J-S01019-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
               v.                              :
                                               :
                                               :
    FRANCISCO C. SANTIAGO                      :
                                               :
                      Appellant                :   No. 830 MDA 2017

                   Appeal from the PCRA Order April 13, 2017
      In the Court of Common Pleas of Luzerne County Criminal Division at
                        No(s): CP-40-CR-0004077-2014



BEFORE: GANTMAN, P.J., MURRAY, J., and MUSMANNO, J.

MEMORANDUM BY MURRAY, J.:                            FILED FEBRUARY 15, 2018

        Francisco C. Santiago (Appellant) appeals from the order denying his

first Post Conviction Relief Act1 (PCRA) petition because it was untimely.

Appellant’s counsel, Matthew P. Kelly, Esq. (Counsel), has filed a petition to

withdraw pursuant to Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988),

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

We affirm and grant Counsel’s petition to withdraw.

        On June 22, 2015, Appellant pled guilty to possession with intent to


____________________________________________
1   42 Pa.C.S.A. §§ 9541-9546.

2 The Commonwealth indicated by correspondence dated December 5, 2017
that it would not submit an appellate brief.
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deliver3 (PWID) heroin and PWID marijuana.          On September 3, 2015, the

trial court imposed a sentence of 21 to 42 months’ imprisonment on the

PWID heroin charge and a consecutive six to 12 months’ imprisonment on

the PWID marijuana charge.           While the court stated that these sentences

were at the lower end of the sentencing guideline ranges, there is no

indication that any particular mandatory minimum sentence was imposed.

See N.T., 9/3/15, at 7. Appellant did not file a direct appeal.

        On January 6, 2017, Appellant filed the underlying PCRA petition pro

se.    He did not plead any of the PCRA’s timeliness exceptions under 42

Pa.C.S.A. § 9545(b)(1), but averred that on December 15, 2016, an inmate

told him that the Commonwealth did not have “Tenth Amendment authority

to try, convict sentence, or imprison” him because it had relinquished such

authority when it accepted federal funds through the Violent Offender

Incarceration and Truth-In-Sentencing (VOI/TIS) Incentive Program, 42

U.S.C. § 13701 et seq., and “other federal regulatory crimefighting [sic]

programs.”4 Appellant’s PCRA Pet. at 3-4. Appellant claimed that the same



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3   35 P.S. § 780-113(a)(30).

4 The Tenth Amendment to the United States Constitution provides, “The
powers not delegated to the United States by the Constitution, nor
prohibited by it to the States, are reserved to the States respectively, or to
the people.” U.S. Const. Amend. X. “The . . . VOI/TIS . . . Program
provided states with funding to build or expand correctional facilities and
jails.”  Violent Offender Incarceration & Truth-In-Sentencing (VOI/TIS)
(Footnote Continued Next Page)


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prisoner also told him Alleyne v. United States, 570 U.S. 99 (2013), had

retroactive   application    and    thus       his   “statutory   mandatory   minimum

sentences” were unconstitutional. Id. at 4. Finally, Appellant argued that

trial counsel was ineffective for failing to inform him of these issues, advising

him to plead guilty, and failing to pursue these issues on direct appeal. Id.

      The PCRA court appointed Paul Galante, Esq., to represent Appellant,

and on April 13, 2017, the court conducted a hearing, at which Appellant

testified by videoconference.       In response to the PCRA court’s finding that

the petition was filed more than one year after Appellant’s judgment of

sentence became final, Appellant testified, without further elaboration, that

he did not know until December 15, 2016 that he could file a PCRA petition.

N.T., 4/13/17, at 6-8.5 With respect to Appellant’s sentence, the PCRA court

stated that Alleyne was not implicated because no mandatory sentence was

imposed in this case; furthermore, the court rejected a new argument

advanced by Appellant at the hearing — that his sentences should have run
(Footnote Continued) _______________________

Incentive Program, https://www.bja.gov/ProgramDetails.aspx?Program_ID=
93.

5 The PCRA hearing transcript, which was necessary for our review, was not
included in the certified record transmitted to this Court. Upon inquiry by
this panel, the PCRA court provided the transcript.           Notwithstanding
Counsel’s petition to withdraw, we remind him, “Our law is unequivocal that
the responsibility rests upon the appellant to ensure that the record certified
on appeal is complete in the sense that it contains all of the materials
necessary for the reviewing court to perform its duty.”                   See
Commonwealth v. Preston, 904 A.2d 1, 7 (Pa. Super. 2006).




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concurrently because the charges were filed under the same docket. Id. at

3-5. The court concluded Appellant failed to establish that his petition was

timely filed and thus dismissed it. In its opinion, the PCRA court added that

Appellant’s testimony was not credible, and that even if it believed

Appellant, Appellant did not establish any of the PCRA timeliness exceptions.

PCRA Ct. Op. at 3.

      Appellant filed a timely appeal, but Attorney Galante failed to comply

with the PCRA court’s order to file a Pa.R.A.P. 1925(b) statement; thus, the

PCRA court found all issues waived. Id. at 2. Attorney Galante then failed

to file an appellate brief, and on September 27, 2017, this Court remanded

for a hearing to determine whether he abandoned Appellant.            Attorney

Galante failed to appear at that hearing, and on October 13, 2017, the PCRA

court found that he abandoned Appellant. The court then appointed current

Counsel, Matthew P. Kelly, Esq., to represent Appellant.     Counsel has now

filed with this Court a petition to withdraw, as well as a brief setting forth

Appellant’s claim that his PCRA petition was timely filed. Appellant has not

filed a response.

      We first consider Counsel’s petition to withdraw. Pursuant to Turner

and Finley, counsel seeking to withdraw from PCRA representation must:

      submit a “no-merit” . . . brief . . . to this 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.


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     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. Walters, 135 A.3d 589, 591 (Pa. Super. 2016) (citation

omitted).

     After reviewing the record and Counsel’s brief, we find the purpose of

the Turner/Finley requirements have been fulfilled.     Counsel’s petition to

withdraw states that he reviewed the record and has concluded that this

appeal is wholly frivolous and there are no meritorious issues, and that he

has advised Appellant of his right to proceed pro se or with privately

retained counsel.    Further, Counsel’s brief sets forth the appropriate

procedural history of this case. In setting forth Appellant’s argument as to

why his PCRA petition should be deemed timely, Counsel simply states:

     Specifically, Appellant testified that he obtained information from
     another inmate with regard to the timeframe for filing a PCRA on
     December 15, 2016. (N.T. p. 6-8). Appellant contends that the
     filing of his PCRA on January 6, 2016 falls within the 60 days
     exception pursuant to 42 Pa.C.S.A. § 9545(b)(2), and is thus
     timely.

Turner/Finley Brief at 6.      This discussion does not explain whether

Appellant relies on any particular timeliness exception under 42 Pa.C.S.A. §

9545(b)(1), nor does it refer to any of the claims raised in the petition.


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Moreover, our review of the record and PCRA hearing transcript reveals

Appellant has not invoked any particular § 9454(b)(1) exception.

       “‘On appeal from the denial of PCRA relief, our standard and scope of

review is limited to determining whether the PCRA court’s findings are

supported by the record and without legal error.’     . . .   ‘The PCRA court’s

credibility determinations, when supported by the record, are binding on this

Court.’”    Commonwealth v. Medina, 92 A.3d 1210, 1214 (Pa. Super.

2014) (citations omitted).

       “Pennsylvania law makes clear no court has jurisdiction to hear
       an untimely PCRA petition.” . . . “A petition for relief under the
       PCRA, including a second or subsequent petition, must be filed
       within one year of the date the judgment becomes final unless
       the petition alleges, and the petitioner proves, that an exception
       to the time for filing the petition, set forth at 42 Pa.C.S.A. §
       9545(b)(1)(i), (ii), and (iii), is met.”

Id. at 1215 (citations omitted).

       Appellant was sentenced on September 3, 2015, and did not file a

direct appeal. Thus, his judgment of sentence became final on the day his

30-day period for taking an appeal concluded, on Monday, October 5, 2015.6

See 42 Pa.C.S.A. § 9545(b)(3) (judgment becomes final at the conclusion of

direct review or at the expiration of time for seeking review); Pa.R.A.P.

____________________________________________
6 The thirtieth day fell on Saturday, October 3, 2015. Appellant thus had
until Monday, October 5th to file a notice of appeal. See 1 Pa.C.S.A. § 1908
(when the last day of any period of time referred to in any statute falls on a
Saturday, Sunday, or legal holiday, such day shall be omitted from the
computation).




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903(a) (appeal shall be filed within 30 days of entry of order).   Appellant

then had one year, until October 5, 2016, to file a PCRA petition. See 42

Pa.C.S.A. § 9545(b)(1); Medina, 92 A.3d at 1215.        The instant petition,

however, was filed approximately three months later, on January 6, 2017,

and, as stated above, did not invoke any of the timeliness exceptions under

42 Pa.C.S.A. § 9545(b)(1). Although Appellant averred, in both his petition

and PCRA hearing testimony, that he did not learn until December 15, 2016

that he could seek relief under the PCRA, the PCRA court properly reasoned

that even if this testimony were to be believed, it did not establish any

timeliness exception. See 42 Pa.C.S.A. § 9545(b)(1).

     For the foregoing reasons, we agree with the PCRA court that

Appellant’s petition was untimely and therefore the PCRA court lacked

jurisdiction to hear it. Accordingly, we affirm the order dismissing the PCRA

petition and grant Counsel’s petition to withdraw. See Walters, 135 A.3d at

591-92.

     Order affirmed. Counsel’s petition to withdraw granted.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 2/15/2018




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