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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
ROBERT MILLER,
Appellant No. 650 MDA 2015
Appeal from the PCRA Order March 12, 2015
In the Court of Common Pleas of Luzerne County
Criminal Division at No(s): CP-40-CR-0001555-2011
BEFORE: FORD ELLIOTT, P.J.E., PANELLA, J., and STEVENS, P.J.E.*
MEMORANDUM BY STEVENS, P.J.E.: FILED FEBRUARY 19, 2016
Appellant Robert Miller appeals from the order of the Honorable David
Lupas of the Court of Common Pleas of Luzerne County dismissing as
untimely filed Appellant’s petition pursuant to the Post Conviction Relief Act
(“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. PCRA appellate counsel has filed a
petition to withdraw and a no-merit letter pursuant to Commonwealth v.
Turner, 518 Pa. 491, 544 A.2d 927 (1988) and Commonwealth v. Finley,
550 A.2d 213 (Pa.Super. 1988). We grant counsel’s petition to withdraw
and affirm the order dismissing Appellant’s PCRA petition.
On April 24, 2012, Appellant pled guilty to aggravated assault (causing
serious bodily injury) under 18 Pa.C.S.A. § 2702(a)(1). On July 20, 2012,
the trial court imposed a standard range sentence of four to eight years
imprisonment, noting that the deadly weapon enhancement applied. See
204 Pa.Code § 303.10(a). Appellant did not file a direct appeal.
*Former Justice specially assigned to the Superior Court.
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Over two years later, on August 19, 2014, Appellant filed the instant
PCRA petition. The PCRA court dismissed Appellant’s petition as untimely
filed, finding Appellant failed to plead and prove that one of the PCRA
timeliness exceptions was applicable. After Appellant filed an appeal to this
Court, the PCRA court appointed Matthew Kelly, Esq. to represent Appellant
on collateral appeal. Atty. Kelly subsequently filed a “no-merit” letter and a
petition to withdraw his representation. Appellant did not respond to Atty.
Kelly’s petition.
Appellant raises the following issues for our review:
I. Whether trial counsel was ineffective in failing to share
Appellant’s discovery with him prior to pleading guilty.
II. Whether the sentencing enhancement provision applied by
the trial court is unconstitutional pursuant to Alleyne v.
U.S [___U.S.___, 133 S.Ct. 2151 (U.S. 2013)]
III. Whether the PCRA petition was filed timely pursuant to 42
Pa.C.S.A. Section 9545 et seq.
Counsel’s “no-merit” brief, at 1 (verbatim).
When reviewing the denial of a PCRA petition, we are guided by the
following standard:
The standard of review for an order denying post-conviction
relief is limited to whether the record supports the PCRA court's
determination, and whether that decision 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. Allen, 48 A.3d 1283, 1285 (Pa.Super. 2012) (citations
omitted).
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Before we proceed to review the merits of Appellant’s PCRA petition,
we must determine whether counsel has satisfied certain procedural
requirements to withdraw his representation:
Counsel petitioning to withdraw from PCRA representation must
proceed ... under Turner, supra and Finley, supra and ...
must review the case zealously. Turner/Finley counsel must
then submit a “no-merit” letter to the trial 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 —
trial court or this 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. Doty, 48 A.3d 451, 454 (Pa.Super. 2012) (quoting
Commonwealth v. Wrecks, 931 A.2d 717, 721 (Pa.Super. 2007)).
After reviewing the record and counsel’s petition to withdraw, we find
that PCRA appellate counsel complied with the requirements of Turner and
Finley, supra. In his “no-merit” letter, PCRA appellate counsel detailed the
nature and extent of his review, listed each issue which Appellant raised in
his pro se petition, and thoroughly explained why he believed Appellant’s
claim was frivolous and untimely filed. Moreover, PCRA appellate counsel
indicated that after his own independent review of the record, he could not
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identify any meritorious issues that he could raise on Appellant’s behalf to
plead and prove that one of the PCRA timeliness exceptions applied.
Counsel also attached proof that he sent Appellant notice of his petition to
withdraw and instructed him he had the right to retain counsel or proceed
pro se. As counsel complied with the Turner-Finley requirements to
withdraw his representation, we must now determine whether the PCRA
court correctly dismissed Appellant’s PCRA petition as untimely filed.
It is well-established that “the PCRA's timeliness requirements are
jurisdictional in nature and must be strictly construed; courts may not
address the merits of the issues raised in a petition if it is not timely filed.”
Commonwealth v. Leggett, 16 A.3d 1144, 1145 (Pa.Super. 2011)
(citations omitted). Generally, a PCRA petition must be filed within one year
of the date the judgment of sentence becomes final unless the petitioner
meets his burden to plead and prove one of the exceptions enumerated in
42 Pa.C.S.A. § 9545(b)(1)(i)-(iii), which include: (1) the petitioner’s inability
to raise a claim as a result of governmental interference; (2) the discovery
of previously unknown facts or evidence that would have supported a claim;
or (3) a newly-recognized constitutional right. 42 Pa.C.S.A. §
9545(b)(1)(i)-(iii). However, the PCRA limits the reach of the exceptions by
providing that a petition invoking any of the exceptions must be filed within
60 days of the date the claim first could have been presented. Leggett, 16
A.3d at 1146 (citing 42 Pa.C.S.A. § 9545(b)(2)).
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In this case, the trial court imposed Appellant’s sentence on July 20,
2012. As Appellant did not file a direct appeal, his sentence became final on
August 20, 2012. As Appellant filed his PCRA petition on August 19, 2014,
nearly two years after his sentence became final, his petition is facially
untimely.
Appellant suggests that he meets the timeliness exception at Section
9545(b)(1)(iii) based on his argument that the U.S. Supreme Court’s
decision in Alleyne announced a new constitutional right that applies
retroactively. In Alleyne, the Supreme Court emphasized 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.” Id. at 2155.
However, this Court has rejected similar collateral attacks as neither the
United States Supreme Court nor the Pennsylvania Supreme Court has held
that Alleyne must be applied retroactively to cases in which the judgment of
sentence became final. Commonwealth v. Miller, 102 A.3d 988, 995
(Pa.Super. 2014) (noting that “[t]his Court has recognized that a new rule of
constitutional law is applied retroactively to cases on collateral review only if
the United States Supreme Court or our Supreme Court specifically holds it
to be retroactively applicable to those cases”).1 Accordingly, as Appellant
____________________________________________
1
Even assuming arguendo that Alleyne should be applied retroactively,
Appellant’s argument challenging the application of the deadly weapon
enhancement is not controlled by Alleyne, which requires facts that increase
mandatory minimum sentences to be submitted to a jury and proven beyond
(Footnote Continued Next Page)
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has not proven that a PCRA timeliness exception is applicable, the PCRA
court did not err in dismissing his petition as untimely filed.
Petition to withdraw granted. Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/19/2016
_______________________
(Footnote Continued)
a reasonable doubt. This Court has found that Alleyne is inapplicable to
sentencing enhancements which “only direct a sentencing court to consider a
different range of potential minimum sentences, while preserving a trial
court's discretion to fashion an individual sentence” and “do not compel a
trial court … to impose a sentence higher than the court believes is
warranted.” Commonwealth v. Ali, 112 A.3d 1210, 1226 (Pa.Super.
2015), appeal granted in part, No. 454 MAL 2015, 2015 WL 7763727 (Pa.
Dec. 2, 2015).
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