J-S72033-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF                         :     IN THE SUPERIOR COURT OF
 PENNSYLVANIA                            :          PENNSYLVANIA
                                         :
                                         :
               v.                        :
                                         :
                                         :
 AMEL D. JONES                           :
                                         :     No. 1166 EDA 2017
                    Appellant

                 Appeal from the PCRA Order March 9, 2017
   In the Court of Common Pleas of Delaware County Criminal Division at
                     No(s): CP-23-CR-0005078-2011


BEFORE:    BENDER, P.J.E., MUSMANNO, J., and STEVENS*, P.J.E.

MEMORANDUM BY STEVENS, P.J.E.:                   FILED DECEMBER 11, 2017

      Appellant, Amel D. Jones, appeals from the order entered in the Court

of Common Pleas of Delaware County dismissing as untimely his third petition

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

9546. In addition, appointed counsel seeks to withdraw from this appeal on

the grounds that the issues raised under the PCRA are meritless. After review,

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

to withdraw.

      On December 15, 2011, Appellant entered a negotiated guilty plea to

one count each of possession with the intent to deliver a controlled substance

and possession of a firearm and was sentenced to a term of incarceration of

78 to 156 months’ incarceration to be followed by five years’ consecutive

probation. Appellant filed no direct appeal.


____________________________________
* Former Justice specially assigned to the Superior Court.
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      On October 21, 2014, Appellant filed his first PCRA petition alleging that

his sentence was unlawful under Alleyne v. United States, __ U.S. ___, 133

S.Ct. 2151 (2013). The PCRA court appointed counsel, who subsequently filed

a petition under Commonwealth Turner, 544 A.2d 927 (Pa. 1988) and

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

withdraw from the collateral appeal. The PCRA court granted counsel’s motion

to withdraw and dismissed Appellant’s PCRA petition as untimely.

      On July 30, 2015, Appellant filed a second PCRA petition again raising

the Alleyne illegal-sentencing claim.       As with Appellant’s first collateral

appeal, the PCRA court granted appointed counsel’s motion to withdraw and

dismissed Appellant’s second petition as untimely.

      On February 18, 2016, Appellant filed this, his third PCRA petition, and

appointed counsel filed an amended petition on September 2, 2016, raising,

again, the Alleyne issue. The PCRA court issued Pa.R.Crim.P. 907 notice of

its intent to dismiss Appellant’s petition as raising issues previously litigated,

and, by its Order of March 9, 2017, dismissed the petition. This timely appeal

followed.

      On August 2, 2017, present counsel filed an application to withdraw his

appearance, but he has erroneously filed a brief seeking to withdraw under

the Anders v. California, 386 U.S. 738 (1967), standard for withdrawal,

which applies when counsel seeks to withdraw from a direct appeal, instead

of under the Turner and Finley standard. However, because an Anders brief

provides greater protection to a defendant, this Court may accept an Anders

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brief in lieu of a Turner/Finley “no merit” letter. Commonwealth v. Reed,

107 A.3d 137, 139 n. 5 (Pa.Super. 2014).            We will refer to counsel's

erroneously titled Anders Brief as a Turner/Finley brief. Appellant has not

responded to the petition to withdraw as counsel, nor has he retained alternate

counsel for this appeal.

      Prior to addressing the merits of Appellant's claims on appeal, we must

first decide whether counsel has fulfilled the procedural requirements for

withdrawing his representation. Commonwealth v. Daniels, 947 A.2d 795,

797 (Pa.Super. 2008).      This Court has listed the conditions to be met by

counsel in seeking to withdraw in a collateral appeal as follows:


      Counsel petitioning to withdraw from PCRA representation must
      proceed ... under [Turner, supra and Finley, supra and] ...
      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 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.

      ***

      [W]here counsel submits a petition and no-merit letter that ...
      satisfy the technical demands of Turner/Finley, the court—trial
      court or this 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.



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Commonwealth v. Doty, 48 A.3d 451, 454 (Pa.Super. 2012) (citation

omitted).

      Herein, counsel indicates he made a thorough review of Appellant's case

and concluded the appeal is wholly frivolous. See Application to Withdraw

Appearance, filed 8/2/17, at ¶¶ 2–3. Counsel also lists in the Turner/Finley

brief the issue Appellant wishes to this appeal and explains why, in his view,

it lacks merit. Turner/Finley brief at 7-8. In addition, counsel has attached

to his motion a copy of the letter he sent to Appellant wherein counsel advised

Appellant of his right to proceed pro se or through privately-retained counsel.

Counsel also attached to the letter a copy of his application to withdraw and

Turner/Finley brief.

      Thus, we conclude that counsel has substantially complied with the

requirements necessary to withdraw as counsel.       See Commonwealth v.

Karanicolas, 836 A.2d 940, 947 (Pa.Super. 2003) (holding that substantial

compliance with the requirements to withdraw as counsel will satisfy the

Turner/Finley criteria). We now review this appeal based on the issue of

arguable merit counsel presented in the Turner/Finley brief to ascertain

whether it entitles Appellant to relief.

      Counsel identifies the following issue for appellate review:

      WAS THE SENTENCE IMPOSED IN THIS MATTER IN
      CONTRAVENTION OF ALLEYNE V. UNITED STATES AND
      SUBSEQUENT DECISIONS?

Turner/Finley brief at 4.



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      When reviewing the propriety of an order denying PCRA relief, this Court

is limited to a determination of whether the evidence of record supports the

PCRA court's conclusions and whether its ruling is free of legal error.

Commonwealth v. Robinson, 139 A.3d 178, 185 (Pa. 2016). This Court

will not disturb the PCRA court's findings unless there is no support for them

in the certified record.   Commonwealth v. Lippert, 85 A.3d 1095, 1100

(Pa.Super. 2014).

      At the outset, we consider whether this appeal is properly before us.

The question of whether a petition is timely raises a question of law, and where

a petitioner raises questions of law, our standard of review is de novo and our

scope of review is plenary. Commonwealth v. Callahan, 101 A.3d 118, 121

(Pa.Super. 2014).

      All PCRA petitions must be filed within one year of the date upon which

the judgment of sentence became final, unless one of the statutory exceptions

set forth in 42 Pa.C.S.A. § 9545(b)(1)(i)-(iii) applies. The petitioner bears the

burden of pleading and proving an applicable statutory exception.          If the

petition is untimely and the petitioner has not pled and proven an exception,

the petition must be dismissed without a hearing because Pennsylvania courts

are   without   jurisdiction   to   consider   the   merits   of   the   petition.

Commonwealth v. Taylor, 65 A.3d 462, 468 (Pa.Super. 2013).

      42 Pa.C.S.A. § 9545(b)(1)(i)-(iii) states:

      (b) Time for filing petition.—



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      (1) Any petition under this subchapter, including a second or
      subsequent petition, shall be filed within one year of the date the
      judgment of sentence becomes final, unless the petition alleges
      and the petitioner proves that:

      (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). In addition, any petition attempting to invoke one

of these exceptions “shall be filed within 60 days of the date the claim could

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

      Herein, Appellant was sentenced on December 15, 2011, and filed no

post sentence motion. As such, Appellant's notice of appeal had to be filed by

January 14, 2012. As Appellant failed to do so, his judgment of sentence

became final for purposes of the PCRA on that date. See 42 Pa.C.S.A. §

9545(b)(3) (“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”); see also U.S. Sup.Ct.R. 13.1.

      Under this timeline, Appellant had until Monday, January 14, 2013, to

file a timely PCRA petition. Therefore, the instant petition initially filed pro se



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on February 18, 2016, was patently untimely, and the burden fell upon

Appellant to plead and prove that one of the enumerated exceptions to the

one-year time-bar applied to his case. See 42 Pa.C.S.A. § 9545(b)(1);

Commonwealth v. Perrin, 947 A.2d 1284, 1286 (Pa.Super. 2008) (to invoke

a statutory exception to the PCRA time-bar, a petitioner must properly plead

and prove all required elements of the exception).

      We find that Appellant has not proven the applicability of any exception

to the PCRA time-bar under Section 9545(b). Specifically, Appellant contends

that his sentence is illegal under Alleyne, which held that any fact that, by

law, increases the penalty for a crime is an “element” that must be submitted

to the jury and found beyond a reasonable doubt.             However, the rule

established in Alleyne does not apply retroactively where, as here, the

judgment of sentence is final. See Commonwealth v. Washington, 142

A.3d 810, 820 (Pa. 2016) (holding that “Alleyne does not apply retroactively

to cases pending on collateral review”); see also Commonwealth v. Miller,

102 A.3d 988, 995 (Pa. Super. 2014) (stating that while Alleyne claims go to

the legality of the sentence, a court cannot review a legality claim where it

does not have jurisdiction).

      Therefore, Appellant’s third PCRA petition is manifestly untimely, which

divests this Court of jurisdiction to offer him any form of relief.

      Motion to withdraw as counsel granted. Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/11/2017




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