J-S76006-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

ERNESTO LEON

                            Appellant                 No. 1498 EDA 2016


              Appeal from the PCRA Order Entered April 12, 2016
             In the Court of Common Pleas of Northampton County
               Criminal Division at No: CP-48-CR-0001771-2010


BEFORE: STABILE, DUBOW, JJ., and STEVENS, P.J.E.*

MEMORANDUM BY STABILE, J.:                        FILED DECEMBER 22, 2016

        Appellant, Ernesto Leon, appeals from the April 12, 2016 order

dismissing his petition pursuant to the Post Conviction Relief Act (“PCRA”),

42 Pa.C.S.A. §§9541-46. Counsel has filed a no merit letter and petition to

withdraw pursuant to Commonwealth v. Turner, 544 A.2d 213 (Pa. 1988)

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

We affirm the order and grant the petition to withdraw.

        On December 22, 2010, the trial court sentenced Appellant to 5 to 10

years of incarceration for possession with intent to deliver a controlled




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*
    Former Justice specially assigned to the Superior Court.
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substance1 after Appellant pled guilty to that offense.            Appellant filed a

motion to withdraw his guilty plea on December 29, 2010, and the trial court

denied that motion on January 18, 2011.              Appellant did not file a direct

appeal.

       On March 21, 2011, Appellant filed a timely first PCRA petition.            On

October 18, 2011, the PCRA court denied relief without a hearing. Appellant

filed the instant petition on November 20, 2014.              On February 19, 2015,

appointed counsel filed a petition and no merit letter pursuant to

Turner/Finley.        On March 9, 2015, the PCRA court entered an order

dismissing    Appellant’s     petition   and     permitting   counsel   to   withdraw.

Appellant filed a pro se appeal, and the PCRA court appointed appellate

counsel, notwithstanding its prior order permitting counsel to withdraw.

Appointed appellate counsel has proceeded under Turner/Finley before this

Court.

       Turner/Finley procedure requires the following:

             1) A “no-merit” letter by PC[R]A counsel detailing the
       nature and extent of his review;

             2) The “no-merit” letter by PC[R]A counsel listing each
       issue the petitioner wished to have reviewed;

              3) The PC[R]A counsel's “explanation”, in the “no-merit”
       letter, of why the petitioner's issues were meritless;


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1
    35 P.S. § 780-113(a)(30).



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           4) The PC[R]A court conducting its own independent
     review of the record; and

          5) The PC[R]A court agreeing with counsel that the petition
     was meritless.

Commonwealth v. Widgins, 29 A.3d 816, 818 (Pa. Super. 2011) (quoting

Commonwealth v. Pitts, 981 A.2d 875, 876 n.1 (Pa. 2009)).          Counsel’s

petition and no merit letter comply with the foregoing, and counsel has

served copies of his fillings on Appellant.   We therefore proceed with our

independent review of the record.

     The PCRA required Appellant to file his petition within one year after

his judgment of sentence became final. 42 Pa.C.S.A. § 9545(b)(1). Failure

to meet the one-year deadline deprives the PCRA court of jurisdiction.

Commonwealth v. Valentine, 948 A.2d 346, 349 (Pa. Super. 2007). As

explained above, the trial court imposed sentence on Appellant on December

22, 2010, and Appellant did not file a direct appeal.      His judgment of

sentence was final 30 days later.    Appellant filed the instant petition on

November 20, 2014, nearly four years after the finality of his judgment of

sentence.

     According to the no merit letter, Appellant would argue that his

sentence is illegal under Alleyne v. United States, 131 S.Ct. 2151 (2013).

The PCRA provides an exception to the one-year time bar where the petition

is based on a newly recognized constitutional right.           42 Pa.C.S.A.

§ 9545(b)(1)(iii). Alleyne held that any fact, other than a prior conviction,



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resulting in a mandatory minimum sentence must be proven to a jury

beyond a reasonable doubt in accordance with the Sixth Amendment to the

United States Constitution.   Alleyne, 131 S.Ct. at 2153.      Our Supreme

Court has held that Alleyne applies only to cases pending on direct appeal

as of June 17, 2013, the date of the Alleyne decision. Commonwealth v.

Washington, 142 A.3d 810, 820 (Pa. 2016).            Appellant’s judgment of

sentence was final before the United States Supreme Court handed down

Alleyne and therefore Alleyne does not apply to his case.

     Given the untimeliness of Appellant’s PCRA petition, we affirm the

PCRA court’s order and grant counsel’s petition to withdraw.

     Order affirmed. Petition to withdraw granted.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/22/2016




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