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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
ALEXANDER LOPEZ,
Appellant No. 3032 EDA 2014
Appeal from the PCRA Order October 9, 2014
In the Court of Common Pleas of Lehigh County
Criminal Division at No(s):
CP-39-CR-0000380-2006
CP-39-CR-0000409-2006
CP-39-CR-0001785-2006
CP-39-CR-0001790-2006
BEFORE: BOWES, MUNDY AND PLATT,* JJ.
MEMORANDUM BY BOWES, J.: FILED MAY 19, 2016
Alexander Lopez appeals from the October 9, 2014 order dismissing
his first PCRA petition as untimely. Counsel has filed a petition to withdraw
and a brief pursuant to Anders v. California, 386 U.S. 738 (1967).1 We
affirm and grant the petition to withdraw.
____________________________________________
1
The proper procedure to withdraw in post-conviction relief matters is not
via an Anders brief. Rather, counsel is to submit a no-merit letter/brief
pursuant to the requirements of Commonwealth v. Turner, 544 A.2d 927
(Pa. 1988) and Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988)
(en banc). However, since the Anders procedures are viewed as affording
greater protection than those prescribed under Turner/Finley, the error
(Footnote Continued Next Page)
* Retired Senior Judge assigned to the Superior Court.
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Appellant was charged with numerous drug-related and weapons
offenses in four criminal actions. On October 10, 2006, Appellant pled guilty
to possession of heroin at CR-380; firearms not to be carried without a
license at CR-409; possession with intent to deliver (cocaine) at CR-1785;
and possession of a controlled substance at CR-1790. Various other charges
were withdrawn.
The court sentenced Appellant on November 17, 2006, and Appellant
did not file a direct appeal. Thus, his sentence became final under the PCRA
on December 18, 2006, at the expiration of the thirty-day period for filing an
appeal. 42 Pa.C.S. § 9545(b)(3).
On July 18, 2014, Appellant filed a pro se Petition for Writ of Habeas
Corpus, which the trial court properly treated as a PCRA petition, and
counsel was appointed. On October 9, 2014, more than twenty days after
issuing Rule 907 notice, the court dismissed the petition as untimely.
Appellant filed the instant appeal. The PCRA court filed its Pa.R.A.P.
1925(a) opinion on October 29, 2014.2 Counsel filed a petition to withdraw
and a brief in which he set forth his conclusion that the appeal was frivolous
_______________________
(Footnote Continued)
has no effect on this appeal. Commonwealth v. Widgins, 29 A.3d 816,
817 n.2 (Pa.Super. 2011).
2
Our review of the dockets reveals that the court did not order Appellant to
file a Pa.R.A.P. 1925(b) concise statement of errors complained of on
appeal.
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as it was time-barred and that the Supreme Court’s decision in Alleyne v.
United States, 133 S.Ct. 2151 (2013), which Appellant invoked in his PCRA
petition, did not constitute an exception to the PCRA time bar.
As a preliminary matter, we must address whether PCRA counsel has
met the requirements of Commonwealth v. Turner, 544 A.2d 927 (Pa.
1988) and Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en
banc). Turner/Finley requires counsel to conduct an independent review
of the record before a PCRA court or appellate court can authorize an
attorney's withdrawal. Counsel must then 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. Freeland, 106 A.3d 768 (Pa.Super. 2014) (citations
omitted). Counsel is required to contemporaneously serve upon his client
his no-merit letter and application to withdraw along with a statement that,
if the court granted counsel's withdrawal request, the client may proceed pro
se or with a privately retained attorney. Id. at 774. 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. Only if the Court agrees with
counsel that the petition lacks merit, will counsel be permitted to withdraw.
Here, we find that counsel has substantially complied with the
requirements of Turner/Finley. Counsel represented that he reviewed the
docket entries to ascertain the timing of critical events, the case files, the
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case law applicable to the PCRA timeliness exceptions, and spoke to his
client to ascertain facts that could give rise to any exceptions to the PCRA
one-year time-bar. Counsel advised Appellant in a letter that he could not
identify any issues of arguable merit, furnished him with a copy of his
petition to withdraw and the appellate brief, and advised him that he had the
right to retain other counsel or represent himself pro se and file a response
to the petition to withdraw. Appellant did not file a response.
We now determine whether this appeal is indeed meritless. The
standard of review regarding an order denying a petition under the PCRA is
whether the determination of the PCRA court is supported by the evidence of
record and is free from legal error. Commonwealth v. Wah, 42 A.3d 335,
335 (Pa.Super. 2012) (citations omitted). The PCRA court dismissed the
petition as untimely. The PCRA court’s findings will not be disturbed unless
there is no support for the findings in the certified record. Id.
The issue identified and addressed by counsel is “Whether an appeal of
a denial of a PCRA petition filed well beyond the one-year time limit and
where no exception exists is frivolous such that appointed counsel should be
granted permission to withdraw.” Appellant’s brief at 5. As counsel
correctly represents, the timeliness of a PCRA petition is jurisdictional.
Commonwealth v. Fahy, 737 A.2d 214 (Pa. 1999). A petitioner has one
year after his judgment of sentence becomes final to file such a petition. 42
Pa.C.S. § 9545(b)(1). We cannot consider a later-filed petition unless the
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petitioner pleads and proves one of the following exceptions: (1) that his
claim was not previously raised due to governmental interference; (2) the
claim is based on facts that could not have been ascertained through the
exercise of due diligence; or (3) the petition asserts a newly-recognized
constitutional right that has been held to apply retroactively by either the
Supreme Court of the United States or the Supreme Court of Pennsylvania.
42 Pa.C.S. § 9545(b)(1)(i-iii). In addition, any petition invoking one of
these exceptions must be filed within sixty days of the date when it could
have been presented. 42 Pa.C.S. § 9545(b)(2).
Counsel states that the record supports the trial court’s finding that
the within petition is untimely. Appellant’s judgment of sentence became
final on December 17, 2006, when he did not appeal from the November 17,
2006 judgment of sentence. Thus, any PCRA petition, in order to be timely,
had to be filed prior to December 17, 2007. The instant petition was filed on
July 18, 2014, almost seven years after the judgment of sentence became
final, and it is patently untimely. Appellant asserted that his petition fell
within the timeliness exception for newly-recognized constitutional rights
based on the United States Supreme Court decision in Alleyne, supra.3
____________________________________________
3
In Alleyne v. United States, 133 S.Ct. 2151 (2013), the United States
Supreme Court held that the constitutional right to a jury trial requires any
fact, other than a prior conviction, that triggers a mandatory minimum
sentence to be proven beyond a reasonable doubt before the finder of fact.
(Footnote Continued Next Page)
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However, we agree with counsel that Alleyne does not render the within
petition timely. Appellant failed to satisfy the threshold requirement of
asserting the statutory exception within sixty days of the date the claim
could have been presented. Alleyne was decided on June 17, 2013, and
Appellant did not file the within petition until July 18, 2014, more than one
year after the United States Supreme Court decided Alleyne.
Our review of the PCRA petition reveals that Appellant maintained that
his failure to file the petition within sixty days of the decision in Alleyne
should be excused as the prison computers had not been updated. This
argument is unavailing, as this Court held in Commonwealth v. Leggett,
16 A.3d 1144, 1146-47 (Pa.Super. 2011), that the sixty-day period for a
prisoner invoking an after-recognized constitutional right as an exception to
the PCRA time bar begins to run on the date the underlying judicial decision
is entered, not the date the decision became available in the prison library.
See also Commonwealth v. Baldwin, 789 A.2d 728, 731 (Pa.Super.
2001) (“Neither the court system nor the correctional system is obliged to
educate or update prisoners concerning changes in case law”). Accordingly,
Appellant’s attempt to avoid the time bar on this ground fails.
_______________________
(Footnote Continued)
Were we able to reach the merits, we would conclude that Alleyne is not
implicated on the facts herein. Appellant pled guilty and there is no
indication that any mandatory sentences were imposed.
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Furthermore, even if Appellant could satisfy that threshold sixty-day
requirement, Alleyne does not satisfy the newly-recognized constitutional
right exception as it has not been held to apply retroactively by either the
Supreme Court of the United States or the Supreme Court of Pennsylvania.
In Commonwealth v. Miller, 102 A.3d 988, 995 (Pa.Super. 2014), this
Court concluded that since neither Court has held that Alleyne is to be
applied retroactively to cases in which the judgment of sentence has become
final, a PCRA petitioner cannot invoke Alleyne to assert a statutory
exception under § 9545(b)(1)(iii).
After a thorough independent review of the record, we find no other
meritorious issues.
Petition of Robert E. Sletvold, Esquire, to withdraw granted. Order
affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/19/2016
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