J-S57032-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

ALI ELIJAH DAVIS

                            Appellant                No. 973 EDA 2015


               Appeal from the Order Entered February 17, 2014
             In the Court of Common Pleas of Northampton County
               Criminal Division at No: CP-48-CR-0002141-2008


BEFORE: MUNDY, OTT, and STABILE, J.J.

MEMORANDUM BY STABILE, J.:                      FILED NOVEMBER 25, 2015

       Appellant, Ali Elijah Davis, appeals nunc pro tunc from the February

17, 2014 order dismissing his petition pursuant to the Post Conviction Relief

Act. (“PCRA”), 42 Pa.C.S.A. §§ 9541-46.        Counsel has filed a brief and

petition to withdraw pursuant to Commonwealth v. Turner, 544 A.2d 927

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

We remand for further proceedings, and deny counsel’s petition to withdraw.

       On January 25, 2010, a jury found Appellant guilty of three counts of

first-degree murder and one count of conspiracy to commit murder.1        On

January 27, 2010 the trial court imposed three consecutive life sentences for

the three murder convictions. This Court affirmed the judgment of sentence
____________________________________________


1
    18 Pa.C.S.A. §§ 2502(a) and 903(a)(1).
J-S57032-15


on July 18, 2011.     The Pennsylvania Supreme Court denied allowance of

appeal on May 30, 2012. Appellant filed a timely first PCRA petition on July

30, 2012, alleging ineffective assistance of trial counsel.    The PCRA court

appointed counsel and conducted a hearing on January 15, 2014. The PCRA

court dismissed the petition on February 17, 2014. Appointed counsel did

not file a timely appeal.

      The PCRA court described the subsequent procedural history as

follows:

             On May 27, 2014, [Appellant] filed a pro se ‘Petition to File
      Nunc Pro Tunc Appeal to the Superior Court.’ In his pro se
      petition, [Appellant] alleged that [appointed counsel] failed to
      inform him of the dismissal of his PCRA petition on February 14
      [sic], 2014. As a correlation thereto, [Appellant] averred that
      counsel was ineffective in failing to ‘take further action’ and file
      an appeal from the dismissal of his PCRA. This Court entered an
      Order on June 4, 2014, granting [Appellant’s] pro se petition,
      permitting the withdrawal of [appointed counsel] as counsel of
      record for [Appellant], and appointing appellate counsel, Robert
      Sletvold, Esquire.     Additionally, the Order provided that
      [Appellant] shall have twenty (20) days to perfect his Nunc Pro
      Tunc Appeal.

            On June 23, 2014, this Court received correspondence
      from Attorney Sletvold that a conflict of interest precludes his
      representation of [Appellant] in his appeal from the dismissal of
      the PCRA. The twenty-day period within which to perfect an
      appeal had lapsed and, as a result, this Court entered an order
      on June 27, 2014, appointing Lisa Spitale, Esquire, to represent
      [Appellant]. On September 5, 2014, Attorney Spitale filed an
      Application for Permission to Appeal Nunc Pro Tunc with the
      Superior Court. Said petition was denied by the Superior Court
      on September 23, 2014. In its Order, the Superior Court denied
      [Appellant’s] petition ‘without prejudice to Petitioner’s right to
      apply for relief in the trial court via the [PCRA].

PCRA Court Opinion, 3/12/15.


                                     -2-
J-S57032-15


      On December 8, 2014, Appellant filed a second pro se PCRA petition,

alleging, among other things, that counsel was ineffective for failing to file

an appeal from the February 17, 2014 order dismissing his first petition.

The PCRA court appointed new counsel and conducted a hearing on February

11, 2015. The PCRA court entered an order granting a nunc pro tunc appeal

from the February 17, 2014 order. Thereafter, counsel filed this purported

nunc pro tunc appeal from that order.

      Appointed counsel has filed a petition to withdraw, purportedly

pursuant   to   Anders    v.   California,   386    U.S.   738   (1967)     and

Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009).                On multiple

occasions, this Court has explained that the Anders/Santiago procedure

does not apply on collateral review:

            Counsel petitioning to withdraw from PCRA representation
      must proceed not under Anders but under Commonwealth v.
      Turner, 518 Pa. 491, 544 A.2d 927 (1988), and
      Commonwealth v. Finley, 379 Pa. Super. 390, 550 A.2d 213
      (1988). Similar to the Anders situation, Turner/Finley counsel
      must review the case zealously.        See Commonwealth v.
      Mosteller, 430 Pa. Super. 57, 633 A.2d 615, 617 (1993).
      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 the petitioner wants to have reviewed,
      explaining why and how those issues lack merit, and requesting
      permission to withdraw. Commonwealth v. Karanicolas, 836
      A.2d 940, 947 (Pa. Super. 2003).

            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. Commonwealth v. Friend,
      896 A.2d 607, 615 (Pa. Super. 2006).

                                       -3-
J-S57032-15


             If counsel fails to satisfy the foregoing technical
       prerequisites of Turner/Finley, the court will not reach the
       merits of the underlying claims but, rather, will merely deny
       counsel’s request to withdraw. Mosteller, 633 A.2d at 617.
       Upon doing so, the court will then take appropriate steps, such
       as directing counsel to file a proper Turner/ Finley request or an
       advocate's brief. Karanicolas, 836 A.2d at 948.

              However, where 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.

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

counsel’s adherence to Anders, his filing is largely technically compliant with

the dictates of Turner/Finley.2 We nonetheless deny counsel’s petition to

withdraw, as our review of this case reveals a jurisdictional issue that

requires a remand for PCRA court fact finding.

       Pennsylvania courts have no jurisdiction to entertain untimely PCRA

petitions.    Commonwealth v. Fahy, 737 A.2d 214, 223 (Pa. 1999).

“Jurisdictional time limitations are not subject to equitable exceptions and a

court has no authority to extend them except as the statute permits.”

Commonwealth v. Bennett, 930 A.2d 1264, 1267 (Pa. 2007).                 A PCRA

petition is timely if the petitioner files it within one year of the date on which

the judgment of sentence became final. 42 Pa.C.S.A. § 9545(b). On direct
____________________________________________


2
  We nonetheless remind counsel to examine carefully the law governing
Turner/Finley procedure before filing another such petition.




                                           -4-
J-S57032-15


appeal, our Supreme Court denied Appellant’s petition for allowance of

appeal on May 30, 2012.           Appellant did not file the instant petition until

December 8, 2014 and therefore it is facially untimely.          Appellant did not

attempt to plead and prove any of the exceptions set forth in § 9545(b)(1)(i-

iii). The PCRA court therefore had no jurisdiction to order relief based on the

December 8, 2014 petition.3

       Nonetheless, a remand is necessary in light of Appellant’s pro se May

27, 2014 petition. Pursuant to binding authority, a petition for permission to

file a nunc pro tunc appeal is itself a PCRA petition.        Commonwealth v.

Johnson, 841 A.2d 136, 139 (Pa. Super. 2003), appeal denied, 858 A.2d

109 (Pa. 2004). Further, it appears that petition remains pending, as the

PCRA court entered an order permitting Appellant to file a nunc pro tunc

appeal, but the first appointed counsel had a conflict and the second

erroneously filed an application with this Court.         The December 8, 2014

PCRA petition, filed before the final resolution of the May 27, 2014 petition,

was a nullity. A petitioner cannot file a second or subsequent PCRA petition

until the final resolution of a prior pending petition.       Commonwealth v.

____________________________________________


3
    Our September 23, 2014 order denying Appellant’s application and
directing him to proceed under the PCRA did not excuse the PCRA court from
consideration of the PCRA’s jurisdictional timeliness requirements. Nor did
we authorize a second, untimely petition. We have no authority to create
exceptions to the PCRA’s timeliness requirements. Bennett, 930 A.2d at
1267. Our directive merely recognized that, at this juncture, the PCRA
provides Appellant’s sole means of obtaining any available relief.



                                           -5-
J-S57032-15


Callahan,     101   A.3d   118,   122-23      (Pa.    Super.   2014)   (quoting

Commonwealth v. Lark, 746 A.2d 585, 588 (Pa. 2000)).

      The May 27, 2104 petition, filed two years after our Supreme Court

denied allowance of appeal on direct review, is facially untimely.         The

Bennett Court held that a petitioner’s discovery of counsel’s failure to

perfect an appeal from an order dismissing a PCRA petition—precisely what

Appellant alleged in his May 27, 2104 petition—can qualify for the timeliness

exception of § 9545(b)(1)(ii) (discovery of previously unknown facts).

Bennett, 930 A.2d at 1272. Bennett applies if the petitioner can plead and

prove the applicability of § 9545(b)(1)(ii) and if he filed his petition within

60 days of the date on which the claim could have been presented. Id.; 42

Pa.C.S.A. § 9545(b)(2). Based on the foregoing, we will remand this case

for further proceedings to determine whether Appellant can plead and prove

that his May 27,      2014   petition     meets the   timeliness exception of

§ 9545(b)(1)(ii) and (2) in accordance with the law governing those

subsections, particularly Bennett and its progeny.       If Appellant succeeds,

the PCRA court may permit counsel to file a nunc pro tunc appeal from the

February 17, 2014 order. If Appellant fails, the PCRA court must enter an

order dismissing the May 27, 2014 petition as untimely. Presently we have

no occasion to affirm or vacate the February 17, 2014 order that is

purportedly the subject of this appeal.




                                     -6-
J-S57032-15


      Case      remanded.   Petition    to   withdraw   denied.   Jurisdiction

relinquished.

      Judge Ott joins the memorandum.

      Judge Mundy concurs in the result.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/25/2015




                                       -7-
