J-S94038-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                      v.

MARLON HURDLE

                             Appellant                 No. 959 MDA 2016


                   Appeal from the PCRA Order May 11, 2016
      in the Court of Common Pleas of Lancaster County Criminal Division
                       at No(s): CP-36-CR-0003270-1994

BEFORE: LAZARUS, RANSOM, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.:                          FILED APRIL 10, 2017

        Appellant, Marlon Hurdle, appeals from the order entered in the

Lancaster County Court of Common Pleas dismissing his second Post

Conviction Relief Act1 (“PCRA”) petition as untimely. Appellant argues he is

entitled to relief pursuant to the United States Supreme Court’s decisions in

Montgomery v. Louisiana, 136 S. Ct. 718 (2016) and Miller v. Alabama,

132 S. Ct. 2455 (2012). Appellant’s counsel has filed a motion to withdraw

and a Turner/Finley2 “no merit” letter in this Court. We affirm and grant

counsel’s motion to withdraw.



*
    Former Justice specially assigned to the Superior Court.
1
    42 Pa.C.S. §§ 9541-9546.
2
  See Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988);
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
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        On May 16, 1995, a jury convicted Appellant of two counts of first-

degree murder3 for offenses that Appellant committed when he was twenty

years old.    The trial court sentenced Appellant on May 18, 1995,4 to two

consecutive terms of life imprisonment without the possibility of parole. This

Court affirmed Appellant’s judgment of sentence, and our Supreme Court

denied allowance of appeal. See Commonwealth v. Hurdle, 685 A.2d 209

(Pa. Super. 1996) (unpublished memorandum), appeal denied, 694 A.2d

620 (Pa. 1997).

        Appellant filed his first PCRA petition pro se on August 19, 2011. The

PCRA court appointed counsel and subsequently dismissed Appellant’s

petition as untimely.    This Court affirmed, and our Supreme Court denied

allowance of appeal.     See Commonwealth v. Hurdle, 68 A.3d 355 (Pa.

Super.) (unpublished memorandum), appeal denied, 69 A.3d 601 (Pa.

2013).

        Appellant filed his current PCRA petition pro se on March 23, 2016,

pursuant to the prisoner mailbox rule.5 On April 13, 2016, the PCRA court


3
    18 Pa.C.S. § 2502(a).
4
  There is some discrepancy in the record as to when the court imposed
Appellant’s sentence. The sentencing transcript is dated May 18, 1995,
whereas the court’s sentencing order is dated May 19, 1995. Furthermore,
the docket lists both dates for sentencing. Nevertheless, the difference of
one day is irrelevant and does not alter our disposition.
5
 See generally Commonwealth v. Wilson, 911 A.2d 942, 944 n.2 (Pa.
Super. 2006) (discussing prisoner mailbox rule).



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issued notice of its intent to dismiss Appellant’s petition without a hearing in

accordance with Pa.R.Crim.P. 907.      Appellant responded pro se, and the

PCRA court dismissed Appellant’s petition on May 11, 2016. Appellant timely

filed a pro se notice of appeal on June 8, 2016, pursuant to the prisoner

mailbox rule.   On June 21, 2016, the PCRA court appointed counsel to

represent Appellant on appeal, and ordered Appellant to file a Pa.R.A.P.

1925(b) concise statement of errors complained of on appeal.          Appellant

timely complied on August 1, 2016. Thereafter, counsel filed in this Court a

motion to withdraw and a Turner/Finley “no merit” letter on November 1,

2016. Appellant has not filed any additional pro se or counseled brief.

      As a preliminary matter, we must address counsel’s motion to

withdraw.     “Before an attorney can be permitted to withdraw from

representing a petitioner under the PCRA, Pennsylvania law requires

counsel to file and obtain approval of a ‘no-merit’ letter pursuant to the

mandates of Turner/Finley.” Commonwealth v. Karanicolas, 836 A.2d

940, 947 (Pa. Super. 2003) (citation omitted).

         [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 the petitioner a copy of the “no-merit” letter and the




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

or with new counsel. Id.

       Instantly, counsel filed a Turner/Finley “no-merit” letter on appeal

and a separate motion to withdraw as counsel.       Counsel’s letter informed

Appellant of counsel’s intent to withdraw, advised Appellant of his right to

proceed pro se or with private counsel, and indicated that counsel enclosed a

copy    of   the   motion   to   withdraw.   Counsel    also   discussed   the

Montgomery/Miller issue Appellant wished to raise and explained why the

issue merits no relief. Thus, counsel has complied with the Turner/Finley

requirements. See Wrecks, 931 A.2d at 721. Accordingly, we proceed to

an independent evaluation.       See Commonwealth v. Widgins, 29 A.3d

816, 819-20 (Pa. Super. 2011) (stating court must conduct an independent

review and agree with counsel that the issues raised were meritless).

       “Our standard of review of a PCRA court’s dismissal of a PCRA petition

is limited to examining whether the PCRA court’s determination is supported

by the evidence of record and free of legal error.”      Commonwealth v.

Wilson, 824 A.2d 331, 333 (Pa. Super. 2003) (en banc) (citation omitted).

       As our Supreme Court has explained:

         the PCRA timeliness requirements are jurisdictional in
         nature and, accordingly, a PCRA court is precluded from
         considering untimely PCRA petitions. We have also held
         that even where the PCRA court does not address the
         applicability of the PCRA timing mandate, th[e] Court will
         consider the issue sua sponte, as it is a threshold question
         implicating our subject matter jurisdiction and ability to
         grant the requested relief.


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Commonwealth v. Whitney, 817 A.2d 473, 477-78 (Pa. 2003) (citations

omitted).

      A PCRA petition “must normally be filed within one year of the date the

judgment becomes final . . . unless one of the exceptions in § 9545(b)(1)(i)-

(iii) applies and the petition is filed within 60 days of the date the claim

could have been presented.”         Commonwealth v. Copenhefer, 941 A.2d

646, 648 (Pa. 2007) (some citations and footnote omitted).              The three

exceptions to the general one-year time limitation are:

         (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.

42 Pa.C.S. § 9545(b)(1)(i)-(iii).

      Here, Appellant filed his current petition pro se on March 23, 2016,

and alleged that his two consecutive sentences of life without parole were

unconstitutional pursuant to Miller, which was decided on June 25, 2012.

On January 25, 2016, the United States Supreme Court issued its decision in

Montgomery      and    held,   “Miller   announced   a    substantive    rule   of


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constitutional law.     Like other substantive rules, Miller is retroactive[.]”

Montgomery, 136 S. Ct. at 734. Thereafter, this Court issued its decision

in Commonwealth v. Secreti, 134 A.3d 77 (Pa. Super. 2016), and held the

decision in Montgomery renders Miller retroactive “effective as of the date

of the Miller decision.”    Secreti, 134 A.3d at 82.    Therefore, pursuant to

this Court’s decision in Secreti, Appellant timely filed his current petition

within sixty days of Montgomery, which placed him within the purview of

Miller.   See id.; Copenhefer, 941 A.2d at 648.        Nevertheless, Appellant

was twenty years old at the time he committed the offenses and, thus, is not

entitled to relief.   See Miller, 132 S. Ct. at 2464 (holding mandatory life

without parole sentences for individuals under eighteen at the time of their

crimes are unconstitutional). Thus, after conducting an independent review,

we agree with counsel that Appellant’s issue has no merit. See Widgins, 29

A.3d at 819-20.       Accordingly, we grant counsel’s motion to withdraw and

affirm the PCRA court’s order dismissing Appellant’s petition. See Wilson,

824 A.2d at 833.

      Order affirmed. Counsel’s motion to withdraw granted.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 4/10/2017




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