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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
RANDY LEE POOLE
Appellant Nos. 1391 AND 1392 WDA
2014
Appeal from the Order Entered August 12, 2014
In the Court of Common Pleas of Warren County
Criminal Division at Nos: CP-62-CR-0000012-2013 and CP-62-CR-0000013-
2013
BEFORE: BENDER, P.J.E., MUNDY, and STABILE, JJ.
MEMORANDUM BY STABILE, J.: FILED APRIL 24, 2015
Appellant, Randy Lee Poole, appeals from the August 12, 2014 order
dismissing his petition pursuant to the Post Conviction Relief Act (“PCRA”),
42 Pa.C.S.A. §§ 9541-46. Counsel has filed a petition to withdraw in
accordance with Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988) and
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc). We
affirm the order and grant the petition to withdraw.
On January 31, 2013, Appellant pled guilty to third degree murder,
burglary, and unlawful possession of a firearm at Warren County docket
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number 12 of 2013.1 At docket number 13 of 2013, he pled guilty to fleeing
or attempting to elude a police officer.2 On March 15, 2013, the trial court
imposed an aggregate 33 to 66 years of incarceration comprised of
consecutive, standard range sentences. In imposing sentence for the
murder conviction, the trial court considered an enhanced guideline range
based on Appellant’s use of a deadly weapon. The minimum standard range
sentence for Appellant’s murder conviction was 20 years, and that is the
minimum sentence the trial court imposed for that offense. Appellant did
not file a direct appeal, therefore his judgment of sentence was final thirty
days later, on April 15, 2014. See Pa.R.A.P. 903(a).
On June 30, 2014, Appellant filed a facially untimely pro se PCRA
petition.3 The PCRA court appointed counsel on July 1, 2014. Counsel did
not file an amended petition. On July 21, 2014, the PCRA court issued its
Pa.R.Crim.P. 907 notice of intent to dismiss Appellant’s petition without a
hearing. Appellant did not respond, and the PCRA court issued the order on
appeal on August 12, 2014.
We first consider counsel’s petition to withdraw. Turner/Finley
procedure requires the following:
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1
18 Pa.C.S.A. §§ 2502(c), 3502(a)(1), 6105(a)(1), respectively.
2
75 Pa.C.S.A. § 3733(a).
3
Any PCRA petition must be filed within one year of the date on which the
judgment of sentence becomes final. 42 Pa.C.S.A. §§ 9545(b)(1).
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The Turner/Finley decisions provide the manner for post-
conviction counsel to withdraw from representation. The
holdings of those cases mandate an independent review of the
record by competent counsel before a PCRA court or appellate
court can authorize an attorney’s withdrawal. The necessary
independent review requires counsel to 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. 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.
Commonwealth v. Rykard, 55 A.3d 1177, 1184 (Pa. Super. 2012).
We note that counsel offers what he deems to be an Anders Brief,
pursuant to Anders v. California, 386 U.S. 738 (1967). Anders applies to
direct appeals and not to collateral review. This Court has made clear that a
Turner/Finley no merit letter is the appropriate filing where counsel seeks
to withdraw on collateral review. Commonwealth v. Reed, 107 A.3d 137,
___ (Pa. Super. 2014) (citing cases). Nonetheless, “[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. Here, counsel’s brief
sufficiently details his review of the record and analysis of each issue
Appellant seeks to raise. We therefore accept the brief as a no-merit letter.
We further observe that counsel notified Appellant of his intentions in a
letter, and advised Appellant of his right to proceed pro se. See Rykard, 55
A.3d at 1184. Under these circumstances, we deem counsel’s
Turner/Finley filings sufficient.
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Next, we consider jurisdiction. The PCRA court concluded it lacked
jurisdiction because Appellant failed to file a timely petition. The PCRA’s
jurisdictional time bar requires a petitioner to file a petition within one year
of the finality of the judgment of sentence. 42 Pa.C.S.A. § 9545(b)(1); see
Commonwealth v. Williams, 105 A.3d 1234, 1249 (Pa. 2014) (“The
PCRA’s time restrictions are jurisdictional in nature. Thus, [i]f a PCRA
petition is untimely, neither this Court nor the [PCRA] court has jurisdiction
over the petition.”). As noted above, Appellant failed to do so. Appellant
argues, pursuant to § 9545(b)(1)(i) and/or (iii),4 that an exception to the
PCRA’s timeliness requirement applies. Appellant asserts his failure to file a
timely petition was the result of government interference and/or that his
petition is timely because the United States Supreme Court has recognized a
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4
Section 9545(b)(1)(i) provides an exception to the one-year time bar
where the petitioner pleads and proves: “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[.]” 42
Pa.C.S.A. § 9545(b)(1)(i).
Section 9545(b)(1)(iii) provides an exception where the Supreme Court
recognizes an exception to the time bar where “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.A. § 9545(b)(1)(iii).
Any petition filed pursuant to one of these subsections must be filed within
60 days of the first date on which the claim could have been presented. 42
Pa.C.S.A. § 9545(b)(2).
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new constitutional right. Specifically, Appellant cites the United States
Supreme Court’s decision in Alleyne v. United States, 133 S. Ct. 2151
(2013), in which the Court held that any fact triggering an increased
mandatory minimum sentence must be found beyond a reasonable doubt by
the trier of fact. Appellant asserts he was unaware of Alleyne because of
government interference – specifically the prison’s failure to update its law
library in a timely fashion. He further argues his petition is timely because
Alleyne created new constitutional law that renders his sentence illegal.
Appellant is incorrect on both counts.
In Commonwealth v. Baldwin, 789 A.2d 728, 731 (Pa. Super.
2001), this Court held that ignorance of a change in law does not excuse the
failure to file a timely PCRA petition within sixty days of the date of filing of
the applicable opinion. “Neither the court system nor the correctional
system is obliged to educate or update prisoners concerning changes in case
law.” Id. As a result, Appellant’s governmental interference argument fails.
Appellant’s argument under § 9545(b)(1)(iii) fails under the plain
language of that subsection. Section 9545(b)(1)(iii) expressly applies to
changes in constitutional law that occur after the one-year deadline has
expired. Alleyne was decided on June 17, 2013, only three months after
Appellant’s judgment of sentence became final. Appellant therefore cannot
rely on § 9545(b)(1)(iii) as an exception to the one-year time bar.
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Since Appellant has failed to plead and prove the applicability of an
exception to the one-year jurisdictional time bar, the PCRA court correctly
dismissed his petition for lack of jurisdiction. We observe, in addition, that
Appellant could not obtain relief under Alleyne even if he filed a timely
petition. As noted above, Alleyne applies in the event the sentencing court
makes a finding of fact that triggers an increased mandatory minimum
sentence. The trial court did not impose a mandatory minimum sentence in
this case. Rather, the deadly weapon enhancement (“DWE”) affects the
sentencing matrix the trial court considers in imposing sentence. See 204
Pa. Code §§ 303.9(b), 303.10(a), and 303.17(a). The applicability of the
DWE does not circumscribe the sentencing court’s discretion to deviate from
the applicable sentencing guidelines, nor does it force the court to impose a
minimum sentence. In contrast, a mandatory minimum sentence deprives
the sentencing court of discretion to impose anything less than a prescribed
minimum. Commonwealth v. Brougher, 978 A.2d 373, 377-78 (Pa.
Super. 2009). The latter implicates Alleyne. See Commonwealth v.
Newman, 99 A.3d 86 (Pa. Super. 2014) (en banc). The DWE, which
applied here, does not. See Commonwealth v. Buterbaugh, 91 A.3d
1247, 1269 n.10 (Pa. Super. 2014) (en banc) (explaining that the DWE
guidelines enhancement does not implicate Alleyne).
Based on the foregoing, we agree with counsel’s conclusion that
Appellant cannot raise any meritorious issues in this collateral proceeding.
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The PCRA court did not err in dismissing Appellant’s petition for lack of
jurisdiction. We therefore affirm the PCRA court’s order and grant counsel’s
petition to withdraw.
Order affirmed. Petition to withdraw granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/24/2015
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