J-S33029-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                             IN THE SUPERIOR COURT OF
                                                               PENNSYLVANIA
                              Appellee

                     v.

RANDALL A. DAVIS

                              Appellant                      No. 1541 WDA 2015


                Appeal from the PCRA Order September 9, 2015
               In the Court of Common Pleas of Crawford County
              Criminal Division at No(s): CP-20-CR-0000558-2013

BEFORE: GANTMAN, P.J., OLSON and FITZGERALD,* JJ.

MEMORANDUM BY OLSON, J.:                                          FILED MAY 18, 2016

     Appellant, Randall A. Davis, appeals from the order entered on

September 9, 2015 dismissing his first petition filed pursuant to the Post-

Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. On this appeal

from the denial of PCRA relief, Appellant’s court-appointed counsel filed a

motion   to   withdraw        as   counsel    and    a   no-merit     brief   pursuant    to

Commonwealth            v.     Turner,       544    A.2d    927     (Pa.      1988),     and

Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc). As

we   conclude    that        counsel   fulfilled   the   procedural     requirements      of

Turner/Finley, and this appeal is without merit, we grant counsel’s motion

to withdraw as counsel and affirm the PCRA court’s order dismissing

Appellant’s PCRA petition.




* Former Justice specially assigned to the Superior Court
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        The relevant factual and procedural history of this case is as follows.

On June 14, 2013, Appellant was arrested while in possession of three bags

of cocaine totaling 23.5 grams. On October 28, 2013, Appellant pled guilty

to possession with intent to deliver a controlled substance.1 On December

18, 2013, the trial court sentenced Appellant to three to six years’

imprisonment.     Appellant did not file a direct appeal.    On May 26, 2015,

Appellant filed a pro se PCRA petition.        Counsel was appointed and an

amended PCRA petition was filed.        On August 18, 2015, the PCRA Court

issued notice of its intent to dismiss the petition without an evidentiary

hearing.    See Pa.R.Crim.P. 907.     On September 9, 2015, the PCRA court

dismissed Appellant’s PCRA petition. This timely appeal followed.2

        Counsel presents one issue for our review in his Turner/Finley brief:

        Should the Appellant [be] entitled to relief under the [PCRA] for
        a sentence now determined to be illegal after the time for filing a
        petition under the [PCRA] has expired[?]

Turner/Finley Brief at 4 (complete capitalization removed).

        Prior to addressing the merits of the issues raised in counsel’s

Turner/Finley brief, we must determine whether he met the procedural

requirements to withdraw as counsel. Counsel seeking to withdraw in PCRA

proceedings



1
    35 P.S. § 780-113(a)(30).
2
 Appellant and the PCRA court complied with Pennsylvania Rule of Appellate
Procedure 1925.


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        must review the case zealously. [C]ounsel must then submit a
        “no-merit” letter to the [PCRA] 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 . . . 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) (internal

alteration, ellipses, and citation omitted).   If counsel fulfills these procedural

requirements, we must then independently review the record and determine

whether the issues raised are indeed non-meritorious. In this case, counsel

fulfilled the procedural requirements for withdrawing as PCRA counsel.3

Therefore, we turn to the lone issue raised in counsel’s Turner/Finley brief.

        The lone issue raised in counsel’s Turner/Finley brief is whether

Appellant satisfied one of the PCRA’s timeliness exceptions. The timeliness

requirement for PCRA petitions “is mandatory and jurisdictional in nature,

and the court may not ignore it in order to reach the merits of the petition.”

Commonwealth v. Hernandez, 79 A.3d 649, 651 (Pa. Super. 2013)

(citation omitted).    “The question of whether a petition is timely raises a


3
    Appellant did not file a response to PCRA counsel’s Turner/Finley brief.


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question of law. Where the petitioner raises questions of law, our standard

of review is de novo and our scope of review plenary.” Commonwealth v.

Taylor, 65 A.3d 462, 468 (Pa. Super. 2013) (citations omitted).

     A PCRA petition is timely if it is “filed within one year of the date the

judgment [of sentence] 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.” 42 Pa.C.S.A. § 9545(b)(3). As Appellant did not file a direct

appeal, his judgment of sentence became final on January 17, 2014.

Appellant’s petition was filed in May 2015. Thus, the petition was patently

untimely.

     An untimely PCRA petition may be considered if one of the following

three exceptions applies:

     (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.




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42 Pa.C.S.A. § 9545(b)(1)(i-iii).   If an exception applies, a PCRA petition

may be considered if it is filed “within 60 days of the date the claim could

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

      After Appellant’s judgment of sentence became final, this Court found

that sentences imposed pursuant to 18 Pa.C.S.A. § 7508, such as

Appellant’s, violated the defendants’ Sixth Amendment right to a trial by jury

as interpreted by    Alleyne v. United States, 133 S.Ct. 2151 (2013).

Commonwealth v. Vargas, 108 A.3d 858, 876-877 (Pa. Super. 2014) (en

banc), appeal denied, 121 A.3d 496 (Pa. 2015).              Appellant argues,

therefore, that Alleyne was a newly announced constitutional rule which

conferred jurisdiction on the PCRA court to reach the merits of his petition.

The newly announced constitutional rule exception applies when the

Supreme Court of the United States or our Supreme Court announces a new

rule of constitutional law after the time for filing a PCRA petition has expired

and makes that rule retroactive to petitioners seeking collateral review. 42

Pa.C.S.A. § 9454(b)(1)(iii).

      Appellant’s argument fails as this Court held that Alleyne is not

retroactive. Commonwealth v. Miller, 102 A.3d 988, 994-995 (Pa. Super.

2014). Appellant also failed to present his claim within 60 days of when the

claim could have been raised.     See 42 Pa.C.S.A. § 9545(b)(2).      Appellant

was sentenced after Alleyne was issued, thus he could have raised an illegal

sentencing claim or an ineffective assistance of counsel claim in a timely



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PCRA petition.      He did neither.     Instead, his May 2015 petition was filed

approximately 750 days after Alleyne was decided.4 Accordingly, Appellant

failed    to   satisfy   the   newly   announced   constitutional   rule   timeliness

exception.

         Appellant also argues that he satisfied the governmental interference

timeliness exception because the PCRA court and prosecutor informed him

that he was subject to a three-year mandatory minimum sentence.                 This

argument is without merit as it is based on a misunderstanding of the

governmental interference timeliness exception.            This exception applies

when a governmental agent prevents a petitioner from filing a petition or

learning of the facts necessary to file a petition.      See Commonwealth v.

Barrett, 761 A.2d 145, 148 (Pa. Super. 2000). Appellant does not aver that

he was denied access to the prison library. Instead, he only avers that the

trial court and prosecutor incorrectly stated the law.         The trial court and

prosecutor did not prevent Appellant from using the prison library in order to

discover Alleyne and/or Vargas.           Thus, the trial court and prosecutor’s

actions do not satisfy the governmental interference exception.

         After independently reviewing the record, we conclude that Appellant

failed to plead and prove the applicability of any of the three statutory

timeliness exceptions. As such, the PCRA court properly dismissed the PCRA


4
 Even Vargas, in which this Court held section 7508 to be unconstitutional,
was issued approximately 140 days prior to the filing of Appellant’s PCRA
petition.


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petition for lack of jurisdiction. Therefore, the present appeal lacks merit.

Accordingly, we grant counsel’s motion to withdraw as counsel and affirm

the PCRA court’s order dismissing Appellant’s PCRA petition.

     Motion to withdraw as counsel granted. Order affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 5/18/2016




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