J-S37033-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA              :      IN THE SUPERIOR COURT OF
                                          :            PENNSYLVANIA
             v.                           :
                                          :
PAUL JOHN KASPER, JR.,                    :
                                          :
                   Appellant              :          No. 2042 MDA 2016

           Appeal from the PCRA Order entered November 30, 2016
               in the Court of Common Pleas of Adams County,
             Criminal Division, No(s): CP-01-CR-0000462-2010;
                           CP-01-CR-0000969-2010

BEFORE: STABILE, MOULTON and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.:                          FILED JUNE 16, 2017

        Paul John Kasper, Jr. (“Kasper”), appeals from the Order denying his

first Amended Petition filed pursuant to the Post Conviction Relief Act

(“PCRA”).1 Additionally, Kasper’s court-appointed PCRA counsel, Thomas R.

Nell, Esquire (“Attorney Nell”), has filed a Petition to Withdraw from

representation.    We grant Attorney Nell’s Petition, and affirm the PCRA

court’s Order.

        In June 2011, a jury found Kasper guilty of various sexual offenses,

stemming from his repeated sexual assaults of a fourteen-year-old girl. On

September 29, 2011, the trial court sentenced Kasper to serve an aggregate




1
    See 42 Pa.C.S.A. §§ 9541-9546.
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prison term of 15-30 years.2      In August 2012, this Court affirmed the

judgment of sentence. See Commonwealth v. Kasp[e]r, 53 A.3d 939 (Pa.

Super. 2012) (unpublished memorandum). Kasper did not seek allowance

of appeal with the Supreme Court of Pennsylvania.

     Kasper filed a pro se PCRA Petition on October 19, 2015, challenging

the legality of his mandatory minimum sentence in light of the decision of

the United States Supreme Court in Alleyne v. United States, 133 S. Ct.

2151 (2013).3   Following a procedural history that is not relevant to this

appeal, Kasper filed the instant first Amended PCRA Petition, through

Attorney Nell, on July 22, 2016.4    On October 20, 2016, the PCRA court

conducted a pre-hearing conference concerning Kasper’s PCRA Petition. On


2
  In imposing Kasper’s sentence, the trial court applied the mandatory
minimum sentencing provision at 42 Pa.C.S.A. § 9718 (“sentences for
offenses against infant persons”). Section 9718 provides, inter alia, that its
provisions “shall not be an element of the crime,” and that the applicability
“shall be determined at sentencing,” with factual matters being resolved by
the sentencing court “by a preponderance of the evidence.” Id. § 9718(c).
3
  In Alleyne, the Supreme Court held that “any fact that increases the
mandatory minimum is an ‘element’ that must be submitted to the jury” and
found beyond a reasonable doubt. Alleyne, 133 S. Ct. at 2155. The
Supreme Court reasoned that a Sixth Amendment violation occurs where
these sentence-determinative facts are not submitted to a jury. Id. at
2156. Accordingly, Alleyne rendered unconstitutional various Pennsylvania
sentencing statutes, including 42 Pa.C.S.A. § 9718, that allow a judge to
increase a defendant’s sentence based on a preponderance of the evidence
standard. See Commonwealth v. Wolfe, 106 A.3d 800, 806 (Pa. Super.
2014) (ruling that Alleyne rendered section 9718 unconstitutional in its
entirety).
4
  Though the Amended PCRA Petition is docketed on the PCRA court’s
docket, it is not contained within the certified record.


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October 31, 2016, the PCRA court issued a Pennsylvania Rule of Criminal

Procedure 907 Notice of Intent to Dismiss the Petition without an evidentiary

hearing (hereinafter, the “Notice to Dismiss”),5 which included a thorough

explanation of the court’s reasons for determining that Kasper was not

entitled to collateral relief. By an Order entered on November 30, 2016, the

PCRA court denied Kasper’s PCRA Petition.

      Kasper, through Attorney Nell, timely filed a Notice of Appeal.       In

response, the PCRA court ordered Kasper to file a Pa.R.A.P. 1925(b) Concise

Statement of errors complained of on appeal.      Attorney Nell timely filed a

Concise Statement on Kasper’s behalf, presenting the following issue:

      Did the PCRA court err[] in denying Kasper’s PCRA claim, when
      Kasper filed a PCRA [P]etition after finding out that the Supreme
      Court in Alleyne v. U.S., had stated that mandatory minimum
      sentences may be unconstitutional, where Kasper had not
      received notice [that] his [direct] appeal to the Superior Court
      had been denied, and filed his PCRA [P]etition after finding out
      that he may have redress due to being sentenced by a judge
      pursuant to [a] mandatory [minimum] sentencing [statute]?

Rule 1925(b) Concise Statement, 1/5/17, at 1. Thereafter, the PCRA court

issued a Pa.R.A.P. 1925(a) Opinion, relying upon the reasoning advanced in




5
  The PCRA court explained in the Notice to Dismiss that “[i]n his [A]mended
PCRA [P]etition, [Kasper] alleges that (1) ineffective assistance of counsel so
undermined the truth-determining process that no reliable adjudication of
guilt or innocence could have taken place[;] and [] (2) a constitutional
violation which would require the granting of federal habeas corpus relief to
a state prisoner occurred.” Notice to Dismiss, 10/31/16, at 2.


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the Notice to Dismiss. Attorney Nell then filed a Turner/Finley6 no-merit

letter, and a separate Petition to Withdraw as counsel. Kasper did not file a

pro se response or retain private counsel.

     Prior to addressing Kasper’s claims on appeal, we must address

Attorney Nell’s Petition to Withdraw as counsel. Pursuant to Turner/Finley,

independent review of the record by competent counsel is required before

withdrawal on collateral appeal is permitted. See Commonwealth v. Pitts,

981 A.2d 875, 876 n.1 (Pa. 2009). In Pitts, our Supreme Court explained

that such independent review requires proof of

     1. A “no-merit” letter by PCRA counsel detailing the nature and
        extent of his review;

     2. The “no-merit” letter by PCRA counsel listing each issue the
        petitioner wished to have reviewed;

     3. The PCRA counsel’s “explanation,” in the “no-merit” letter, of
        why the petitioner’s issues were meritless;

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

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

Id. (citation and brackets omitted).         Further, our Court has held that the

Supreme    Court   in   Pitts   did    not    expressly   overrule   the   additional

requirement imposed by this Court in Commonwealth v. Friend, 896 A.2d

607, 615 (Pa. Super. 2006), stating that


6
  See 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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      PCRA counsel seeking to withdraw [must] contemporaneously
      forward to the petitioner a copy of the application to withdraw
      that includes (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.

Commonwealth v. Widgins, 29 A.3d 816, 818 (Pa. Super. 2011).

      Here, in the Turner/Finley no-merit letter, Attorney Nell described

the extent of his review, identified the issue that Kasper sought to raise, and

briefly explained why the issue lacks merit.       In addition, Attorney Nell

provided Kasper with notice of counsel’s intention to seek permission to

withdraw from representation, a copy of the no-merit letter and Petition to

Withdraw, and advised Kasper of his rights in lieu of representation. Thus,

we conclude that Attorney Nell has substantially complied with the

requirements necessary to withdraw as counsel.       See Commonwealth v.

Karanicolas, 836 A.2d 940, 947 (Pa. Super. 2003) (holding that substantial

compliance with the requirements to withdraw as counsel will satisfy the

Turner/Finley criteria).   We now independently review Kasper’s claims to

ascertain whether they entitle him to relief.

      “In reviewing the denial of PCRA relief, we examine whether the PCRA

court’s determination is supported by the record and free of legal error.”

Commonwealth v. Miller, 102 A.3d 988, 992 (Pa. Super. 2014) (citation

omitted). “The scope of review is limited to the findings of the PCRA court




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and the evidence of record, viewed in the light most favorable to the

prevailing party at the trial level.” Id. (citation omitted).

      Under the PCRA, any PCRA petition, “including a second or subsequent

petition, shall be filed within one year of the date the judgment becomes

final[.]” 42 Pa.C.S.A. § 9545(b)(1). A judgment of sentence 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.” Id. § 9545(b)(3). The

PCRA’s timeliness requirements are jurisdictional in nature, and a court may

not address the merits of the issues raised if the PCRA petition was not

timely filed.   Commonwealth v. Albrecht, 994 A.2d 1091, 1093 (Pa.

2010).

      Here, Kasper’s judgment of sentence became final on August 3, 2012.

Accordingly, his instant PCRA Petition is facially untimely. 7    However,

Pennsylvania courts may consider an untimely petition if the appellant can

explicitly plead and prove one of three exceptions set forth at 42 Pa.C.S.A.

§ 9545(b)(1)(i)–(iii).   Any PCRA petition invoking one of these exceptions

“shall be filed within 60 days of the date the claim could have been

presented.” Id. § 9545(b); Albrecht, 994 A.2d at 1094.




7
  Both Kasper’s October 19, 2015 pro se PCRA Petition, and the first
Amended PCRA Petition, are facially untimely.


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      Attorney Nell states in the no-merit letter that Kasper wishes to

challenge the legality of his mandatory minimum sentence under Alleyne

and its progeny. See No-Merit letter at 1, 3.8

      Here, presuming that Kasper had invoked Alleyne under the newly-

recognized   constitutional   right   timeliness   exception   (at   42   Pa.C.S.A.

§ 9545(b)(1)(iii)), he is not entitled to relief.      Initially, Kasper filed his

October 19, 2015 pro se PCRA Petition well over sixty days after June 17,

2013, the date that Alleyne was decided. See 42 Pa.C.S.A. § 9545(b)(2)

(providing that any PCRA petition invoking one of these exceptions “shall be

filed within 60 days of the date the claim could have been presented.”); see

also Commonwealth v. Boyd, 923 A.2d 513, 517 (Pa. Super. 2007)

(stating that “[w]ith regard to [a newly]-recognized constitutional right, this

Court has held that the sixty-day period begins to run upon the date of the

underlying judicial decision.”).

      Further, the rule established in Alleyne does not apply retroactively

where, as here, the judgment of sentence is final. See Commonwealth v.

Washington, 142 A.3d 810, 820 (Pa. 2016) (holding that “Alleyne does

not apply retroactively to cases pending on collateral review.”); see also

Miller, 102 A.3d at 995 (stating that while Alleyne claims go to the legality

of the sentence, a court cannot review a legality claim where it does not

8
   Attorney Nell does not set forth in the brief no-merit letter a distinct
argument section, or statement of questions involved section, related to the
issues for appeal that Kasper preserved in his Rule 1925(b) Concise
Statement.


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have jurisdiction).   Accordingly, Alleyne is unavailing to Kasper, and the

PCRA court properly denied Kasper’s first Amended PCRA Petition, as the

court lacked jurisdiction to address it.9

      Moreover, our independent review of the record has revealed no

meritorious claims that Kasper could have raised on appeal, and we agree

with Attorney Nell that this appeal lacks merit. Accordingly, we affirm the

PCRA court’s Order denying Kasper’s first Amended PCRA Petition and grant

Attorney Nell’s Petition to Withdraw.

       Order affirmed. Petition to Withdraw granted.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 6/16/2017




9
  To the extent that Kasper alleged in his PCRA Petition a claim of trial
counsel’s ineffectiveness, it is well established that “a claim for ineffective
assistance of counsel does not save an otherwise untimely petition for
review on the merits.” Commonwealth v. Gamboa-Taylor, 753 A.2d 780,
785 (Pa. 2000) (citing Commonwealth v. Lark, 746 A.2d 585, 589-90 (Pa.
2000) (stating that couching an argument in terms of ineffectiveness cannot
save a petition that does not fall into an exception to the jurisdictional time
bar)); see also Notice to Dismiss, 10/31/16, at 4-8 (addressing and
rejecting Kasper’s challenge to trial counsel’s effectiveness).


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