J-S30006-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                         Appellee

                    v.

WILLIAM EUGENE REXROTH,

                         Appellant                    No. 1950 MDA 2016


               Appeal from the PCRA Order October 20, 2016
              In the Court of Common Pleas of Adams County
            Criminal Division at No(s): CP-01-CR-0000190-2015


BEFORE: SHOGAN, RANSOM, and MUSMANNO, JJ.

MEMORANDUM BY SHOGAN, J.:                           FILED AUGUST 08, 2017

      Appellant, William Eugene Rexroth, appeals from the order denying his

petition for relief filed pursuant to the Post Conviction Relief Act (“PCRA”),

42 Pa.C.S. §§ 9541-9546.       In addition, counsel for Appellant has filed a

motion to withdraw and a no-merit letter pursuant to Commonwealth v.

Turner, 544 A.2d 927 (Pa. 1988), and Commonwealth v. Finley, 550

A.2d 213 (Pa. Super. 1988) (en banc).          We grant counsel’s motion to

withdraw and affirm the order of the PCRA court.

      The PCRA court summarized the procedural history of this case, which

involves a string of burglaries and thirty related charges, as follows:

             On July 9, 2015, Appellant appeared with counsel and
      entered pleas of guilty to Counts 1 through 13 and Count 29.
      Counts 1 [through] 7 were each burglary of overnight
      accommodations without anyone present, each a felony of the
      first degree1. Count 8 was conspiracy, as a felony of the first
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       degree2. Counts 9-13 were each burglary of a structure not
       adapted for overnight accommodations and without a person
       present, each a felony of the first degree3. Count 29 was person
       not to possess a firearm, as a felony of the second degree 4.
       Pursuant to a negotiated plea, [on July 9, 2015,] Appellant was
       sentenced to no less than three (3) years nor more than ten (10)
       years in a State Correctional Institution on each of Counts 1
       through 13 to run concurrently with each of those other counts
       but to run consecutively to the sentence on Count 29. On Count
       29, Appellant was sentenced to no less than five (5) years nor
       more than ten (10) years in a State Correctional Institution. The
       aggregate sentence is eight (8) to twenty (20) years in a State
       Correctional Institution.
              1
                  18 Pa. C.S. § 3502(a)(2)[.]
              2
                  18 Pa. C.S. §903(a)(1)[.]
              3
                  18 Pa. C.S. § 3502(a)(4)[.]
              4
                  18 Pa. C.S. § 6105(a)(1)[.]

PCRA Court Opinion, 12/20/16, at 1-2.

       Appellant did not file a direct appeal from his judgment of sentence.

Appellant filed the instant PCRA petition on September 19, 2016. The PCRA

court appointed counsel to represent Appellant and scheduled a hearing. On

October 20, 2016, the PCRA court entered an order dismissing Appellant’s

PCRA petition as untimely filed. Appellant then filed a timely1 pro se notice

____________________________________________


1
   Even though Appellant’s notice of appeal was not docketed until November
23, 2016, we will use the date of November 16, 2016, as the date of filing
because, pursuant to the “prisoner-mailbox rule,” Appellant is incarcerated
and the accompanying envelope is postmarked November 16, 2016. See
Commonwealth v. Wilson, 911 A.2d 942, 944 (Pa. Super. 2006)
(recognizing that under the “prisoner-mailbox rule,” a document is deemed
filed when placed in the hands of prison authorities for mailing).



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of appeal.2 Both Appellant and the PCRA court have complied with Pa.R.A.P.

1925.

        On March 3, 2017, PCRA counsel filed with this Court a motion to

withdraw and a Turner/Finley letter.                In the letter, counsel advised

Appellant that he could represent himself or that he could retain private

counsel.     However, the letter erroneously stated that these rights were

conditioned     upon     this    Court   granting   counsel   leave   to   withdraw.

Consequently, in an abundance of caution, on March 8, 2017, this Court

issued an order directing that Appellant be permitted to file a response to

counsel’s Turner/Finley “no merit” letter, either pro se or via privately

retained counsel, within thirty days of the date of that order.3           Appellant

____________________________________________


2
  With regard to the fact that Appellant filed a notice of appeal pro se while
he was represented by counsel, we note that Appellant is not entitled to
hybrid representation. See Commonwealth v. Ellis, 626 A.2d 1137 (Pa.
1993) (disapproving of pro se filings by counseled appellants). Indeed, our
courts will not entertain pro se filings while an appellant remains
represented, and such filings have been described as legal nullities.
Commonwealth v. Ali, 10 A.3d 282, 293 (Pa. 2010). However, pro se
notices of appeal present special circumstances. In Commonwealth v.
Cooper, 27 A.3d 994 (Pa. 2011), our Supreme Court held that a pro se
notice of appeal, filed while Cooper was represented by counsel, was not
automatically a legal nullity, but was simply “premature.” Id. at 1007. See
also Commonwealth v. Wilson, 67 A.3d 736, 738 (Pa. 2013) (explaining
that “[Wilson] filed a pro se notice of appeal; it is not clear why his court-
appointed counsel did not file the notice,” and proceeding to review the
merits of Wilson’s case without further discussion). Thus, we will not treat
Appellant’s pro se notice of appeal as a nullity.
3
    The complete text of our order follows:

(Footnote Continued Next Page)


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filed a response with this Court on March 23, 2017. Appellant has not filed

any additional documents with this Court.

      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 following conditions to

be met by counsel in seeking to withdraw in a collateral appeal:

             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.
                       _______________________
(Footnote Continued)

            In light of the fact that Appellant’s counsel, Thomas R.
      Nell, Esquire, has filed a “no merit” letter and requested to
      withdraw as counsel pursuant to Commonwealth v. Turner,
      544 A.2d 927 (Pa. 1988) and Commonwealth v. Finley, 550
      A.2d 213 (Pa. Super. 1988), Appellant shall be permitted to file
      a response to counsel’s Turner/Finley “no merit” letter, either
      pro se or via privately retained counsel, within 30 days of the
      date that this order is filed. Appellant’s failure to file a pro se or
      counseled response may be considered as a waiver of his right to
      present his issues to this Court.

Order, 3/8/17, at 1. We believe that this order served to rectify the
misrepresentative language contained in counsel’s letter to Appellant.
However, we alert counsel to be more diligent about such matters in the
future; we will not hesitate to deny an attorney’s request to withdraw from
representation for failure to properly advise the litigant of his rights. See
Commonwealth v. Muzzy, 141 A.3d 509 (Pa. Super. 2016) (denying
counsel’s request to withdraw for failing to fully and accurately comply with
the requirements in post-conviction matter).



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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.

                                    ***

             [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.

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

omitted) (brackets in original).

      In the present case, counsel complied with the requirements for

withdrawal from a collateral appeal.    In the motion filed with this Court,

counsel alleged that he thoroughly reviewed the case, evaluated the issues,

conducted an independent review of the record, and concluded there were

no issues of merit. Counsel also listed the issues relevant to this appeal in

his no-merit letter and explained why the appeal is without merit.         In

addition, counsel averred that he sent Appellant a copy of the motion to

withdraw and the no-merit letter. Thus, we will allow counsel to withdraw if,

after our review, we conclude that the issues relevant to this appeal lack

merit.

      We have discerned the following issues, presented by PCRA counsel on

behalf of Appellant in the Turner/Finley letter: (1) whether, pursuant to

Alleyne v. United States, 133 S.Ct. 2151 (2013), Appellant’s mandatory

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minimum sentences are illegal, and (2) Appellant’s counsel improperly

advised him to plead guilty in light of the fact that Appellant did not possess

the firearms in question. Turner/Finley Letter, at 1-2. In addition, in his

response filed with this Court on March 23, 2017, Appellant asserted that his

mandatory minimum sentence is illegal under Alleyne v. United States,

133 S.Ct. 2151 (2013), and that his PCRA petition should have been deemed

to be timely filed.   Appellant also alleges prior counsel was ineffective at

sentencing, claiming the following: a conflict of interest because counsel

served as a prosecutor in a previous case of Appellant’s, not permitting

Appellant to review a discovery packet, failing to explain the consequences

of the plea agreement, and undue delay in filing a PCRA petition after

sentencing. Response to Order, 3/23/17, at 1-2.

      When reviewing the propriety of an order denying PCRA relief, we

consider the record “in the light most favorable to the prevailing party at the

PCRA level.”   Commonwealth v. Stultz, 114 A.3d 865, 872 (Pa. Super.

2015) (quoting Commonwealth v. Henkel, 90 A.3d 16, 20 (Pa. Super.

2014) (en banc)). This Court is limited to determining whether the evidence

of record supports the conclusions of the PCRA court and whether the ruling

is free of legal error. Commonwealth v. Rykard, 55 A.3d 1177, 1183 (Pa.

Super. 2012). We grant great deference to the PCRA court’s findings that

are supported in the record and will not disturb them unless they have no




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support in the certified record.          Commonwealth v. Rigg, 84 A.3d 1080,

1084 (Pa. Super. 2014).

       We     first    address     whether     Appellant     satisfied    the       timeliness

requirements of the PCRA.           A judgment of sentence “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.” 42 Pa.C.S. § 9545(b)(3). This

time requirement is mandatory and jurisdictional in nature, and the court

may     not   ignore    it   in   order   to   reach   the   merits      of   the    petition.

Commonwealth v. Cintora, 69 A.3d 759, 762 (Pa. Super. 2013).

       However, an 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(b)(1)(i), (ii),

and (iii), is met.4 A petition invoking one of these exceptions must be filed

____________________________________________


4
    The exceptions to the timeliness requirement are:

       (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
(Footnote Continued Next Page)


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within sixty days of the date the claim could first have been presented. 42

Pa.C.S. § 9545(b)(2).          In order to be entitled to the exceptions to the

PCRA’s one-year filing deadline, “the petitioner must plead and prove

specific facts that demonstrate his claim was raised within the sixty-day time

frame” under section 9545(b)(2). Commonwealth v. Carr, 768 A.2d 1164,

1167 (Pa. Super. 2001).

      Our review of the record reflects that Appellant’s judgment of sentence

became final on August 10, 2015,5 thirty days after the trial court imposed

the judgment of sentence, and Appellant failed to file a direct appeal with

this Court.   42 Pa.C.S. § 9545(b)(3); Pa.R.A.P. 903(a). Thus, in order to be

timely under the PCRA, Appellant was required to file the PCRA petition on or

before August 10, 2016.            Appellant did not file the PCRA petition until

September 19, 2016.           Accordingly, the instant PCRA petition is patently

untimely.




                       _______________________
(Footnote Continued)

      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), (ii), and (iii).
5
  We note that a direct appeal had to be filed on or before Monday, August
10, 2015, because August 8, 2015, was a Saturday. See 1 Pa.C.S. § 1908
(stating that, for computations of time, whenever the last day of any such
period shall fall on Saturday or Sunday, or a legal holiday, such day shall be
omitted from the computation). Pa.R.A.P. 107; Pa.R.A.P. 903, note.



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     As stated, if a petitioner does not file a timely PCRA petition, his

petition nevertheless may be received under any of the three limited

exceptions to the timeliness requirements of the PCRA.         42 Pa.C.S. §

9545(b)(1). If a petitioner asserts one of these exceptions, he must file his

petition within sixty days of the date that the exception could be asserted.

42 Pa.C.S. § 9545(b)(2).

     Here, to the extent Appellant attempts to invoke the newly discovered

facts exception based upon the decisions in Alleyne, and Commonwealth

v. Hopkins, 117 A.3d 247 (Pa. 2015), Response to Counsel’s No-Merit

Letter, 3/23/17, at 1-2, we observe that Appellant essentially contends that

his sentence is illegal based upon these decisions. In Alleyne, the United

States Supreme Court held that any fact that increases the sentence for a

given crime must be submitted to the jury and found beyond a reasonable

doubt.   Alleyne, 133 S.Ct. at 2155. The Supreme Court reasoned that a

Sixth Amendment violation occurs where these sentence-determinative facts

are not submitted to a jury. Id. at 2156.

     In Hopkins, our Supreme Court held that under Alleyne, the

mandatory minimum sentencing scheme set forth in 18 Pa.C.S. § 6317

(“Drug-free school zones”) was unconstitutional in its entirety because

certain provisions of the statute did not adhere to the Alleyne holding and

were not severable from the remaining portions of the statute.     Hopkins,

117 A.3d at 262. However, Appellant’s reliance upon Alleyne and Hopkins


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as newly-discovered facts is without merit, as judicial decisions do not

constitute newly-discovered facts for the purposes of section 9545(b)(1)(ii).

Commonwealth v. Watts, 23 A.3d 980, 986 (Pa. 2011).

       Moreover, to the extent Appellant attempts to invoke the newly-

recognized constitutional right exception under section 9545(b)(1)(iii), he

filed the instant PCRA petition more than sixty days after both Alleyne and

Hopkins      were     decided.6        42      Pa.C.S.   §   9545(b)(2);   see   also

Commonwealth v. Boyd, 923 A.2d 513, 517 (Pa. Super. 2007) (stating

that “[w]ith regard to a[ newly]-recognized constitutional right, this Court

has held that the sixty-day period begins to run upon the date of the

underlying judicial decision.”). Indeed, both Alleyne and Hopkins predated

Appellant’s guilty plea and judgment of sentence.

       Finally, to the extent Appellant contends that his sentence is illegal

under Alleyne and Hopkins and asks that we invoke jurisdiction and grant

him relief, we note that “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.” Commonwealth v. Robinson, 139 A.3d

178, 185 (Pa. 2016) (citation and quotation marks omitted).                It is well

settled that “[a]lthough legality of sentence is always subject to review
____________________________________________


6
 Alleyne was decided on June 17, 2013, and Hopkins was decided on June
15, 2015. Appellant filed the instant PCRA petition on September 19, 2016.



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within the PCRA, claims must still first satisfy the PCRA’s time limits or

one of the exceptions thereto.” Commonwealth v. Fowler, 930 A.2d

586,   592   (Pa.   Super.   2007)   (citations   omitted)   (emphasis   added).

Therefore, Appellant’s claims premised upon Alleyne and Hopkins fail.

       In conclusion, because Appellant’s PCRA petition was untimely and no

exceptions apply, the PCRA court correctly determined that it lacked

jurisdiction to address the issues presented and grant relief.              See

Commonwealth v. Fairiror, 809 A.2d 396, 398 (Pa. Super. 2002) (holding

that PCRA court lacks jurisdiction to hear untimely petition). Likewise, we

lack the authority to address the merits of any substantive claims raised in

the PCRA petition. See Commonwealth v. Bennett, 930 A.2d 1264, 1267

(Pa. 2007) (“[J]urisdictional time limits go to a court’s right or competency

to adjudicate a controversy.”). Furthermore, upon our independent review,

no relief is due, and the PCRA court’s determination is supported by the

record and free of legal error. Also, having determined that Appellant is not

entitled to PCRA relief, we allow counsel to withdraw under the precepts of

Turner/Finley.

       Motion to withdraw granted. Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 8/8/2017

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