J-S33017-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                        Appellee

                   v.

CONWAY ORLANDO HUSTON

                        Appellant                  No. 1089 WDA 2015


                 Appeal from the PCRA Order July 14, 2015
            In the Court of Common Pleas of Allegheny County
            Criminal Division at No(s): CP-02-CR-0004265-2009


BEFORE: GANTMAN, P.J., OLSON and FITZGERALD,* JJ.

MEMORANDUM BY OLSON, J.:                            FILED APRIL 28, 2016

      Appellant, Conway Orlando Huston, appeals from the order entered on

July 14, 2015, granting him 83 days of credit for time-served and

dismissing, as untimely, the remaining claims in his petition pursuant to the

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

a petition to withdraw from further representation and a brief pursuant to

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

v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).        Upon review, we

grant counsel’s petition to withdraw and vacate the order and remand for

the entry of an order dismissing Appellant’s untimely PCRA petition in its

entirety.

      We briefly summarize the facts and procedural history of this case as

follows.    In   September   2008,   police   arrested   Appellant   and   the



*Former Justice specially assigned to the Superior Court.
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Commonwealth charged him with eight criminal offenses in connection with

various acts of sexual misconduct, spanning from February 2006 until

August 2008, involving a female minor under the age of 13. On August 25,

2009, Appellant and the Commonwealth appeared before the trial court to

enter a guilty plea. Appellant agreed to plead guilty to rape of a child and

indecent assault;1 in exchange, the Commonwealth agreed to withdraw the

remaining charges. The parties also agreed to an aggregate sentence of 11

to 26 years of incarceration.          After a colloquy, the trial court accepted

Appellant’s guilty plea and immediately sentenced Appellant according to the

terms of the parties’ agreement. Appellant did not file a direct appeal.

        On March 21, 2015, Appellant filed a pro se PCRA petition. The PCRA

court appointed counsel for Appellant on April 2, 2015.         Counsel filed an

amended PCRA petition on April 14, 2015 alleging that Appellant was

entitled to credit for time-served and requesting reinstatement of his direct

appeal rights nunc pro tunc, because Appellant requested an appeal and trial

counsel failed to file one. The PCRA court held a hearing on July 9, 2015.

Initially, the Commonwealth conceded that Appellant was entitled to credit

for time-served as alleged. Thereafter, trial counsel and Appellant testified.

On July 14, 2015, the PCRA court entered an order granting Appellant credit



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1
    18 Pa.C.S.A. §§ 3121(c) and 3126(a)(7), respectively.




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for time-served,2 but dismissing his request for nunc pro tunc relief as

untimely. This timely appeal resulted.3

       On appeal, counsel for Appellant presents the following issue for our

review:

          1. Whether [Appellant] is entitled — under Article I, Section
             9 and/or Article V, Section 9 of the Pennsylvania
             Constitution    and/or   the    Sixth   and    Fourteenth
             Amendments of the United States Constitution – to
             reinstatement of his right of appeal from the August 25,
             2009 conviction and sentence at CP-02-CR-0004265-
             2009 because he directed his plea an[d] sentencing
             counsel to file such an appeal but said counsel failed to
             do so?

Appellant’s Brief at 2.

       Prior to reviewing the merits of this appeal, we first decide whether

counsel fulfilled the procedural requirements for withdrawing as counsel.

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

have explained:


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2
   Neither the Commonwealth nor Appellant appeal from the portion of the
decision granting him credit for time-served.           As we discuss infra,
Appellant’s PCRA petition was patently untimely and not subject to any of
the PCRA’s timeliness exceptions set forth at 42 Pa.C.S.A. § 9545. As such,
the PCRA court lacked jurisdiction to reach the merits of Appellant’s claims,
including his assertion that he was entitled to credit for time-served.
3
  On July 16, 2015, Appellant filed a notice of appeal and a corresponding
concise statement of errors complained of on appeal pursuant to Pa.R.A.P.
1925(b). The trial court issued an opinion pursuant to Pa.R.A.P. 1925(a) on
January 11, 2016.




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        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.

Id.

      Here, counsel satisfied all of the above procedural requirements and

Appellant has not responded to counsel’s request to withdraw. Thus, having

concluded that counsel's petition to withdraw is Turner/Finley compliant,

we now undertake our own review of the case to consider whether the PCRA

court erred in dismissing Appellant's petition.

      Appellant claims that he is entitled to nunc pro tunc reinstatement of

his direct appeal rights because trial counsel failed to file an appeal despite

Appellant’s direction to do so. Appellant’s Brief at 12. Appellant avers that

he filed his PCRA petition within 60 days of discovering trial counsel’s alleged

failure. Id. at 12-14.

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      Our standard of review is well-settled:

        In PCRA appeals, our scope of review is limited to the
        findings of the PCRA court and the evidence on the record of
        the PCRA court's hearing, viewed in the light most favorable
        to the prevailing party. Because most PCRA appeals involve
        questions of fact and law, we employ a mixed standard of
        review. We defer to the PCRA court's factual findings and
        credibility determinations supported by the record. In
        contrast, we review the PCRA court's legal conclusions de
        novo.

Commonwealth v. Reyes-Rodriguez, 111 A.3d 775, 779 (Pa. Super.

2015) (internal citations and quotations omitted).

      This Court has previously determined:

        we must first consider the timeliness of [an a]ppellant's
        PCRA petition because it implicates the jurisdiction of this
        Court and the PCRA court. Pennsylvania law makes clear
        that when a PCRA petition is untimely, neither this Court
        nor the trial court has jurisdiction over the petition. 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 if the PCRA permits it to
        be extended. This is to accord finality to the collateral
        review process. However, an untimely petition may be
        reviewed 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. Miller, 102 A.3d 988, 992-993 (Pa. Super. 2014)

(internal citations, quotations, and original brackets omitted).

      The PCRA provides, in relevant part, as follows:

        § 9545. Jurisdiction and proceedings

                            *         *           *



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        (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 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).

     Appellant’s judgment of sentence became final on September 24,

2009, after the 30-day appeal period expired. See Pa.R.A.P. 903. As such,

Appellant’s PCRA petition filed on March 21, 2015, almost six years later, is

patently untimely. At the PCRA hearing, Appellant claimed that he did not

know that counsel failed to file a direct appeal until he checked the docket

on September 8, 2014. N.T., 7/9/2015, at 8-9, 11-12. However, Appellant

filed his PCRA petition in March 2015, well past 60 days of the date he first

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discovered the alleged error, in contravention of 42 Pa.C.S.A. § 9545(b)(2).

Moreover, we have previously determined that a claim that trial counsel

failed to file a direct appeal is discoverable with due diligence within the

confines of the PCRA’s one-year timing requirement. See Commonwealth

v. Carr, 768 A.2d 1164, 1168 (Pa. Super. 2001) (“Appellant had a full year

to learn if a direct appeal had been filed on his behalf. A phone call to his

attorney or the clerk of courts would have readily revealed that no appeal

had been filed.   Due diligence requires that Appellant take such steps to

protect his own interest.”). As such, Appellant’s PCRA petition was untimely

and not subject to an exception. Accordingly, there was no jurisdiction to

entertain Appellant’s claim. Thus, the PCRA court properly denied relief.

     Finally,   because   Appellant’s    PCRA   petition   was   untimely   and

jurisdiction was lacking, the PCRA court was also without authority to grant

Appellant credit for time-served.       “An appellant's challenge to the trial

court's failure to award credit for time spent in custody prior to sentencing

involves the legality of sentence.” Commonwealth v. Beck, 848 A.2d 987,

989 (Pa. Super. 2004) (citation omitted). “Issues concerning the legality of

sentence are cognizable under the PCRA.” Id. (citation omitted). Legality of

sentence claims must still meet the jurisdictional requirements of the PCRA.

See Commonwealth v. Jackson, 30 A.3d 516, 522 (Pa. Super. 2011)

(where a petitioner files an untimely PCRA petition raising a legality of

sentence claim, the jurisdictional limits of the PCRA render the claim


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incapable of review). Having already determined Appellant’s PCRA petition

was untimely, not subject to an exception, we conclude the PCRA erred in

granting Appellant credit for time-served.              Hence, we are constrained to

vacate the portion of the order granting Appellant 83 days of credit for time-

served and direct the PCRA court to enter an order dismissing Appellant’s

PCRA petition, in its entirety, as untimely.

        On the foregoing basis, and because our independent assessment of

the record yields no meritorious issues for our review, we grant counsel

leave to withdraw.4

        Leave to withdraw granted.         Order vacated.     Case remanded for the

entry    of   an   order   consistent     with   this    memorandum.      Jurisdiction

relinquished.

        President Judge Gantman joins this memorandum.

        Justice Fitzgerald notes dissent.




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4
  We have permitted counsel to withdraw under the Turner/Finley line of
cases when counsel examines the merits of Appellant’s underlying claims,
but jurisdiction is lacking. See Commonwealth v. Merritt, 827 A.2d 485,
488 (Pa. Super. 2003).



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/28/2016




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