit kidnapping,

18 P.S. § 903(a)(1).



____________________________________________


*   Former Justice specially assigned to the Superior Court.
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       Appointed counsel has filed a Turner/Finley1 brief and a petition for

leave to withdraw. We grant counsel’s petition and affirm the PCRA Court’s

order.

       Maeweather’s petition falls under the Post-Conviction Relief Act,

because the PCRA is the sole means by which a defendant may obtain

collateral relief. See 42 Pa.C.S.A. § 9542 (“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”). See Commonwealth v. Guthrie, 749 A.2d 502, 503 (Pa.

Super. 2000) (holding appellant's “motion to correct illegal sentence” must be

treated as PCRA petition); see also Commonwealth v. Evans, 866 A.2d

442, 444 (Pa. Super. 2005) (motion for reconsideration or modification of

sentence should be treated as PCRA petition); Commonwealth v. Johnson,

803 A.2d 1291, 1293 (Pa. Super. 2002) (motion to vacate sentence qualified

as a PCRA petition). Therefore, Maeweather’s “Motion to Modify Sentence –

Nunc Pro Tunc” must be considered a petition for relief under the PCRA. The

fact that Maeweather has attempted to frame his petition as a “Motion to




____________________________________________


1 See Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988);
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).


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Modify Sentence” does not change the applicability of the PCRA. See Guthrie,

749 A.2d at 503.

         This Court analyzes PCRA appeals in the light most favorable to the

prevailing party at the PCRA level. Commonwealth v. Rigg, 84 A.3d 1080,

1084 (Pa. Super. 2014). On April 20, 1998, Maeweather entered a negotiated

guilty plea to an open charge of criminal homicide,2 kidnapping and criminal

conspiracy.

         Following a degree-of-guilt hearing, the trial court found him guilty of

First Degree Murder for which he was sentenced, on July 10, 1998, to life in

prison without parole. Maeweather was sentenced to an additional 10 to 20

years’ incarceration on the charges of Kidnapping and Conspiracy to

Kidnapping. Maeweather’s sentence was affirmed by the Superior Court on

July 1, 1999.

         Maeweather’s first PCRA Petition was filed on October 22, 2002; it was

dismissed by the PCRA Court on March 12, 2003. This Court dismissed his

appeal from that order due to his failure to file a brief.

         His second PCRA Petition was filed on August 26, 2004. It was dismissed

on February 11, 2005, and our Court quashed his appeal as being untimely

filed.




____________________________________________


2   18 Pa.C.S.A. § 2501(a).

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       The current appeal is from the denial of his motion that was filed on

March 29, 2019. The PCRA Court ruled:

          Thus, this instant PCRA Petition is untimely for not being
          filed within one year from when judgment became final in
          Defendant’s case and outside the jurisdiction of this Court.
          Moreover, Defendant has not asserted that his Petition falls
          within the exceptions . . . to the one year limitation, and
          therefore, we find his claims to be without merit.

PCRA Court, 4-10-19, at 2.

       Counsel was appointed by the PCRA Court to represent Maeweather in

the instant case but has moved to withdraw from representation. On April 10,

2019, the PCRA Court filed a Rule 907 notice of its intention to dismiss

Maeweather’s petition without a hearing. See Pa.R.Crim.P. 907(1). Counsel

has filed an appropriate Turner/Finley brief, and has filed a timely petition

to withdraw.

       As a preliminary matter, we must address whether counsel has met the

requirements    of Turner/Finley, which     requires   him   to    conduct   an

independent review of the record before a court can authorize his

withdrawal. Appointed PCRA counsel must 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. See

Commonwealth v. Freeland, 106 A.3d 768, 774 (Pa. Super. 2014). 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 either pro se or with a

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privately retained attorney. See id. We must conduct our own independent

evaluation of the record and agree with counsel that the petition is meritless.

See id.

       From our review, we find that counsel has substantially complied with

the requirements of Turner/Finley and their progeny, detailing his review of

the record and his conclusion that Maeweather’s claims lack merit. Counsel

also notified Maeweather and furnished him with a copy of his no merit brief,

and advised him of his right to proceed pro se or to retain private counsel.

Accordingly, we will grant counsel’s petition to withdraw.

      Next, although we would typically proceed to our independent review of

Maeweather’s claims, we must determine the timeliness of Maeweather’s

petition.

      “It is well-settled that the PCRA’s time restrictions are jurisdictional in

nature. As such, this statutory time-bar implicates the court’s very power to

adjudicate a controversy and prohibits a court from extending filing periods

except as the statute permits.” Commonwealth v. Robinson, 139 A.3d 178,

185-186 (Pa. 2016) (citations omitted). Under the PCRA, any petition for relief

must be filed within one year of the date on which the judgment of sentence

becomes final. See 42 Pa.C.S.A. § 9545(b)(1). “A judgment becomes final for

purposes of the PCRA 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


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review.” Robinson, 139 A.3d at 185–86 (internal quotation marks and

citations omitted).

      Here, Maeweather’s judgment of sentence became final in 1999, when

his time to file an appeal with the Pennsylvania Supreme Court expired. See

42 Pa.C.S.A. § 9545(b)(3). Because Maeweather filed the instant motion on

March 28, 2019, it is untimely on its face, and the PCRA court lacked

jurisdiction to review it unless he pleaded and proved one of the statutory

exceptions to the time-bar. See 42 Pa.C.S.A. § 9545(b)(1)(i)-(iii).

      The three exceptions that allow for review of an untimely PCRA petition

are limited to: (1) the petitioner’s inability to raise a claim because of

governmental interference; (2) the discovery of previously unknown facts that

would have supported a claim; and (3) a newly recognized constitutional

right. See 42 Pa.C.S.A. § 9545(b)(1)(i)-(iii). Any petition attempting to invoke

these exceptions “shall be filed within one year of the date the claim could

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

      If the PCRA petition is determined to be untimely, and no exception has

been pled and proved, the petition must be dismissed “because Pennsylvania

courts are without jurisdiction to consider the merits of the petition.”

Commonwealth v. Jackson, 30 A.3d 516, 519 (Pa. Super. 2011) (citation

omitted).

      The motion filed by Maeweather, which is by statute a petition under

the PCRA, is untimely on its face. Maeweather has not attempted to establish


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a timeliness exception under the PCRA. See Motion, filed 3/29/19, at 1-2.

Therefore, we affirm the PCRA court’s order.

     Order affirmed. Petition to withdraw granted.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/3/20




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