J-S55032-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
PEDRO SOLA RODRIGUEZ,
Appellant No. 3231 EDA 2015
Appeal from the PCRA Order September 18, 2015
In the Court of Common Pleas of Lehigh County
Criminal Division at No(s): CP-39-CR-0002450-2012-CP-39-CR-0002991-
2012
BEFORE: LAZARUS, J., DUBOW, J., and STEVENS, P.J.E.*
MEMORANDUM BY STEVENS, P.J.E.: FILED JULY 13, 2016
Appellant appeals from the order entered in the Court of Common
Pleas of Lehigh County denying his first petition filed pursuant to the Post
Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. Appellant’s
court-appointed PCRA counsel has filed a petition to withdraw his
representation, along with an “Anders brief.”1 We grant counsel’s petition
to withdraw his representation and affirm the PCRA court’s order.
____________________________________________
1
Counsel filed a brief pursuant to Anders v. California, 386 U.S. 738, 87
S.Ct. 1396 (1967), apparently in the mistaken belief that an Anders brief is
required where counsel seeks to withdraw on appeal from the denial of PCRA
relief. A Turner/Finley “no-merit” letter, however, is the appropriate filing.
See Commonwealth v. Turner, 518 Pa. 491, 544 A.2d 927 (1988);
Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc).
Because an Anders brief provides greater protection to a defendant, this
(Footnote Continued Next Page)
*Former Justice specially assigned to the Superior Court.
J-S55032-16
We summarize the procedural history of this case as follows: On
September 26, 2012, Appellant, who was represented by counsel, entered a
guilty plea to the charges of robbery, firearms not to be carried without a
license, resisting arrest, and possession with the intent to deliver a
controlled substance.2 On November 8, 2012, the trial court sentenced
Appellant to an aggregate of five years to twelve years in prison. Despite
being provided with notice of his post-sentence and appeal rights, Appellant
did not file a post-sentence motion or a direct appeal.
On July 17, 2015, Appellant filed a pro se PCRA petition,3 and on July
30, 2015, the PCRA court appointed counsel to represent Appellant. On
September 18, 2015, the PCRA court held an evidentiary hearing, and by
order and opinion entered on that same day, the PCRA court denied
Appellant’s first PCRA petition on the basis it was untimely filed.
On October 16, 2015, PCRA counsel simultaneously filed a timely
notice of appeal and Pa.R.A.P. 1925(b) statement on behalf of Appellant.
_______________________
(Footnote Continued)
Court may accept an Anders brief in lieu of a Turner/Finley letter.
Commonwealth v. Fusselman, 866 A.2d 1109, 1111 n.3 (Pa.Super.
2004).
2
18 Pa.C.S.A. §§ 3701(a)(1)(v), 6106(a)(1), 5104, and 35 P.S. § 780-
113(a)(30), respectively.
3
Although Appellant’s pro se PCRA petition was docketed on July 27, 2015,
under the prisoner mailbox rule, we deem it to have been filed on July 17,
2015, when Appellant handed it to prison officials. See Commonwealth v.
Patterson, 931 A.2d 710 (Pa.Super. 2007) (discussing prisoner mailbox
rule).
-2-
J-S55032-16
Therein, counsel averred the PCRA court erred in denying Appellant’s PCRA
petition on the basis it was untimely filed. The PCRA court filed a Pa.R.A.P.
1925(a) opinion explaining it was relying upon its September 18, 2015,
opinion. Subsequently, as indicated supra, Appellant’s court-appointed PCRA
counsel filed in this Court a petition to withdraw his representation.
Preliminarily, we note that “[o]ur standard of review of the denial of
PCRA relief is clear; we are limited to determining whether the PCRA court’s
findings are supported by the record and without legal error.”
Commonwealth v. Wojtaszek, 951 A.2d 1169, 1170 (Pa.Super. 2008)
(quotation and quotation marks omitted).
Before we proceed to review the merits of the issues presented in
PCRA counsel’s Anders brief, we must determine whether counsel has
satisfied certain procedural requirements to withdraw his representation.
Counsel petitioning to withdraw from PCRA representation...must
review the case zealously. [PCRA] 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
-3-
J-S55032-16
counsel that the claims are without merit, the court will permit
counsel to withdraw and deny relief.
Commonwealth v. Walters, 135 A.3d 589, 591 (Pa.Super. 2016)
(quotations omitted).
Instantly, we determine that PCRA counsel has complied with the
requirements of Turner/Finley. Specifically, PCRA counsel’s Anders brief
and petition to withdraw detail the nature and extent of PCRA counsel’s
review, address the claims raised in Appellant’s pro se PCRA petition and at
the PCRA hearing, and determine that the issues lack merit and the petition
was untimely filed. PCRA counsel indicated that after his own independent
review of the record, he could not 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 his petition to withdraw, along with his Anders brief, and
instructed him that he had the right to retain private counsel or proceed pro
se.4 As counsel has 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. See
Walters, supra.
Pennsylvania law makes it clear that no court has jurisdiction to hear
an untimely PCRA petition. Commonwealth v. Robinson, 575 Pa. 500,
____________________________________________
4
Appellant has filed no response.
-4-
J-S55032-16
837 A.2d 1157 (2003). The most recent amendments to the PCRA, effective
January 19, 1996, provide that a PCRA petition, including a second or
subsequent petition, shall be filed within one year of the date the underlying
judgment becomes final. 42 Pa.C.S.A. § 9545(b)(1). A judgment is deemed
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 the time for seeking review.” 42 Pa.C.S.A. §
9545(b)(3).
The three statutory exceptions to the timeliness provisions in the PCRA
allow for very limited circumstances under which the late filing of a petition
will be excused. 42 Pa.C.S.A. § 9545(b)(1). To invoke an exception, a
petition must allege and the petitioner must prove:
(i) the failure to raise a claim previously was the result of
interference by government officials with the
presentation of the claim in violation of the Constitution
or the law of this Commonwealth or the Constitution or
law 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 Pennsylvania after
the time period provide in this section and has been
held by that court to apply retroactively.
42 Pa.C.S.A. § 9545(b)(1)(i)-(iii).
“We emphasize that it is the petitioner who bears the burden to allege
and prove that one of the timeliness exceptions applies.” Commonwealth
-5-
J-S55032-16
v. Marshall, 596 Pa. 587, 947 A.2d 714, 719 (2008) (citation omitted).
Moreover, as this Court has often explained, all of the time-bar exceptions
are subject to a separate deadline. Our Supreme Court has held that any
petition invoking an exception must show due diligence insofar as the
petition must be filed within sixty days of the date the claim could have first
been presented. Commonwealth v. Edmiston, 619 Pa. 549, 65 A.3d 339
(2013). See 42 Pa.C.S.A. § 9545(b)(2).
In the case sub judice, Appellant was sentenced on November 8, 2012,
and he filed neither post-sentence motions nor a direct appeal. Accordingly,
his judgment of sentence became final thirty days thereafter, on Monday,
December 10, 2012, when the time period for filing a direct appeal to this
Court expired. See Pa.R.A.P. 903(a) (providing an appeal to this Court shall
be filed within thirty days after entry of the order from which the appeal is
taken); 42 Pa.C.S.A. § 9545(b)(3) (setting forth when judgment of sentence
becomes final); 1 Pa.C.S.A. § 1908 (setting forth rules for computation of
time). Thus, Appellant had until December 10, 2013, to file a timely PCRA
petition; however, Appellant filed the instant PCRA petition July 17, 2015,
and therefore, it is patently untimely under the PCRA. See 42 Pa.C.S.A. §
9545(b)(1); Commonwealth v. Gamboa-Taylor, 562 Pa. 70, 753 A.2d
780 (2000) (holding a PCRA petition filed more than one year after judgment
of sentence becomes final is untimely and the PCRA court lacks jurisdiction
-6-
J-S55032-16
to address the petition unless the petitioner pleads and proves a statutory
exception to the PCRA time-bar).
Appellant attempts to invoke the timeliness exception of 42 Pa.C.S.A.
§ 9545(b)(1)(iii) relating to a new constitutional right that applies
retroactively. Specifically, Appellant avers that his sentence is illegal under
Alleyne v. United States, ___ U.S. ___, 133 S.Ct. 2151 (2013). However,
inasmuch as Alleyne was decided on June 17, 2013, and Appellant did not
file his PCRA petition until July 17, 2015, we conclude that Appellant has not
pled or proven that he presented his claim within sixty days of the date the
claim could have first been presented. See Edmiston, supra; 42 Pa.C.S.A.
§ 9545(b)(2).
Appellant has provided this Court with no other argument regarding
the PCRA timelines exceptions, and accordingly, we agree with the PCRA
court that Appellant’s PCRA petition was untimely filed. Thus, we affirm the
PCRA court’s order denying Appellant relief and grant court-appointed PCRA
counsel’s petition to withdraw his representation.
Petition to Withdraw Granted; Order Affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/13/2016
-7-