J-S47018-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
ANTHONY HUNTER
Appellant No. 29 MDA 2016
Appeal from the PCRA Order December 22, 2015
in the Court of Common Pleas of Lancaster County
Criminal Division at No(s): CP-36-CR-0004419-2013
CP-36-CR-0004434-2013
CP-36-CR-0004439-2013
CP-36-CR-0004581-2013
BEFORE: SHOGAN, J., LAZARUS, J., and JENKINS, J.
MEMORANDUM BY JENKINS, J.: FILED JUNE 29, 2016
Appellant Anthony Hunter appeals from the order of the Lancaster
County Court of Common Pleas dismissing as untimely his petition filed
pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. § 9541 et
seq. Appellant’s counsel filed a Turner/Finley1 no-merit brief with this
Court and a motion seeking permission to withdraw as counsel. We affirm
and grant counsel’s motion.
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1
Commonwealth v. Turner, 544 A.2d 927 (Pa.1988) and
Commonwealth v. Finley, 550 A.2d 213 (Pa.Super.1988) (en banc).
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On October 31, 2013, Appellant entered a negotiated guilty plea to
three counts of delivery of a controlled substance (heroin),2 three counts of
criminal use of a communication facility,3 one count of conspiracy to commit
delivery of a controlled substance (heroin),4 and one count of theft by
unlawful taking.5 The trial court sentenced Appellant pursuant to the
negotiated agreement to an aggregate term of 4 to 10 years’ incarceration.6
Appellant did not file a direct appeal.
On September 30, 2015, Appellant filed a pro se PCRA petition that
alleged he had been illegally sentenced to an illegal mandatory minimum 7
sentence pursuant to Alleyne v. United States, -- U.S. ---, 133 S.Ct. 2151
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2
35 P.S. § 780-113(a)(30).
3
18 Pa.C.S. § 7512(a).
4
18 Pa.C.S. § 903.
5
18 Pa.C.S. § 3921(a).
6
The trial court sentenced Appellant to concurrent 4 to 10 year terms of
incarceration on each of the three delivery convictions, which were subject
to the Youth/School Zone sentencing enhancement contained in 204 Pa.Code
§ 303.10(b). The trial court imposed concurrent terms of 1 to 2 years’
incarceration on the criminal use of a communication facility convictions.
The trial court imposed no further penalty on the theft by unlawful taking
conviction.
7
Appellant alleged he had been illegally sentenced pursuant to 42 Pa.C.S. §
9712, sentences for offenses committed with firearms.
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(2013).8 The PCRA court appointed counsel, who filed an amended PCRA
petition on November 17, 2015, alleging Appellant’s sentence was illegal due
to the imposition of the mandatory minimum sentence under 18 Pa.C.S. §
6317,9 and due to the application of the school zone sentencing
enhancement. On November 24, 2015, the PCRA court filed a Rule 907
notice of intent to dismiss Appellant’s PCRA petition without a hearing (“Rule
907 notice”). On December 22, 2015, the PCRA court dismissed the
petition.
Appellant filed a notice of appeal on January 5, 2016, and a Pa.R.A.P.
1925(b) statement of errors complained of on appeal on January 21, 2016.
On January 29, 2015, the PCRA court filed a Pa.R.A.P. 1925(a) opinion. On
March 29, 2016, counsel filed a Turner/Finley no-merit brief with this Court
together with an application seeking permission to withdraw (“Application to
Withdraw”). The Commonwealth did not file a brief.
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8
In Alleyne, the Supreme Court of the United States held 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.” Alleyne, 133
S.Ct. at 2155.
9
18 Pa.C.S § 6317, drug-free school zones, provided a 2-year mandatory
minimum sentence for drug infractions committed within 1000 feet of a
school, or within 250 feet of a recreation center or playground, or on a
school bus. Our Supreme Court ruled Section 6317 unconstitutional in
Commonwealth v. Hopkins, 117 A.3d 247 (Pa.2015). The record reveals,
however, that the trial court sentenced Appellant under the school zone
sentencing enhancement contained in 204 Pa.Code § 303.10(b), not the
drug-free school zone mandatory minimum of Section 6317.
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Before we may address the merits of Appellant’s claim, “we must
determine if counsel has satisfied the requirements to be permitted to
withdraw from further representation.” Commonwealth v. Freeland, 106
A.3d 768, 774 (Pa.Super.2014). Competent PCRA counsel must conduct an
independent review of the record before we can authorize counsel’s
withdrawal. Id. The independent review
requires counsel to file a ‘no-merit’ letter detailing the nature
and extent of his review and list[ing] 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.
Id. (internal citation omitted).
PCRA counsel must also “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 . . .
he or she has the right to proceed pro se or with the assistance of privately
retained counsel.” Commonwealth v. Widgins, 29 A.3d 816, 818
(Pa.Super.2011) (quoting Commonwealth v. Friend, 896 A.2d 607
(Pa.Super.2006), abrogated in part by Commonwealth v. Pitts, 981 A.2d
875, 876 (Pa.2009)).
Counsel has substantially complied with the dictates of
Turner/Finley. In the no-merit brief, counsel provides a summary of the
facts and procedural history of the case with citations to the record, refers to
evidence of record that might arguably support the issue raised on appeal,
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provides citations to relevant case law, and states his conclusion that the
appeal is wholly frivolous and his reasons therefor. See Turner/Finley
Brief, pp. 3-4. Additionally, counsel contemporaneously filed his Application
to Withdraw with the brief.10 The Application to Withdraw states that
counsel made a careful and conscientious review of the record, researched
the issues and potential issues for appeal, and stated counsel’s
determination that Appellant’s appeal is without merit. See Application
Withdraw, ¶ 1 (Turner/Finley Brief, p. 5). The Application to Withdraw
further explains that counsel notified Appellant of the withdrawal request
and sent Appellant a letter explaining his right to proceed pro se or with
new, privately-retained counsel to raise any additional points or arguments
that Appellant believed had merit.11 See id. at ¶¶ 2-3; see also Letter from
R. Russell Pugh, Esquire, to Anthony Hunter, dated March 29, 2016
(Turner/Finley Brief, p. 7). Accordingly, counsel has substantially
complied with the requirements of Turner and Finley.
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10
Counsel included his Application to Withdraw as part of his no-merit brief.
See Turner/Finley Brief, p. 5. While the preferred practice is that counsel
file a separate motion to withdraw, because the Application to Withdraw is
proper and counsel’s letter to Appellant properly advises Appellant as
required and is attached to the brief, we accept counsel’s application as
properly filed and dispose of the same herein.
11
The letter further makes clear that counsel supplied Appellant with a copy
of the no-merit brief. See Letter from R. Russell Pugh, Esquire, to Anthony
Hunter, dated March 29, 2016.
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As Appellant filed neither a pro se brief nor a counseled brief with new,
privately-retained counsel, we review this appeal based on the issue of
arguable merit raised in the no-merit brief:
Whether the post-conviction court erred when it denied post-
conviction relief on the basis that the PCRA Petition was filed
untimely?
Turner/Finley Brief, p. 2.
Our well-settled standard of review for orders denying PCRA relief is
“to determine whether the determination of the PCRA court is supported by
the evidence of record and 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. Barndt, 74 A.3d 185, 191-192
(Pa.Super.2013) (internal quotations and citations omitted).
“It is undisputed that a PCRA petition must be filed within one year of
the date that the judgment of sentence becomes final.” Commonwealth v.
Hernandez, 79 A.3d 649, 651 (Pa.Super.2013); 42 Pa.C.S. § 9545(b)(1).
“This time requirement is mandatory and jurisdictional in nature, and the
court may not ignore it in order to reach the merits of a petition.”
Hernandez, 79 A.3d at 651 (citing Commonwealth v. Murray, 753 A.2d
201, 203 (Pa.2000)). A judgment of sentence “becomes 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).
However, a facially untimely petition may be received where any of the
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PCRA’s three limited exceptions to the time for filing the petition are met.
Hernandez, 79 A.3d at 651 (footnote omitted). These exceptions include:
(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). As our Supreme Court has repeatedly
stated, the petitioner maintains the burden of pleading and proving that one
of these exceptions applies. Commonwealth v. Abu-Jamal, 941 A.2d
1263, 1268 (Pa.2008), cert. denied, 555 U.S. 916 (2008). Further,
[a] petition invoking one of these exceptions must be filed within
sixty days of the date the claim could first have been presented.
42 Pa.C.S. § 9545(b)(2). In order to be entitled to the
exceptions to the PCRA’s one-year filing deadline, the petitioner
must plead and prove specific facts that demonstrate his claim
was raised within the sixty-day time frame under section
9545(b)(2).
Hernandez, 79 A.3d at 651-652 (internal quotations omitted).
On October 31, 2013, Appellant entered a negotiated guilty plea. The
trial court sentenced Appellant on the same day. Because Appellant did not
file a direct appeal, his judgment of sentence became final thirty days later,
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on December 2, 2013.12 See 42 Pa.C.S. § 9545(b)(3) (“For purposes of this
subchapter, a judgment becomes 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.”). Accordingly, Appellant had until December 2, 2014 to timely
file a PCRA petition.
Appellant filed the instant petition on September 30, 2015, nearly a
year after the expiration of his PCRA limitations period. Accordingly,
Appellant’s petition is facially untimely. Thus, he must plead and prove that
his petition falls under one of the Section 9545 exceptions set forth in the
PCRA. See 42 Pa.C.S. § 9545(b)(1)(i)-(iii). Appellant’s PCRA petition and
the amended PCRA petition suggest the Supreme Court of the United States’
decision in Alleyne provides a time bar exception. However, Appellant
failed to file the instant petition within 60 days of Alleyne, and therefore he
cannot rely on Alleyne for a PCRA time-bar exception. See 42 Pa.C.S. §
9545(b)(2) (petitions invoking exceptions must be filed within 60 days of the
date the claim could have been presented). Further, neither the Supreme
Court of the United States nor the Supreme Court of Pennsylvania has held
Alleyne to apply retroactively to matters on collateral appeal, and therefore
Alleyne cannot provide Appellant with a time-bar exception, even if properly
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12
The thirtieth day fell on November 30, 2013, a Saturday. Accordingly,
Appellant had until Monday, December 2, 2013 to timely file a direct appeal.
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pleaded in his petition. See Commonwealth v. Miller, 102 A.3d 988, 995
(Pa.Super.2014). (“[N]either our Supreme Court, nor the United States
Supreme Court has held that Alleyne is to be applied retroactively to cases
in which the judgment of sentence had become final.”).
Because Appellant did not properly plead or prove a time-bar
exception based on Alleyne, because Alleyne does not provide a time-bar
exception, and because Appellant’s petition neither pleads nor proves any
other exception, the petition remains time-barred.13
Order affirmed. Application to Withdraw granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/29/2016
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13
We note that, although never waived, illegal sentence claims remain
subject to the PCRA’s timeliness requirements. See Commonwealth v.
Jackson, 30 A.3d 516, 521-22 (Pa.Super.2011).
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