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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
JERRY L. GANT
Appellant No. 2059 MDA 2015
Appeal from the Order Entered November 3, 2015
In the Court of Common Pleas of Lancaster County
Criminal Division at No(s): CP-36-CR-0000111-2013
BEFORE: PANELLA, J., STABILE, J., and JENKINS, J.
MEMORANDUM BY JENKINS, J.: FILED MAY 06, 2016
Jerry Gant appeals from an order dismissing his petition for relief
under the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. § 9541 et seq. We
affirm.
On September 23, 2013, Gant entered a negotiated plea of guilty to
three counts of possession with intent to deliver (“PWID”).1 In accordance
with the negotiated plea, the court sentenced Gant as follows: Count One,
possession with intent to deliver alprazolam, 1½-3 years’ imprisonment;
Count Two, possession with intent to deliver oxycodone, 4½-9 years’
imprisonment; and Count Three, possession with intent to deliver
hydrocodone, 2-4 years’ imprisonment, a mandatory minimum sentence
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1
35 P.S. § 780-113(a)(30).
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under the school zone mandatory minimum sentence statute, 18 Pa.C.S. §
6317. All sentences ran concurrently with each other for an aggregate
sentence of 4½-9 years’ imprisonment. Gant did not file a direct appeal.
On July 6, 2015, Gant filed a pro se motion claiming that his sentence
was illegal under Alleyne v. United States, -- U.S. --, 133 S.Ct. 2151
(2013). The court treated this motion as a PCRA petition and appointed
counsel to represent Gant. On September 9, 2015, counsel filed a
Turner/Finley2 letter and a motion to withdraw as counsel. On October 13,
2015, the court filed a notice of intent to dismiss Gant’s PCRA petition
without a hearing pursuant to Pa.R.Crim.P. 907. On October 23, 2015, Gant
filed a response to the Rule 907 notice. On November 5, 2015, the court
granted counsel leave to withdraw and dismissed Gant’s petition. Gant filed
a timely notice of appeal to this Court. The court filed a Pa.R.A.P. 1925
opinion without ordering Gant to file a Pa.R.A.P. 1925(b) statement.
We first address whether counsel has substantially complied with the
procedural requirements to withdraw as counsel for Gant. In
Commonwealth v. Pitts, 981 A.2d 875 (2009), our Supreme Court stated:
[i]ndependent review of the record by competent counsel is
required before withdrawal is permitted. Turner, at 928 (citing
Pennsylvania v. Finley, 481 U.S. 551, 558, 107 S.Ct. 1990, 95
L.Ed.2d 539 (1987)). Such independent review requires proof of:
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2
Commonwealth v. Turner, 544 A.2d 927 (Pa.1988); Commonwealth v.
Finley, 550 A.2d 213 (Pa.Super.1988).
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1) A ‘no-merit’ letter by PC[R]A counsel detailing the nature and
extent of his review;
2) The ‘no-merit’ letter by PC[R]A counsel listing each issue the
petitioner wished to have reviewed;
3) The PC[R]A counsel's ‘explanation’, in the ‘no-merit’ letter, of
why the petitioner's issues were meritless;
4) The PC[R]A court conducting its own independent review of
the record; and
5) The PC[R]A court agreeing with counsel that the petition was
meritless.
Id., 981 A.2d at 876 n. 1.
In Commonwealth v. Friend, 896 A.2d 607 (Pa.Super.2006), this
Court added another requirement for counsel seeking to withdraw in
collateral proceedings. We announced that
PCRA counsel who seeks to withdraw must contemporaneously
serve a copy on the petitioner of counsel's application to
withdraw as counsel, and must supply to the petitioner both a
copy of the ‘no-merit’ letter and a statement advising the
petitioner that, in the event that the court grants the application
of counsel to withdraw, he or she has the right to proceed pro se
or with the assistance of privately retained counsel.
Id. at 614.
In Pitts, our Supreme Court abrogated Friend in part. The Supreme
Court granted allowance of appeal to determine whether, in Friend, the
Superior Court erred in creating a new Turner/Finley requirement, sua
sponte, “by finding PCRA counsel's no-merit letter defective for failing to
address issues Pitts never raised, and which were not apparent from the
record.” Pitts, 981 A.2d at 878. The Supreme Court ultimately disapproved
of this Court's holding in Friend “[t]o the extent Friend stands for the
proposition that an appellate court may sua sponte review the sufficiency of
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a no-merit letter when the defendant has not raised such issue[.]” Pitts,
981 A.2d at 879. On the other hand, the Supreme Court did not overrule
Friend’s requirement that PCRA counsel seeking to withdraw
contemporaneously forward to the petitioner a copy of the application to
withdraw that includes (i) a copy of both the “no-merit” letter, and (ii) a
statement advising the PCRA petitioner that, in the event the trial court
grants the application of counsel to withdraw, the petitioner has the right to
proceed pro se, or with the assistance of privately retained counsel.
With these standards in mind, we conclude that counsel has
substantially complied with the procedural requirements of Turner and
Finley. Counsel identified the Alleyne claim asserted by Gant, reviewed its
merits and explained why it lacks merit. Moreover, complying with the
additional requirement imposed in Friend, but not overruled in Pitts,
counsel notified Gant in writing that if the PCRA court granted counsel’s
petition to withdraw, Gant could proceed with privately retained counsel or
pro se.
We now turn to Gant’s Alleyne issue. Our standard and scope of
review are well-settled:
We review an order dismissing a petition under the
PCRA in the light most favorable to the prevailing
party at the PCRA level. This review is limited to the
findings of the PCRA court and the evidence of
record. We will not disturb a PCRA court’s ruling if it
is supported by evidence of record and is free of
legal error. This Court may affirm a PCRA court’s
decision on any grounds if the record supports it. We
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grant great deference to the factual findings of the
PCRA court and will not disturb those findings unless
they have no support in the record. However, we
afford no such deference to its legal conclusions.
Further, where the petitioner raises questions of law,
our standard of review is de novo and our scope of
review is plenary.
Commonwealth v. Rykard, 55 A.3d 1177, 1183 (Pa.Super.2012) (some
citations and footnote omitted).
Gant’s sole argument is that his sentence is illegal under Alleyne.
Alleyne held that, other than the fact of a prior conviction, any fact that
increases the penalty for a crime beyond the prescribed statutory minimum
must be submitted to a jury and proved beyond a reasonable doubt. Id.,
131 S.Ct. at 2160-61. Gant argues his sentence is unconstitutional because
the trial court applied the school zone mandatory minimum statute to his
sentence without a jury and under a preponderance of the evidence
standard. We lack jurisdiction to review this issue under the PCRA’s statute
of limitations, 42 Pa.C.S. § 9545(b), because Gant raised it for the first time
more than one year after his judgment of sentence became final.
Section 9545 provides that a PCRA petition “shall be filed within one
year of the date the judgment becomes final.” 42 Pa.C.S. § 9545(b)(1);
accord Commonwealth v. Bretz, 830 A.2d 1273, 1275 (Pa.Super.2003).
No court has jurisdiction to hear an untimely PCRA petition.
Commonwealth v. Monaco, 996 A.2d 1076, 1079 (Pa.Super.2010) (citing
Commonwealth v. Robinson, 837 A.2d 1157, 1161 (Pa.2003)). A
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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 the review.” 42
Pa.C.S. § 9545(b)(3).
Three exceptions to the PCRA’s time-bar provide very limited
circumstances under which a court may excuse the late filing of a PCRA
petition. 42 Pa.C.S. § 9545(b)(1); Monaco, 996 A.2d at 1079. The late
filing of a petition will be excused if a petitioner alleges and proves:
(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). A petition invoking an exception to the
PCRA time bar must “be filed within 60 days of the date the claim could have
been presented.” 42 Pa.C.S. § 9545(b)(2).
Here, Gant’s judgment of sentence became final on October 23, 2013,
the last day for filing a direct appeal to the Superior Court. Thus, Gant had
until October 23, 2014 to file a PCRA petition raising Alleyne. Gant did not
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file his petition until July 6, 2015, when he cited Alleyne in his motion to
vacate his sentence. Thus, his PCRA petition, and his attempt to raise
Alleyne therein, is untimely on its face.
Nor do any of the exceptions in section 9545(b)(i)-(iii) apply to this
case. Gant does not allege government interference under subsection (b)(i)
or newly discovered evidence under subsection (b)(ii). Finally, the
retroactive constitutional right exception in subsection (b)(iii) does not
apply. The retroactive right exception only applies when the United States
Supreme Court or Pennsylvania Supreme Court (1) recognizes a
constitutional right after the one-year PCRA limitation period and (2) holds
that this right applies retroactively. See 42 Pa.C.S. § 9543(b)(iii)
(constitutional right must be “recognized … after the time period provided in
this section”) (emphasis added). Here, the United States Supreme Court
decided Alleyne on June 17, 2013, three months before Gant was
sentenced (and thus before the PCRA limitation period began running).
Thus, Gant’s case does not fall within subsection (b)(iii)’s narrow exception.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/6/2016
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