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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                          Appellee

                   v.

HECTOR J. LOPEZ

                          Appellant                 No. 699 MDA 2015


               Appeal from the Order Entered March 9, 2015
             In the Court of Common Pleas of Luzerne County
            Criminal Division at No(s): CP-40-CR-0003429-2011


BEFORE: GANTMAN, P.J., BOWES, J., and MUSMANNO, J.

JUDGMENT ORDER BY GANTMAN, P.J.:                      FILED MAY 04, 2016

     Appellant, Hector J. Lopez, appeals from the order entered in the

Luzerne County Court of Common Pleas, which denied his untimely first

petition filed under the Post Conviction Relief Act (“PCRA”), at 42 Pa.C.S.A.

§§ 9541-9546. On July 10, 2012, Appellant pled guilty to two counts each

of possession of a controlled substance with the intent to deliver (“PWID”)

and conspiracy to commit PWID. The court sentenced Appellant on August

28, 2012, to concurrent terms of 5-10 years’ imprisonment for each of the

PWID convictions and 15-30 months’ imprisonment for each of the

conspiracy convictions.    With respect to Appellant’s PWID convictions, the

court imposed the mandatory minimum sentence for each conviction per 18

Pa.C.S.A. § 7508 (requiring imposition of mandatory minimum sentence

based on weight of drugs where defendant is convicted of PWID). Appellant
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did not pursue direct review. On September 2, 2014, Appellant filed his first

PCRA petition pro se. The court appointed counsel (“PCRA counsel”), who

filed a brief in support of Appellant’s pro se PCRA petition on September 16,

2014, arguing Appellant was entitled to relief based on Alleyne v. United

States, ___ U.S. ___, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013) (holding any

fact increasing mandatory minimum sentence for crime is considered

element of crime to be submitted to fact-finder and found beyond

reasonable doubt).        Appellant insisted Alleyne and its progeny declared

unconstitutional the mandatory minimum sentencing statute under which

Appellant was sentenced. Following a hearing on March 9, 2015, the court

denied PCRA relief.       Appellant timely filed a notice of appeal on April 8,

2015.     The next day, the court permitted PCRA counsel to withdraw and

appointed PCRA appellate counsel (“appellate counsel”).            The court also

ordered Appellant to file a concise statement per Pa.R.A.P. 1925(b), which

Appellant timely filed on April 24, 2015.

        Preliminarily, appellate counsel has filed a Turner/Finley1 brief and

motion to withdraw as counsel.                 Before counsel can be permitted to

withdraw from representing a petitioner under the PCRA, Pennsylvania law

requires counsel to file a “no-merit” brief or letter pursuant to Turner and

Finley. Commonwealth v. Karanicolas, 836 A.2d 940 (Pa.Super. 2003).
____________________________________________


1
  Commonwealth v. Turner, 518 Pa. 491, 544 A.2d 927 (1988) and
Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc).



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          [C]ounsel must…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 the petitioner wants to have reviewed,
          explaining why and how those issues lack merit, and
          requesting permission to withdraw.

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

must also send to the petitioner a copy of the “no-merit” letter or brief and

motion to withdraw and advise petitioner of his right to proceed pro se or

with privately retained counsel.     Id.   “Substantial compliance with these

requirements will satisfy the criteria.” Karanicolas, supra at 947.

     Instantly, appellate counsel filed a motion to withdraw as counsel and

a Turner/Finley brief detailing the nature of counsel’s review and explaining

why Appellant’s issue lacks merit.      Counsel’s brief also demonstrates he

reviewed the certified record and determined the record was devoid of

meritorious issues for appeal.       Counsel notified Appellant of counsel’s

request to withdraw and advised Appellant regarding his rights.           Thus,

counsel substantially complied with the Turner/Finley requirements. See

Wrecks, supra; Karanicolas, supra. In response to counsel’s motion to

withdraw and “no-merit” brief, Appellant filed a pro se motion to withdraw

this appeal, agreeing with counsel that he has no meritorious issues for

review.   We also agree Appellant’s sole issue involving Alleyne and its

progeny affords him no relief, where Appellant’s current PCRA petition is

untimely. See Commonwealth v. Miller, 102 A.3d 988 (Pa.Super. 2014)

(holding that even if Alleyne announced new constitutional right, neither

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our Supreme Court nor United States Supreme Court has held that Alleyne

applies retroactively, which is fatal to appellant’s attempt to satisfy “new

constitutional right” exception to timeliness requirements of PCRA).    See

also Commonwealth v. Ruiz, 131 A.3d 54 (Pa.Super. 2015) (explaining

Alleyne does not invalidate illegal mandatory minimum sentence when

claim was presented in untimely PCRA petition). Accordingly, we grant both

counsel’s petition to withdraw and Appellant’s pro se motion to withdraw the

appeal.

     Appeal withdrawn; motion to withdraw as counsel is granted.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/4/2016




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