J-S22008-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                        IN THE SUPERIOR COURT OF
                                                          PENNSYLVANIA
                              Appellee

                         v.

CHARLES VASQUEZ, JR.

                              Appellant                 No. 1794 MDA 2015


                Appeal from the PCRA Order September 16, 2015
               In the Court of Common Pleas of Lancaster County
              Criminal Division at No(s): CP-36-CR-0001511-2007
                                          CP-36-CR-0001527-2007
                                          CP-36-CR-0005118-2009
                                          CP-36-CR-0005327-2008


BEFORE: MUNDY, J., DUBOW, J., and STRASSBURGER, J.*

MEMORANDUM BY MUNDY, J.:                                FILED MARCH 09, 2016

        Appellant, Charles Vasquez, Jr., appeals from the September 16, 2015

order dismissing, as untimely, his petition for relief filed pursuant to the Post

Conviction      Relief        Act   (PCRA),    42   Pa.C.S.A.   §§   9541-9546.

Contemporaneously with this appeal, counsel has requested leave to

withdraw in accordance with Commonwealth v. Turner, 544 A.2d 927 (Pa.

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




____________________________________________
*
    Retired Senior Judge assigned to the Superior Court.
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banc), and their progeny.            After careful review, we affirm and grant

counsel’s petition to withdraw.1

        We summarize the relevant procedural history of this case as follows.

On March 10, 2010, Appellant entered into a negotiated guilty plea

agreement with the Commonwealth and pled guilty to two counts of

possession with intent to deliver, two counts of possession of drug

paraphernalia, one count of fleeing from a police officer, five counts of

receiving stolen property, one count of possession of a firearm prohibited,

one count of theft by unlawful taking, and one count of operating a chop

shop.2     The trial court imposed an aggregate sentence of 5 to 10 years’

imprisonment to cover all charges.             Relevant to this appeal, two of the

sentences were mandatory minimum sentences imposed pursuant to 42

Pa.C.S.A. § 9712.1.        Appellant did not file a post-sentence motion, nor a

direct appeal with this Court.

        On May 5, 2014, Appellant filed the instant pro se PCRA petition. The

PCRA court appointed counsel, who filed an amended petition on July 15,

2014. The Commonwealth filed its answer on August 14, 2014. On July 8,

2015, the PCRA court entered an order notifying Appellant of its intention to


____________________________________________
1
    The Commonwealth has elected not to file a brief in this matter.
2
  35 P.S. §§ 780-113(a)(30), 780-113(a)(32), 75 Pa.C.S.A. § 3733(a), 18
Pa.C.S.A. §§ 3925(a), 6105(a)(1), 3921(a), and 18 P.S. § 1.3(1),
respectively.



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dismiss his PCRA petition without a hearing pursuant to Pennsylvania Rule of

Criminal Procedure 907. Appellant did not file a response. The PCRA court

entered an order dismissing Appellant’s PCRA petition on September 16,

2015. On October 14, 2015, Appellant filed a timely notice of appeal. 3

       On appeal, counsel raises the following issue on Appellant’s behalf.

              Whether the [PCRA] court erred when it denied
              [PCRA] relief on the basis that the PCRA petition was
              filed untimely?

Turner/Finley Brief at 2.

       Prior to considering Appellant’s issue, we must review PCRA counsel’s

request to withdraw from representation.           Our Supreme Court has

articulated the requirements PCRA counsel must adhere to when requesting

to withdraw, which include 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[.]

Commonwealth v. Pitts, 981 A.2d 875, 876 (Pa. 2009), quoting Finley,

supra at 215. “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)

____________________________________________
3
  Appellant and the PCRA court have complied with Pennsylvania Rule of
Appellate Procedure 1925.



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a statement advising petitioner of the right to proceed pro se or by new

counsel.” Commonwealth v. Wrecks, 931 A.2d 717, 721 (Pa. Super.

2007) (citation omitted).

                    [W]here counsel submits a petition and no-
              merit letter that do 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. By contrast, if
              the claims appear to have merit, the court will deny
              counsel’s request and grant relief, or at least instruct
              counsel to file an advocate’s brief.

Id. (citation omitted).

       Instantly, we determine that PCRA counsel has complied with the

requirements of Turner/Finley. Specifically, PCRA counsel’s Turner/Finley

brief and petition to withdraw4 detail the nature and extent of PCRA

counsel’s review, address the untimeliness of Appellant’s PCRA petition, and

explain and conclude that the issue lacks merit. Additionally, PCRA counsel

served Appellant with a copy of the petition to withdraw and Turner/Finley

brief, advising Appellant that, if PCRA counsel was permitted to withdraw,

Appellant had the right to proceed pro se or with privately retained counsel.

Appellant has not filed any response. We proceed, therefore, to conduct an

independent merits review of Appellant’s issue.


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4
  We note that counsel has included his petition to withdraw as a section of
his Turner/Finley brief, rather than filing a separate petition to withdraw.



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      We begin by noting our well-settled standard of review. “In reviewing

the   denial   of   PCRA   relief,   we   examine   whether   the   PCRA   court’s

determination is supported by the record and free of legal error.”

Commonwealth v. Fears, 86 A.3d 795, 803 (Pa. 2014) (internal quotation

marks and citation omitted). “The scope of review is limited to the findings

of the PCRA court and the evidence of record, viewed in the light most

favorable to the prevailing party at the trial level.”        Commonwealth v.

Spotz, 84 A.3d 294, 311 (Pa. 2014) (citation omitted).          “It is well-settled

that a PCRA court’s credibility determinations are binding upon an appellate

court so long as they are supported by the record.”           Commonwealth v.

Robinson, 82 A.3d 998, 1013 (Pa. 2013) (citation omitted). However, this

Court reviews the PCRA court’s legal conclusions de novo. Commonwealth

v. Rigg, 84 A.3d 1080, 1084 (Pa. Super. 2014) (citation omitted).

      As noted above, Appellant’s issue on appeal addresses the timeliness

of his instant PCRA petition, which implicates the jurisdiction of this Court

and the PCRA court.        Commonwealth v. Davis, 86 A.3d 883, 887 (Pa.

Super. 2014) (citation omitted). Pennsylvania law makes clear that when “a

PCRA petition is untimely, neither this Court nor the trial court has

jurisdiction over the petition.”     Commonwealth v. Seskey, 86 A.3d 237,

241 (Pa. Super. 2014) (citation omitted), appeal denied, 101 A.3d 103 (Pa.

2014). 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


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only if the PCRA permits it to be extended[.]” Commonwealth v. Ali, 86

A.3d 173, 177 (Pa. 2014) (internal quotation marks and citation omitted),

cert. denied, Ali v. Pennsylvania, 135 S. Ct. 707 (2014). This is to “accord

finality to the collateral review process.”    Commonwealth v. Watts, 23

A.3d 980, 983 (Pa. 2011) (citation omitted). “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.A.   §   9545(b)(1)(i),   (ii),   and   (iii),   are   met.”

Commonwealth v. Lawson, 90 A.3d 1, 5 (Pa. Super. 2014) (citation

omitted). The PCRA provides, in relevant part, as follows.

             § 9545. Jurisdiction and proceedings

                                        …

             (b) Time for filing petition.—

                   (1) Any petition under this subchapter,
                   including a second or subsequent petition, shall
                   be filed within one year of the date the
                   judgment 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


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                            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.

                     (2) Any petition invoking an exception
                     provided in paragraph (1) shall be filed within
                     60 days of the date the claim could have been
                     presented.

                                               …

42 Pa.C.S.A. § 9545(b).

       In the instant case, Appellant was sentenced on March 4, 2010 and did

not file a direct appeal with this Court. Therefore, Appellant’s judgment of

sentence became final on April 5, 2010, when the 30-day period for filing a

notice of appeal with this Court expired.5           See 42 Pa.C.S.A. § 9545(b)(3)

(stating, “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[]”); Pa.R.A.P. 903(c)(3) (stating, “[i]n a criminal case in which no


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5
   We observe that the 30th day fell on Saturday, April 3, 2010. When
computing the 30-day filing period “[if] the last day of any such period shall
fall on Saturday or Sunday … such day shall be omitted from the
computation.” 1 Pa.C.S.A. § 1908. Therefore, the 30th day for Appellant to
file a timely notice of appeal was Monday, April 5, 2010.



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post-sentence motion has been filed, the notice of appeal shall be filed

within 30 days of the imposition of the judgment of sentence in open

court[]”).   Appellant filed his petition on May 5, 2014, and therefore it is

patently untimely. See 42 Pa.C.S.A. § 9545(b)(1) (stating, “[a]ny petition

under this subchapter, including a second or subsequent petition, shall be

filed within one year of the date the judgment becomes final[]”).

      Instantly, Appellant’s PCRA petition asserts that Appellant’s mandatory

minimum sentences under Section 9712.1 are unconstitutional under

Alleyne v. United States, 133 S. Ct. 2151 (2013) and therefore illegal.

Turner/Finley Brief at 2.      However, as counsel acknowledges, judicial

opinions are not considered new facts for the purposes of Section

9545(b)(1)(ii).    See Watts, supra        at 987.    Furthermore, counsel

acknowledges that Alleyne does not satisfy the new constitutional right

exception to the time-bar. See generally Commonwealth v. Miller, 102

A.3d 988, 994-995 (Pa. Super. 2014). In addition, Alleyne was decided on

June 17, 2013, and Appellant’s petition was filed on May 5, 2014, 322 days

later, in violation of the 60-day rule at Section 9545(b)(2).       Therefore,

counsel is correct that Appellant’s PCRA petition was untimely filed and no

time-bar exception applied.

      Based on the foregoing, we conclude the PCRA court properly

dismissed Appellant’s PCRA petition as untimely. Accordingly, we affirm the




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PCRA court’s September 16, 2015 order and grant counsel’s petition to

withdraw.

     Order affirmed. Petition to withdraw as counsel granted.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/9/2016




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