J-S47021-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

FRED MAGONDU

                            Appellant               No. 729 EDA 2017


                 Appeal from the PCRA Order January 26, 2017
                 In the Court of Common Pleas of Bucks County
              Criminal Division at No(s): CP-09-CR-0005079-2008


BEFORE: LAZARUS, J., MOULTON, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY MOULTON, J.:                      FILED SEPTEMBER 19, 2017

       Fred Magondu appeals from the January 26, 2017 order entered in the

Bucks County Court of Common Pleas dismissing his petition filed under the

Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-46. In lieu of an

advocate’s brief, Magondu’s counsel has filed a Turner/Finley1 “no-merit”

letter and a motion to withdraw as counsel.      We affirm the PCRA court’s

order and grant counsel’s motion to withdraw.

       On January 6, 2009, Magondu pled guilty to rape of a mentally

disabled person, involuntary deviate sexual intercourse with a mentally

disabled person, involuntary deviate sexual intercourse with a person less

than 16 years of age, sexual assault, indecent assault of a mentally disabled
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       1
     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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person, indecent assault of a person less than 16 years of age, corruption of

minors, and unlawful contact with a minor (sexual offense).2        On April 8,

2009, the trial court sentenced Magondu to 10 to 20 years’ incarceration for

the rape conviction and a consecutive 2½ to 5 years’ incarceration for the

corruption of minors conviction. The trial court imposed no further penalty

for the remaining convictions.         On April 17, 2009, Magondu filed a post-

sentence motion to reconsider sentence, which the trial court denied.

Magondu did not file a direct appeal.

       On February 27, 2015, Magondu filed a pro se PCRA petition. On May

14, 2015, the PCRA court appointed counsel.             On May 27, 2015, the

Commonwealth filed a petition to dismiss Magondu’s PCRA petition without a

hearing. On July 20, 2015, PCRA counsel filed a motion for a hearing, which

the PCRA court granted. On July 13, 2016, the PCRA court held a hearing on

the petition, during which Magondu clarified his claims on the record, but did

not present evidence.

       On September 27, 2016, the PCRA court issued a notice of intent to

dismiss the petition pursuant to Pennsylvania Rule of Criminal Procedure

907. On January 27, 2017, the PCRA court dismissed Magondu’s petition.

On February 21, 2017, Magondu timely filed a notice of appeal. On March



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       2
        18 Pa.C.S. §§ 3121(a)(5), 3213(a)(5), 3123(a)(7), 3124.1,
3126(a)(6), 3126(a)(8), 6301(a)(1)(ii), and 6318(a)(1), respectively.



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20, 2017, PCRA counsel filed a statement of intent to file a Turner/Finley

letter under Pennsylvania Rule of Appellate Procedure 1925(c)(4).

      Before we may address the merits of Magondu’s appeal, we must

determine whether his PCRA counsel has satisfied the requirements for

withdrawal under Turner/Finley. Counsel must

         file a “no-merit” letter detailing the nature and extent of
         his review and list each issue the petitioner wishes to have
         examined, explaining why those issues are meritless.

Commonwealth v. Rykard, 55 A.3d 1177, 1184 (Pa.Super. 2012).

Counsel also must serve copies of the petition to withdraw and no-merit

letter on the petitioner and advise the petitioner that he or she has the right

to proceed pro se or with privately retained counsel.     Commonwealth v.

Widgins, 29 A.3d 816, 818 (Pa.Super. 2011).

      In her no-merit letter, PCRA counsel states that she reviewed the

record, identifies the issues that Magondu wishes to raise, and explains why

the issues are meritless.    PCRA counsel also mailed a copy of the petition

and no-merit letter to Magondu and informed him that, if he sought to

continue the appeal, Magondu could retain private counsel or proceed

without counsel.    We conclude that PCRA counsel has complied with the

dictates of Turner/Finley.

      The Turner/Finley letter lists three issues, which are the same issues

raised in Magondu’s pro se PCRA petition:

            (1)    The lower court erred when it imposed
                   consecutive instead of concurrent sentences for
                   the charges of rape of a person with mental

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                   disability and corruption of minors in violation of
                   legal precedent and the Double Jeopardy clause.

            (2)    The court imposed an illegal mandatory sentence
                   in violation of the [Sixth] Amendment and
                   pursuant to the United States Court’s decision in
                   Alleyne v. United States, 133 S.Ct. 2151, 2160
                   (2013), as applied in Commonwealth v. Wolfe,
                   106 A.3d 800 (Pa.Super. 2014).

            (3)    Plea counsel was ineffective for failing to
                   challenge the illegal sentence imposed by the
                   lower court.

Turner/Finley Ltr. at 3-4. In her Turner/Finley letter, counsel concludes

that Magondu’s issues are meritless because his petition was not timely filed

and the PCRA court was without jurisdiction to consider it. We agree.

      “Our standard of review from the grant or denial of post-conviction

relief is limited to examining whether the PCRA court’s determination is

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

Commonwealth v. Ousley, 21 A.3d 1238, 1242 (Pa.Super. 2011).

      It is well settled that “the timeliness of a PCRA petition is a

jurisdictional requisite.”   Commonwealth v. Brown, 111 A.3d 171, 175

(Pa.Super.), app. denied, 125 A.3d 1197 (Pa. 2015). A PCRA petition “shall

be filed within one year of the date the judgment becomes final.” 42 Pa.C.S.

§ 9545(b)(1).     A judgment is 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

[] review.” 42 Pa.C.S. § 9545(b)(3).




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       Magondu’s judgment of sentence became final on May 8, 2009, when

his time to seek review in this Court expired.3 He had one year from that

date, or until May 10, 2010,4 to file a timely PCRA petition. Therefore, his

current petition, filed on February 27, 2015, is facially untimely.

       Courts may consider a PCRA petition filed more than one year after a

judgment of sentence became final only if the petitioner alleges and proves

one of the following three statutory exceptions:

           (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); see Brown, 111 A.3d at 175-76.           In

addition, when invoking an exception to the PCRA time bar, the petition



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       3
       Magondu had 30 days from his judgment of sentence to file a notice
of appeal with this Court. See Pa.R.A.P. 903(a).
       4
       May 8, 2010 was a Saturday. Therefore, Magondu had until the next
business day, Monday, May 10, 2010, to file a timely petition. See 1 Pa.C.S.
§ 1908.



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must “be filed within 60 days of the date the claim could have been

presented.” 42 Pa.C.S. § 9545(b)(2).

       In his petition, Magondu asserted that he established a time-bar

exception5 because the trial court imposed an illegal mandatory minimum

sentence under section 9718 of the Sentencing Code6 and he filed his PCRA

petition within 60 days of this Court’s decision in Commonwealth v. Wolfe,

106 A.3d 800 (Pa.Super. 2014), aff’d, 140 A.3d 651 (Pa. 2016), where we

held that section 9718 violated the Sixth Amendment to the United States

Constitution under Alleyne v. United States, 133 S.Ct. 2151 (2013). We

disagree.

       Our Supreme Court has held that Alleyne does not apply retroactively

to   cases    pending      on    collateral    review.   See   Commonwealth   v.
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       5
         In his petition, Magondu also asserted that he met a time-bar
exception because “he had no [legal] help and was unfamiliar with the law or
his rights.” PCRA Pet., 2/27/15, at 8. Magondu asserts that he did not
know about the issues of his case until November 2014, when he began
frequenting the prison law library, and acted with due diligence from that
point on when he determined that Alleyne may be applicable to his
mandatory minimum sentence. Id. at 8-9.

      To the extent that Magondu argues that his petition meets the “new
facts” exception, his argument is meritless.     It is well settled that
“subsequent decisional law does not amount to a new ‘fact’ under section
9545(b)(1)(ii) of the PCRA.” Commonwealth v. Watts, 23 A.3d 980, 987
(Pa. 2011).
       6
        Section 9718 of the Sentencing Code provided mandatory minimum
sentences for persons who were convicted of sexual or violent crimes against
children.     This mandatory minimum sentencing provision is now
unconstitutional. See Commonwealth v. Wolfe, 140 A.3d 651 (Pa. 2016).



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Washington, 142 A.3d 810, 820 (Pa. 2016). Further, while our Supreme

Court upheld this Court’s decision in Wolfe, the Supreme Court has not

determined that Wolfe announced a new rule of criminal law that applies

retroactively on collateral review. Thus, Magondu cannot use Alleyne-based

grounds to bring his claim within the third time-bar exception.

       Because Magondu’s petition is untimely and does not meet any of the

time-bar exceptions, we conclude that the trial court did not abuse its

discretion in dismissing Magondu’s petition.7     Further, we grant counsel’s

motion to withdraw.

       Order affirmed. Motion to withdraw granted.




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       7
        On March 29, 2017, Magondu filed a motion for remand with this
Court, requesting leave to file a new Rule 1925(b) statement nunc pro tunc
or the appointment of new PCRA counsel. Magondu asserted that his PCRA
counsel was ineffective for filing a Rule 1925(c)(4) statement of intent to file
a Turner/Finley letter and petition to withdraw. On April 24, 2017, we
denied this motion without prejudice to Magondu’s right to reapply for the
requested relief if counsel filed a Turner/Finley letter and petition to
withdraw. After counsel filed these documents, on June 15, 2017, Magondu
reapplied for relief, asserting the same ineffectiveness claim from his March
29, 2017 motion. Because “claims of PCRA counsel ineffectiveness cannot
be raised for the first time after a notice of appeal has been taken from the
underlying PCRA matter,” Commonwealth v. Ford, 44 A.3d 1190, 1201
(Pa.Super. 2012), we deny Magondu’s June 15, 2017 motion.



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/19/2017




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