J-S58008-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                           IN THE SUPERIOR COURT OF
                                                              PENNSYLVANIA
                            Appellee

                       v.

ERIC MOORE (AKA) RUSSELL JOHNSON,

                            Appellant                        No. 984 WDA 2013


                   Appeal from the PCRA Order May 23, 2013
                in the Court of Common Pleas of Fayette County
               Criminal Division at No.: CP-26-CR-0000636-2006


BEFORE: GANTMAN, P.J., BENDER, P.J.E., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                                       FILED OCTOBER 02, 2014

        Appellant, Eric Moore (AKA) Russell Johnson, appeals from the order

dismissing his first petition filed pursuant to the Post Conviction Relief Act

(PCRA), 42 Pa.C.S.A. §§ 9541-9546, as untimely.                 Counsel has filed a

petition to withdraw as counsel.1              We affirm the court’s order and grant

counsel’s petition.

____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
  Counsel filed a brief pursuant to Anders v. California, 386 U.S. 738
(1967), in support of his petition to withdraw. However, a Turner/Finley
no-merit letter is the appropriate filing in an appeal from a PCRA court’s
order.   See Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988);
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
Because an Anders brief provides greater protection to an appellant, this
Court may accept it in lieu of a Turner/Finley letter. See Commonwealth
v. Widgins, 29 A.3d 816, 817 n.2 (Pa. Super. 2011).
(Footnote Continued Next Page)
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      On February 4, 2006, the Commonwealth charged Appellant with

possession with intent to deliver a controlled substance, possession of a

controlled substance, possession of drug paraphernalia, and criminal

conspiracy.2    The charges related to Appellant’s involvement in a multi-

person drug operation.          On June 10, 2011, Appellant filed a motion to

dismiss on the basis of the Commonwealth’s alleged violation of his speedy

trial rights.   See Pa.R.Crim.P. 600.            The court denied the motion after a

hearing, on July 21, 2011. On July 29, 2011, Appellant pleaded guilty to the

charge of possession with intent to deliver a controlled substance pursuant

to a negotiated plea agreement.                  On August 2, 2011, the trial court

sentenced Appellant consistent with the agreement’s terms to a period of

incarceration of not less than three and one-half nor more than seven years,

to be served concurrently to a federal sentence he was then serving.

Appellant did not file a post-sentence motion or a direct appeal.

      On March 5, 2013, Appellant filed a pro se first PCRA petition and a

supplement to it on May 3, 2013. The court appointed counsel and, after a

hearing, denied Appellant’s petition as untimely on May 23, 2013. Appellant




                       _______________________
(Footnote Continued)


2
  35 P.S. §§ 780-113(a)(30), (16), and (32); and 18 Pa.C.S.A. 903(a),
respectively.




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timely appealed3 and appointed counsel filed a petition to withdraw.

Appellant has not filed a response.

       Before considering the issue counsel asserts Appellant wants to raise,

we first must consider whether counsel has complied with the requirements

that our courts have established in order for counsel to withdraw pursuant to

Turner and Finley. We have explained this procedure as follows:

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


3
  The court did not order Appellant to file a statement of errors complained
of on appeal, but it filed an opinion on July 1, 2013. See Pa.R.A.P. 1925.

       We observe that Appellant filed his notice of appeal pro se while
represented by counsel. However, based on our review of the confusing and
incomplete certified record and docket, it appears that the trial court
prothonotary’s office failed to forward a copy of Appellant’s pro se notice to
counsel pursuant to Criminal Rule 576(A)(4). See Pa.R.Crim.P. 576(A)(4)
(directing that, where represented defendant files document pro se, “[a]
copy of the time stamped document shall be forwarded to the defendant’s
attorney . . . within 10 days of receipt.”). Instead, counsel was not made
aware of the appeal until the PCRA court forwarded him a copy of its Rule
1925(a) opinion on July 1, 2013. (See PCRA Court Opinion, 7/01/13, at
unnumbered page 7). Therefore, he could not “have taken action within the
thirty day appeal period to eliminate the complication caused by the pro se
appeal, such as withdrawing it.” Commonwealth v. Cooper, 27 A.3d 994,
1006 (Pa. 2011).

      Accordingly, because of all of the procedural irregularities, we treat
Appellant’s notice of appeal as premature, rather than quashing it pursuant
to Commonwealth v. Jette, 23 A.3d 1032, 1035 (Pa. 2011) (applying the
rule announced in Commonwealth v. Ellis, 626 A.2d 1137, 1139 (Pa.
1993), that “there is no right to hybrid representation either at trial or on
appeal.”). See Cooper, supra at 1006 (concluding that dismissal of appeal
was not appropriate where “the prescribed procedure, designed to avoid the
confusing result of pro se filings by represented criminal defendants, was not
followed.”) (footnote omitted).



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      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.

                                     *     *   *

      . . . [W]here 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 without merit, the court will permit counsel to
      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).

      Instantly, counsel’s petition to withdraw and Anders brief indicate that

he examined the record, case law, and all relevant statutes; and that, after

examining whether any claims were available to Appellant, he explained why

he believes Appellant’s issue lacks merit.     (See Petition to Withdraw as

Counsel, 7/07/14, at unnumbered page 2; Anders Brief, at 3-8). Counsel

mailed copies of the Anders brief and petition to withdraw to Appellant, and

advised Appellant that he may proceed pro se or through privately-retained

counsel.   (See Petition to Withdraw as Counsel, 7/07/14, at unnumbered

page 4, Notice; id. at unnumbered page five, Certificate of Service; Anders


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Brief, at iv, Notice; id. at 16, Certificate of Service). Therefore, we conclude

counsel has substantially complied with the mandates of Turner and Finley;

thus, we proceed with our own review of Appellant’s claims.

      On appeal, the Anders brief raises one question for our review:

      I.




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      judgment becomes final at the conclusion of direct review by this
      Court or the United States Supreme Court, or at the expiration
      of the time for seeking such review.             42 Pa.C.S.[A.] §
      9545(b)(3).        The PCRA’s timeliness requirements are
      jurisdictional; therefore, a court may not address the merits of
      the issues raised if the petition was not timely filed.       The
      timeliness requirements apply to all PCRA petitions, regardless of
      the nature of the individual claims raised therein. The PCRA
      squarely places upon the petitioner the burden of proving an
      untimely petition fits within one of the three exceptions.

Commonwealth v. Jones, 54 A.3d 14, 16-17 (Pa. 2012) (case citations

and footnote omitted).

      In the case sub judice, Appellant’s judgment of sentence became final

on September 2, 2011, at the expiration of the time for him to seek review

of his judgment of sentence in this Court.            See Pa.R.A.P. 903(a);

Pa.R.Crim.P. 42 Pa.C.S.A. § 9545(b)(3). Therefore, he had one year from

that date to file a petition for collateral relief unless he pleaded and proved

that a timing exception applied.     See 42 Pa.C.S.A. § 9545(b)(1)(i)-(iii).

Hence, Appellant’s current petition, filed on March 5, 2013, is untimely on its

face unless he pleads and proves one of the statutory exceptions to the

time-bar.

      Section 9545 of the PCRA provides only three exceptions that allow for

review of an untimely PCRA petition:

            (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;




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             (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.

Id.

       A PCRA petition invoking one of these statutory exceptions must “be

filed within 60 days of the date the claim could have been presented.” 42

Pa.C.S.A. § 9545(b)(2).

       Here, Appellant attempts to argue the applicability of the after-

discovered facts exception to his claim of ineffective assistance of counsel.

See id. at §§ 9543, 9545(b)(1)(ii).            Specifically, Appellant argues that he

became aware in September 2012 that the court had not granted him credit

for time-served, and that counsel was ineffective in not challenging the

sentence by either a motion to modify or a direct appeal.4               (See PCRA

Petition, 3/05/13, at 3; see also id. at 7; Supplemental PCRA Petition,

5/03/13, at 3-4 ¶¶13, 14, 17; N.T. PCRA Hearing, 5/23/13, at 5, 10, 14,
____________________________________________


4
  Appellant also argues that counsel was ineffective for failing to appeal the
June 10, 2011 denial of his Rule 600 motion. (See PCRA Petition, 3/05/13,
at 3; see also id. at 7; Supplemental PCRA Petition, 5/03/13, at 3 ¶ 8; N.T.
PCRA Hearing, 5/23/13, at 4-5, 14, 16, 19-20). However, not only does he
not acknowledge the untimeliness of this issue, he does not argue the
applicability of an exception as applied to this claim. (See PCRA Petition,
3/05/13, at 7; Supplemental PCRA Petition, 5/03/13, at 3 ¶ 8). Therefore,
we conclude that the PCRA court properly denied this issue as time-barred.



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22). This argument fails to establish an exception to the statutory time bar,

or Appellant’s compliance with the sixty day filing rule.

      Even assuming Appellant was unaware until September 2012 that

counsel had not filed either a motion to modify his sentence or a direct

appeal on the basis that the court had not granted him credit for         time-

served, he was required to file his petition “within sixty days of the date the

claim could have been presented.”      42 Pa.C.S.A. § 9545(b)(2); see also

Commonwealth v. Geer, 936 A.2d 1075, 1078 (Pa. Super. 2007), appeal

denied, 948 A.2d 803 (Pa. 2008) (noting that “before a petitioner may

benefit from Subsection 9545(b)(1)(ii)’s exception, the petitioner must plead

he filed his PCRA petition within sixty days of the date it could have been

presented[.]”).   Therefore, even if we assume Appellant’s claim of belated

discovery, he still was required to file a petition and claim the benefit of the

after-discovered facts exception to the PCRA timeliness requirement by

November, 2012; however he failed to do so.         See § 9545(b)(2); Geer,

supra at 1078.

      Accordingly, because Appellant’s March 5, 2013 petition was untimely

on its face, and he has failed to plead and prove the applicability of a

timeliness exception, or compliance with the sixty day filing rule, we agree

with counsel that the PCRA court properly found that it lacked jurisdiction to

consider the petition’s merits, and that Appellant is not entitled to relief.




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See Jones, supra at 16-17; Rykard, supra at 1183; Wrecks, supra at

721.

       Order affirmed. Petition to withdraw granted.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/2/2014




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