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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
TROY SHAWN HOWARD,
Appellant No. 1560 WDA 2015
Appeal from the PCRA Order entered August 25, 2015
In the Court of Common Pleas of Allegheny County
Criminal Division, at No(s): CP-02-CR-0007680-2011
CP-02-CR-0010822-2010
CP-02-CR-0014515-2010.
BEFORE: PANELLA, J., LAZARUS, J., and MUSMANNO, J.
MEMORANDUM BY PANELLA, J.: FILED SEPTEMBER 08, 2016
Troy Shawn Howard (“Appellant”) appeals from the order denying as
untimely his second petition for relief pursuant to the Post Conviction Relief
Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. Appellant’s counsel has filed a
motion to withdraw. We affirm the order denying Appellant post-conviction
relief and grant counsel’s motion.
On May 12, 2012, in exchange for Appellant’s entry of a guilty plea to
various drug and related charges at three separate dockets, the
Commonwealth dropped other charges and agreed to an aggregate,
concurrent sentence of four to twelve years of imprisonment. On that same
date, the trial court accepted the plea, and imposed a sentence in
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accordance with its terms. Appellant filed neither a post-sentence motion nor
a direct appeal.
On August 8, 2013, Appellant filed a pro se “Petition for
Modification/Reconsideration of Sentence nun pro tunc.” Treating the filing
as a PCRA petition, the PCRA court appointed counsel. Thereafter, the PCRA
court granted PCRA counsel several extensions of time. Ultimately, PCRA
counsel filed a “no-merit” letter and motion to withdraw pursuant to
Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc). The
PCRA court issued notice of its intent to dismiss Appellant’s petition because
it was untimely and no time-bar exceptions applied. In this same order, the
PCRA court granted PCRA counsel’s motion to withdraw. Appellant did not
file a response. By order entered August 12, 2014, the PCRA court denied
Appellant’s petition. Appellant did not appeal.1
On July 6, 2015, Appellant filed a “Motion to Vacate Sentence,” which
the PCRA Court correctly treated as Appellant’s second PCRA petition. See
Commonwealth v. Peterkin, 722 A.2d 638, 639 n.1 (Pa. 1998) (stating
that the PCRA subsumes other post-conviction remedies). The PCRA court
issued notice of its intent to dismiss the petition as untimely. Appellant filed
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1
Although a pro se notice of appeal from this order appears in the certified
record, it appears the filing was never forwarded to this Court.
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a timely pro se response. By order entered August 25, 2015, the PCRA court
dismissed Appellant’s second petition. This timely appeal follows. On
November 25, 2015, the PCRA court appointed present counsel.
In lieu of an advocate’s brief, Appellant’s counsel has filed a purported
Anders2 brief and a petition to withdraw. Compliance with Anders applies
to counsel who seeks to withdraw from representation on direct appeal. This
appeal is here from a collateral proceeding. Counsel should have sought to
withdraw under Turner/Finley. But because Anders imposes stricter
requirements (that the appeal is frivolous) than those imposed when counsel
seeks to withdraw during the post-conviction Turner/Finley process (that
the issues on appeal have no merit) we may accept an Anders brief in lieu
of a Turner/Finley no merit letter. See, e.g., Commonwealth v.
Widgins, 29 A.3d 816, 817 n.2 (Pa. Super. 2011). Thus, we will assess
counsel’s assertion that the issue Appellant wishes to raise has no merit
under a Turner/Finley analysis.
The Turner/Finley decisions provide the manner for
post[-]conviction counsel to withdraw from representation. The
holdings of those cases mandate an independent review of the
record by competent counsel before a PCRA court or [an]
appellate court can authorize an attorney’s withdrawal. The
necessary independent review requires counsel to file a “no-
merit” letter detailing the nature and extent of his [or her]
review and list each issue the petitioner wishes to have
examined, explaining why those issues are meritless. The PCRA
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2
Anders v. California, 386 U.S. 738 (1967).
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court, or an appellate court if the no-merit letter is filed before
it, see Turner, supra, then must conduct its own independent
evaluation of the record and agree with counsel that the petition
is without merit[.]
[T]his Court [has] imposed additional requirements on
counsel that closely track the procedure for withdrawing on
direct appeal. . . . [C]ounsel is required to contemporaneously
serve upon his [or her] client his [or her] no merit letter and
application to withdraw along with a statement that if the court
granted counsel’s withdraw request, the client may proceed pro
se or with a privately retained attorney[.]
Commonwealth v. Reed, 107 A.3d 137, 140 (Pa. Super. 2014) (citation
omitted). We must determine whether we agree with counsel’s assessment
of Appellant’s claim.
PCRA counsel phrases the issue Appellant wished to raise on appeal as
follows:
I. Did the [PCRA] court impose illegal sentences pursuant to
Alleyne v. United States, 133 S.Ct. 2151 (2013), in
imposing concurrent terms of imprisonment based on the
mandatory minimum sentence provisions under 18 Pa.C.S.
§7508(a)(7) and (b) and/or 42 Pa.C.S. §9712.1; and was
the [second PCRA petition] timely filed, or did an exception
to the timeliness requirement apply?
Appellant’s Brief, at 4.
This Court’s standard of review regarding an order dismissing a
petition under the PCRA is whether the determination of the PCRA court is
supported by the evidence of record and is free of legal error. See
Commonwealth v. Halley, 870 A.2d 795, 799 n.2 (Pa. 2005). The PCRA
court’s findings will not be disturbed unless there is no support for the
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findings in the certified record. See Commonwealth v. Carr, 768 A.2d
1164, 1166 (Pa. Super. 2001).
Because this is Appellant’s second petition for post-conviction relief, he
must meet a more stringent standard. “A second or any subsequent post-
conviction request for relief will not be entertained unless a strong prima
facie showing is offered to demonstrate that a miscarriage of justice may
have occurred.” Commonwealth v. Burkhardt, 833 A.2d 233, 236 (Pa.
Super. 2003) (en banc) (citations omitted). “A petitioner makes a prima
facie showing if he demonstrates that either the proceedings which resulted
in his conviction were so unfair that a miscarriage of justice occurred which
no civilized society could tolerate, or that he was innocent of the crimes for
which he was charged.” Id. (citations omitted).
The timeliness of a post-conviction petition is jurisdictional. See
Commonwealth v. Hernandez, 79 A.3d 649, 651 (Pa. Super. 2013).
Generally, a petition for relief under the PCRA, including a second or
subsequent petition, must be filed within one year of the date the judgment
is final, see 42 Pa.C.S.A. § 9545(b)(1), unless the petition alleges, and the
petitioner proves, that an exception to the timeliness requirement exists,
see 42 Pa.C.S.A. § 9545(b)(1)(i)-(iii). A PCRA petition invoking one of these
statutory exceptions must “be filed within 60 days of the date the claims
could have been presented.” Hernandez, 79 A.3d 651-52 (citations
omitted). See also 42 Pa.C.S.A. § 9545(b)(2).
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Appellant’s judgment of sentence became final on June 1, 2012, when
the thirty-day time period for filing an appeal to this Court expired. See 42
Pa.C.S.A. § 9545(b)(3). Thus, Appellant had until June 1, 2013, to file a
timely PCRA petition. As Appellant filed the instant petition in 2015, it is
patently untimely unless he has satisfied his burden of pleading and proving
that one of the enumerated exceptions applies.
According to Appellant, his latest PCRA petition is timely because he is
raising a claim that he received an illegal sentence in light of the United
States Supreme Court’s decision in Alleyne v. United States, 133 S.Ct.
2151 (2013). In Alleyne, the high court held that any fact that increased
the mandatory minimum sentence for a crime is an element thereof, which
must be submitted to a jury and found beyond a reasonable doubt.
Appellant’s claim is devoid of merit for several reasons. There is no
indication in the record that the negotiated sentence imposed upon him
included any mandatory minimums.3 Even if applicable, Appellant’s claim
would still fail because he did not file his petition within sixty days of the
2013 Alleyne decision. Finally, our Supreme Court recently held that
“Alleyne does not apply retroactively to cases pending on collateral
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3
As noted by the Commonwealth, the sentencing transcript is not found in
the certified record. See Commonwealth’s Brief, at 4 n.1. We remind
Appellant that it is his responsibility to ensure the presence of all relevant
transcripts in the record. See Commonwealth v. Preston, 904 A.2d 1 (Pa.
Super. 2006).
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review….” Commonwealth v. Washington, ___ A.3d ___, ___, 2016 WL
3909088, *8 (Pa., filed July 19, 2016).
Thus, for all of these reasons, we affirm the PCRA court’s order
dismissing Appellant’s serial PCRA petition. In addition, as our independent
review of the record reveals no other issue of arguable merit, we grant
counsel’s petition to withdraw.
Order affirmed. Petition to withdraw as counsel granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/8/2016
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Com. v. Howard, T.
Combined Opinion