J-S14033-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                   IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                        Appellee

                   v.

ROBERT MILLER,

                        Appellant                    No. 650 MDA 2015


                Appeal from the PCRA Order March 12, 2015
             In the Court of Common Pleas of Luzerne County
            Criminal Division at No(s): CP-40-CR-0001555-2011

BEFORE: FORD ELLIOTT, P.J.E., PANELLA, J., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.:                  FILED FEBRUARY 19, 2016

      Appellant Robert Miller appeals from the order of the Honorable David

Lupas of the Court of Common Pleas of Luzerne County dismissing as

untimely filed Appellant’s petition pursuant to the Post Conviction Relief Act

(“PCRA”), 42 Pa.C.S.A. §§ 9541-9546.      PCRA appellate counsel has filed a

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

Turner, 518 Pa. 491, 544 A.2d 927 (1988) and Commonwealth v. Finley,

550 A.2d 213 (Pa.Super. 1988).      We grant counsel’s petition to withdraw

and affirm the order dismissing Appellant’s PCRA petition.

      On April 24, 2012, Appellant pled guilty to aggravated assault (causing

serious bodily injury) under 18 Pa.C.S.A. § 2702(a)(1). On July 20, 2012,

the trial court imposed a standard range sentence of four to eight years

imprisonment, noting that the deadly weapon enhancement applied.         See

204 Pa.Code § 303.10(a).    Appellant did not file a direct appeal.

*Former Justice specially assigned to the Superior Court.
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      Over two years later, on August 19, 2014, Appellant filed the instant

PCRA petition.      The PCRA court dismissed Appellant’s petition as untimely

filed, finding Appellant failed to plead and prove that one of the PCRA

timeliness exceptions was applicable. After Appellant filed an appeal to this

Court, the PCRA court appointed Matthew Kelly, Esq. to represent Appellant

on collateral appeal. Atty. Kelly subsequently filed a “no-merit” letter and a

petition to withdraw his representation. Appellant did not respond to Atty.

Kelly’s petition.

      Appellant raises the following issues for our review:

      I.     Whether trial counsel was ineffective in failing to share
             Appellant’s discovery with him prior to pleading guilty.

      II.    Whether the sentencing enhancement provision applied by
             the trial court is unconstitutional pursuant to Alleyne v.
             U.S [___U.S.___, 133 S.Ct. 2151 (U.S. 2013)]

      III.   Whether the PCRA petition was filed timely pursuant to 42
             Pa.C.S.A. Section 9545 et seq.

Counsel’s “no-merit” brief, at 1 (verbatim).

      When reviewing the denial of a PCRA petition, we are guided by the

following standard:

      The standard of review for an order denying post-conviction
      relief is limited to whether the record supports the PCRA court's
      determination, and whether that decision is free of legal error.
      The PCRA court's findings will not be disturbed unless there is no
      support for the findings in the certified record.

Commonwealth v. Allen, 48 A.3d 1283, 1285 (Pa.Super. 2012) (citations

omitted).



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     Before we proceed to review the merits of Appellant’s PCRA petition,

we must determine whether counsel has satisfied certain procedural

requirements to withdraw his representation:

     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.

     Where 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) (quoting

Commonwealth v. Wrecks, 931 A.2d 717, 721 (Pa.Super. 2007)).

     After reviewing the record and counsel’s petition to withdraw, we find

that PCRA appellate counsel complied with the requirements of Turner and

Finley, supra. In his “no-merit” letter, PCRA appellate counsel detailed the

nature and extent of his review, listed each issue which Appellant raised in

his pro se petition, and thoroughly explained why he believed Appellant’s

claim was frivolous and untimely filed.   Moreover, PCRA appellate counsel

indicated that after his own independent review of the record, he could not


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identify any meritorious issues that he could raise on Appellant’s behalf to

plead and prove that one of the PCRA timeliness exceptions applied.

Counsel also attached proof that he sent Appellant notice of his petition to

withdraw and instructed him he had the right to retain counsel or proceed

pro se.    As counsel complied with the Turner-Finley requirements to

withdraw his representation, we must now determine whether the PCRA

court correctly dismissed Appellant’s PCRA petition as untimely filed.

      It is well-established that “the PCRA's timeliness requirements are

jurisdictional in nature and must be strictly construed; courts may not

address the merits of the issues raised in a petition if it is not timely filed.”

Commonwealth v. Leggett, 16 A.3d 1144, 1145 (Pa.Super. 2011)

(citations omitted). Generally, a PCRA petition must be filed within one year

of the date the judgment of sentence becomes final unless the petitioner

meets his burden to plead and prove one of the exceptions enumerated in

42 Pa.C.S.A. § 9545(b)(1)(i)-(iii), which include: (1) the petitioner’s inability

to raise a claim as a result of governmental interference; (2) the discovery

of previously unknown facts or evidence that would have supported a claim;

or   (3)   a   newly-recognized   constitutional   right.   42   Pa.C.S.A.     §

9545(b)(1)(i)-(iii). However, the PCRA limits the reach of the exceptions by

providing that a petition invoking any of the exceptions must be filed within

60 days of the date the claim first could have been presented. Leggett, 16

A.3d at 1146 (citing 42 Pa.C.S.A. § 9545(b)(2)).




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       In this case, the trial court imposed Appellant’s sentence on July 20,

2012. As Appellant did not file a direct appeal, his sentence became final on

August 20, 2012. As Appellant filed his PCRA petition on August 19, 2014,

nearly two years after his sentence became final, his petition is facially

untimely.

       Appellant suggests that he meets the timeliness exception at Section

9545(b)(1)(iii) based on his argument that the U.S. Supreme Court’s

decision in Alleyne announced a new constitutional right that applies

retroactively. In Alleyne, the Supreme Court emphasized that “[a]ny 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.” Id. at 2155.

However, this Court has rejected similar collateral attacks as neither the

United States Supreme Court nor the Pennsylvania Supreme Court has held

that Alleyne must be applied retroactively to cases in which the judgment of

sentence became final.           Commonwealth v. Miller, 102 A.3d 988, 995

(Pa.Super. 2014) (noting that “[t]his Court has recognized that a new rule of

constitutional law is applied retroactively to cases on collateral review only if

the United States Supreme Court or our Supreme Court specifically holds it

to be retroactively applicable to those cases”).1    Accordingly, as Appellant
____________________________________________


1
  Even assuming arguendo that Alleyne should be applied retroactively,
Appellant’s argument challenging the application of the deadly weapon
enhancement is not controlled by Alleyne, which requires facts that increase
mandatory minimum sentences to be submitted to a jury and proven beyond
(Footnote Continued Next Page)


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has not proven that a PCRA timeliness exception is applicable, the PCRA

court did not err in dismissing his petition as untimely filed.

     Petition to withdraw granted. Order affirmed.
Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/19/2016




                       _______________________
(Footnote Continued)

a reasonable doubt. This Court has found that Alleyne is inapplicable to
sentencing enhancements which “only direct a sentencing court to consider a
different range of potential minimum sentences, while preserving a trial
court's discretion to fashion an individual sentence” and “do not compel a
trial court … to impose a sentence higher than the court believes is
warranted.” Commonwealth v. Ali, 112 A.3d 1210, 1226 (Pa.Super.
2015), appeal granted in part, No. 454 MAL 2015, 2015 WL 7763727 (Pa.
Dec. 2, 2015).




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