J-S28044-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
               v.                              :
                                               :
                                               :
    TREVR B. KOESTNER                          :
                                               :
                      Appellant                :   No. 284 MDA 2020

            Appeal from the PCRA Order Entered January 29, 2020
              in the Court of Common Pleas of Lancaster County
             Criminal Division at No(s): CP-36-CR-0000148-2015

BEFORE: BOWES, J., OLSON, J., and MUSMANNO, J.

MEMORANDUM BY MUSMANNO, J.:                            FILED AUGUST 07, 2020

        Trevr B. Koestner (“Koestner”) appeals from the Order denying his

Petition for relief filed pursuant to the Post Conviction Relief Act (“PCRA”). 1

Additionally, counsel for Koestner2 have filed a Motion to Withdraw as

Counsel, and an accompanying Turner/Finley3 brief. We grant the Motion

to Withdraw, and affirm the Order of the PCRA court.




____________________________________________


1   42 Pa.C.S.A. §§ 9541-9546.

2  The PCRA court appointed Dennis C. Dougherty, Esquire (“Attorney
Dougherty”), and Barrie L. Wellener, Esquire (“Attorney Wellener”) to
represent Koestner. The Motion to Withdraw is presented on behalf of both
attorneys.

3 See Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
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       In its Opinion, the PCRA court summarized the relevant factual history

underlying this appeal as follows:

             On November 27, 2014, Koestner was discovered
       unconscious in a running vehicle in a parking lot in Lancaster
       Township. Large bundles of cash and drug paraphernalia were in
       plain view on Koestner’s lap and on the passenger seat. A
       search of the vehicle, after obtaining Koestner’s verbal and
       written consent, disclosed $5,540 cash, approximately 45 grams
       of   suspected    heroin,   []  drug    packaging    materials[,]
       paraphernalia, knives, and a [vial] of the controlled substance
       Alprazolam. After being arrested, Koestner slipped his handcuffs
       under his feet[,] brought his hands to the front of him and
       grabbed a large amount of seized heroin from the front of the
       patrol cruiser. Koestner was charged[, at Lancaster County
       docket number 148-2015 (“148-2015”),] with [possession with
       intent to distribute a controlled substance], tampering with
       evidence, possession of a controlled substance, and possession
       of drug paraphernalia. Pursuant to a negotiated guilty plea,
       Koestner received an aggregate sentence of two and one-half to
       six years[ of] incarceration in a state correctional institution[,
       with credit for time served]. [Koestner did not file a direct
       appeal].

              [On October 30, 2017,] Koestner was charged at
       [Lancaster County docket number] 6116-2017 [(“6116-2017”)]
       with two counts of aggravated assault, [and one count each of]
       retail theft, resisting arrest and criminal mischief.[4] These new
       charges resulted in a State Parole Violation at []148-2015. On
       September 18, 2018, Koestner tendered a negotiated guilty
       plea[, at 6116-2017,] … [and was sentenced] to an aggregate
       term of 21 months[] to 4 years[ of] incarceration. … No post
       sentence motion … [or] direct appeal was filed. …

             On March 15, 2019, Koestner filed a pro se “Motion for
       Concurrent Time Clarification,” requesting that the new sentence
       of 21 months to 4 years[ of] incarceration imposed at [] 6116-
       2017 be ordered [to run] concurrent [with] the prior sentence
____________________________________________


4 The record is unclear regarding the date on which Koestner was released
from prison and placed on parole.



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       imposed at [] 0148-2015. An order was entered [by the trial
       court] on April 1, 2019, granting Koestner’s [M]otion.
       Subsequently, on June 25, 2019, the Department of Corrections
       notified Koestner that the new sentence at [] 6116-2017 could
       not, however, be served concurrently with the back[]time
       imposed on the State Parole Violation after he was sentenced on
       the new Lancaster County Charges.

              As a result, on July 12, 2019, Koestner served on the court
       a … pro se [PCRA] Petition …[,5] which claimed that his plea was
       unlawfully induced and he is innocent of the charges, and further
       that the sentence imposed exceeded the lawful maximum. …
       [O]n July 23, 2019, [Attorney Dougherty], was court appointed
       to represent Koestner[, and Attorney Dougherty’s law partner,
       Attorney Wellener, was granted permission by the PCRA court to
       handle any and all court matters appointed to Attorney
       Dougherty.] … Attorney Wellener filed an [A]mended PCRA
       [P]etition claiming Koestner did not enter a knowing, intelligent
       and voluntary guilty plea[,] given that the sentence imposed [at]
       [] 6116-2017 was illegal in that it was made [consecutive to the
       sentence imposed at]148-2015.

              An evidentiary hearing was held [on] January 17, 2020.
       The [PCRA c]ourt heard testimony from [Koestner’s trial counsel,
       David L. Blanck, Esquire (“Attorney Blanck”)] and Koestner. At
       the conclusion of the hearing, Koestner’s [A]mended PCRA
       [P]etition was denied on the record.      A timely [N]otice of
       [A]ppeal was filed with [this Court] on February 13, 2020.[6]
       Pursuant to [the PCRA c]ourt’s directive, a [Pa.R.A.P. 1925(b)]

____________________________________________


5 Koestner’s pro se PCRA Petition does not appear in the certified record and
its filing is not reflected in the docket.

6  The Amended PCRA Petition included both docket numbers, and the PCRA
court issued one Order denying the Petition. However, Koestner properly
filed separate Notices of Appeal, one at each docket number.             See
Commonwealth v. Walker, 185 A.3d 969, 977 (Pa. 2018) (stating that
“when a single order resolves issues arising on more than one lower court
docket, separate notices of appeal must be filed. The failure to do so will
result in quashal of the appeal.” (citing Pa.R.A.P. 341)). The instant appeal
concerns 148-2015.



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     [C]oncise [S]tatement of matters complained of on appeal was
     filed on February 19, 2020….

PCRA Court Opinion, 2/25/20, at 2-4 (citations to record and some footnotes

omitted;   footnote    1   moved   to   body;   footnotes    added;   paragraphs

reordered).

     Initially, we must determine whether counsel have met the procedural

requirements   to     withdraw.    Counsel    seeking   to   withdraw   in   PCRA

proceedings

     must review the case zealously. Turner/Finley counsel must
     then submit a “no-merit” letter to the PCRA court, or brief on
     appeal to this Court, detailing the nature and extent of counsel’s
     diligent review of the case, listing the issues which petitioner
     wants to have reviewed, explaining why and how those issues
     lack merit, and requesting permission to withdraw.

           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.

            Where counsel submits a petition and no-merit letter that
     satisfy the technical demands of Turner/Finley, the 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.

Commonwealth v. Muzzy, 141 A.3d 509, 510-11 (Pa. Super. 2016)

(corrections and some quotations and citations omitted).

     Here, counsel have provided Koestner with a copy of the Motion to

Withdraw and the Turner/Finley Brief, and advised Koestner of his right to

proceed pro se or with private counsel. See Motion to Withdraw, 5/1/20, at

2.   Thus, counsel have complied with the procedural requirements for

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withdrawing as PCRA counsel. Koestner has neither retained private counsel

nor submitted any pro se filings to this Court.

       Next, we must determine whether Koestner’s pro se PCRA Petition was

timely filed. Under the PCRA, any PCRA petition “shall be filed within one

year    of   the   date    the    judgment       becomes   final.”   42   Pa.C.S.A.

§ 9545(b)(1). 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.”          Id. § 9545(b)(3).     The PCRA’s timeliness

requirements are jurisdictional in nature and a court may not address the

merits of the issues raised if the PCRA petition was not timely filed.

Commonwealth v. Albrecht, 994 A.2d 1091, 1093 (Pa. 2010).

       Here, Koestner’s judgment became final on June 11, 2015, when the

time to appeal to this Court expired.7 See Pa.R.A.P. 903(a) (stating that an

appellant’s notice of appeal “shall be filed within 30 days after the entry of

the order from which the appeal is taken.”). Therefore, Koestner’s Petition,

which was filed on July 12, 2019, is facially untimely under the PCRA. See

42 Pa.C.S.A. § 9545(b).


____________________________________________


7 We note that Koestner’s violation of his parole did not result in a new
judgment of sentence. See Commonwealth v. Kalichak, 943 A.2d 285,
290 (Pa. Super. 2008) (stating that “[u]nlike a probation revocation, a
parole revocation does not involve the imposition of a new sentence.”)



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       However, Pennsylvania courts may consider an untimely petition if the

petitioner can explicitly plead and prove one of three exceptions set forth at

42 Pa.C.S.A. §§ 9545(b)(1)(i)-(iii). Any PCRA Petition invoking one of the

exceptions “shall be filed within one year of the date the claim could have

been presented.” Id. § 9545(b)(2).

       Here, Koestner has failed to plead or prove any of the three timeliness

exceptions. Therefore, we lack jurisdiction to address the merits of his claim

on appeal.8

       Motion to Withdraw granted. Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 08/07/2020




____________________________________________


8 Even if Koestner’s PCRA Petition was timely filed, we would conclude that
Koestner’s claim lacks merit for the reasons set forth by the PCRA court in
its Opinion. See PCRA Court Opinion, 2/25/20, at 4-8.



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