J-S14034-16

                                   2016 PA Super 42

COMMONWEALTH OF PENNSYLVANIA,                       IN THE SUPERIOR COURT OF
                                                          PENNSYLVANIA
                            Appellee

                       v.

JAMEL WALTERS,

                            Appellant                    No. 701 MDA 2015


                    Appeal from the PCRA Order March 9, 2015
                 In the Court of Common Pleas of Luzerne County
    Criminal Division at No(s): CP-40-CR-0000796-2007; CP-40-CR-0000798-
                                      2007

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

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

        Appellant Jamel Walters appeals from the order of the Honorable Fred

A. Pierantoni of the Court of Common Pleas of Luzerne County dismissing

Appellant’s second petition pursuant to the Post Conviction Relief Act

(“PCRA”)1 as untimely filed.        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) (en banc).           We grant counsel’s petition to withdraw

and affirm the order dismissing Appellant’s PCRA petition.

        On October 10, 2007, Appellant entered guilty pleas on two separate

dockets to several counts of possession of a controlled substance with intent


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1
    42 Pa.C.S.A. §§ 9541-9546.



*Former Justice specially assigned to the Superior Court.
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to deliver2 and related crimes.           On December 11, 2007, Appellant was

sentenced accordingly on all charges. Appellant filed a post-sentence motion

which the trial court subsequently denied. No appeal was filed.

        On June 27, 2012, Appellant filed his first PCRA petition, raising

allegations of judicial misconduct on the part of his sentencing judge, Mark

Ciavarella, who was convicted of federal corruption charges in February

2011.     The PCRA court dismissed Appellant’s petition as untimely filed,

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

timeliness exceptions was applicable. After Appellant appealed, the Superior

Court affirmed the trial court’s order dismissing the petition on October 4,

2013, and the Pennsylvania Supreme Court denied Appellant’s Petition for

Allowance of Appeal on March 25, 2014.

        On June 6, 2014, Appellant filed the instant pro se PCRA petition,

reiterating his claim that his sentence should be vacated as a result of

former Judge Ciavarella’s misconduct.            After the PCRA court subsequently

appointed Hugh Taylor, Esq. to assist Appellant, Atty. Taylor filed a “no-

merit” letter, asserting that Appellant’s second petition was also untimely

filed. After a hearing, the PCRA court dismissed Appellant’s PCRA petition on

March 9, 2015. Appellant filed a pro se notice of appeal directly with this




____________________________________________


2
    35 P.S. § 780-113(a)(30).



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Court on April 7, 2015. This Court forwarded Appellant’s notice of appeal to

the Court of Common Pleas.3

        Upon review of the record, this Court noted that it appeared that

Appellant was still represented by counsel as the trial court docket contained

no indication that Atty. Taylor had been granted leave to withdraw.             As a

result, this Court remanded for a determination of whether Atty. Taylor had

abandoned Appellant and directed the trial court to take any further

necessary action, including, but not limited to, the appointment of new

counsel. After a hearing, the trial court determined that Atty. Taylor had not

abandoned Appellant and remained counsel of record.

        However, it appears that the trial court subsequently allowed Atty.

Taylor to resign and reassigned the case to Allyson Kacmarski, Esq., who

filed a “no merit” brief and a petition to withdraw, notifying Appellant of his

right to proceed pro se or retain new counsel. Appellant did not respond to

Atty. Kacmarski’s filings.

____________________________________________


3
    Pennsylvania Rule of Appellate Procedure 905(a)(4) provides:

        If a notice of appeal is mistakenly filed in an appellate court, or
        is otherwise filed in an incorrect office within the unified judicial
        system, the clerk shall immediately stamp it with the date of
        receipt and transmit it to the clerk of the court which entered the
        order appealed from, and upon payment of an additional filing
        fee the notice of appeal shall be deemed filed in the trial court
        on the date originally filed.

Pa.R.A.P. 905(a)(4).



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     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).

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

we must determine whether counsel has satisfied certain procedural

requirements to withdraw her 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)).


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      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 her “no-merit” letter, PCRA appellate counsel detailed the

nature and extent of her review, listed the issue which Appellant raised in

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

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

indicated that after her own independent review of the record, she could not

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

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

Counsel also attached proof that she sent Appellant her petition to withdraw

along with her no-merit letter and instructed him he had the right to retain

counsel or proceed pro se.     As counsel complied with the Turner-Finley

requirements to withdraw her 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

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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)).

      In this case, the trial court sentenced Appellant on December 11,

2007, and denied Appellant’s post-sentence motion on December 26, 2007.

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

January 25, 2008. As Appellant filed his second PCRA petition on June 6,

2014, over six years after his sentence became final, his petition is facially

untimely.

      In his pro se PCRA petition, Appellant did not attempt to explain why

his claims should not be dismissed as untimely filed.        Appellant does not

acknowledge the PCRA’s timeliness requirements or discuss the applicability

of any of the timeliness exceptions.      Appellant does not explain how the

unrelated misconduct of the sentencing judge affected the legality of his

sentence. Even assuming arguendo that Appellant could somehow prove a

connection between his case and former Judge Ciavarella’s criminal conduct,

he failed to file a PCRA petition invoking a timeliness exception within 60

days of the date the claim first could have been presented. Accordingly, we




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conclude that the PCRA court correctly dismissed Appellant’s PCRA petition

as untimely filed.

     Petition to withdraw granted. Order affirmed.
Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/19/2016




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