J-S08040-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA            :   IN THE SUPERIOR COURT OF
                                        :        PENNSYLVANIA
                  Appellee              :
                                        :
            v.                          :
                                        :
CORY ROGERS                             :
                                        :
                  Appellant             :          No. 1187 WDA 2016

                 Appeal from the PCRA Order July 13, 2016
                In the Court of Common Pleas of Erie County
            Criminal Division at No(s): CP-25-CR-0001584-2001


BEFORE:    GANTMAN, P.J., FORD ELLIOTT, P.J.E., and SOLANO, J.

MEMORANDUM BY GANTMAN, P.J.:                       FILED FEBRUARY 9, 2017

      Appellant, Cory Rogers, appeals from the order entered in the Erie

County Court of Common Pleas, denying his petition for collateral relief, per

the Post Conviction Relief Act (“PCRA”), at 42 Pa.C.S.A. §§ 9541-9546. We

affirm and grant counsel’s petition to withdraw.

      From 1997 to 2001, while victim was between the ages of 8 and 12

and Appellant was between the ages of 25 and 29, Appellant on several

occasions performed various sexual acts on victim. On September 7, 2001,

Appellant pled guilty to one count of aggravated indecent assault, two

counts of involuntary deviate sexual intercourse, four counts of indecent

assault, four counts of indecent exposure, and five counts of corruption of

minors. The court sentenced Appellant in absentia on October 17, 2001, to

an aggregate term of 20 to 40 years’ imprisonment. On October 24, 2001,
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Appellant filed a post-sentence motion for a sentence reduction, which the

court denied on the following day.             This Court affirmed the judgment of

sentence on July 7, 2002. Appellant did not seek further review.

       Appellant filed his current PCRA petition on March 4, 2016. The court

appointed counsel on March 24, 2016, who filed a petition to withdraw and

an accompanying “no merit” letter on April 15, 2016.1 On April 27, 2016,

the court denied counsel’s petition to withdraw.                The court issued

Pa.R.Crim.P. 907 notice on June 16, 2016.             On June 30, 2016, Appellant

filed a pro se response to the court’s Rule 907 notice, objecting to counsel’s

petition to withdraw and requesting a sentence reduction. On July 13, 2016,

the court denied Appellant relief and dismissed his PCRA petition. Appellant

timely filed a counseled notice of appeal on August 10, 2016.           The court

ordered Appellant on August 18, 2016, to file a Pa.R.A.P. 1925(b)

statement. On September 9, 2016, counsel filed a statement of intent to file

a “no merit” brief on appeal, per Rule 1925(c)(4).           Counsel subsequently

filed with this Court a petition to withdraw representation and a brief,

designated as a brief under Anders v. California, 386 U.S. 738, 87 S.Ct.

1396, 18 L.Ed.2d 493 (1967).2

____________________________________________


1
 See Commonwealth v. Turner, 518 Pa. 491, 544 A.2d 927 (1988) and
Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc).
2
   In the context of a PCRA petition and request to withdraw, the appropriate
filing is a “no-merit” letter/brief. See Turner, supra; Finley, supra. But
(Footnote Continued Next Page)


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      As a prefatory matter, we address whether counsel has complied with

the requirements of Turner/Finley. “Before an attorney can be permitted

to withdraw from representing a petitioner under the PCRA, Pennsylvania

law requires counsel to file and obtain approval of a ‘no-merit’ letter

pursuant to the mandates of Turner/Finley.”                      Commonwealth v.

Karanicolas, 836 A.2d 940, 947 (Pa.Super. 2003) (emphasis in original).

          [C]ounsel must…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 the petitioner wants to have reviewed,
          explaining why and how those issues lack merit, and
          requesting permission to withdraw.

Commonwealth v. Wrecks, 931 A.2d 717, 721 (Pa.Super. 2007). Counsel

must also send to the petitioner a copy of the “no-merit” letter or brief and

petition to withdraw and advise the petitioner of his right to proceed pro se

or with new counsel. Id.

      Instantly,       counsel     filed   a     Turner/Finley    brief   on   appeal

(notwithstanding its designation as an Anders brief) and a petition to

withdraw as counsel. Counsel listed the issues Appellant wished to raise and

explained why the issues merit no relief. Counsel has indicated that he sent
                       _______________________
(Footnote Continued)

see Commonwealth v. Fusselman, 866 A.2d 1109, 1111 n.3 (Pa.Super.
2004), appeal denied, 584 Pa. 691, 882 A.2d 477 (2005) (stating Superior
Court can accept Anders brief in lieu of Turner/Finley letter, where PCRA
counsel seeks to withdraw on PCRA appeal). Instantly, counsel designated
the brief on appeal as an Anders brief. While the brief has some attributes
of an Anders brief, it is largely a Turner/Finley brief and will be treated as
one.



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Appellant a copy of the brief, a copy of the petition to withdraw, and a letter

advising Appellant of his right to proceed pro se or with private counsel.

Thus,    counsel    has   substantially    complied   with   the   Turner/Finley

requirements.      See Karanicolas, supra.       Accordingly, we proceed to an

independent evaluation. See Turner, supra at 494-95, 544 A.2d at 928-29

(stating appellate court must conduct independent analysis and agree with

counsel that appeal is frivolous).

        Appellant raises one issue for our review:

           [WHETHER THE TRIAL COURT PROPERLY DISMISSED
           APPELLANT’S PCRA PETITION AS UNTIMELY?]

(Appellant’s Brief at 1-4).

        Appellant claims he is serving an illegal sentence, relying on the United

States Supreme Court decisions Miller v. Alabama, ___ U.S. ___, 132

S.Ct. 2455, 183 L.Ed.2d 407 (2012), Montgomery v. Louisiana, ___ U.S.

___, 136 S.Ct. 718, 193 L.Ed.2d 599 (filed January 25, 2016, and revised on

January 27, 2016), and Alleyne v. U.S., ___ U.S. ___, 133 S.Ct. 2151, 186

L.Ed.2d 314 (2013) as the bases for exceptions to the PCRA timeliness

requirements as well as for substantive PCRA relief. Counsel nevertheless

observes that Appellant’s judgment of sentence became final in 2002,

whereas Appellant filed his PCRA petition in 2016.            Counsel concludes

Appellant’s petition was untimely and does not qualify for any of the PCRA

timeliness exceptions. We agree.

        The timeliness of a PCRA petition is a jurisdictional requisite.

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Commonwealth v. Hackett, 598 Pa. 350, 956 A.2d 978 (2008), cert.

denied, 556 U.S. 1285, 129 S.Ct. 2772, 174 L.Ed.2d 277 (2009). A PCRA

petition must be filed within one year of the date the underlying judgment

becomes final. 42 Pa.C.S.A § 9545(b)(1). A judgment is deemed final at

the conclusion of direct review or at the expiration of time for seeking

review. 42 Pa.C.S.A. § 9545(b)(3).

      Generally, to obtain merits review of a PCRA petition filed more than

one year after a petitioner’s sentence became final, the petitioner must

allege and prove at least one of the three timeliness exceptions.        See 42

Pa.C.S.A. § 9545(b)(1)(i)-(iii). To invoke an exception, the petitioner must

allege and prove:

         (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). Asserting the newly created constitutional

right exception under Section 9545(b)(1)(iii), requires the petitioner to

“prove that there is a ‘new’ constitutional right and that the right ‘has been


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held’ by that court to apply retroactively.” Commonwealth v. Chambers,

35 A.3d 34, 41 (Pa.Super. 2011), appeal denied, 616 Pa. 625, 46 A.3d 715

(2012).   “[W]hen a PCRA petition is not filed within one year of the

expiration of direct review, or not eligible for one of the three limited

exceptions, or entitled to one of the exceptions, but not filed within 60 days

of the date that the claim could have been first brought, the trial court has

no power to address the substantive merits of a petitioner’s PCRA claims.”

Commonwealth v. Gamboa-Taylor, 562 Pa. 70, 77, 753 A.2d 780, 783

(2000); 42 Pa.C.S.A. § 9545(b)(2).

      Here, Appellant’s judgment of sentence became final on Tuesday,

August 6, 2002, upon expiration of the time to file a petition for allowance of

appeal with our Supreme Court.       See Pa.R.A.P. 1113.         Appellant filed his

current PCRA petition on March 4, 2016, over 13 years later; thus, the

petition is patently untimely.    See 42 Pa.C.S.A. § 9545(b)(1).           Appellant

attempts to invoke the “new constitutional right” exception to the PCRA time

bar by citing the U.S. Supreme Court’s decision in Alleyne, supra.               The

Pennsylvania    Supreme    Court,   however,     has    declared    that   the   rule

announced in Alleyne does not apply retroactively. See Commonwealth

v. Washington, ___ Pa. ___, 142 A.3d 810 (2016) (holding Alleyne does

not apply retroactively on collateral review to challenge mandatory minimum

sentence as “illegal”). See also Commonwealth v. Miller, 102 A.3d 988

(Pa.Super.     2014)   (holding   that    even   if    Alleyne     announced     new


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constitutional right, neither our Supreme Court nor U.S. Supreme Court has

held that Alleyne applies retroactively, which is fatal to appellant’s attempt

to satisfy “new constitutional right” exception to timeliness requirements of

PCRA). Therefore, Appellant’s petition remains time barred, and the PCRA

court lacked jurisdiction to review it.     See Hackett, supra; Gamboa-

Taylor, supra.

      Additionally, Appellant relies on Miller, supra (ruling unconstitutional

mandatory life imprisonment without possibility of parole sentences for

juvenile offenders) and Montgomery, supra (holding Miller applies

retroactively to cases on collateral review), for the proposition that Appellant

is serving an illegal sentence.   Although Appellant correctly observes that

mandatory life sentences without the possibility of parole for juvenile

offenders are unconstitutional under Montgomery/Miller, Appellant was

neither a juvenile at the time he committed the offenses nor sentenced to

life imprisonment without the possibility of parole. Therefore, Appellant also

is not entitled to relief under Montgomery/Miller. Based on the foregoing,

we affirm the order denying PCRA relief and grant counsel’s petition to

withdraw.

      Order affirmed; petition to withdraw is granted.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/9/2017




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