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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                    v.

JHILEEL BURTON

                           Appellant                No. 1055 EDA 2016


                  Appeal from the PCRA Order March 11, 2016
             in the Court of Common Pleas of Montgomery County
              Criminal Division at No(s): CP-46-CR-0000116-2013

BEFORE: SHOGAN, MOULTON, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.:                     FILED AUGUST 21, 2017

        Appellant, Jhileel Burton, appeals from the order entered in the

Montgomery County Court of Common Pleas denying his Post Conviction

Relief Act1 (“PCRA”) petition. This case returns to us after we remanded to

have counsel comply with all of the requirements of Turner/Finley,2

including filing a petition to withdraw with this Court.3 Appellant’s counsel



* Former Justice specially assigned to the Superior Court.
1
    42 Pa.C.S. §§ 9541-9546.
2
  Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth
v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
3
  Appellant’s counsel, John W. Aitchison, Esq., had filed an Anders brief,
which we regarded as a Turner/Finley brief. See Anders v. California,
386 U.S. 738 (1967). We note that in Commonwealth v. Wrecks, 931
A.2d 717 (Pa. Super. 2007), this Court explained the standard for
withdrawal of counsel on collateral review.
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has substantially complied.   We grant counsel’s petition to withdraw and

affirm the order below.



        Counsel petitioning to withdraw from PCRA representation
        must     proceed      not    under   Anders      but   under
        [Turner/Finley].        Similar to the Anders situation,
        Turner/Finley counsel must review the case zealously.
        Turner/Finley counsel must then 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.

           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.

                              *   *    *

            It is thus apparent that Anders and Turner/Finley are
        close cousins, bearing similarities in that counsel is
        required to examine the record, present issues, and
        request permission to withdraw. However, there are also
        significant differences. Anders applies to direct appeals;
        Turner/Finley applies to PCRA cases. Anders counsel is
        not permitted to withdraw unless the appeal is wholly
        frivolous, but Turner/Finley counsel is permitted to do so
        if the case lacks merit, even if it is not so anemic as to be
        deemed wholly frivolous. Also, Anders counsel must not
        argue against the client’s interests while Turner/Finley
        counsel must do so, articulating why the client’s claims
        have no merit.

Id. at 721-22 (citations omitted). “Because an Anders brief provides
greater protection to a defendant, this Court may accept an Anders brief in
lieu of a Turner/Finley letter.” Commonwealth v. Widgins, 29 A.3d 816,
817 n.2 (Pa. Super. 2011) (citation omitted).




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      The facts are unnecessary for our disposition. The relevant procedural

history of this case as stated by the PCRA court is as follows:

            On September 6, 2013, [Appellant] entered a plea of
         guilty to one count of conspiracy to commit robbery and
         nineteen counts of robbery.       The terms of the plea
         agreement included one limitation on the sentence to be
         imposed: rather than pursue a mandatory minimum
         sentence for each of the nineteen crimes of violence with a
         visibly possessed firearm, pursuant to 42 Pa.C.S. § 9712,
         the Commonwealth would seek only one. [On December
         9, 2013, t]he undersigned judge ordered [Appellant] to
         serve an aggregate term of eight to sixteen years’
         imprisonment, which included a single mandatory term of
         five years, and a consecutive term of four years’ probation.

            [Appellant] did not appeal from his judgment of
         sentence.

                                  *    *    *

         [O]n May 21, 2015, [A]ppellant, acting pro se, mailed a
         petition for post-conviction collateral relief to the Clerk of
         Courts, who filed the petition on the docket on May 28,
         2015.

             By order dated June 24, 2015, filed June 25, 2015, the
         undersigned judge appointed Brendan M. Campbell,
         Esquire, to represent [Appellant], to determine whether
         [Appellant] may be entitled to relief under the [PCRA] and
         to amend the pro se petition as necessary to obtain any
         relief to which [Appellant] may have been entitled under
         the Act. The order appointing counsel expressly directed
         [Appellant] to refrain from filing any documents on the
         record, with the exception of an application for a change of
         counsel, or to proceed without counsel. The undersigned
         judge served [Appellant] with a copy of that order. Before
         Mr. Campbell took any action of record, [Appellant] acting
         pro se, filed an amended PCRA petition on September 8,
         2015. He did so without seeking or obtaining leave of
         court to act on his own behalf while simultaneously
         represented by counsel, and without seeking or obtaining
         leave of court to file an amended PCRA petition. The


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          undersigned    judge   disregarded   the   September     8th
          petition.[4]

             On September 23, 2015[,] Mr. Campbell filed an
          application to withdraw from representing [Appellant] and
          submitted a “no merit letter” dated August 21, 2015, in
          accordance with [Turner, 544 A.2d at 927]. Mr. Campbell
          determined [Appellant] was not eligible for relief under the
          Act because his pro se petition was untimely. In response
          to Mr. Campbell’s application and no merit letter, the

4
    We note that:

          [p]ursuant to our Rules of Appellate procedure and
          decisional law, this Court will not review the pro se filings
          of a counseled appellant. Commonwealth v. Nischan,
          928 A.2d 349, 355 (Pa. Super. 2007) (noting that an
          appellant’s pro se filings while represented by counsel are
          legal nullities) [ ]; Commonwealth v. Ellis, [ ] 626 A.2d
          1137, 1140–41 ([Pa.] 1993) (same). Rule 3304 of the
          Pennsylvania Rules of Appellate procedure provides as
          follows:

             Rule 3304. Hybrid Representation

             Where a litigant is represented by an attorney before
             the Court and the litigant submits for filing a petition,
             motion, brief or any other type of pleading in the
             matter, it shall not be docketed but forwarded to
             counsel of record.

          Pa.R.A.P. 3304.

          In Ellis, our Supreme Court wrote that “[a] represented
          appellant may petition to terminate his representation; he
          may, acting pursuant to the rules of criminal procedure,
          proceed on his own behalf. Conversely, he may elect to
          allow counsel to take his appeal[.]” Ellis, [ ] 626 A.2d at
          1141 [ ]. An appellant may not, however, offer pro se
          filings while he continues to be represented by counsel.
          Id.

Commonwealth v. Glacken, 32 A.3d 750, 752-53 (Pa. Super. 2011).



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         undersigned judge granted him leave to withdraw as court-
         appointed counsel for [Appellant] by order dated
         September 29, 2015, filed September 30, 2015.

                                    *    *    *

         In an abundance of caution, the undersigned judge
         appointed John W. Aitchison, Esquire to review the record
         and    to    determine    whether     the    decision    in
         [Commonwealth v. Melendez-Negron, 123 A.3d 1087
         (Pa. Super. 2015)] might apply by analogy to [Appellant’s]
         pro se PCRA petition, and whether court-appointed counsel
         could amend the petition to plead a claim of arguable
         merit.

                                    *    *    *

            On December 28, 2015, Mr. Aitchison filed an amended
         PCRA petition on behalf of [Appellant]. The amended
         petition pled that [Appellant] was entitled to relief under
         the PCRA on two grounds: a violation of the Constitution
         of the United States and the ineffective assistance of
         counsel.

                                    *    *    *

            The undersigned judge . . . filed a notice of intention to
         dismiss the amended PCRA petition without a hearing,
         pursuant to Pa.R.Crim.P. 907(1). The notice expressly
         informed [Appellant] that the reason for the dismissal was
         the failure of the PCRA petition to plead an exception to
         the timeliness requirement of 42 Pa.C.S. § 9545(b). . . .
         The notice gave [Appellant] twenty days to file a response.
         [Appellant] did not respond to the notice. On March 11,
         2016[,] the undersigned judged filed an order denying the
         amended PCRA petition without a hearing. The instant
         appeal followed.

PCRA Ct. Op., 5/27/16, at 2-3, 6-8, 10.           Appellant filed a court-ordered

Pa.R.A.P. 1925(b) statement of errors complained of on appeal. The PCRA

court filed a responsive opinion.



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      Appellant’s counsel filed a petition to withdraw representation pursuant

to Anders. However, counsel did not file a separate petition to withdraw as

counsel in this Court.   Accordingly, in an abundance of caution to ensure

proper notice to Appellant, we directed counsel to file a separate petition to

withdraw from representation. Commonwealth v. Burton, 1055 EDA 2016

(unpublished judgment order at 2-3) (Pa. Super. Apr. 7, 2017).            Counsel

filed a petition to withdraw. Appellant did not file a pro se response.

      Prior to addressing the issues raised in the Anders brief, we first

examine counsel’s petition to withdraw. See Commonwealth v. Daniels,

947 A.2d 795, 797 (Pa. Super. 2008).

         [I]ndependent review of the record by competent counsel
         is required before withdrawal is permitted.       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.

Widgins, 29 A.3d at 817-18 (citations and punctuation omitted). Further,

the Widgins Court explained:




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         The Supreme Court [in Commonwealth v. Pitts, 981
         A.2d 875 (Pa. 2009),] did not expressly overrule the
         additional requirement imposed by the [Commonwealth
         v. Friend, 896 A.2d 607 (Pa. Super. 2006)] decision, i.e.,
         that PCRA counsel seeking to withdraw 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.

Id. at 818 (some citations omitted).

      Instantly,   counsel    stated    that   he   conducted    a    conscientious

examination of the record and reached a determination that the appeal was

wholly frivolous and that the petition was time barred.           See Petition to

Withdraw as Counsel for Appellant, 5/9/17, at 2. He advised Appellant that

he had an immediate right to proceed pro se or with private counsel. See

id.    Accordingly,   we     conclude   that   counsel’s   petition   to   withdraw

substantially complies with the requirements set forth by the Widgins

Court. See Widgins, 29 A.3d at 817-18.

      Counsel identifies the following issue for our review:          “Whether the

trial court erred by determining that Appellant [ ] cannot plead facts

establishing jurisdiction over his petition pursuant to the Post Conviction

Relief Act?”   Anders Brief at 4.         Appellant claims the court erred by

imposing an unconstitutional mandatory minimum sentence pursuant to

Alleyne v. United States, 133 S. Ct. 2151 (2013). Anders Brief at 10.

      This Court has stated:


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             In reviewing the propriety of an order denying PCRA
         relief, this Court is limited to examining whether the
         evidence of record supports the determination of the PCRA
         court, and whether the ruling is free of legal error. Great
         deference is given to the findings of the PCRA court, which
         may be disturbed only when they have no support in the
         certified record.

Commonwealth v. Perry, 959 A.2d 932, 934-35 (Pa. Super. 2008)

(citations omitted).

       As a prefatory matter, we determine whether Appellant’s PCRA petition

is timely.   Where a petitioner fails to satisfy the PCRA time requirements,

this   Court     has   no   jurisdiction    to   entertain   the   petition.   See

Commonwealth v. Fahy, 737 A.2d 214, 220 (Pa. 1999).                     In order to

satisfy the timeliness requirement, a PCRA petition “must normally be filed

within one year of the date the judgment becomes final unless one of the

exceptions in § 9545(b)(1)(i)-(iii) applies and the petition is filed within 60

days of the date the claim could have been presented.” Commonwealth v.

Copenhefer, 941 A.2d 646, 648 (Pa. 2007) (citations and footnote

omitted).

       The timeliness exceptions to the PCRA requirements are set forth in 42

Pa.C.S. § 9545, which provides in pertinent 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 date the judgment becomes final, unless the
               petition alleges and the petitioner proves that:




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              (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).

      In Commonwealth v. Marshall, 947 A.2d 714 (Pa. 2008), our

Supreme Court “emphasize[d] that it is the petitioner who bears the burden

to allege and prove that one of the timeliness exceptions applies.”       Id. at

719 (citation omitted). “[A]n untimely petition may be received when the

petition alleges, and the petitioner proves, that any of the three limited

exceptions to the time for filing the petition, set forth at [42 Pa.C.S. § 9545]

are met.”   Commonwealth v. Lawson, 90 A.3d 1, 5 (Pa. Super. 2014)

(footnote omitted). Exceptions to the time restrictions of the PCRA must be

pleaded in the petition and may not be raised for the first time on appeal.

Commonwealth v. Burton, 936 A.2d 521, 525 (Pa. Super. 2007). Even if

the legality of the sentence itself is in question, courts lack jurisdiction to

hear an untimely PCRA.         See Fahy, 737 A.2d at 223 (stating that

“[a]lthough legality of sentence is always subject to review within the PCRA,



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claims must still first satisfy the PCRA’s time limits or one of the exceptions

thereto.”).

      This    Court   has   addressed    whether   Alleyne    creates   a   new

constitutional right that applies to untimely PCRA petitions.     We noted in

Commonwealth v. Ruiz, 131 A.3d 54 (Pa. Super. 2015), that “Alleyne

does not invalidate a mandatory minimum sentence when presented in an

untimely PCRA petition.”    Id. at 58 (citation omitted).    Therefore, a claim

involving Alleyne “may be raised on direct appeal, or in a timely filed

PCRA petition.” Id. at 60 (some emphasis added).

      In the case sub judice, Appellant was sentenced on December 9, 2013.

He did not file a direct appeal. Thus, his judgment of sentence became final

on January 8, 2014. See 42 Pa.C.S. § 9545(b)(3) (providing “a judgment

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”).

Appellant had until January 8, 2015, to file his PCRA petition.         See 42

Pa.C.S. § 9545(b)(1) (providing PCRA petition must be filed within one year

of date judgment becomes final).        Therefore, because he filed his pro se

PCRA petition on May 21, 2015, it was facially untimely.

      Appellant failed to plead any exceptions to the time restrictions of the

PCRA within his petition or in response to the PCRA court’s Rule 907 notice.

See Marshall, 947 A.2d at 719.           Accordingly, the PCRA court lacked



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jurisdiction to decide the merits of Appellant’s untimely petition.   See

Copenhefer, 941 A.2d at 648; Fahy, 737 A.2d at 223. Thus, we agree with

counsel’s assessment that no relief is due, grant counsel’s petition to

withdraw, and affirm the PCRA court’s order denying Appellant’s PCRA

petition.

      Order affirmed.     Petition to withdraw as counsel granted.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 8/21/2017




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