J-S68024-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA


                       v.

TIMOTHY WILSON

                            Appellant                  No. 76 WDA 2016


                 Appeal from the PCRA Order December 2, 2015
               In the Court of Common Pleas of Allegheny County
              Criminal Division at No(s): CP-02-CR-0012631-2006
                                          CP-02-CR-0012634-2006
                                          CP-02-CR-0015573-2006
                                         CP-02-CR-0015576-2006

BEFORE: SHOGAN, J., SOLANO, J., and STRASSBURGER, J.*

MEMORANDUM BY SOLANO, J.:                        FILED NOVEMBER 30, 2016

        Timothy Wilson (“Appellant”) appeals from the order denying as

untimely his petition for relief filed pursuant to the Post Conviction Relief Act

(“PCRA”), 42 Pa.C.S. §§ 9541-9546. Appellant’s counsel has filed a motion

to withdraw.      We affirm the order denying Appellant post-conviction relief

and grant counsel’s motion.

        On August 29, 2007, Appellant entered a negotiated guilty plea to

various robbery and related charges at four separate dockets.        That same

day, the trial court accepted the plea, and imposed an aggregate sentence of


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*
    Retired Senior Judge assigned to the Superior Court.
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five to ten years’ incarceration.          Appellant filed neither a post-sentence

motion nor a direct appeal.

        On July 9, 2015, Appellant filed a pro se PCRA petition.        The PCRA

court appointed counsel to represent Appellant. On October 13, 2015, PCRA

counsel filed a “no-merit” letter and motion to withdraw pursuant to

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

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

November 5, 2015, the PCRA court issued Pa.R.Crim.P. 907 notice of intent

to dismiss Appellant’s petition because it was untimely, and no time-bar

exceptions applied.          In this same order, the PCRA court granted PCRA

counsel’s motion to withdraw. Appellant did not file a response. By order

entered December 2, 2015, the PCRA court denied Appellant’s PCRA petition.

Appellant filed a pro se appeal on December 17, 2015.             The PCRA court

appointed appellate counsel on February 4, 2016.

        In lieu of an advocate’s brief, Appellant’s counsel has filed a purported

Anders1 brief and a petition to withdraw. Compliance with Anders applies

to counsel who seeks to withdraw from representation on direct appeal.

Because Anders imposes stricter requirements than those imposed when

counsel seeks to withdraw during the post-conviction process pursuant to

Turner and Finley, we may accept an Anders brief in lieu of a

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1
    Anders v. California, 386 U.S. 738 (1967).



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Turner/Finley no merit letter. See Commonwealth v. Widgins, 29 A.3d

816, 817 n.2 (Pa. Super. 2011).     Thus, we will assess counsel’s assertion

that the issue Appellant wishes to raise has no merit under a Turner/Finley

analysis.

      This Court has summarized:

            The Turner/Finley decisions provide the manner for
        post[-]conviction counsel to withdraw from representation.
        The holdings of those cases mandate an independent review
        of the record by competent counsel before a PCRA court or
        [an] appellate court can authorize an attorney’s withdrawal.
        The necessary independent review requires counsel to file a
        “no-merit” letter detailing the nature and extent of his [or
        her] review and list 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, see Turner, supra, then must conduct its
        own independent evaluation of the record and agree with
        counsel that the petition is without merit[.]

            [T]his Court [has] imposed additional requirements on
        counsel that closely track the procedure for withdrawing on
        direct   appeal.   .   .   .   [C]ounsel    is  required   to
        contemporaneously serve upon his [or her] client his [or
        her] no merit letter and application to withdraw along with a
        statement that if the court granted counsel’s withdrawal
        request, the client may proceed pro se or with a privately
        retained attorney[.]

Commonwealth v. Reed, 107 A.3d 137, 140 (Pa. Super. 2014) (citation

omitted). Counsel in this case has complied with the mandates of Turner

and Finley, as summarized in Reed.      See Counsel’s Amended Petition to

Withdraw, 6/24/16.     Thus, we must determine whether we agree with

counsel’s assessment of Appellant’s claim.

      Counsel phrases Appellant’s issue as follows:

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         I.        DID THE PETITIONER FILE A TIMELY PCRA
                   PETITION, OR DOES AN EXCEPTION TO THE TIME
                   LIMITATION FOR FILING A PCRA PETITION APPLY
                   SUCH THAT THE LOWER COURT ERRED IN NOT
                   ADDRESSING THE MERITS OF THE CLAIMS?

Appellant’s Brief at 4.

      This Court’s standard of review regarding an order dismissing a

petition under the PCRA is whether the determination of the PCRA court is

supported     by    the   evidence   of   record   and    is   free    of    legal   error.

Commonwealth v. Halley, 870 A.2d 795, 799 n.2 (Pa. 2005). The PCRA

court’s findings will not be disturbed unless there is no support for the

findings in the certified record. Commonwealth v. Carr, 768 A.2d 1164,

1166 (Pa. Super. 2001).          Moreover, a PCRA court may decline to hold a

hearing on the petition if the PCRA court determines that the petitioner’s

claim is patently frivolous and is unsupported. Commonwealth v. Jordan,

772 A.2d 1011, 1104 (Pa. Super. 2001).

      The     timeliness    of   a   post-conviction     petition     is    jurisdictional.

Commonwealth v. Hernandez, 79 A.3d 649, 651 (Pa. Super. 2013).

Generally, a petition for relief under the PCRA must be filed within one year

of the date the judgment is final unless the petition alleges, and the

petitioner proves, that an exception to the time for filing the petition set




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forth in 42 Pa.C.S. § 9545(b)(1) applies.2 A PCRA petition invoking one of

these statutory exceptions must “be filed within 60 days of the date the

claims could have been presented.”             See Hernandez, 79 A.3d 651-52

(citations omitted); see also 42 Pa.C.S. § 9545(b)(2). The exceptions must

be pled in the petition, and may not be raised for the first time on appeal.

Commonwealth v. Burton, 936 A.2d 521, 525 (Pa. Super. 2007); see

also Pa.R.A.P. 302(a) (providing that issues not raised before the lower

court are waived and cannot be raised for the first time on appeal).

        Appellant’s judgment of sentence became final on September 28,

2007, when the thirty-day time period for filing an appeal to this Court

expired.     See 42 Pa.C.S. § 9545(b)(3).            Thus, Appellant had until

September 28, 2008, to file a timely PCRA petition. As Appellant filed the
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2
    The exceptions to the timeliness requirement are:

        (i) the failure to raise the claim previously was the result of
        interference of 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).



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instant petition in July of 2015, it is patently untimely unless he has satisfied

his burden of pleading and proving that one of the enumerated exceptions

applies. See Hernandez, supra.

       According to Appellant, his PCRA petition is timely because, under the

“governmental     interference     exception”     provided    for   in   42   Pa.C.S.

§ 9545(b)(1)(i), he was “not informed of his rights to file a post sentence

motion to withdraw his guilty plea and to file a direct appeal.” Anders Brief

at 10.   Appellant’s PCRA petition asserts that he “was not advised of his

appellate rights or his right to file a motion to withdraw his plea of guilt,”

that   this   alleged   fact   satisfies   the   time-bar    exception   in   Section

9545(b)(1)(ii), and that “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.”         PCRA Petition, 7/9/15, at 4.          Appellant’s

averments are confusing.        As further noted by Appellant’s counsel, “It is

unclear whether Petitioner asserts that he filed his pro se PCRA petition

within sixty days of being notified of his post-sentence and appellate rights.

However, the transcript of the plea and sentencing proceedings indicates

that he was in fact informed of those rights at that time.” Anders Brief at

10.

       Upon review, we agree with counsel that Appellant’s claim is devoid of

merit because he has failed to plead and prove an exception to the PCRA’s

time bar. See 42 Pa.C.S. § 9545. Our review of the sentencing transcript


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refutes Appellant’s claims because it shows that Appellant acknowledged at

sentencing that his trial counsel had explained his post-sentencing rights to

him and he agreed to waive the reading of them. See N.T., 8/29/07, at 17.

       We further note that after the filing of the Anders Brief, Appellant filed

with this Court a “Pa.R.App.P. 1925(b) MEMORANDUM OF LAW,”3 in which

he asserted that his claim constitutes “after-discovered evidence June 2015

within the (60 days) of 9545(b)(1)(ii) in his PCRA” . . . due to “medication

and mental health illness, and learning disability that the appellant was

suffering from.”      Appellant’s Pa.R.App.P. 1925(b) MEMORANDUM OF LAW,

9/22/16, at 6.       However, Appellant has not developed this claim in any

meaningful      way      beyond      these     unsupported   assertions.    See

Commonwealth v. Monaco, 996 A.2d 1076, 1080 (Pa. Super. 2010)

(explaining that the general rule remains that a mental illness or

psychological condition, absent more, will not serve as an exception to the

PCRA’s jurisdictional time requirements).         The claim thus is unproven and

provides no basis for an exception to the PCRA’s time bar.          Based on the

foregoing, we grant counsel’s petition to withdraw and affirm the PCRA

court’s order dismissing Appellant’s PCRA petition on the basis that it is

time-barred.

       Order affirmed. Counsel’s petition to withdraw granted.
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3
  Although it was docketed as an “Application for Relief,” we treat it as a
response to counsel’s Anders Brief.



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/30/2016




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