J-S22006-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                        IN THE SUPERIOR COURT OF
                                                          PENNSYLVANIA
                              Appellee

                         v.

DECARLO EUGENE PINCKNEY

                              Appellant                 No. 1444 MDA 2015


                   Appeal from the PCRA Order July 31, 2015
                 In the Court of Common Pleas of York County
              Criminal Division at No(s): CP-67-CR-0007073-2009


BEFORE: MUNDY, J., DUBOW, J., and STRASSBURGER, J.*

MEMORANDUM BY MUNDY, J.:                                FILED MARCH 08, 2016

        Appellant, DeCarlo Eugene Pinckney, appeals from the July 31, 2015

order dismissing, as untimely, his petition for relief filed pursuant to the Post

Conviction      Relief        Act   (PCRA),    42   Pa.C.S.A.   §§   9541-9546.

Contemporaneous with this appeal, Appellant’s counsel has filed with this

Court a petition to withdraw, together with an Anders1 brief, averring the

____________________________________________
*
    Retired Senior Judge assigned to the Superior Court.
1
   Anders v. California, 386 U.S. 738 (1967). Although counsel has
submitted an Anders brief to this Court, we note that in the PCRA context,
counsel should have filed a no-merit letter in accordance with
Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), Commonwealth v.
Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc), and their progeny.
Commonwealth v. Widgins, 29 A.3d 816, 817 n.1 (Pa. Super. 2011).
However, “[b]ecause an Anders brief provides greater protection to a
defendant, this Court may accept an Anders brief in lieu of a Turner/Finley
letter.” Id. (citation omitted).
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appeal is frivolous.2      After careful review, we affirm and grant counsel’s

petition to withdraw.

        We summarize the procedural history of this case as follows.          On

March 11, 2010, Appellant pled guilty to one count each of possession of a

firearm prohibited, prohibited offensive weapons, and intentional possession

of a controlled substance.3         That same day, the trial court imposed an

aggregate sentence of five to ten years’ imprisonment, to be followed by six

years’ probation. Appellant did not file a direct appeal with this Court.

        Appellant filed his first pro se PCRA petition on October 23, 2014,

which was denied by the PCRA court on October 31, 2014 without a

hearing.4 No notice of appeal was docketed in this Court.5 On February 17,


____________________________________________
2
    The Commonwealth elected not to file a brief in this matter.
3
   18 Pa.C.S.A. §§ 6105(a), 908(a), and 35 P.S. § 780-113(a)(16),
respectively.
4
   Although Appellant’s petition is file-stamped October 27, 2014, we note
that the certified record contains a copy of the envelope Appellant used for
mailing, which shows a postmark of October 23, 2014. Under the prisoner
mailbox rule, “a pro se prisoner’s document is deemed filed on the date he
delivers it to prison authorities for mailing.”        Commonwealth v.
Chambers, 35 A.3d 34, 38 (Pa. Super. 2011) (citation omitted), appeal
denied, 46 A.3d 715 (Pa. 2012). As a result, we deem Appellant’s petition
filed on October 23, 2014. Further, for the remainder of Appellant’s pro se
filings we use the date of the postmarks as the corresponding filing dates in
this memorandum pursuant to the prisoner mailbox rule.
5
   Despite this being Appellant’s first petition, it appears that counsel was not
appointed to represent him. See generally Pa.R.Crim.P. 904(C). Appellant
filed a pro se notice of appeal in the trial court on December 2, 2014. The
(Footnote Continued Next Page)


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2015, Appellant filed his second pro se PCRA petition, which Appellant

amended pro se on March 9, 2015.                 The PCRA court denied Appellant’s

petition on March 11, 2015 without prejudice to refile, due to it being over

265 pages in length and the PCRA court’s inability to understand the issues

contained therein. Appellant did not file a notice of appeal to this Court. On

March 23, 2015, Appellant filed a petition for reconsideration, which the

PCRA court construed as Appellant’s third pro se PCRA petition. Counsel was

appointed for Appellant on June 12, 2015.                 On July 15, 2015, the

Commonwealth filed a motion to dismiss Appellant’s petition as untimely.

The PCRA court conducted a hearing limited to arguments from counsel as to

the issue of timeliness on July 31, 2015.           That same day, the PCRA court

entered an order dismissing Appellant’s PCRA petition as untimely filed. On

August 19, 2015, Appellant filed a timely notice of appeal.6

      On appeal, counsel raises the following issue on Appellant’s behalf.

             Whether [] Appellant’s PCRA petition is wholly
             frivolous and without arguable merit within the
             meaning of Anders …; Commonwealth v.
             McClendon, 434 A.2d 1185 (Pa. 1981); and
             Commonwealth v. Santiago, 978 A.2d 349 (Pa.
             2009)?

                       _______________________
(Footnote Continued)

trial court notified Appellant that it would be forwarding said notice of appeal
to the public defender under Pennsylvania Rule of Criminal Procedure
576(A)(4). However, no further action was taken on the notice of appeal.
6
  Appellant and the PCRA court have complied with Pennsylvania Rule of
Appellate Procedure 1925.



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Anders Brief at 4.

      Prior to considering Appellant’s issue, we must review PCRA counsel’s

request to withdraw from representation.           Our Supreme Court has

articulated the requirements PCRA counsel must adhere to when requesting

to withdraw, which include the following.

            1) A “no-merit” letter by PC[R]A counsel detailing
            the nature and extent of his review;

            2) The “no-merit” letter by PC[R]A counsel listing
            each issue the petitioner wished to have reviewed;

            3) The PC[R]A counsel’s “explanation”, in the “no-
            merit” letter, of why the petitioner’s issues were
            meritless[.]

Commonwealth v. Pitts, 981 A.2d 875, 876 (Pa. 2009), quoting Finley,

supra at 215. “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. Wrecks, 931 A.2d 717, 721 (Pa. Super.

2007) (citation omitted).

                  [W]here 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. By contrast, if
            the claims appear to have merit, the court will deny
            counsel’s request and grant relief, or at least instruct
            counsel to file an advocate’s brief.

Id. (citation omitted).


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       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 Appellant raised in his pro se PCRA petition and

at the PCRA hearing, and determine that the issues lack merit.                   PCRA

counsel provides a discussion of Appellant’s claims, explaining why the

issues are without merit. Additionally, PCRA counsel served Appellant with a

copy of the petition to withdraw and Anders brief, advising Appellant that, if

PCRA counsel was permitted to withdraw, Appellant had the right to proceed

pro se or with privately retained counsel. Appellant filed his pro se response

on January 15, 2016 titled as a “Motion in Objection to Anders brief and

Withdrawal of Counsel.”7 We proceed, therefore, to conduct an independent

merits review of Appellant’s issue, as well as his pro se response.

       We begin by noting our well-settled standard of review. “In reviewing

the   denial   of   PCRA     relief,   we      examine   whether   the   PCRA   court’s

determination is supported by the record and free of legal error.”

Commonwealth v. Fears, 86 A.3d 795, 803 (Pa. 2014) (internal quotation

marks and citation omitted). “The scope of review is limited to the findings

of the PCRA court and the evidence of record, viewed in the light most


____________________________________________
7
 Appellant’s motion is granted to the extent that we accept the same as
Appellant’s timely filed response to counsel’s petition to withdraw.
Appellant’s motion is denied in all other respects.



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favorable to the prevailing party at the trial level.”       Commonwealth v.

Spotz, 84 A.3d 294, 311 (Pa. 2014) (citation omitted).         “It is well-settled

that a PCRA court’s credibility determinations are binding upon an appellate

court so long as they are supported by the record.”          Commonwealth v.

Robinson, 82 A.3d 998, 1013 (Pa. 2013) (citation omitted). However, this

Court reviews the PCRA court’s legal conclusions de novo. Commonwealth

v. Rigg, 84 A.3d 1080, 1084 (Pa. Super. 2014) (citation omitted).

     Before we may address the arguments raised in the Anders brief, we

must first address the timeliness of Appellant’s PCRA petition, as it

implicates   the   jurisdiction   of    this   Court   and   the   PCRA    court.

Commonwealth v. Davis, 86 A.3d 883, 887 (Pa. Super. 2014) (citation

omitted).    Pennsylvania law makes clear that when “a PCRA petition is

untimely, neither this Court nor the trial court has jurisdiction over the

petition.” Commonwealth v. Seskey, 86 A.3d 237, 241 (Pa. Super. 2014)

(citation omitted), appeal denied, 101 A.3d 103 (Pa. 2014). The “period for

filing a PCRA petition is not subject to the doctrine of equitable tolling;

instead, the time for filing a PCRA petition can be extended only if the PCRA

permits it to be extended[.]” Commonwealth v. Ali, 86 A.3d 173, 177 (Pa.

2014) (internal quotation marks and citation omitted), cert. denied, Ali v.

Pennsylvania, 135 S. Ct. 707 (2014).           This is to “accord finality to the

collateral review process.”   Commonwealth v. Watts, 23 A.3d 980, 983

(Pa. 2011) (citation omitted).         “However, an untimely petition may be


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received when the petition alleges, and the petitioner proves, that any of the

three limited exceptions to the time for filing the petition, set forth at 42

Pa.C.S.A. § 9545(b)(1)(i), (ii), and (iii), are met.”     Commonwealth v.

Lawson, 90 A.3d 1, 5 (Pa. Super. 2014) (citation omitted).             The PCRA

provides, in relevant part, as follows.

            § 9545. Jurisdiction and proceedings

                                          …

            (b) Time for filing petition.—

                  (1) Any petition under this subchapter,
                  including a second or subsequent petition, shall
                  be filed within one year of the date the
                  judgment becomes final, unless the petition
                  alleges and the petitioner proves that:

                        (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.


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                     (2) Any petition invoking an exception
                     provided in paragraph (1) shall be filed within
                     60 days of the date the claim could have been
                     presented.

                                               …

42 Pa.C.S.A. § 9545(b).

       In the instant case, Appellant was sentenced on March 11, 2010, and

Appellant did not file a direct appeal with this Court. Therefore, Appellant’s

judgment of sentence became final on April 12, 2010, when the filing period

for filing a notice of appeal with this Court expired.8      See 42 Pa.C.S.A.

§ 9545(b)(3) (stating, “a judgment becomes 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[]”); Pa.R.A.P. 903(c)(3) (stating, “[i]n a criminal case

in which no post-sentence motion has been filed, the notice of appeal shall

be filed within 30 days of the imposition of the judgment of sentence in open

court[]”). Appellant filed the instant petition on March 31, 2015, and it is

therefore patently untimely. See 42 Pa.C.S.A. § 9545(b)(1) (stating, “[a]ny

petition under this subchapter, including a second or subsequent petition,

shall be filed within one year of the date the judgment becomes final[]”).
____________________________________________
8
   We observe that the 30th day fell on Saturday, April 10, 2010. When
computing the 30-day filing period “[if] the last day of any such period shall
fall on Saturday or Sunday … such day shall be omitted from the
computation.” 1 Pa.C.S.A. § 1908. Therefore, the 30th day for Appellant to
file a timely notice of appeal was on Monday, April 12, 2010.



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Furthermore, neither counsel nor Appellant in his pro se response has

argued that any of the three enumerated time-bar exceptions applies.

Therefore, Appellant’s PCRA petition was untimely, and the PCRA court

lacked jurisdiction to address the merits of any of Appellant’s claims on the

merits.9 See Lawson, supra.

       Based on the foregoing, we conclude the PCRA court properly

dismissed Appellant’s PCRA petition as untimely. Accordingly, we affirm the

PCRA court’s July 31, 2015 order and grant counsel’s petition to withdraw.

       Order affirmed.      Petition to withdraw as counsel granted.   Motion in

Objection to Anders Brief granted in part and denied in part. Application for

removal of counsel denied. Application for writ of mandamus denied.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/8/2016




____________________________________________
9
  In light of our conclusion, Appellant’s motion to remove counsel is denied
as moot. In addition, Appellant’s petition for a writ of mandamus is denied.



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