J -S12016-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

  COMMONWEALTH OF PENNSYLVANIA            :   IN THE SUPERIOR COURT OF
                                                    PENNSYLVANIA

               v.


 JOHN EDWARD STAMBAUGH

                    Appellant             :    No. 1661 MDA 2018
          Appeal from the PCRA Order Entered September 19, 2018
   In the Court of Common Pleas of Schuylkill County Criminal Division at
                      No(s): CP-54-CR-0000874-2013

BEFORE: BOWES, J., DUBOW, J., and MUSMANNO, J.
MEMORANDUM BY DUBOW, J.:                               FILED JULY 12, 2019
      Appellant, John Stambaugh, appeals from the September 19, 2018
Order, which dismissed as untimely his first Petition filed pursuant to the Post

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

Appellant has filed an Anders' Brief and a Petition to Withdraw as Counsel.
After careful review, we grant counsel's Petition to Withdraw and affirm.




1 See Anders v. California, 386 U.S. 738 (1967). Counsel filed an Anders
brief. However, the proper mechanism when seeking to withdraw in PCRA
proceedings is a Turner/Finley brief. See Commonwealth v. Turner, 544
A.2d 927 (Pa. 1988); Commonwealth v. Finley, 550 A.2d 213 (Pa. Super.
1988). Because an Anders brief provides greater protection to a criminal
appellant, we may accept an Anders brief in lieu of a Turner/Finley no -merit
brief. Commonwealth v. Widgens, 29 A.3d 816, 817 n.2 (Pa. Super. 2011);
Commonwealth v. Fusselman, 866 A.2d 1109, 1111 n.3 (Pa. Super. 2004).
J -S12016-19



      A detailed    recitation   of the factual   and   procedural   history   is

unnecessary to our disposition. Briefly, on May 21, 2014, Appellant entered

a negotiated plea of nob contendere to Homicide by Vehicle While Driving

Under the Influence and related offenses for the October 21, 2012 car accident

which claimed the life of a passenger, Appellant's fiancé, and placed Appellant

in a coma for several months.2 The trial court sentenced Appellant to an
aggregate term of 55 months to 120 months' incarceration. On June 9, 2014,

the trial court amended the sentencing Order to include 407 days of credit
time, from April 10, 2013 until May 21, 2015. Appellant did not file a direct
appeal. Appellant's Judgment of Sentence, thus, became final on July 9, 2014.

See 42 Pa.C.S. § 9545(b)(3); Pa.R.Crim.P. 720.

      On August 6, 2018, Appellant filed a pro se Motion to Correct and/or
Amend Sentencing Errors requesting additional credit for time served and
claiming that he was detained by Pennsylvania State Police and the District
Attorney while he was hospitalized in a coma prior to his arrest. The PCRA
court considered Appellant's Motion to be a PCRA Petition, his first, and
appointed counsel. On September 18, 2018, after a hearing, the PCRA court

dismissed Appellant's PCRA Petition as untimely. This timely appeal followed.3


2 Police arrested Appellant on April 10, 2013.

3 On October 5, 2018, Appellant filed a pro se Notice of Appeal, which this
court is required to docket despite the fact that Appellant is represented by
counsel. See Commonwealth v. Williams, 151 A.3d 621, 624 (Pa. Super.
2016) (holding that, unlike other filings, because a notice of appeal protects


                                     -2
J -S12016-19



      Before we consider Appellant's arguments, we must review appellate
counsel's   request   to     withdraw   from   representation.       Pursuant    to

Turner/Finley, counsel must conduct an independent review of the record
before withdrawal on collateral appeal is permitted.         Commonwealth v.
Pitts, 981 A.2d 875, 876 n.1 (Pa. 2009). Counsel is then required to submit
a "no merit" letter (1) detailing the nature and extent of his or her review; (2)

listing each issue the petitioner wished to have reviewed; and (3) providing
an explanation of why the petitioner's issues are meritless. Id. The court
then conducts its own independent review of the record to determine if the
Petition is meritless. Id.    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).

      Our review of the record discloses that counsel has complied with each

of the above requirements. Additionally, counsel served Appellant with a copy

of the Petition to Withdraw and Anders Brief, advising him that he had the
right to proceed pro se or with privately retained counsel. Since counsel has




a    constitutional   right    this   Court     is    required   to   docket
a pro se notice of appeal despite an appellant being represented by counsel).
The trial court did not order a Pa.R.A.P 1925(b) Statement. The trial court
issued a Pa.R.A.P. 1925(a) Opinion. Appellant's counsel filed an Anders Brief
on December 28, 2018.
                                        -3
J -S12016-19



complied with the Turner/Finley requirements, we will proceed with our
independent review of the record and the merits of Appellant's claims.

      In his Anders Brief, counsel raises the issue of whether the PCRA court

erred in dismissing Appellant's PCRA petition as untimely. Anders Brief at 3.

      We review the denial of a PCRA Petition to determine whether the record

supports the PCRA court's findings and whether its Order is otherwise free of

legal error. Commonwealth v. Fears, 86 A.3d 795, 803 (Pa. 2014). This
Court grants great deference to the findings of the PCRA court if they are
supported by the record. Commonwealth v. Boyd, 923 A.2d 513, 515 (Pa.
Super. 2007).    We give no such deference, however, to the court's legal
conclusions.    Commonwealth v. Ford, 44 A.3d 1190, 1194 (Pa. Super.
2012).

      In order to obtain relief under the PCRA, a petition must be timely filed.

See 42 Pa.C.S. § 9545 (providing jurisdictional requirements for the timely
filing of a petition for post -conviction relief). A petition must be filed within

one year from the date the judgment of sentence became final. 42 Pa.C.S. §

9545(b)(1). Appellant's Petition, filed over four years after his Judgment of
Sentence became final, is facially untimely.

      Pennsylvania courts may consider an untimely PCRA petition, however,

if an appellant pleads and proves one of the three exceptions set forth in
Section 9545(b)(1). Any petition invoking a timeliness exception must be filed




                                      -4
J -S12016-19



within 60 days of the date the claim could have been presented. 42 Pa.C.S §

9545(b)(2).4

      Appellant alleges that his sentence is illegal because the trial court did
not give him credit for time served while he was hospitalized in a coma prior

to his arrest.    PCRA Petition, filed 8/6/18, at 4 (unpaginated).      This is a
challenge to the legality of his sentence, which is cognizable under the PCRA.

Commonwealth v. Beck, 848 A.2d 987, 989 (Pa. Super. 2004). "Although
legality of sentence is always subject to review within the PCRA, claims must

still first satisfy the PCRA's time limits or one of the exceptions thereto."
Commonwealth v. Fahy, 737 A.2d 214, 223 (Pa. 1999).                     Instantly,

Appellant has not invoked or argued that any timeliness exception applies to

his claim. Accordingly, we are without jurisdiction to review Appellant's issue.

      In conclusion, Appellant failed to plead and prove any of the timeliness

exceptions provided in 42 Pa.C.S. § 9545(b)(1), and the PCRA court properly

dismissed Appellant's Petition as untimely. The record supports the PCRA

court's findings and its Order is free of legal error. We, thus, affirm the denial

of PCRA relief.

      Order affirmed. Petition to Withdraw granted.




4 Effective December 24, 2018, Section 9545(b)(2) now provides that "[a]ny
petition invoking an exception   .shall be filed within one year of the date
                                     .   .


the claim could have been presented."
                                             -5-
J -S12016-19


Judgment Entered.




J seph D. Seletyn,
Prothonotary


Date: 07/12/2019




                     -6
