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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.                             :
                                               :
                                               :
    BYRON GUDGER                               :
                                               :
                       Appellant               :   No. 1630 EDA 2018

               Appeal from the PCRA Order Entered May 7, 2018
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                       No(s): CP-51-CR-00015374-2012


BEFORE: OTT, J., KUNSELMAN, J., and McLAUGHLIN, J.

MEMORANDUM BY McLAUGHLIN, J.:                           Filed: December 13, 2019

        Byron Gudger appeals from the order dismissing his petition filed under

the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. Gudger’s

counsel has filed a Turner/Finley1 brief and Petition for Permission to

Withdraw as Counsel. We grant counsel leave to withdraw, and affirm the

order of the PCRA court.

        A jury convicted Gudger of possession with intent to deliver 2 for selling

cocaine. Gudger failed to appear for his 2013 sentencing hearing, and the trial

court sentenced him in absentia to five to ten years’ incarceration. Gudger did

not file a direct appeal from his judgment of sentence, and fled from law


____________________________________________


1 Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth
v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc).

2   35 P.S. § 780-113(a)(30).
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enforcement until 2016, when he was apprehended and began serving his

sentence.

      Gudger filed the instant PCRA petition, his first, on July 6, 2016. In the

petition, Gudger claimed he was illegally sentenced to an unconstitutional

mandatory minimum sentence, in contravention of Alleyne v. United States,

133 S.Ct. 2151 (2013). He also claimed his trial counsel was ineffective in

relation to his sentencing.

      The court appointed counsel to represent Gudger. Counsel filed a

Turner/Finley letter and motion to withdraw, and the court issued a Rule

907 notice of its intent to dismiss Gudger’s petition without a hearing. See

Pa.R.Crim.P. 907. Gudger filed a pro se response to the Rule 907 notice, which

prompted counsel to withdraw his motion to withdraw and file an amended

PCRA petition on Gudger’s behalf. The amended petition asserted that Gudger

should be granted relief pursuant to Alleyne.

      The PCRA court issued a new Rule 907 notice of its intent to dismiss the

PCRA petition without a hearing, and, after receiving a response from the

Commonwealth, issued a third Rule 907 notice. The court thereafter dismissed

the petition. In its Rule 1925(a) opinion, the PCRA court explained that it found

Gudger’s petition to be untimely, as “an Alleyne claim does not establish an

exception to the time bar.” PCRA Ct. Op., filed 11/20/18, at 1. The PCRA court

also clarified that even if Gudger’s petition had been timely, his illegal

sentencing claim was without merit; the court had not imposed a mandatory

minimum when sentencing Gudger, but an aggravated sentence based on

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Gudger’s failure to appear at sentencing. Id. at 2. Gudger filed a timely notice

of appeal.

      As stated above, Gudger’s counsel has petitioned this Court for leave to

withdraw. Counsel requesting to withdraw from PCRA representation must file

a “no-merit” letter that conforms to the requirements of Turner and Finley.

Commonwealth v. Muzzy, 141 A.3d 509, 510-11 (Pa.Super. 2016). In the

no-merit letter, counsel must “[detail] the nature and extent of counsel’s

diligent review of the case, [list] the issues which the petitioner wants to have

reviewed, [explain] why and how those issues lack merit, and [request]

permission to withdraw.” Commonwealth v. Wrecks, 931 A.2d 717, 721

(Pa.Super. 2007). Counsel must also send to the petitioner (1) a copy of the

no-merit letter, (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.” Id. When counsel seeks to withdraw from appellate representation,

the statement must advise the petitioner that he has the right to proceed pro

se or through new counsel immediately upon counsel’s request to withdraw.

Muzzy, 141 A.3d at 512.

      If counsel complies with the technical demands of Turner/Finley, then

the court assessing the withdraw request will “conduct its own review of the

merits of the case.” Wrecks, 931 A.2d at 721. If the court does not find any

meritorious claims, it will permit counsel to withdraw and deny PCRA relief.

Id.




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      Here, counsel’s Petition for Permission to Withdraw as Counsel, a copy

of which counsel sent to Gudger, states counsel “has corresponded with

[Gudger], has conferenced this case, reviewed the file, the pro se PCRA

petition, the dockets, [and] the Lower Court Opinion and case law[.]” Petition

for Permission to Withdraw as Counsel at 2, ¶ 5. Counsel styled his

Turner/Finley no-merit letter as a brief. In the Turner/Finley brief, counsel

outlines the procedural history of the case, discusses the issues raised by

Gudger, and explains why counsel believes the issues lack merit. The cover

letter that counsel sent to Gudger with the Turner/Finley brief advises

Gudger that he has the right to represent himself pro se or retain private

counsel, and that he may immediately raise any objections or issues before

this Court. We conclude that counsel’s withdraw request satisfies the technical

requirements, and turn to an independent review of the case, noting that

Gudger has not filed a response to counsel’s no-merit letter and withdrawal

request.

      The timeliness of a PCRA petition is a jurisdictional prerequisite; if a

petition fails to satisfy the statutory timeliness requirements, a PCRA court

has no jurisdiction to grant relief. Commonwealth v. Rizvi, 166 A.3d 344,

347 (Pa.Super. 2017). A PCRA petition must be filed within one year of the

date the petitioner’s judgment of sentence becomes final, which is at the

conclusion of direct review or the expiration of time for seeking such review.

42 Pa.C.S.A. § 9545(b)(1), (3). A petition filed after the one-year deadline

may be deemed timely if one of three enumerated exceptions applies:

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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.

Id. at § 9545(b)(1)(i-iii). If an exception applies, the petitioner must prove

the petition was filed within 60 days of the earliest date it might have been

filed. Id. at § 9545(b)(2).3

       Here, Gudger’s judgment of sentence became final 30 days after his

2013 sentencing, and his 2016 petition is therefore facially untimely. In order

to be eligible for relief, Gudger’s petition must qualify for a timeliness

exception. We conclude no exception applies, and the petition is untimely.

       Gudger has asserted that the court imposed a mandatory minimum

sentence that is illegal under Alleyne, which was decided prior to the

imposition of Gudger’s sentence.4 However, a court has no jurisdiction to

entertain an illegal sentencing claim based on Alleyne when the claim is


____________________________________________


342 Pa.C.S.A. § 9545(b)(2) has since been amended to allow a petitioner one
year to file a petition from the date it first could have been filed. The
amendment applies to claims presented after December 24, 2017, and thus
does not apply to Gudger’s 2016 petition.

4 Gudger relatedly claims that his trial counsel was ineffective for failing to
raise before the trial court the legality of his sentence under Alleyne.

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raised in an untimely PCRA petition. Commonwealth v. Miller, 102 A.3d

988, 995 (Pa.Super. 2014); cf. Commonwealth v. DiMatteo, 177 A.3d 182,

192 (Pa. 2018). Regardless, even if Gudger had presented his Alleyne claim

in a timely petition, no relief would be due. The court did not sentence Gudger

to an illegal mandatory minimum, but imposed an aggravated sentence due

to Gudger’s failure to appear at sentencing. See N.T., Sentencing, 11/12/13,

at 9.5

         In his pro se response to the PCRA court’s first Rule 907 notice, Gudger

also raised the claim that his trial counsel was ineffective for failing to move

for a continuance of Gudger’s sentencing hearing, despite Gudger’s repeated

requests. Pro se Response, filed April 7, 2017, at 2. Gudger argued that

because of this, his friends and family were unable to testify at sentencing on
____________________________________________


5   The court stated at sentencing,

         [T]he justice system simply will fall apart if we can’t get [the]
         defendant to honor the subpoena, particularly where I gave him a
         break by allowing him to be out on bail pending sentencing.
         Having heard me tell him that, I would give him the maximum
         available sentence if he didn’t show. This decision tells me that
         there is no chance that he can adequately rebuild and that he can’t
         make the right decision. It makes it that much more difficult in
         this room to get the benefit of the doubt between trial and
         sentencing. It’s not only hurting himself, but a lot of people in this
         room are probably hurting as well.

         The sentence of this court is five to ten years incarceration. He is
         RRRI eligible and it becomes 50 months instead of 60. This is an
         aggravated revisited sentence in light of the fact that he failed to
         appear at sentencing. Even knowing that, doing so would mean
         the increase of several years of the sentence.

N.T at 8-9.

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his behalf. Id. Gudger also alleged that trial counsel was ineffective for failing

to file a direct appeal on his behalf. Id. Gudger asserted his petition was timely

because although he did not file it until July 2016, he did not begin serving his

sentence until January 2016, and he unsuccessfully attempted to file the

petition within a week of his arrest. Id. at 2-3.

      In essence, Gudger argues that his fugitive status tolled the period for

filing his PCRA petition and delayed his discovery of his attorney’s

ineffectiveness. These assertions do not render Gudger’s petition timely. First,

by the plain terms of the PCRA, the operative date for the purposes of

discerning the timeliness of a petition is the date the petitioner’s judgment of

sentence became final, not the date the petitioner began compliance with the

court’s sentencing order. See 42 Pa.C.S.A. § 9545(b)(3).

      Second, a petitioner asserting an exception to the one-year time bar

must act with due diligence in discovering and presenting his or her claims.

See 42 Pa.C.S.A. § 9545(b)(1)(ii), (b)(2). We are guided by the “fugitive

forfeiture rule,” which provides that a defendant’s fugitive status does not toll

the filing period for post-trial motions or a notice of appeal. See

Commonwealth v. Judge, 797 A.2d 250, 258 (Pa. 2002). If the defendant

flees the court system, the court may dismiss the appeal, and if the fugitive

returns, he “take[s] the system of criminal justice as he finds it upon his

return: if time for filing has elapsed he may not file; if it has not, he may.” Id.




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(quoting Commonwealth v. Deemer, 705 A.2d 827, 829 (Pa. 1997));

accord Commonwealth v. Adams, 200 A.3d 944, 955 (Pa. 2019).6

          Along these same lines, Gudger cannot assert he exercised due diligence

in discovering the basis for his ineffectiveness claims or presenting those

claims to the PCRA court. Gudger absconded from custody for several years,

rather than investigating the basis for his claims and pursuing timely PCRA

relief. Gudger must take the criminal justice system as he now finds it: years

after his judgment of sentence has become final, and years after the alleged

ineffectiveness underlying his claim occurred. Gudger has not acted with due

diligence, but, “by absconding, has flagrantly and deliberately bypassed the

entire judicial process.” Adams, 200 A.3d at 954.

          Our independent review of the record has not uncovered any meritorious

argument supporting the timeliness of Gudger’s petition. We therefore grant

counsel’s request to withdraw, and affirm the order of the PCRA court denying

relief.

          Order affirmed. Petition for Permission to Withdraw as Counsel granted.

____________________________________________


6   As the Supreme Court stated,

          The fugitive forfeiture rule does not merely serve to ensure the
          orderly operation of the appellate process and ensure that the
          appellate court’s judgment can be enforced; it also deters a
          defendant’s flight or escape, encourages self-surrender as soon as
          possible, and furthers efficiencies in, and promotes the dignity of,
          appellate courts.


Adams, 200 A.3d at 953.

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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/13/2019




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