J-S66040-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                       IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA
                            Appellee

                       v.

CARLOS M. RIVERA

                            Appellant                  No. 2109 MDA 2015


               Appeal from the PCRA Order November 12, 2015
                 In the Court of Common Pleas of Berks County
              Criminal Division at No(s): CP-06-CR-0003202-2012


BEFORE: BOWES, J., PANELLA, J., and JENKINS, J.

MEMORANDUM BY JENKINS, J.:                         FILED SEPTEMBER 13, 2016

        Carlos Rivera appeals from an order dismissing his petition for habeas

corpus, which the lower court properly treated as a petition for relief under

the Post Conviction Relief Act (“PCRA”).1 We affirm.

        On January 31, 2013, Rivera pled guilty to simple assault 2 and was

sentenced to 6-24 months’ imprisonment. Rivera did not file a direct appeal.

        On September 11, 2015, Rivera filed what he claimed was a habeas

corpus petition claiming that the court improperly computed his offense

gravity score at the time of sentencing. The court appointed PCRA counsel.

On November 6, 2015, counsel filed a “no merit” letter pursuant to
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1
    42 Pa.C.S. § 9541 et seq.
2
    18 Pa.C.S. § 2701.


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Commonwealth       v.   Finley,   550   A.2d   214   (Pa.Super.1988),     and

Commonwealth v. Turner, 544 A.2d 927 (Pa.1988), and requested leave

to withdraw from the case.

     On November 12, 2015, the court granted counsel leave to withdraw

and entered a notice of intent to dismiss without a hearing. On November

23, 2015, Rivera filed a pro se “amended PCRA petition” which repeated his

original claims and also stated that his petition fell within the “newly

discovered evidence” exception to the PCRA’s statute of limitations.      On

December 10, 2015, the court dismissed Rivera’s petition.

     One week earlier, on December 3, 2015, Rivera filed a notice of

appeal. Pursuant to Pa.R.A.P. 905(a)(5), we treat the appeal as timely filed

on December 10, 2015.        See id. (“a notice of appeal filed after the

announcement of a determination but before the entry of an appealable

order shall be treated as filed after such entry and on the day thereof”).

Both Rivera and the court complied with Pa.R.A.P. 1925.

     Rivera alleged the following in his Pa.R.A.P. 1925(b) statement:

     1. Defendant’s gravity score was calculated erroneously by court
     officials; the court completely disregarded ‘Court Procedure Rule
     152,’ relating to the amendment of rules, they ‘altered’ the
     gravity score from a 3 to a 5 thus sentencing the defendant to
     an excessive sentence, due to the court’s negligence.

           a. Defendant points out to the court that how is it possible
           for the court to state that in 1-31-13 sentencing
           defendants (PSI) were a 5 and this present day a (PSI)
           shows that defendant score is a 5? Clearly both erroneous.
           How is that possible? It’s not.



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      2. The court purported to sentence defendant using the
      guidelines, but applied them erroneously; making the sentence
      illegal and excessive.

      3. Defendant’s constitutional rights were violated; as well as his
      due process in the court proceedings.

      4. Defendant states that there was a ‘conflict of interest’ by
      A.D.A. Dugan prosecuting this case due to the fact that her
      husband a Reading Police Officer was on the scene, having his
      fellow officer been assaulted, causing a very personal vendetta
      against the defendant.

Id.

      Before proceeding to Rivera’s claims, “we must determine if counsel

has satisfied the requirements to be permitted to withdraw from further

representation.”     Commonwealth v. Freeland, 106 A.3d 768, 774

(Pa.Super.2014).    Competent PCRA counsel must conduct an independent

review of the record before we can authorize counsel’s withdrawal. Id. The

independent review

      requires counsel to file a ‘no-merit’ letter detailing the nature
      and extent of his review and list[ing] each issue the petitioner
      wishes to have examined, explaining why those issues are
      meritless. The PCRA court, or an appellate court if the no-merit
      letter is filed before it, then must conduct its own independent
      evaluation of the record and agree with counsel that the petition
      is without merit.

Id. (internal citation omitted).

      PCRA counsel must also “serve a copy on the petitioner of counsel’s

application to withdraw as counsel, and must supply to the petitioner both a

copy of the ‘no-merit’ letter and a statement advising the petitioner that . . .

he or she has the right to proceed pro se or with the assistance of privately



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retained counsel.”        Commonwealth v. Widgins, 29 A.3d 816, 818

(Pa.Super.2011) (quoting Commonwealth v. Friend, 896 A.2d 607

(Pa.Super.2006), abrogated in part by Commonwealth v. Pitts, 981 A.2d

875, 876 (Pa.2009)).

       Counsel substantially complied with the dictates of Turner/Finley. In

her no-merit letter, counsel provided a summary of the facts and procedural

history of the case with citations to the record, provided citations to relevant

case law, and concluded that the appeal was wholly frivolous.          Counsel

asserted in her motion to withdraw that she made a careful and

conscientious review of the record, researched the issues and potential

issues for appeal, and determined that Rivera’s appeal was without merit.

Further, counsel notified Rivera of her withdrawal request and sent him a

letter explaining his right to proceed pro se or with new, privately-retained

counsel to raise any additional points or arguments that he believed had

merit.

       Next, we must determine whether Rivera’s PCRA petition 3 was timely.

The timeliness of a PCRA petition implicates the jurisdiction of both this

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3
  Although Rivera entitled his original petition as a petition for habeas
corpus, the lower court properly treated it as a PCRA petition, because it
challenges the legality of his sentence, an issue squarely within the confines
of the PCRA. See 42 Pa.C.S. § 9543(a)(2)(vii) (relief available under PCRA
for “the imposition of a sentence greater than the lawful maximum”); see
also 42 Pa.C.S. § 9542 (PCRA subsumes writ of habeas corpus unless PCRA
does not provide potential remedy).



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Court and the PCRA court. Commonwealth v. Williams, 35 A.3d 44, 52

(Pa.Super.2011), appeal denied, 50 A.3d 121 (Pa.2012). “Pennsylvania law

makes clear that no court has jurisdiction to hear an untimely PCRA

petition.”   Id.   To “accord finality to the collateral review process[,]” the

PCRA “confers no authority upon [appellate courts] to fashion ad hoc

equitable exceptions to the PCRA timebar[.]”      Commonwealth v. Watts,

23 A.3d 980, 983 (Pa.2011). With respect to jurisdiction under the PCRA,

this Court has further explained:

         The most recent amendments to the PCRA...provide a
         PCRA petition, including a second or subsequent petition,
         shall be filed within one year of the date the underlying
         judgment becomes final. 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
         time for seeking the review.

Commonwealth v. Monaco, 996 A.2d 1076, 1079 (Pa.Super.2010)

(citations and quotations omitted), appeal denied, 20 A.3d 1210 (Pa.2011);

see also 42 Pa.C.S. § 9545(b). This Court may review a PCRA petition filed

more than one year after the judgment of sentence becomes final only if the

claim falls within one of the following three statutory exceptions, which the

petitioner must plead and prove:

              (i) the failure to raise the claim 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;




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             (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).            Further, if a petition pleads one of these

exceptions, the petition will not be considered unless it is “filed within 60

days of the date the claim could have been presented.” 42 Pa.C.S. §

9545(b)(2).

         Here, Rivera’s judgment of sentence became final on Monday, March

4, 2013,4 his deadline for taking a direct appeal to this Court.            See 42

Pa.C.S. § 9545(b)(3).        Accordingly, he had until March 4, 2014 to file a

timely PCRA petition.       See 42 Pa.C.S. § 9545(b)(1).    He filed the present

PCRA petition on September 11, 2015.             Thus, his petition is patently

untimely, and we must determine whether he has pled and proved any of

the exceptions to the PCRA time limitation. See 42 Pa.C.S. § 9545(b)(1)(i)-

(iii).

         Rivera fails to satisfy any of these exceptions.       Contrary to his

amended PCRA petition, his claim of an improper offense gravity score does
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4
 The thirtieth day after sentencing, March 2, 2013, fell on a Saturday, thus
extending the time for appealing to this Court to Monday, March 4, 2013.
See 1 Pa.C.S. § 1908.




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not constitute newly discovered evidence (section 9545(b)(1)(ii)), because

all   information     relating    to   his     sentence   was   publically   available.

Commonwealth v. Taylor, 67 A.3d 1245, 1248-49 (Pa.2013) (matters of

public record are not unknown for purposes of newly discovered evidence

exception to PCRA). Nor does Rivera contend that his sentence implicated

governmental interference or violated a constitutional right that the United

States Supreme Court or Pennsylvania Supreme Court has held to apply

retroactively (sections 9545(b)(1)(1) and (iii)).5

       Because Rivera failed to plead and prove any of the statutory

exceptions to the PCRA time limitation, the PCRA court correctly determined

that it lacked jurisdiction to hear this petition.

       Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/13/2016




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5
  Although petitioners cannot waive illegal sentence claims, they must still
raise such claims in a timely PCRA petition. Commonwealth v. Taylor, 5
A.3d 462, 465 (Pa.Super.2013). Rivera failed to do so here.



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