J-S28013-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                               IN THE SUPERIOR COURT OF
                                                                 PENNSYLVANIA
                                Appellee

                       v.

TAMEIKA MINNEFIELD

                                Appellant                      No. 1020 WDA 2016


                  Appeal from the PCRA Order December 31, 2015
                    In the Court of Common Pleas of Erie County
                Criminal Division at No(s): CP-25-CR-0003188-2011

BEFORE: OLSON, MOULTON and STRASSBURGER,* JJ.

MEMORANDUM BY OLSON, J.:                                         FILED JUNE 23, 2017

      Appellant, Tameika Minnefield, appeals from the order entered on

December 31, 2015 dismissing her 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.




* Retired Senior Judge assigned to the Superior Court
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         The factual background of this case is as follows. During September

and October 2011, Appellant beat her four-year-old daughter with a belt

about the arms, stomach, back, legs, and buttocks. These beatings caused

numerous contusions and abrasions.               During this same time period,

Appellant failed to provide her daughter with food.

         The procedural history of this case is as follows. On January 23, 2012,

the      Commonwealth      charged   Appellant    via   criminal   information   with

aggravated assault,1 simple assault,2 endangering the welfare of a child,3

and recklessly endangering another person.4              On September 5, 2012,

Appellant pled guilty to aggravated assault and endangering the welfare of a

child.    On October 18, 2012, Appellant was sentenced in absentia to an

aggregate term of 76 to 152 months’ imprisonment. Appellant appealed her

judgment of sentence and this Court affirmed.             See Commonwealth v.

Minnefield, 87 A.3d 883, 2013 WL 11253513 (Pa. Super. 2013). Appellant

did not seek allocatur from our Supreme Court.

         On July 24, 2015, Appellant filed a pro se PCRA petition. On August

13, 2015, counsel was appointed.        On December 7, 2015, the PCRA court

issued notice of its intent to dismiss the petition without an evidentiary


1
    18 Pa.C.S.A. § 2702(a)(1).
2
    18 Pa.C.S.A. § 2701(a)(1).
3
    18 Pa.C.S.A. § 4304(a)(1).
4
    18 Pa.C.S.A. § 2705.


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hearing. See Pa.R.Crim.P. 907(A). On December 31, 2015, the PCRA court

dismissed the petition.         This timely appeal followed.         Appellant’s court-

appointed     counsel   filed    a   petition   to   withdraw   as    counsel   and   a

Turner/Finley brief.        Appellant filed a pro se response to counsel’s

Turner/Finley brief. The matter is now ripe for disposition.

     Counsel presents one issue in his Turner/Finley brief:

     Whether the PCRA petition filed by [] Appellant lacked arguable
     merit and failed to state any colorable claims for relief due to
     untimeliness, being previously litigated on direct appeal[,] and
     otherwise lacking any substantive merit in failing to implicate the
     legality of sentence as compelled for PCRA relief?

Turner/Finley Brief at 2.

     Prior to addressing the merits of the issues 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 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
     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 — 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


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       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. Therefore, we turn to the

lone issue raised in counsel’s Turner/Finley brief.

       “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    jurisdictional   in   nature[.]”

Commonwealth v. Brown, 143 A.3d 418, 420 (Pa. Super. 2016) (citation

omitted).     Thus, we shall concentrate our attention on whether Appellant

timely filed her PCRA petition and, if not, whether she 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 seek

allocatur from our Supreme Court, her judgment of sentence became final




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on November 12, 2013.5         Appellant’s PCRA petition was filed on July 24,

2015. Thus, the petition was patently untimely.6

     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

     (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).


5
  November 10, 2013, the thirtieth day after this Court affirmed Appellant’s
judgment of sentence, was a Sunday. The following day was a holiday.
Thus, Appellant had until November 12, 2013 to seek allocatur from our
Supreme Court.
6
   The fact that Appellant was sentenced in absentia does not impact the
timeliness requirement of the PCRA. See Commonwealth v. Pollard, 911
A.2d 1005, 1007 (Pa. Super. 2006).


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      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 she satisfied one of

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

applicability of a timeliness exception and the PCRA court properly held that

it lacked jurisdiction over her untimely petition.7   Accordingly, this appeal

lacks merit and we grant counsel’s petition to withdraw and affirm the order

dismissing Appellant’s petition.

      Petition to withdraw as counsel granted. Order affirmed.




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 6/23/2017




7
  As we conclude that the trial court lacked jurisdiction over Appellant’s
petition, we need not address the issue discussed in counsel’s
Turner/Finley brief.


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