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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
HECTOR J. LOPEZ
Appellant No. 699 MDA 2015
Appeal from the Order Entered March 9, 2015
In the Court of Common Pleas of Luzerne County
Criminal Division at No(s): CP-40-CR-0003429-2011
BEFORE: GANTMAN, P.J., BOWES, J., and MUSMANNO, J.
JUDGMENT ORDER BY GANTMAN, P.J.: FILED MAY 04, 2016
Appellant, Hector J. Lopez, appeals from the order entered in the
Luzerne County Court of Common Pleas, which denied his untimely first
petition filed under the Post Conviction Relief Act (“PCRA”), at 42 Pa.C.S.A.
§§ 9541-9546. On July 10, 2012, Appellant pled guilty to two counts each
of possession of a controlled substance with the intent to deliver (“PWID”)
and conspiracy to commit PWID. The court sentenced Appellant on August
28, 2012, to concurrent terms of 5-10 years’ imprisonment for each of the
PWID convictions and 15-30 months’ imprisonment for each of the
conspiracy convictions. With respect to Appellant’s PWID convictions, the
court imposed the mandatory minimum sentence for each conviction per 18
Pa.C.S.A. § 7508 (requiring imposition of mandatory minimum sentence
based on weight of drugs where defendant is convicted of PWID). Appellant
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did not pursue direct review. On September 2, 2014, Appellant filed his first
PCRA petition pro se. The court appointed counsel (“PCRA counsel”), who
filed a brief in support of Appellant’s pro se PCRA petition on September 16,
2014, arguing Appellant was entitled to relief based on Alleyne v. United
States, ___ U.S. ___, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013) (holding any
fact increasing mandatory minimum sentence for crime is considered
element of crime to be submitted to fact-finder and found beyond
reasonable doubt). Appellant insisted Alleyne and its progeny declared
unconstitutional the mandatory minimum sentencing statute under which
Appellant was sentenced. Following a hearing on March 9, 2015, the court
denied PCRA relief. Appellant timely filed a notice of appeal on April 8,
2015. The next day, the court permitted PCRA counsel to withdraw and
appointed PCRA appellate counsel (“appellate counsel”). The court also
ordered Appellant to file a concise statement per Pa.R.A.P. 1925(b), which
Appellant timely filed on April 24, 2015.
Preliminarily, appellate counsel has filed a Turner/Finley1 brief and
motion to withdraw as counsel. Before counsel can be permitted to
withdraw from representing a petitioner under the PCRA, Pennsylvania law
requires counsel to file a “no-merit” brief or letter pursuant to Turner and
Finley. Commonwealth v. Karanicolas, 836 A.2d 940 (Pa.Super. 2003).
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1
Commonwealth v. Turner, 518 Pa. 491, 544 A.2d 927 (1988) and
Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc).
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[C]ounsel must…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 the petitioner wants to have reviewed,
explaining why and how those issues lack merit, and
requesting permission to withdraw.
Commonwealth v. Wrecks, 931 A.2d 717, 721 (Pa.Super. 2007). Counsel
must also send to the petitioner a copy of the “no-merit” letter or brief and
motion to withdraw and advise petitioner of his right to proceed pro se or
with privately retained counsel. Id. “Substantial compliance with these
requirements will satisfy the criteria.” Karanicolas, supra at 947.
Instantly, appellate counsel filed a motion to withdraw as counsel and
a Turner/Finley brief detailing the nature of counsel’s review and explaining
why Appellant’s issue lacks merit. Counsel’s brief also demonstrates he
reviewed the certified record and determined the record was devoid of
meritorious issues for appeal. Counsel notified Appellant of counsel’s
request to withdraw and advised Appellant regarding his rights. Thus,
counsel substantially complied with the Turner/Finley requirements. See
Wrecks, supra; Karanicolas, supra. In response to counsel’s motion to
withdraw and “no-merit” brief, Appellant filed a pro se motion to withdraw
this appeal, agreeing with counsel that he has no meritorious issues for
review. We also agree Appellant’s sole issue involving Alleyne and its
progeny affords him no relief, where Appellant’s current PCRA petition is
untimely. See Commonwealth v. Miller, 102 A.3d 988 (Pa.Super. 2014)
(holding that even if Alleyne announced new constitutional right, neither
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our Supreme Court nor United States Supreme Court has held that Alleyne
applies retroactively, which is fatal to appellant’s attempt to satisfy “new
constitutional right” exception to timeliness requirements of PCRA). See
also Commonwealth v. Ruiz, 131 A.3d 54 (Pa.Super. 2015) (explaining
Alleyne does not invalidate illegal mandatory minimum sentence when
claim was presented in untimely PCRA petition). Accordingly, we grant both
counsel’s petition to withdraw and Appellant’s pro se motion to withdraw the
appeal.
Appeal withdrawn; motion to withdraw as counsel is granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/4/2016
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Com. v. Lopez, H.
Combined Opinion