J-S55024-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                     IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

JASON EVANS,

                            Appellant                  No. 368 WDA 2015


             Appeal from the PCRA Order Entered February 5, 2015
                  In the Court of Common Pleas of Erie County
              Criminal Division at No(s): CP-25-CR-0003479-2012


BEFORE: FORD ELLIOTT, P.J.E., BENDER, P.J.E., and STRASSBURGER, J.*

MEMORANDUM BY BENDER, P.J.E.:                       FILED OCTOBER 14, 2015

        Appellant, Jason Evans, appeals from the February 5, 2015 order

denying, as untimely, his petition for relief under the Post Conviction Relief

Act (PCRA), 42 Pa.C.S. §§ 9541-9546.           Additionally, Appellant’s counsel,

William J. Hathaway, Esq., has filed a petition to withdraw from representing

Appellant, along with a Turner/Finley1 no-merit letter.            After careful

review, we affirm the PCRA court’s order denying Appellant’s petition and

grant Attorney Hathaway’s petition to withdraw.

        On March 25, 2013, Appellant pled guilty to persons not to possess a

firearm, 18 Pa.C.S. § 6105, graded as a felony of the second degree. See
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*
    Retired Senior Judge assigned to the Superior Court.
1
  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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18 Pa.C.S. § 6105(a.1)(1). On May 23, 2011, the court imposed a sentence

of five to ten years’ incarceration.    Appellant filed a timely post-sentence

motion seeking credit for time served, which the court granted on May 30,

2013. Appellant did not file a direct appeal from his judgment of sentence.

      On October 23, 2014, Appellant filed a pro se PCRA petition, asserting

that the trial court imposed a mandatory minimum sentence that is illegal

pursuant to Alleyne v. United States, 133 S.Ct. 2151 (2013), and this

Court’s en banc decision in Commonwealth v. Newman, 999 A.3d 86 (Pa.

2014).   See PCRA Petition, 10/23/14, at 4.        The PCRA court appointed

Attorney Hathaway to represent Appellant.           On November 26, 2014,

Attorney Hathaway filed an amended petition on Appellant’s behalf,

asserting that Appellant did receive a mandatory minimum sentence that

“falls squarely within the parameters of … the new rule of law set forth by

the Alleyne Court thereby compelling the striking of the judgment of

sentence….” Amended PCRA Petition, 11/26/14, at 2 (unpaginated).

      On December 23, 2014, the PCRA court issued a Pa.R.Crim.P. 907

notice of its intent to dismiss Appellant’s petition. Therein, the court stated:

      As the Pre-Sentence Report (and plea sheet) bears out and the
      guidelines confirm, there was no mandatory sentence applicable
      for the [trial] [c]ourt to impose.      [Appellant] was given a
      sentence from the standard range of the sentencing guidelines.
      Therefore, [Appellant’s] PCRA petition is clearly untimely as no
      exception exists per [42] Pa.C.S.A. [] § 9545([b])(1)(i), (ii), or
      (iii), and this Court subsequently has no jurisdiction to grant any
      relief.




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Rule 907 Notice, 12/23/14. Appellant did not file a response to the court’s

Rule 907 notice and, on February 5, 2015, the court issued a final order

denying his PCRA petition.

       Appellant filed a timely notice of appeal.   On March 12, 2015, the

PCRA court issued a Pa.R.A.P. 1925(a) opinion (despite not having ordered

Appellant to file a Rule 1925(b) concise statement), indicating that its

rationale for denying Appellant’s petition was adequately set forth in its Rule

907 notice.

       Attorney Hathaway subsequently filed with this Court a petition to

withdraw and Turner/Finley “no-merit” letter.       In Turner, our Supreme

Court “set forth the appropriate procedures for the withdrawal of court-

appointed counsel in collateral attacks on criminal convictions[.]”   Turner,

544 A.2d at 927.        The traditional requirements for proper withdrawal of

PCRA counsel, originally set forth in Finley, were updated by this Court in

Commonwealth v. Friend, 896 A.2d 607 (Pa. Super. 2006), abrogated by

Commonwealth v. Pitts, 981 A.2d 875 (Pa. 2009),2 which provides:

       1) As part of an application to withdraw as counsel, PCRA
       counsel must attach to the application a “no-merit” letter[;]

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2
  In Pitts, our Supreme Court abrogated Friend “[t]o the extent Friend
stands for the proposition that an appellate court may sua sponte review the
sufficiency of a no-merit letter when the defendant has not raised such
issue.” Pitts, 981 A.2d at 879. In this case, Attorney Hathaway filed his
petition to withdraw and no-merit letter with this Court and, thus, our
Supreme Court’s holding in Pitts is inapplicable.



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      2) PCRA counsel must, in the “no-merit” letter, list each claim
      the petitioner wishes to have reviewed, and detail the nature
      and extent of counsel's review of the merits of each of those
      claims[;]

      3) PCRA counsel must set forth in the “no-merit” letter an
      explanation of why the petitioner's issues are meritless[;]

      4) PCRA counsel must contemporaneously forward to the
      petitioner a copy of the application to withdraw, which must
      include (i) a copy of both the “no-merit” letter, and (ii) a
      statement advising the PCRA petitioner that, in the event the
      trial court grants the application of counsel to withdraw, the
      petitioner has the right to proceed pro se, or with the assistance
      of privately retained counsel;

      5) the court must conduct its own independent review of the
      record in the light of the PCRA petition and the issues set forth
      therein, as well as of the contents of the petition of PCRA
      counsel to withdraw; and

      6) the court must agree with counsel that the petition is
      meritless.

Friend, 896 A.2d at 615 (footnote omitted).

      We have reviewed Attorney Hathaway’s petition to withdraw and no-

merit letter.   Counsel’s no-merit letter sets forth the claim that Appellant

“wishes to have reviewed, and detail[s] the nature and extent of counsel’s

review of the merits of” that claim.    Friend, 896 A.2d at 615.     Attorney

Hathaway concludes that Appellant’s challenge to the legality of his sentence

is meritless, as “there is no factual basis” to support Appellant’s claim that

he was sentenced to a mandatory minimum term of incarceration. No-Merit

Letter, 7/6/15, at 2 (unpaginated). Attorney Hathaway states that he has

forwarded to Appellant a copy of his no-merit letter and application to

withdraw.   Counsel also attached a letter addressed to Appellant advising



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him that, if this Court grants counsel’s petition to withdraw, Appellant may

proceed pro se or with the assistance of privately retained counsel. Id. at 2

(unpaginated).    Accordingly, we conclude that Attorney Hathaway has

satisfied prongs one through four of the above-stated test.

      Next, this Court must conduct our own independent review of the

record in light of the issues presented in Appellant’s PCRA petition.    Our

standard of review regarding an order denying a 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. Ragan, 923 A.2d

1169, 1170 (Pa. 2007).      The PCRA court’s findings will not be disturbed

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

Commonwealth v. Carr, 768 A.2d 1164, 1166 (Pa. Super. 2001).

      We must begin by addressing the timeliness of Appellant’s petition,

because the PCRA time limitations implicate our jurisdiction and may not be

altered or disregarded in order to address the merits of a petition.     See

Commonwealth v. Bennett, 930 A.2d 1264, 1267 (Pa. 2007). Under the

PCRA, any petition for post-conviction relief, including a second or

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

sentence becomes final, unless one of the exceptions set forth in 42 Pa.C.S.

§ 9545(b)(1)(i)-(iii) applies. That section states, in relevant part:

      (b) Time for filing petition.--

         (1) Any petition under this subchapter, including a second
         or subsequent petition, shall be filed within one year of the



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         date the judgment becomes final, unless the petition
         alleges and the petitioner proves that:

            (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. § 9545(b)(1)(i)-(iii).   Any petition attempting to invoke one of

these exceptions “shall be filed within 60 days of the date the claim could

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

      Here, Appellant’s judgment of sentence became final on June 29,

2013, thirty days after the trial court ruled on his post-sentence motion.

See Pa.R.Crim.P. 720(A)(2)(a) (stating that where a defendant files a timely

post-sentence motion, “the notice of appeal shall be filed: (a) within 30 days

of the entry of the order deciding the motion”); 42 Pa.C.S. § 9545(b)(3)

(directing that a judgment of sentence becomes final at the conclusion of

direct review or the expiration of the time for seeking the review); Pa.R.A.P.

903(a) (notice of appeal to Superior Court must be filed within 30 days after

the entry of the order from which the appeal is taken). Thus, Appellant had

until June 29, 2014, to file a timely PCRA petition, making his instant

petition patently untimely. For this Court to have jurisdiction to review the


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merits of his legality of sentencing claim, Appellant must prove that he

meets one of the exceptions to the timeliness requirements set forth in 42

Pa.C.S. § 9545(b).    See Commonwealth v. Fowler, 930 A.2d 586, 592

(2007) (“[A]lthough legality of sentence is always subject to review within

the PCRA, claims must still first satisfy the PCRA's time limits or one of the

exceptions thereto.”).

      Appellant’s contention that his sentence is illegal pursuant to Alleyne

does not satisfy any of the above-stated exceptions, namely the “new

constitutional right” exception set forth in section 9545(b)(1)(iii).       In

Alleyne, the United States Supreme Court held that “facts that increase

mandatory minimum sentences must be submitted to the jury” and found

beyond a reasonable doubt.       Alleyne, 131 S.Ct. at 2163.       This Court

recently held that a PCRA petitioner may not rely on Alleyne to satisfy the

timeliness exception of section 9545(b)(1)(iii), stating:

      Even assuming that Alleyne did announce a new constitutional
      right, neither our Supreme Court, nor the United States
      Supreme Court has held that Alleyne is to be applied
      retroactively to cases in which the judgment of sentence had
      become final. This is fatal to Appellant's argument regarding the
      PCRA time-bar. This Court has recognized that a new rule of
      constitutional law is applied retroactively to cases on collateral
      review only if the United States Supreme Court or our Supreme
      Court specifically holds it to be retroactively applicable to those
      cases. Commonwealth v. Phillips, 31 A.3d 317, 320 (Pa.
      Super. 2011), appeal denied, 615 Pa. 784, 42 A.3d 1059 (2012),
      citing Tyler v. Cain, 533 U.S. 656, 663, 121 S.Ct. 2478, 150
      L.Ed.2d 632 (2001); see also, e.g., Commonwealth v. Taylor,
      933 A.2d 1035, 1042 (Pa. Super. 2007) (stating, “for purposes
      of subsection (iii), the language ‘has been held by that court to
      apply retroactively’ means the court announcing the rule must


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       have also ruled on the retroactivity of the new constitutional
       right, before the petitioner can assert retroactive application of
       the right in a PCRA petition[ ]”), appeal denied, 597 Pa. 715,
       951 A.2d 1163 (2008). Therefore, Appellant has failed to satisfy
       the new constitutional right exception to the time-bar.

Commonwealth v. Miller, 102 A.3d 988, 995 (Pa. Super. 2014).                Since

Miller, neither our Supreme Court nor the United States Supreme Court has

held that Alleyne applies retroactively.         As such, Appellant cannot satisfy

the exception set forth in section 9545(b)(1)(iii). We also ascertain no way

in which his legality of sentencing issue could satisfy either of the exceptions

set forth in section 9545(b)(1)(i) or (ii).

       Accordingly, we agree with Attorney Hathaway that the legality of

sentencing issue asserted in Appellant’s petition is meritless, albeit for a

different reason than that presented by counsel in his no-merit letter.3

Thus, we affirm the PCRA court’s denial of Appellant’s untimely petition, and

grant counsel’s petition to withdraw.

       Order affirm. Petition to withdraw granted.




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3
  Attorney Hathaway concludes that Appellant’s claim that Alleyne renders
his sentence illegal is meritless because no mandatory minimum sentence
was imposed in this case. See No-Merit Letter, 7/6/15, at 2 (unpaginated).
Because Appellant’s legality of sentencing issue does not satisfy a timeliness
exception, we do not have jurisdiction to assess the question of whether a
mandatory minimum sentence was imposed, or whether any such sentence
is illegal under Alleyne.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/14/2015




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