J-S50031-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                         Appellee

                    v.

BRYON GEORGE TURTON,

                         Appellant                    No. 313 WDA 2014


          Appeal from the PCRA Order entered January 27, 2014,
            in the Court of Common Pleas of Allegheny County,
           Criminal Division, at No(s): CP-02-CR-0012460-1994.


BEFORE: FORD ELLIOTT, P.J.E., SHOGAN, and ALLEN, JJ.

MEMORANDUM BY ALLEN, J.:                            FILED AUGUST 12, 2014



petition for post-conviction relief filed pursuant to the Post Conviction Relief

                                        -46.   PCRA counsel has also filed a

petition to withdraw. We affirm.

      The pertinent facts and procedural history are as follows: On October

5, 1994, police charged Appellant, then nineteen years old, with one count

of criminal homicide involving the strangulation death of his girlfriend. On

January 31, 1996, a jury convicted Appellant of first-degree murder.         On

March 28, 1996, the trial court sentenced him to life imprisonment without

the possibility of parole. Appellant filed a timely appeal to this Court. In an

unpublished memorandum filed on December 15, 1997, we affirmed
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counsel to address an ineffective assistance claim raised by Appellant in his

appeal.     Commonwealth v. Turton, ___ A.2d ___ (Pa. Super. 1997)

(unpublished).

     Upon remand, the trial court appointed new counsel, and the trial

court held an evidentiary hearing on December 8, 1998. By order entered

February 15, 2001, the trial court denied Appellant relief.   Appellant once

again filed a timely appeal to this Court. In an unpublished memorandum

filed on April 27, 2004, we affirmed the trial court.   Commonwealth v.

Turton, 852 A.2d 1256 (Pa. Super. 2004).        On October 20, 2004, our

Suprem                                        allocatur. Commonwealth v.

Turton, 862 A.2d 1255 (Pa. 2004).

     On August 21, 2012, Appellant filed a pro se PCRA petition. The PCRA

court appointed counsel, and on October 2, 2013, PCRA counsel filed an

amended petition. The PCRA court issued Pa.R.Crim.P. 907 notice of intent



response.    By order entered January 27, 2014, the PCRA court dismissed

                                          y untimely, and because Appellant

failed to establish the applicability of an exception to the time bar.   This

appeal followed.   Both Appellant and the PCRA court have complied with

Pa.R.A.P. 1925.




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                                                                     iled an Anders1

brief and a petition to withdraw. Compliance with Anders applies to counsel

who seeks to withdraw from representation on direct appeal.                 Anders

imposes stricter requirements than those imposed when counsel seeks to

withdraw during the post-conviction process pursuant to the dictates of

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

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

See Commonwealth v. Fusselman, 866 A.2d 1109, 1111 n.3 (Pa. Super.



wishes to raise have no merit under a Turner/Finley analysis.

        Our Supreme Court has summarized:

             These cases establish the procedure for withdrawal of
          court-appointed counsel in collateral attacks on criminal
          convictions.   Independent review of the record by
          competent counsel is required before withdrawal is
          permitted. Such independent review requires proof of:

          1)         -                              sel detailing the
               nature and extent of his [or her] review;

          2)        -
               the petitioner wished to have reviewed;

          3)                                                  -
                                                          meritless;

          4) The PCRA court conducting its own independent
             review of the record; and
____________________________________________


1
    Anders v. California, 386 U.S. 738 (1967).




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        5) The PCRA court agreeing with counsel that the
           petition was meritless.

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

                                     nsel has complied with the mandates of

Turner and Finley, as summarized in Pitts, supra.                     Thus, we must



PCRA petition was untimely filed, and Appellant cannot establish an

exception to t



petition under the PCRA is whether the determination of the PCRA court is

supported    by   the   evidence    of   record   and    is   free    of    legal   error.

Commonwealth v. Halley, 870 A.2d 795, 799 n.2 (Pa. 2005). The PCRA



findings in the certified record. Commonwealth v. Carr, 768 A.2d 1164,

1166 (Pa. Super. 2001).        Moreover, a PCRA court may decline to hold a

hear

claim is patently frivolous and is without a trace of support in either the

record or from other evidence. Commonwealth v. Jordan, 772 A.2d 1011

(Pa. Super. 2001).

       The   timeliness   of    a   post-conviction     petition     is    jurisdictional.

Commonwealth v. Albrecht, 994 A.2d 1091, 1093 (Pa. 2010) (citation

omitted). Thus, if a PCRA petition is untimely, neither an appellate court nor


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the PCRA court has jurisdiction over the petition. Id                 out jurisdiction,



raised in an untimely petition. Id.

      Generally, a petition for relief under the PCRA, including a second or

subsequent petition, must be filed within one year of the date the judgment

becomes final unless the petition alleges, and the petitioner proves, an

exception to the time for filing the petition. Commonwealth v. Gamboa-

Taylor, 753 A.2d 780, 783 (Pa. 2000); 42 Pa.C.S.A. § 9545(b)(1). Under

these exceptions

been interference by government officials in the presentation of the claim; or

(2)   there   exists   after-discovered    facts    or   evidence;   or   (3)   a   new

                                                   Commonwealth v. Fowler, 930

A.2d 586, 591 (Pa. Super. 2007) (citations omitted).                 A PCRA petition



                                                              Gamboa-Taylor, 753

A.2d at 783. See also 42 Pa.C.S.A. § 9545(b)(2). Moreover, exceptions to

the time restrictions of the PCRA must be pled in the petition, and may not

be raised for the first time on appeal.         Commonwealth v. Burton, 936

A.2d 521, 525 (Pa. Super. 2007); see also Pa.R.A.

raised before the lower court are waived and cannot be raised for the first




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         Because Appellant did not file a petition for writ of certiorari with the

                                                                             l of



ninety thereafter, on January 18, 2005.            42 Pa.C.S.A. § 9545(b)(3);

U.S.Sup.Ct.R. 13. Appellant filed the instant PCRA petition over seven years

later.    As a result, his PCRA petition is patently untimely unless he has

satisfied his burden of pleading and proving that one of the enumerated

exceptions applies. See Commonwealth v. Beasley, 741 A.2d 1258, 1261

(Pa. 1999).

         Appellant has failed to prove the applicability of any of the exceptions



under the exception of subsection 9545(b)(1)(iii) because the United States

Supreme Court recognized a new constitutional right in Miller v. Alabama,

132 S.Ct. 2455 (2012).         In Miller, the high court held that mandatory




                           Miller, 132 S.Ct. at 2460. Appellant asserts that the

Miller decision should be applied retroactively to his life sentence.

         Initially, we note that the Miller holding is inapposite because

Appellant was not a juvenile when he killed his girlfriend. Moreover, even

had Appellant been a juvenile at the time, our Supreme Court has

determined that the Miller decision should not be applied retroactively. See


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generally, Commonwealth v. Cunningham, 81 A.3d 1 (Pa. 2013). Thus,

                                                     to Section 9545(b)(iii).

     Alternatively, Appellant attempts to establish an exception to the

                                                                       Miller



present counsel, however, this same evidence was referenced in the United

                                         Roper v. Simmons, 543 U.S. 551

(2005) and Graham v. Florida, 560 U.S. 48 (2010).         At best, Appellant



Commonwealth v. Marshall, 947 A.2d 714, 720 (Pa. 2008); see also

Commonwealth v. Lark, 746 A.2d 585, 588 n.4 (explaining that matters of




     In sum, Appe

to meet his burden of proof with regard to any exception to the timeliness



                          -conviction reli

withdraw.

     Petition to withdraw granted. Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/12/2014




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