J-S87003-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JOHNNIE LEWIS BROWN,
Appellant No. 1286 MDA 2016
Appeal from the PCRA Order May 24, 2016
in the Court of Common Pleas of Adams County
Criminal Division at No.: CP-01-CR-0001178-2010
BEFORE: LAZARUS, J., SOLANO, J., and PLATT, J.*
MEMORANDUM BY PLATT, J.: FILED DECEMBER 16, 2016
Appellant, Johnnie Lewis Brown, appeals from the order1 dismissing his
second petition filed pursuant to the Post Conviction Relief Act (PCRA), 42
Pa.C.S.A. §§ 9541-9546, as untimely. Counsel for Appellant has filed a
Turner/Finley2 “no merit” letter and has petitioned this Court to withdraw
from representation. We grant counsel’s petition to withdraw, and affirm the
order of the PCRA court.
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
1
We have amended the caption to reflect the date the order was entered on
the docket.
2
See Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988);
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
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The PCRA court aptly set forth the relevant facts and procedural
history of this case as follows:
On August 9, 2011 a jury convicted [Appellant] of
possession with intent to deliver cocaine under 35 P.S. § 780—
113(a)(30), possession of drug paraphernalia under 35 P.S. §
780—113(a)(32), and escape under 18 Pa.C.S.A. § 5121(a).
Following the verdict the Commonwealth gave oral notice of
intent to seek the five[-]year mandatory minimum related to
possession with intent to deliver cocaine and a subsequent
written notice was filed [on] October 17, 2011.
On October 20, 2011, the [trial court] sentenced
[Appellant] to an aggregate of six to twelve years in a state
correctional institution. On the possession with intent to deliver
count [Appellant] was sentenced to five to ten years pursuant to
the mandatory sentencing provisions of 18 Pa.C.S.A. §
7508(a)(3)(ii).
[Appellant] filed a timely appeal to the Pennsylvania
Superior Court. The judgment of sentence was affirmed by the
Pennsylvania Superior Court on July 31, 2012.
On June 27, 2013[, Appellant] filed his first PCRA petition
alleging ineffective assistance of counsel. [The PCRA court]
denied [Appellant’s] first PCRA petition on February 28, 201[4]
by order and opinion entered that date. On December 23, 2014,
the Superior Court of Pennsylvania affirmed [the PCRA court’s]
denial of [Appellant’s] first PCRA petition.
On March 1[4], 2016[, Appellant] filed his second PCRA
petition wherein [he] asserts that the decision in Montgomery
v. Louisiana, 136 S.Ct. 718 (2016)[3] set a new rule of
____________________________________________
3
In Montgomery, the United States Supreme Court determined that its
prior decision in Miller v. Alabama, 132 S.Ct. 2455 (2012), which held it
unconstitutional for states to sentence a juvenile homicide defendant to life
in prison without the possibility of parole, constituted a new substantive rule
of constitutional law that must be applied retroactively to cases on collateral
(Footnote Continued Next Page)
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substantive constitutional law that must be applied by state
collateral review courts. He further appears to argue that the
Montgomery v. Louisiana decision applies to the holding from
Alleyne v. United States, 133 S.Ct. 2151 (2013),[4]
retroactively to mandatory minimum sentences imposed
pursuant to 18 Pa.C.S.A. § 7508(a)(3)(ii).
[On March 18, 2016, the PCRA court entered an order
appointing current counsel to represent Appellant.] A pre-
hearing conference was held with [Appellant] participating by
video on April 25, 2016.
(PCRA Court Rule 907 Notice, 4/29/16, at 1-2) (some capitalization omitted;
citation formatting provided).
On April 29, 2016, the PCRA court issued notice of its intent to dismiss
Appellant’s PCRA petition without a hearing. See Pa.R.Crim.P. 907(1). On
May 24, 2016, it entered its order dismissing the PCRA petition. Appellant
timely appealed.
On July 22, 2016, Appellant filed a concise statement of errors
complained of on appeal, see Pa.R.A.P. 1925(b), raising the following issue
for review: “Did the [PCRA] [c]ourt err[] in determining that [Appellant’s]
PCRA petition be denied, when [Appellant] was sentenced to a mandatory
sentence, when Alleyne v. [United States,] held that mandatory
sentencing laws in Pennsylvania are unconstitutional, and after the [United
_______________________
(Footnote Continued)
review. See Montgomery, supra at 736. Miller has no application to the
crimes committed by Appellant or the sentence he received for them.
4
In Alleyne, the United States Supreme Court held that, under the Sixth
Amendment to the United States Constitution, a jury must find beyond a
reasonable doubt any facts that increase a mandatory minimum sentence.
See Alleyne, supra at 2158.
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States] Supreme Court’s decision in Montgomery v. Louisiana?” (Rule
1925(b) Statement, 6/22/16, at 1).5 The PCRA court entered an opinion on
August 3, 2016. See Pa.R.A.P. 1925(a).
On September 21, 2016, counsel for Appellant filed with this Court a
Turner/Finley “no merit” letter and petition to withdraw from
representation. On September 26, 2016, this Court entered an order
advising Appellant of his right to file a pro se or counseled response within
thirty days. Appellant did not file a response.6
Before we may review the merits of Appellant’s claims, we
must determine if counsel has satisfied the requirements to be
permitted to withdraw from further representation.
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 appellate
court can authorize an attorney’s withdrawal. The
necessary independent review requires counsel to
file a “no-merit” letter detailing the nature and
____________________________________________
5
Appellant’s Rule 1925(b) statement was untimely. Under the
circumstances of this case, where counsel has filed a Turner/Finley letter
and petition to withdraw, and the PCRA court prepared a Rule 1925(a)
opinion, we will address the merits of Appellant’s claim on appeal. See
Commonwealth v. Thompson, 39 A.3d 335, 340 (Pa. Super. 2012)
(“[w]hen counsel has filed an untimely Rule 1925(b) statement and the trial
court has addressed those issues we . . . may address the merits of the
issues presented.”) (citation omitted).
6
The Commonwealth filed a letter notifying this Court that it is relying on
the PCRA court’s Rule 1925(a) opinion and is in agreement with counsel’s
determination that this appeal lacks merit. (See Commonwealth’s Letter,
10/04/16).
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extent of his review and list 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.
In Commonwealth v. Friend, 896 A.2d 607
(Pa. Super. 2006)[,] abrogated in part by
[Commonwealth v.]Pitts, [981 A.2d 875 (Pa.
2009)], this Court imposed additional requirements
on counsel that closely track the procedure for
withdrawing on direct appeal. Pursuant to Friend,
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.
Though Chief Justice Castille noted in Pitts that this
Court is not authorized to craft procedural rules, the
Court did not overturn this aspect of Friend as those
prerequisites did not apply to the petitioner in Pitts.
See Pitts, supra at 881 (Castille, C.J., concurring).
After the decision in Pitts, this Court held in
Commonwealth v. Widgins, 29 A.3d 816 (Pa.
Super. 2011), that the additional procedural
requirements of Friend were still applicable during
collateral review.
Commonwealth v. Freeland, 106 A.3d 768, 774–75 (Pa. Super. 2014)
(some citations omitted).
Here, we conclude that PCRA counsel has substantially complied with
the requirements of Turner/Finley and their progeny. (See Turner/Finley
“no merit” letter, 9/21/16, at 1-4). Counsel has detailed his review of the
record and his conclusion that Appellant’s claim is meritless. (See id.).
Counsel also furnished Appellant with a copy of his “no merit” letter,
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advising him of his right to proceed pro se or to retain private counsel. (See
id. at 4). Accordingly, we will grant counsel’s petition to withdraw.
We now turn to this appeal to determine whether it is indeed
meritless. As this Court has explained:
Our standard of review of an order denying PCRA relief is
whether the record supports the PCRA court’s determination, and
whether the PCRA court’s determination 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.
Commonweath v. Brown, 143 A.3d 418, 420 (Pa. Super. 2016) (citations
omitted).
In the instant case, the PCRA court determined that Appellant’s
petition is untimely, with no exception to the PCRA’s time-bar pleaded or
proven. (See PCRA Court Opinion, 8/03/16, at 1). After review, we agree.
The PCRA provides eligibility for relief in conjunction with
cognizable claims, . . . and requires petitioners to comply with
the timeliness restrictions. . . . [A] PCRA petition, including a
second or subsequent petition, must be filed within one year of
the date that judgment becomes final. A judgment becomes
final for purposes of the PCRA 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.
It is well-settled that the PCRA’s time restrictions are
jurisdictional in nature. As such, this statutory time-bar
implicates the court’s very power to adjudicate a controversy
and prohibits a court from extending filing periods except as the
statute permits. Accordingly, the period for filing a PCRA
petition is not subject to the doctrine of equitable tolling;
instead, the time for filing a PCRA petition can be extended only
by operation of one of the statutorily enumerated exceptions to
the PCRA time-bar.
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The exceptions to the PCRA time-bar are found in Section
9545(b)(1)(i)–(iii) (relating to governmental interference, newly
discovered facts, and newly recognized constitutional rights),
and it is the petitioner’s burden to allege and prove that one of
the timeliness exceptions applies. Whether a petitioner has
carried his burden is a threshold inquiry that must be resolved
prior to considering the merits of any claim. . . .
Commonwealth v. Robinson, 139 A.3d 178, 185–86 (Pa. 2016)
(quotation marks and citations omitted).
Here, Appellant’s judgment of sentence became final on October 29,
2012, when his time to file a petition for writ of certiorari with the United
States Supreme Court expired. See U.S. Sup. Ct. R. 13; 42 Pa.C.S.A. §
9545(b)(3). Therefore, Appellant had until October 29, 2013, to file a timely
PCRA petition. See 42 Pa.C.S.A. § 9545(b)(1). Because Appellant filed the
instant petition on March 14, 2016, it is untimely on its face, and the PCRA
court lacked jurisdiction to review it unless he pleaded and proved one of the
statutory exceptions to the time-bar. See 42 Pa.C.S.A. § 9545(b)(1)(i)-(iii).
Section 9545 of the PCRA provides only three limited exceptions that
allow for review of an untimely PCRA petition:
(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
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this section and has been held by that court to apply
retroactively.
Id.
Any petition invoking an exception must “be filed within [sixty] days of
the date the claim could have been presented.” Id. at § 9545(b)(2). “If the
[PCRA] petition is determined to be untimely, and no exception has been
pled and proven, the petition must be dismissed without a hearing because
Pennsylvania courts are without jurisdiction to consider the merits of the
petition.” Commonwealth v. Jackson, 30 A.3d 516, 519 (Pa. Super.
2011), appeal denied, 47 A.3d 845 (Pa. 2012) (citation omitted).
Here, Appellant claims the benefit of the newly recognized and
retroactively applied constitutional right exception at 42 Pa.C.S.A. §
9545(b)(1)(iii), by arguing that his mandatory minimum sentence is
unconstitutional pursuant to Montgomery and Alleyne. (See PCRA
petition, 3/14/16, at 3, 8). Appellant asserts that the Montgomery Court
held that mandatory minimum sentencing schemes are unconstitutional, and
that this holding mandates retroactive application of Alleyne to cases such
as his on collateral review. (See id.; see also Rule 1925(b) Statement,
6/22/16, at 1). We disagree.
“[A] new rule of constitutional law is applied retroactively to cases on
collateral review only if the United States Supreme Court or the
Pennsylvania Supreme Court specifically holds it to be retroactively
applicable to those cases.” Commonwealth v. Whitehawk, 146 A.3d 266,
271 (Pa. Super. 2016) (citation omitted). Neither Court has held that
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Alleyne is applied retroactively. Rather, our Supreme Court issued an
opinion in Commonwealth v. Washington, 142 A.3d 810 (Pa. 2016),
wherein it held “Alleyne does not apply retroactively to cases pending on
collateral review[.]” Washington, supra at 820.
Here, Appellant’s argument that the United States Supreme Court, in
Montgomery, held that Alleyne applies retroactively, lacks merit. As
previously noted, in Montgomery, the Supreme Court held “Miller
announced a substantive rule that is retroactive in cases on collateral
review.” Montgomery, supra at 732. Its decision did not concern
Alleyne. Thus, Appellant has failed to establish that Alleyne set forth a
new constitutional law that is applicable retroactively to cases on collateral
review. See 42 Pa.C.S.A. § 9545(b)(1)(iii).
Accordingly, we conclude that Appellant has not met his burden of
proving that his untimely PCRA petition fits within one of the three
exceptions to the PCRA’s time-bar. See Robinson, supra at 186.
Therefore, we affirm the order of the PCRA court.
Order affirmed. Petition to withdraw granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/16/2016
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