J-S47018-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                            Appellee

                       v.

ANTHONY HUNTER

                            Appellant               No. 29 MDA 2016


                Appeal from the PCRA Order December 22, 2015
               in the Court of Common Pleas of Lancaster County
              Criminal Division at No(s): CP-36-CR-0004419-2013
                                          CP-36-CR-0004434-2013
                                          CP-36-CR-0004439-2013
                                          CP-36-CR-0004581-2013


BEFORE: SHOGAN, J., LAZARUS, J., and JENKINS, J.

MEMORANDUM BY JENKINS, J.:                          FILED JUNE 29, 2016

       Appellant Anthony Hunter appeals from the order of the Lancaster

County Court of Common Pleas dismissing as untimely his petition filed

pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. § 9541 et

seq.   Appellant’s counsel filed a Turner/Finley1 no-merit brief with this

Court and a motion seeking permission to withdraw as counsel. We affirm

and grant counsel’s motion.




____________________________________________


1
  Commonwealth v. Turner, 544 A.2d 927 (Pa.1988)                      and
Commonwealth v. Finley, 550 A.2d 213 (Pa.Super.1988) (en banc).
J-S47018-16



        On October 31, 2013, Appellant entered a negotiated guilty plea to

three counts of delivery of a controlled substance (heroin),2 three counts of

criminal use of a communication facility,3 one count of conspiracy to commit

delivery of a controlled substance (heroin),4 and one count of theft by

unlawful taking.5 The trial court sentenced Appellant pursuant to the

negotiated agreement to an aggregate term of 4 to 10 years’ incarceration.6

Appellant did not file a direct appeal.

        On September 30, 2015, Appellant filed a pro se PCRA petition that

alleged he had been illegally sentenced to an illegal mandatory minimum 7

sentence pursuant to Alleyne v. United States, -- U.S. ---, 133 S.Ct. 2151



____________________________________________


2
    35 P.S. § 780-113(a)(30).
3
    18 Pa.C.S. § 7512(a).
4
    18 Pa.C.S. § 903.
5
    18 Pa.C.S. § 3921(a).
6
  The trial court sentenced Appellant to concurrent 4 to 10 year terms of
incarceration on each of the three delivery convictions, which were subject
to the Youth/School Zone sentencing enhancement contained in 204 Pa.Code
§ 303.10(b). The trial court imposed concurrent terms of 1 to 2 years’
incarceration on the criminal use of a communication facility convictions.
The trial court imposed no further penalty on the theft by unlawful taking
conviction.
7
 Appellant alleged he had been illegally sentenced pursuant to 42 Pa.C.S. §
9712, sentences for offenses committed with firearms.




                                           -2-
J-S47018-16



(2013).8     The PCRA court appointed counsel, who filed an amended PCRA

petition on November 17, 2015, alleging Appellant’s sentence was illegal due

to the imposition of the mandatory minimum sentence under 18 Pa.C.S. §

6317,9      and   due   to   the   application   of   the   school   zone   sentencing

enhancement.       On November 24, 2015, the PCRA court filed a Rule 907

notice of intent to dismiss Appellant’s PCRA petition without a hearing (“Rule

907 notice”).      On December 22, 2015, the PCRA court dismissed the

petition.

       Appellant filed a notice of appeal on January 5, 2016, and a Pa.R.A.P.

1925(b) statement of errors complained of on appeal on January 21, 2016.

On January 29, 2015, the PCRA court filed a Pa.R.A.P. 1925(a) opinion. On

March 29, 2016, counsel filed a Turner/Finley no-merit brief with this Court

together with an application seeking permission to withdraw (“Application to

Withdraw”). The Commonwealth did not file a brief.
____________________________________________


8
  In Alleyne, the Supreme Court of the United States held that “[a]ny fact
that, by law, increases the penalty for a crime is an ‘element’ that must be
submitted to the jury and found beyond a reasonable doubt.” Alleyne, 133
S.Ct. at 2155.
9
  18 Pa.C.S § 6317, drug-free school zones, provided a 2-year mandatory
minimum sentence for drug infractions committed within 1000 feet of a
school, or within 250 feet of a recreation center or playground, or on a
school bus. Our Supreme Court ruled Section 6317 unconstitutional in
Commonwealth v. Hopkins, 117 A.3d 247 (Pa.2015). The record reveals,
however, that the trial court sentenced Appellant under the school zone
sentencing enhancement contained in 204 Pa.Code § 303.10(b), not the
drug-free school zone mandatory minimum of Section 6317.




                                           -3-
J-S47018-16



      Before we may address the merits of Appellant’s claim, “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

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    has    substantially    complied   with    the   dictates    of

Turner/Finley. In the no-merit brief, counsel provides a summary of the

facts and procedural history of the case with citations to the record, refers to

evidence of record that might arguably support the issue raised on appeal,

                                        -4-
J-S47018-16



provides citations to relevant case law, and states his conclusion that the

appeal is wholly frivolous and his reasons therefor.             See Turner/Finley

Brief, pp. 3-4. Additionally, counsel contemporaneously filed his Application

to Withdraw with the brief.10           The Application to Withdraw states that

counsel made a careful and conscientious review of the record, researched

the   issues    and    potential    issues     for   appeal,   and   stated   counsel’s

determination that Appellant’s appeal is without merit.               See Application

Withdraw, ¶ 1 (Turner/Finley Brief, p. 5).              The Application to Withdraw

further explains that counsel notified Appellant of the withdrawal request

and sent Appellant a letter explaining his right to proceed pro se or with

new, privately-retained counsel to raise any additional points or arguments

that Appellant believed had merit.11 See id. at ¶¶ 2-3; see also Letter from

R. Russell Pugh, Esquire, to Anthony Hunter, dated March 29, 2016

(Turner/Finley Brief, p. 7).              Accordingly, counsel has substantially

complied with the requirements of Turner and Finley.


____________________________________________


10
    Counsel included his Application to Withdraw as part of his no-merit brief.
See Turner/Finley Brief, p. 5. While the preferred practice is that counsel
file a separate motion to withdraw, because the Application to Withdraw is
proper and counsel’s letter to Appellant properly advises Appellant as
required and is attached to the brief, we accept counsel’s application as
properly filed and dispose of the same herein.
11
   The letter further makes clear that counsel supplied Appellant with a copy
of the no-merit brief. See Letter from R. Russell Pugh, Esquire, to Anthony
Hunter, dated March 29, 2016.



                                           -5-
J-S47018-16



      As Appellant filed neither a pro se brief nor a counseled brief with new,

privately-retained counsel, we review this appeal based on the issue of

arguable merit raised in the no-merit brief:

      Whether the post-conviction court erred when it denied post-
      conviction relief on the basis that the PCRA Petition was filed
      untimely?

Turner/Finley Brief, p. 2.

      Our well-settled standard of review for orders denying PCRA relief is

“to determine whether the determination of the PCRA court is supported by

the evidence of record and is free of legal error. The PCRA court’s findings

will not be disturbed unless there is no support for the findings in the

certified record.”   Commonwealth v. Barndt, 74 A.3d 185, 191-192

(Pa.Super.2013) (internal quotations and citations omitted).

      “It is undisputed that a PCRA petition must be filed within one year of

the date that the judgment of sentence becomes final.” Commonwealth v.

Hernandez, 79 A.3d 649, 651 (Pa.Super.2013); 42 Pa.C.S. § 9545(b)(1).

“This time requirement is mandatory and jurisdictional in nature, and the

court may not ignore it in order to reach the merits of a petition.”

Hernandez, 79 A.3d at 651 (citing Commonwealth v. Murray, 753 A.2d

201, 203 (Pa.2000)).      A judgment of sentence “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.”       42 Pa.C.S. § 9545(b)(3).

However, a facially untimely petition may be received where any of the

                                     -6-
J-S47018-16



PCRA’s three limited exceptions to the time for filing the petition are met.

Hernandez, 79 A.3d at 651 (footnote omitted). These exceptions include:

      (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).   As our Supreme Court has repeatedly

stated, the petitioner maintains the burden of pleading and proving that one

of these exceptions applies.    Commonwealth v. Abu-Jamal, 941 A.2d

1263, 1268 (Pa.2008), cert. denied, 555 U.S. 916 (2008). Further,

      [a] petition invoking one of these exceptions must be filed within
      sixty days of the date the claim could first have been presented.
      42 Pa.C.S. § 9545(b)(2).        In order to be entitled to the
      exceptions to the PCRA’s one-year filing deadline, the petitioner
      must plead and prove specific facts that demonstrate his claim
      was raised within the sixty-day time frame under section
      9545(b)(2).

Hernandez, 79 A.3d at 651-652 (internal quotations omitted).

      On October 31, 2013, Appellant entered a negotiated guilty plea. The

trial court sentenced Appellant on the same day. Because Appellant did not

file a direct appeal, his judgment of sentence became final thirty days later,




                                    -7-
J-S47018-16



on December 2, 2013.12 See 42 Pa.C.S. § 9545(b)(3) (“For purposes of this

subchapter, 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.”). Accordingly, Appellant had until December 2, 2014 to timely

file a PCRA petition.

       Appellant filed the instant petition on September 30, 2015, nearly a

year after the expiration of his PCRA limitations period.         Accordingly,

Appellant’s petition is facially untimely. Thus, he must plead and prove that

his petition falls under one of the Section 9545 exceptions set forth in the

PCRA. See 42 Pa.C.S. § 9545(b)(1)(i)-(iii). Appellant’s PCRA petition and

the amended PCRA petition suggest the Supreme Court of the United States’

decision in Alleyne provides a time bar exception.        However, Appellant

failed to file the instant petition within 60 days of Alleyne, and therefore he

cannot rely on Alleyne for a PCRA time-bar exception.       See 42 Pa.C.S. §

9545(b)(2) (petitions invoking exceptions must be filed within 60 days of the

date the claim could have been presented). Further, neither the Supreme

Court of the United States nor the Supreme Court of Pennsylvania has held

Alleyne to apply retroactively to matters on collateral appeal, and therefore

Alleyne cannot provide Appellant with a time-bar exception, even if properly

____________________________________________


12
  The thirtieth day fell on November 30, 2013, a Saturday. Accordingly,
Appellant had until Monday, December 2, 2013 to timely file a direct appeal.



                                           -8-
J-S47018-16



pleaded in his petition. See Commonwealth v. Miller, 102 A.3d 988, 995

(Pa.Super.2014). (“[N]either our Supreme Court, nor the United States

Supreme Court has held that Alleyne is to be applied retroactively to cases

in which the judgment of sentence had become final.”).

       Because Appellant did not properly plead or prove a time-bar

exception based on Alleyne, because Alleyne does not provide a time-bar

exception, and because Appellant’s petition neither pleads nor proves any

other exception, the petition remains time-barred.13

       Order affirmed. Application to Withdraw granted.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/29/2016




____________________________________________


13
   We note that, although never waived, illegal sentence claims remain
subject to the PCRA’s timeliness requirements. See Commonwealth v.
Jackson, 30 A.3d 516, 521-22 (Pa.Super.2011).



                                           -9-
