J-S55032-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                          IN THE SUPERIOR COURT OF
                                                             PENNSYLVANIA
                            Appellee

                       v.

PEDRO SOLA RODRIGUEZ,

                            Appellant                        No. 3231 EDA 2015


                Appeal from the PCRA Order September 18, 2015
                 In the Court of Common Pleas of Lehigh County
    Criminal Division at No(s): CP-39-CR-0002450-2012-CP-39-CR-0002991-
                                      2012

BEFORE: LAZARUS, J., DUBOW, J., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.:                                 FILED JULY 13, 2016

        Appellant appeals from the order entered in the Court of Common

Pleas of Lehigh County denying his first petition filed pursuant to the Post

Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. Appellant’s

court-appointed      PCRA     counsel    has   filed   a   petition   to   withdraw   his

representation, along with an “Anders brief.”1 We grant counsel’s petition

to withdraw his representation and affirm the PCRA court’s order.

____________________________________________


1
  Counsel filed a brief pursuant to Anders v. California, 386 U.S. 738, 87
S.Ct. 1396 (1967), apparently in the mistaken belief that an Anders brief is
required where counsel seeks to withdraw on appeal from the denial of PCRA
relief. A Turner/Finley “no-merit” letter, however, is the appropriate filing.
See Commonwealth v. Turner, 518 Pa. 491, 544 A.2d 927 (1988);
Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc).
Because an Anders brief provides greater protection to a defendant, this
(Footnote Continued Next Page)


*Former Justice specially assigned to the Superior Court.
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      We summarize the procedural history of this case as follows:        On

September 26, 2012, Appellant, who was represented by counsel, entered a

guilty plea to the charges of robbery, firearms not to be carried without a

license, resisting arrest, and possession with the intent to deliver a

controlled substance.2         On November 8, 2012, the trial court sentenced

Appellant to an aggregate of five years to twelve years in prison. Despite

being provided with notice of his post-sentence and appeal rights, Appellant

did not file a post-sentence motion or a direct appeal.

      On July 17, 2015, Appellant filed a pro se PCRA petition,3 and on July

30, 2015, the PCRA court appointed counsel to represent Appellant.        On

September 18, 2015, the PCRA court held an evidentiary hearing, and by

order and opinion entered on that same day, the PCRA court denied

Appellant’s first PCRA petition on the basis it was untimely filed.

      On October 16, 2015, PCRA counsel simultaneously filed a timely

notice of appeal and Pa.R.A.P. 1925(b) statement on behalf of Appellant.
                       _______________________
(Footnote Continued)

Court may accept an Anders brief in lieu of a Turner/Finley letter.
Commonwealth v. Fusselman, 866 A.2d 1109, 1111 n.3 (Pa.Super.
2004).
2
  18 Pa.C.S.A. §§ 3701(a)(1)(v), 6106(a)(1), 5104, and 35 P.S. § 780-
113(a)(30), respectively.
3
  Although Appellant’s pro se PCRA petition was docketed on July 27, 2015,
under the prisoner mailbox rule, we deem it to have been filed on July 17,
2015, when Appellant handed it to prison officials. See Commonwealth v.
Patterson, 931 A.2d 710 (Pa.Super. 2007) (discussing prisoner mailbox
rule).



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Therein, counsel averred the PCRA court erred in denying Appellant’s PCRA

petition on the basis it was untimely filed. The PCRA court filed a Pa.R.A.P.

1925(a) opinion explaining it was relying upon its September 18, 2015,

opinion. Subsequently, as indicated supra, Appellant’s court-appointed PCRA

counsel filed in this Court a petition to withdraw his representation.

      Preliminarily, we note that “[o]ur standard of review of the denial of

PCRA relief is clear; we are limited to determining whether the PCRA court’s

findings   are   supported   by   the    record   and   without   legal   error.”

Commonwealth v. Wojtaszek, 951 A.2d 1169, 1170 (Pa.Super. 2008)

(quotation and quotation marks omitted).

      Before we proceed to review the merits of the issues presented in

PCRA counsel’s Anders brief, we must determine whether counsel has

satisfied certain procedural requirements to withdraw his representation.

      Counsel petitioning to withdraw from PCRA representation...must
      review the case zealously. [PCRA] 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



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        counsel that the claims are without merit, the court will permit
        counsel to withdraw and deny relief.

Commonwealth v. Walters, 135 A.3d 589, 591 (Pa.Super. 2016)

(quotations omitted).

        Instantly, we determine that PCRA counsel has complied with the

requirements of Turner/Finley. Specifically, PCRA counsel’s Anders brief

and petition to withdraw detail the nature and extent of PCRA counsel’s

review, address the claims raised in Appellant’s pro se PCRA petition and at

the PCRA hearing, and determine that the issues lack merit and the petition

was untimely filed. PCRA counsel indicated that after his own independent

review of the record, he could not identify any meritorious issues that he

could raise on Appellant’s behalf to plead and prove that one of the PCRA

timeliness exceptions applied.         Counsel also attached proof that he sent

Appellant his petition to withdraw, along with his Anders brief, and

instructed him that he had the right to retain private counsel or proceed pro

se.4    As counsel has complied with the Turner/Finley requirements to

withdraw his representation, we must now determine whether the PCRA

court correctly dismissed Appellant’s PCRA petition as untimely filed.     See

Walters, supra.

        Pennsylvania law makes it clear that no court has jurisdiction to hear

an untimely PCRA petition.         Commonwealth v. Robinson, 575 Pa. 500,
____________________________________________


4
    Appellant has filed no response.



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837 A.2d 1157 (2003). The most recent amendments to the PCRA, effective

January 19, 1996, provide that a PCRA petition, including a second or

subsequent petition, shall be filed within one year of the date the underlying

judgment becomes final. 42 Pa.C.S.A. § 9545(b)(1). A judgment is deemed

final “at the conclusion of direct review, including discretionary review in the

Supreme Court of the United States and the Supreme Court of Pennsylvania,

or at the expiration of the time for seeking review.” 42 Pa.C.S.A. §

9545(b)(3).

      The three statutory exceptions to the timeliness provisions in the PCRA

allow for very limited circumstances under which the late filing of a petition

will be excused. 42 Pa.C.S.A. § 9545(b)(1).        To invoke an exception, a

petition must allege and the petitioner must prove:

      (i)      the failure to raise a claim previously was the result of
               interference    by    government     officials with    the
               presentation of the claim in violation of the Constitution
               or the law of this Commonwealth or the Constitution or
               law 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 Pennsylvania after
               the time period provide in this section and has been
               held by that court to apply retroactively.

42 Pa.C.S.A. § 9545(b)(1)(i)-(iii).

      “We emphasize that it is the petitioner who bears the burden to allege

and prove that one of the timeliness exceptions applies.” Commonwealth

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v. Marshall, 596 Pa. 587, 947 A.2d 714, 719 (2008) (citation omitted).

Moreover, as this Court has often explained, all of the time-bar exceptions

are subject to a separate deadline. Our Supreme Court has held that any

petition invoking an exception must show due diligence insofar as the

petition must be filed within sixty days of the date the claim could have first

been presented. Commonwealth v. Edmiston, 619 Pa. 549, 65 A.3d 339

(2013). See 42 Pa.C.S.A. § 9545(b)(2).

      In the case sub judice, Appellant was sentenced on November 8, 2012,

and he filed neither post-sentence motions nor a direct appeal. Accordingly,

his judgment of sentence became final thirty days thereafter, on Monday,

December 10, 2012, when the time period for filing a direct appeal to this

Court expired. See Pa.R.A.P. 903(a) (providing an appeal to this Court shall

be filed within thirty days after entry of the order from which the appeal is

taken); 42 Pa.C.S.A. § 9545(b)(3) (setting forth when judgment of sentence

becomes final); 1 Pa.C.S.A. § 1908 (setting forth rules for computation of

time). Thus, Appellant had until December 10, 2013, to file a timely PCRA

petition; however, Appellant filed the instant PCRA petition July 17, 2015,

and therefore, it is patently untimely under the PCRA. See 42 Pa.C.S.A. §

9545(b)(1); Commonwealth v. Gamboa-Taylor, 562 Pa. 70, 753 A.2d

780 (2000) (holding a PCRA petition filed more than one year after judgment

of sentence becomes final is untimely and the PCRA court lacks jurisdiction




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to address the petition unless the petitioner pleads and proves a statutory

exception to the PCRA time-bar).

      Appellant attempts to invoke the timeliness exception of 42 Pa.C.S.A.

§ 9545(b)(1)(iii) relating to a new constitutional right that applies

retroactively. Specifically, Appellant avers that his sentence is illegal under

Alleyne v. United States, ___ U.S. ___, 133 S.Ct. 2151 (2013). However,

inasmuch as Alleyne was decided on June 17, 2013, and Appellant did not

file his PCRA petition until July 17, 2015, we conclude that Appellant has not

pled or proven that he presented his claim within sixty days of the date the

claim could have first been presented. See Edmiston, supra; 42 Pa.C.S.A.

§ 9545(b)(2).

      Appellant has provided this Court with no other argument regarding

the PCRA timelines exceptions, and accordingly, we agree with the PCRA

court that Appellant’s PCRA petition was untimely filed. Thus, we affirm the

PCRA court’s order denying Appellant relief and grant court-appointed PCRA

counsel’s petition to withdraw his representation.

      Petition to Withdraw Granted; Order Affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/13/2016

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