J-S44021-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                            Appellee

                       v.

JONATHAN W. BUTTERFIELD

                            Appellant              No. 1959 WDA 2013


                Appeal from the PCRA Order November 18, 2013
               In the Court of Common Pleas of Crawford County
              Criminal Division at No(s): CP-20-CR-0000848-2008


BEFORE: BENDER, P.J.E., LAZARUS, J., and OTT, J.

MEMORANDUM BY LAZARUS, J.:                     FILED SEPTEMBER 09, 2014

       Jonathan Butterfield appeals from the order entered in the Court of

Common Pleas of Crawford County dismissing his petition filed under the

Post Conviction Relief Act, 42 Pa.C.S. §§ 9541-9546 (“PCRA”). Counsel for

Butterfield has filed with this Court an Anders1 brief and a petition to



____________________________________________


1
  See Anders v. California, 386 U.S. 738 (1967); Commonwealth v.
McClendon, 434 A.2d 1185 (Pa. 1981); see also Commonwealth v.
Santiago, 978 A.2d 349 (Pa. 2009). The proper mechanisim for withdraw
on appeal from the denial of a PCRA petition is a Turner/Finley no-merit
letter. See Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988);
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988). However,
because an Anders brief provides greater protection to a criminal appellant,
we may accept an Anders brief in lieu of a Turner/Finley no-merit letter.
See Commonwealth v. Widgens, 29 A3d 816, 817 n.2 (Pa. Super. 2011);
Commonwealth v. Fusselman, 866 A.2d 1109, 1111 n.3 (Pa Super.
2004).
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withdraw as counsel. After our review, we affirm the PCRA court’s order and

grant counsel’s petition to withdraw.

        Following a negotiated plea, Butterfield was convicted of corruption of

the morals of a minor.2           The charges arose out of Butterfield’s sexual

relationship with a minor during June and July of 2008.        The minor, S.K.,

was fifteen years old at the time of the crime.

        On January 7, 2009, the court sentenced Butterfield to 24 months’

probation. Butterfield did not file post-sentence motions, nor did he file a

direct appeal.    Butterfield violated the terms of his probation and, on July

29, 2011, the court resentenced him to a term of 2½ to 5 years’

incarceration. Butterfield did not file post-sentence motions, nor did he file a

direct appeal.

        On July 29, 2013, Butterfield filed a pro se PCRA petition. The court

appointed counsel, who filed an amended petition. The PCRA court filed a

notice of intent to dismiss, see Pa.R.Crim.P. 907, concluding that the

petition was untimely and did not meet any of the three enumerated

exceptions to the time requirement provided by 42 Pa.C.S. § 9545(b).

Butterfield responded to the notice of intent to dismiss, and, thereafter, the

PCRA court dismissed the petition without a hearing.         Butterfield filed an

appeal, and the PCRA court issued an order pursuant to Pa.R.A.P. 1925(b),


____________________________________________


2
    18 Pa.C.S. § 6301(a)(1).



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requiring Butterfield to file a Concise Statement of Errors Complained of on

Appeal. Butterfield complied with this order, and the PCRA court issued a

Rule 1925(a) opinion.

        On appeal, Butterfield raises the following claims:

        1. The trial court erred by dismissing his amended PCRA petition
           without an evidentiary hearing because the “newly discovered
           evidence” was discovered on or about August 23, 2012;

        2. The trial court erred by finding that appellant did not meet
           one of the exceptions pursuant to 42 Pa.C.S § 9545(b)(1)(i)-
           (iii) regarding his filing of his PCRA petition;

        3. Whether an evidentiary hearing was necessary to elicit sworn
           testimony by Attorney Rowden, Attorney Pineo, and Appellant
           regarding those matters raised in the amended PCRA petition
           prepared by the undersigned, specifically, that the trial court
           needed to hear testimony regarding discussions he had with
           Attorney Rowden and Attorney Pineo concerning whether
           corruption of minors requires a predicate offense, and when
           these conversations occurred.

        Our standard of review regarding a PCRA court’s order is whether the

determination of the PCRA court is supported by the evidence of record and

is free of legal error. The PCRA court’s findings will not be disturbed unless

there    is   no   support   for   those   findings   in   the   certified   record.

Commonwealth v. Garcia, 23 A.3d 1059, 1061 (Pa. Super. 2011) (citing

Commonwealth v. Smith, 995 A.2d 1143, 1149 (Pa. 2010)). Because this

is an appeal from a PCRA order, we will treat PCRA counsel’s Anders brief

as a Turner/Finley no-merit letter. See supra n.1.

        First, we determine whether PCRA counsel has complied with the

technical requirements of Turner/Finley:


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       Counsel petitioning to withdraw from PCRA representation must
       proceeding under [Turner/Finley and] . . . must review the
       case zealously. Turner/Finley counsel must then submit a
       “nomerit” 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 without merit, the court will permit counsel to
       withdraw and deny relief.

Commonwealth v. Doty, 48 A.3d 451, 454 (Pa. Super. 2012) (citations

omitted).      If counsel’s petition and no-merit letter satisfy Turner/Finley,

we then conduct an independent review of the merits of the case.               If this

Court agrees with counsel that the claims are meritless, we will permit

counsel to withdraw and deny relief. Commonwealth v. Wrecks, 931 A.2d

717, 721 (Pa. Super. 2007) (citing Commonwealth v. Mosteller, 633 A.2d

615, 617 (Pa. Super. 1993)).

       Here,    Butterfield’s    counsel       has   complied   with   the   technical

requirements of Turner/Finley. In his brief, counsel sets forth the claims

that Butterfield sought to raise before this Court.               Anders Brief for

Butterfield, at 11.3 Counsel also sets forth the procedural and factual
____________________________________________


3
  We note that Butterfield’s claims are set forth in the Argument section of
the brief. See Anders Brief, at 11.



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background of the case, and an explanation as to why the record does not

support the claims raised by Butterfield in his PCRA petition.      Specifically,

counsel concludes Butterfield’s petition is untimely on its face.

      A PCRA petition, including a second or subsequent petition, must be

filed within one year of the date the underlying judgment becomes final.      42

Pa.C.S. § 9545(b)(1); Commonwealth v. Bretz, 830 A.2d 1273 (Pa.

Super. 2003); Commonwealth v. Vega, 754 A.2d 714 (Pa. Super. 2000).

A judgment is deemed 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

review.”   42 Pa.C.S. § 9545(b)(3).       Here, Butterfield did not file post-

sentence motions or a direct appeal. Therefore, his judgment became final

30 days after July 29, 2011, on August 29, 2011. Butterfield had one year,

until August 29, 2012, to file his petition. Since his petition was filed on July

29, 2013, it is untimely on its face.

      Butterfield claims that the newly discovered evidence exception to the

one-year time bar is applicable. See 42 Pa.C.S. § 9545(b)(1)(ii) (facts upon

which claim is predicated were unknown to petitioner and could not have

been ascertained by exercise of due diligence).         Specifically, Butterfield

states that he received a letter from plea and sentencing counsel, dated

August 23, 2012, which sets forth “evidence” of a legal precept that a

corruption of minors conviction requires a predicate offense. Not only is this

an incorrect statement of law, see Commonwealth v. Decker, 698 A.2d

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99, 100 (Pa. Super. 1997) (no requirement of any underlying criminal

activity as basis for corruption of minors charge; statute states “by any act,”

not “by any criminal act”), but Butterfield’s attempt to fall within the

exception does not comply with the sixty-day requirement under 42 Pa.C.S.

§ 9545(b)(2). In order to meet that requirement, his petition should have

been filed by October 22, 2012.     Butterfield filed his petition on July 29,

2013, over nine months past that date. See Commonwealth v. Gamboa-

Taylor, 753 A.2d 780, 783 (Pa. 2000); Commonwealth v. Williamson, 21

A.3d 236 (Pa. Super. 2011). Thus, counsel concluded that Butterfield was

not eligible for PCRA relief.

      We agree with counsel’s assessment that Butterfield’s claims are

meritless.   Furthermore, our independent review of the certified record has

uncovered no additional meritorious issues.       Thus, we affirm the PCRA

court’s order and we grant counsel’s petition to withdraw.

      Order affirmed. Petition to withdraw granted.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/9/2014




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