J-S87003-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                      IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA
                            Appellee

                       v.

JOHNNIE LEWIS BROWN,

                            Appellant                  No. 1286 MDA 2016


                   Appeal from the PCRA Order May 24, 2016
                in the Court of Common Pleas of Adams County
               Criminal Division at No.: CP-01-CR-0001178-2010


BEFORE: LAZARUS, J., SOLANO, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                           FILED DECEMBER 16, 2016

        Appellant, Johnnie Lewis Brown, appeals from the order1 dismissing his

second petition filed pursuant to the Post Conviction Relief Act (PCRA), 42

Pa.C.S.A. §§ 9541-9546, as untimely.           Counsel for Appellant has filed a

Turner/Finley2 “no merit” letter and has petitioned this Court to withdraw

from representation. We grant counsel’s petition to withdraw, and affirm the

order of the PCRA court.



____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
  We have amended the caption to reflect the date the order was entered on
the docket.
2
  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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       The PCRA court aptly set forth the relevant facts and procedural

history of this case as follows:

             On August 9, 2011 a jury convicted [Appellant] of
       possession with intent to deliver cocaine under 35 P.S. § 780—
       113(a)(30), possession of drug paraphernalia under 35 P.S. §
       780—113(a)(32), and escape under 18 Pa.C.S.A. § 5121(a).
       Following the verdict the Commonwealth gave oral notice of
       intent to seek the five[-]year mandatory minimum related to
       possession with intent to deliver cocaine and a subsequent
       written notice was filed [on] October 17, 2011.

             On October 20, 2011, the [trial court] sentenced
       [Appellant] to an aggregate of six to twelve years in a state
       correctional institution. On the possession with intent to deliver
       count [Appellant] was sentenced to five to ten years pursuant to
       the mandatory sentencing provisions of 18 Pa.C.S.A. §
       7508(a)(3)(ii).

            [Appellant] filed a timely appeal to the Pennsylvania
       Superior Court. The judgment of sentence was affirmed by the
       Pennsylvania Superior Court on July 31, 2012.

              On June 27, 2013[, Appellant] filed his first PCRA petition
       alleging ineffective assistance of counsel. [The PCRA court]
       denied [Appellant’s] first PCRA petition on February 28, 201[4]
       by order and opinion entered that date. On December 23, 2014,
       the Superior Court of Pennsylvania affirmed [the PCRA court’s]
       denial of [Appellant’s] first PCRA petition.

              On March 1[4], 2016[, Appellant] filed his second PCRA
       petition wherein [he] asserts that the decision in Montgomery
       v. Louisiana, 136 S.Ct. 718 (2016)[3] set a new rule of

____________________________________________


3
  In Montgomery, the United States Supreme Court determined that its
prior decision in Miller v. Alabama, 132 S.Ct. 2455 (2012), which held it
unconstitutional for states to sentence a juvenile homicide defendant to life
in prison without the possibility of parole, constituted a new substantive rule
of constitutional law that must be applied retroactively to cases on collateral
(Footnote Continued Next Page)


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      substantive constitutional law that must be applied by state
      collateral review courts. He further appears to argue that the
      Montgomery v. Louisiana decision applies to the holding from
      Alleyne v. United States, 133 S.Ct. 2151 (2013),[4]
      retroactively to mandatory minimum sentences imposed
      pursuant to 18 Pa.C.S.A. § 7508(a)(3)(ii).

            [On March 18, 2016, the PCRA court entered an order
      appointing current counsel to represent Appellant.]    A pre-
      hearing conference was held with [Appellant] participating by
      video on April 25, 2016.

(PCRA Court Rule 907 Notice, 4/29/16, at 1-2) (some capitalization omitted;

citation formatting provided).

      On April 29, 2016, the PCRA court issued notice of its intent to dismiss

Appellant’s PCRA petition without a hearing. See Pa.R.Crim.P. 907(1). On

May 24, 2016, it entered its order dismissing the PCRA petition. Appellant

timely appealed.

      On July 22, 2016, Appellant filed a concise statement of errors

complained of on appeal, see Pa.R.A.P. 1925(b), raising the following issue

for review: “Did the [PCRA] [c]ourt err[] in determining that [Appellant’s]

PCRA petition be denied, when [Appellant] was sentenced to a mandatory

sentence,    when      Alleyne     v.   [United   States,]   held   that   mandatory

sentencing laws in Pennsylvania are unconstitutional, and after the [United
                       _______________________
(Footnote Continued)

review. See Montgomery, supra at 736. Miller has no application to the
crimes committed by Appellant or the sentence he received for them.
4
  In Alleyne, the United States Supreme Court held that, under the Sixth
Amendment to the United States Constitution, a jury must find beyond a
reasonable doubt any facts that increase a mandatory minimum sentence.
See Alleyne, supra at 2158.



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States] Supreme Court’s decision in Montgomery v. Louisiana?”                   (Rule

1925(b) Statement, 6/22/16, at 1).5 The PCRA court entered an opinion on

August 3, 2016. See Pa.R.A.P. 1925(a).

       On September 21, 2016, counsel for Appellant filed with this Court a

Turner/Finley       “no    merit”     letter   and   petition   to   withdraw   from

representation.      On September 26, 2016, this Court entered an order

advising Appellant of his right to file a pro se or counseled response within

thirty days. Appellant did not file a response.6

            Before we may review the merits of Appellant’s claims, we
       must determine if counsel has satisfied the requirements to be
       permitted to withdraw from further representation.

                    The Turner/Finley decisions provide the
              manner for post-conviction counsel to withdraw from
              representation.    The holdings of those cases
              mandate an independent review of the record by
              competent counsel before a PCRA court or appellate
              court can authorize an attorney’s withdrawal. The
              necessary independent review requires counsel to
              file a “no-merit” letter detailing the nature and
____________________________________________


5
    Appellant’s Rule 1925(b) statement was untimely.           Under the
circumstances of this case, where counsel has filed a Turner/Finley letter
and petition to withdraw, and the PCRA court prepared a Rule 1925(a)
opinion, we will address the merits of Appellant’s claim on appeal. See
Commonwealth v. Thompson, 39 A.3d 335, 340 (Pa. Super. 2012)
(“[w]hen counsel has filed an untimely Rule 1925(b) statement and the trial
court has addressed those issues we . . . may address the merits of the
issues presented.”) (citation omitted).
6
  The Commonwealth filed a letter notifying this Court that it is relying on
the PCRA court’s Rule 1925(a) opinion and is in agreement with counsel’s
determination that this appeal lacks merit. (See Commonwealth’s Letter,
10/04/16).



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           extent of his review and list each issue the petitioner
           wishes to have examined, explaining why those
           issues are meritless.      The PCRA court, or an
           appellate court if the no-merit letter is filed before it,
           then must conduct its own independent evaluation of
           the record and agree with counsel that the petition is
           without merit.

                 In Commonwealth v. Friend, 896 A.2d 607
           (Pa. Super. 2006)[,] abrogated in part by
           [Commonwealth v.]Pitts, [981 A.2d 875 (Pa.
           2009)], this Court imposed additional requirements
           on counsel that closely track the procedure for
           withdrawing on direct appeal. Pursuant to Friend,
           counsel is required to contemporaneously serve upon
           his client his no-merit letter and application to
           withdraw along with a statement that if the court
           granted counsel’s withdrawal request, the client may
           proceed pro se or with a privately retained attorney.
           Though Chief Justice Castille noted in Pitts that this
           Court is not authorized to craft procedural rules, the
           Court did not overturn this aspect of Friend as those
           prerequisites did not apply to the petitioner in Pitts.
           See Pitts, supra at 881 (Castille, C.J., concurring).

                  After the decision in Pitts, this Court held in
           Commonwealth v. Widgins, 29 A.3d 816 (Pa.
           Super. 2011), that the additional procedural
           requirements of Friend were still applicable during
           collateral review.

Commonwealth v. Freeland, 106 A.3d 768, 774–75 (Pa. Super. 2014)

(some citations omitted).

     Here, we conclude that PCRA counsel has substantially complied with

the requirements of Turner/Finley and their progeny. (See Turner/Finley

“no merit” letter, 9/21/16, at 1-4). Counsel has detailed his review of the

record and his conclusion that Appellant’s claim is meritless.          (See id.).

Counsel also furnished Appellant with a copy of his “no merit” letter,


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advising him of his right to proceed pro se or to retain private counsel. (See

id. at 4). Accordingly, we will grant counsel’s petition to withdraw.

      We now turn to this appeal to determine whether it is indeed

meritless. As this Court has explained:

           Our standard of review of an order denying PCRA relief is
      whether the record supports the PCRA court’s determination, and
      whether the PCRA court’s determination is free of legal error.
      The PCRA court’s findings will not be disturbed unless there is no
      support for the findings in the certified record.

Commonweath v. Brown, 143 A.3d 418, 420 (Pa. Super. 2016) (citations

omitted).

      In the instant case, the PCRA court determined that Appellant’s

petition is untimely, with no exception to the PCRA’s time-bar pleaded or

proven. (See PCRA Court Opinion, 8/03/16, at 1). After review, we agree.

             The PCRA provides eligibility for relief in conjunction with
      cognizable claims, . . . and requires petitioners to comply with
      the timeliness restrictions. . . . [A] PCRA petition, including a
      second or subsequent petition, must be filed within one year of
      the date that judgment becomes final. A judgment becomes
      final for purposes of the PCRA 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.

             It is well-settled that the PCRA’s time restrictions are
      jurisdictional in nature.      As such, this statutory time-bar
      implicates the court’s very power to adjudicate a controversy
      and prohibits a court from extending filing periods except as the
      statute permits.     Accordingly, the period for filing a PCRA
      petition is not subject to the doctrine of equitable tolling;
      instead, the time for filing a PCRA petition can be extended only
      by operation of one of the statutorily enumerated exceptions to
      the PCRA time-bar.


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            The exceptions to the PCRA time-bar are found in Section
     9545(b)(1)(i)–(iii) (relating to governmental interference, newly
     discovered facts, and newly recognized constitutional rights),
     and it is the petitioner’s burden to allege and prove that one of
     the timeliness exceptions applies. Whether a petitioner has
     carried his burden is a threshold inquiry that must be resolved
     prior to considering the merits of any claim. . . .

Commonwealth       v.   Robinson,   139    A.3d   178,   185–86   (Pa.    2016)

(quotation marks and citations omitted).

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

2012, when his time to file a petition for writ of certiorari with the United

States Supreme Court expired.     See U.S. Sup. Ct. R. 13; 42 Pa.C.S.A. §

9545(b)(3). Therefore, Appellant had until October 29, 2013, to file a timely

PCRA petition. See 42 Pa.C.S.A. § 9545(b)(1). Because Appellant filed the

instant petition on March 14, 2016, it is untimely on its face, and the PCRA

court lacked jurisdiction to review it unless he pleaded and proved one of the

statutory exceptions to the time-bar. See 42 Pa.C.S.A. § 9545(b)(1)(i)-(iii).

     Section 9545 of the PCRA provides only three limited exceptions that

allow for review of an untimely PCRA petition:

           (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



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      this section and has been held by that court to                    apply
      retroactively.

Id.

      Any petition invoking an exception must “be filed within [sixty] days of

the date the claim could have been presented.” Id. at § 9545(b)(2). “If the

[PCRA] petition is determined to be untimely, and no exception has been

pled and proven, the petition must be dismissed without a hearing because

Pennsylvania courts are without jurisdiction to consider the merits of the

petition.”   Commonwealth v. Jackson, 30 A.3d 516, 519 (Pa. Super.

2011), appeal denied, 47 A.3d 845 (Pa. 2012) (citation omitted).

      Here, Appellant claims the benefit of the newly recognized and

retroactively applied constitutional right exception at 42 Pa.C.S.A. §

9545(b)(1)(iii), by arguing that his mandatory minimum sentence is

unconstitutional pursuant to Montgomery and Alleyne.                    (See PCRA

petition, 3/14/16, at 3, 8). Appellant asserts that the Montgomery Court

held that mandatory minimum sentencing schemes are unconstitutional, and

that this holding mandates retroactive application of Alleyne to cases such

as his on collateral review.      (See id.; see also Rule 1925(b) Statement,

6/22/16, at 1). We disagree.

      “[A] new rule of constitutional law is applied retroactively to cases on

collateral   review   only   if   the   United   States   Supreme    Court   or   the

Pennsylvania Supreme Court specifically holds it to                 be retroactively

applicable to those cases.” Commonwealth v. Whitehawk, 146 A.3d 266,

271 (Pa. Super. 2016) (citation omitted).            Neither Court has held that

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Alleyne is applied retroactively.    Rather, our Supreme Court issued an

opinion in Commonwealth v. Washington, 142 A.3d 810 (Pa. 2016),

wherein it held “Alleyne does not apply retroactively to cases pending on

collateral review[.]” Washington, supra at 820.

      Here, Appellant’s argument that the United States Supreme Court, in

Montgomery, held that Alleyne applies retroactively, lacks merit.          As

previously noted, in Montgomery, the Supreme Court held “Miller

announced a substantive rule that is retroactive in cases on collateral

review.”   Montgomery, supra at 732.          Its decision did not concern

Alleyne.   Thus, Appellant has failed to establish that Alleyne set forth a

new constitutional law that is applicable retroactively to cases on collateral

review. See 42 Pa.C.S.A. § 9545(b)(1)(iii).

      Accordingly, we conclude that Appellant has not met his burden of

proving that his untimely PCRA petition fits within one of the three

exceptions to the PCRA’s time-bar.        See Robinson, supra at 186.

Therefore, we affirm the order of the PCRA court.

     Order affirmed. Petition to withdraw granted.
Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/16/2016



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