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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
MARK A. NOLT, :
:
Appellant : No. 1755 MDA 2016
Appeal from the PCRA Order September 23, 2016
In the Court of Common Pleas of Lancaster County
Criminal Division at No(s): CP-36-CR-0003528-2012
CP-36-CR-0003543-2012
CP-36-CR-0005510-2011
CP-36-CR-0005527-2011
BEFORE: BOWES, J., DUBOW, J., and FITZGERALD, J.*
MEMORANDUM BY DUBOW, J.: FILED MAY 10, 2017
Appellant, Mark A. Nolt, appeals from the September 23, 2016 Order
entered in the Lancaster County Court of Common Pleas dismissing his first
Petition filed under the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§
9541-9546. Additionally, Appellant’s appointed counsel, R. Russell Pugh,
Esquire, has filed a Petition to Withdraw and an accompanying no-merit
letter pursuant to Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988),
and Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
After careful review, we grant Attorney Pugh’s Petition to Withdraw and
affirm.
*
Former Justice specially assigned to the Superior Court.
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On March 14, 2013, Appellant entered a negotiated guilty plea to
numerous violations of the Controlled Substance, Drug, Device, and
Cosmetic Act related to four separate dockets, including Possession With
Intent to Deliver (“PWID”)1 heroin and oxycodone. The trial court
immediately imposed an aggregate term of five to ten years’ incarceration.2
Appellant did not file a direct appeal.3 Appellant’s Judgment of Sentence,
therefore, did not become final until April 15, 2013.4 See 42 Pa.C.S. §
9545(b)(3); Pa.R.A.P. 903(a); Pa.R.Crim.P. 720(A)(3).
On August 24, 2015, Appellant filed the instant pro se PCRA Petition,
his first, raising numerous claims, including that his sentence is illegal
pursuant to Alleyne v. United States, 133 S.Ct. 2151 (2013), and
Commonwealth v. Hopkins, 117 A.3d 247 (Pa. 2015). On October 13,
2015, the PCRA court appointed Attorney Pugh as counsel. Attorney Pugh
filed an Amended PCRA Petition on December 10, 2015, alleging that
1
35 P.S. § 780-113(a)(30).
2
We incorporate the trial court’s helpful summary of the convictions for each
Information, together with the corresponding sentence for each count. Trial
Court Opinion, 9/23/16, at 1-2.
3
On October 7, 2013, Appellant filed a “Motion for Return of Property”
challenging deductions of money from his prison account. The trial court
dismissed this Motion on jurisdictional grounds and directed Appellant to file
a civil lawsuit in Commonwealth Court. Appellant filed a direct appeal, which
this Court dismissed due to Appellant’s failure to file a Brief. See
Commonwealth v. Nolt, No. 2144 MDA 2013 (Pa. Super. filed August 5,
2014).
4
April 13, 2013, was a Saturday. See 1 Pa.C.S. § 1908.
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Appellant’s trial counsel failed to file a direct appeal following the guilty plea,
despite Appellant’s purported request to do so. On January 7, 2016, the
Commonwealth filed an Answer to Appellant’s Amended PCRA Petition.
On September 23, 2016, the PCRA court dismissed Appellant’s Petition
without a hearing. On October 21, 2016, Appellant filed a Notice of Appeal.
Both Appellant and the PCRA court complied with Pa.R.A.P. 1925.
On February 21, 2017, Attorney Pugh filed a Turner/Finley no-merit
letter in the form of an Appellant’s Brief, noting trial counsel’s failure to file a
direct appeal following Appellant’s guilty plea. Counsel, however, concluded
that there were no non-frivolous issues to be raised on appeal since the
PCRA Petition was untimely. Appellant did not file a response.
Appellant presents one issue for our review:
Whether the post-conviction court erred when it denied post-
conviction relief on the basis that the PCRA Petition was filed
untimely?
Appellant’s Brief at 2.
Before we consider Appellant’s arguments, we must review Attorney
Pugh’s request to withdraw from representation. Pursuant to
Turner/Finley, independent review of the record by competent counsel is
required before withdrawal on collateral appeal is permitted.
Commonwealth v. Pitts, 981 A.2d 875, 876 n.1 (Pa. 2009). Counsel is
then required to submit a “no merit” letter (1) detailing the nature and
extent of his or her review; (2) listing each issue the petitioner wished to
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have reviewed; and (3) providing an explanation of why the petitioner’s
issues were meritless. Id. The court then conducts its own independent
review of the record to determine if the Petition is meritless. Id. “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.”
Commonwealth v. Wrecks, 931 A.2d 717, 721 (Pa. Super. 2007) (citation
omitted).
Our review of the record discloses that Attorney Pugh has complied
with each of the above requirements. In addition, Attorney Pugh sent
Appellant copies of the Turner/Finley no-merit letter and Petition to
Withdraw, and advised him of his rights in lieu of representation in the event
that the court granted Attorney Pugh permission to withdraw. See
Commonwealth v. Widgins, 29 A.3d 816, 818 (Pa. Super. 2011). Since
Attorney Pugh has complied with the Turner/Finley requirements, we now
proceed with our independent review of the record and the merits of
Appellant’s claims.
We review the denial of a PCRA Petition to determine whether the
record supports the PCRA court’s findings and whether its Order is otherwise
free of legal error. Commonwealth v. Fears, 86 A.3d 795, 803 (Pa.
2014). Before addressing the merits of Appellant’s claims, we must first
determine whether we have jurisdiction to entertain the underlying PCRA
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Petition. See Commonwealth v. Hackett, 956 A.2d 978, 983 (Pa. 2008)
(explaining that the timeliness of a PCRA Petition is a jurisdictional
requisite).
Under the PCRA, any Petition “including a second or subsequent
petition, shall be filed within one year of the date the judgment becomes
final[.]” 42 Pa.C.S. § 9545(b)(1). 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). The PCRA’s timeliness requirements are jurisdictional in nature,
and a court may not address the merits of the issues raised if the PCRA
petition was not timely filed. Commonwealth v. Albrecht, 994 A.2d 1091,
1093 (Pa. 2010).
Here, Appellant’s Judgment of Sentence became final on April 15,
2013, upon expiration of the time to file a direct appeal. See 42 Pa.C.S. §
9545(b)(3); Pa.R.A.P. 903(a); Pa.R.Crim.P. 720(A)(3). In order to be
timely, Appellant needed to submit his PCRA Petition by April 15, 2014. 42
Pa.C.S. § 9545(b)(1). Appellant filed this PCRA Petition on August 24, 2015,
more than 16 months too late and more than two years after his Judgment
of Sentence became final. Appellant’s Petition is, thus, facially untimely.
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Pennsylvania courts may consider an untimely PCRA Petition, however,
if the appellant pleads and proves one of the three exceptions set forth in 42
Pa.C.S. § 9545(b), which provides the following:
(b) Time for filing petition.
(1) Any petition under this subchapter, including a second or
subsequent petition, shall be filed within one year of the date the
judgment becomes final, unless the petition alleges and the
petitioner proves that:
(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.
(2) Any petition invoking an exception provided in paragraph (1)
shall be filed within 60 days of the date the claim could have
been presented.
42 Pa.C.S. § 9545(b)(1)-(2). See, e.g., Commonwealth v. Lark, 746
A.2d 585, 588 (Pa. 2000) (reviewing specific facts that demonstrated the
claim had been timely raised within 60-day timeframe).
Appellant’s counsel did not assert any of the timeliness exceptions in
the Turner/Finley Brief. Nevertheless, Appellant’s pro se Petition claimed
that his sentence is illegal pursuant to Alleyne v. United States, 133 S.Ct.
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2151 (2013), and Commonwealth v. Hopkins, 117 A.3d 247 (Pa. 2015).
This constitutes an attempt to invoke the timeliness exception under Section
9545(b)(1)(iii) to challenge the legality of his sentence.
Although a legality of sentence claim cannot be waived, it must be
raised in a timely PCRA Petition. Commonwealth v. Jones, 932 A.2d 179,
182 (Pa. Super. 2007); 42 Pa.C.S. § 9545(b)(2); Commonwealth v. Fahy,
737 A.2d 214, 223 (Pa. 1999) (“Although legality of sentence is always
subject to review within the PCRA, claims must still first satisfy the PCRA’s
time limits or one of the exceptions thereto”).
The United States Supreme Court decided Alleyne on June 17, 2013.
In order to invoke the “constitutional right” exception under 42 Pa.C.S. §
9545(b)(1)(iii), Appellant needed to submit his PCRA petition within 60 days
of June 17, 2013.5 See Commonwealth v. Boyd, 923 A.2d 513, 517 (Pa.
Super. 2007) (stating that the 60-day period begins to run upon the date of
the underlying judicial decision). Appellant filed this PCRA Petition on
August 24, 2015, well after 60 days of the Alleyne decision.
5
This Court applied Alleyne in Hopkins, supra, on June 15, 2015.
However, this Court recently reiterated that “the Hopkins decision did not
announce a ‘new rule,’ [for purposes of 42 Pa.C.S. § 9545(b)(1)(iii)] but
rather simply assessed the validity of Section 6317 under Alleyne and
concluded that particular mandatory minimum sentencing statute was
unconstitutional.” Commonwealth v. Whitehawk, 146 A.3d 266, 271 (Pa.
Super. 2016). Accordingly, Appellant’s attempt to rely on Hopkins to
calculate the 60-day period is misplaced.
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Moreover, our Supreme Court has recently reiterated that Alleyne
does not apply retroactively on post-conviction collateral review. See
Commonwealth v. Washington, 142 A.3d 810, 820 (Pa. 2016).
Appellant also failed to plead and prove that he filed his PCRA Petition
within 60 days of the date he could have presented his claim (i.e., when he
first learned of counsel’s failure to file the direct appeal he allegedly
requested). Accordingly, Appellant has failed to plead and prove that he
filed his untimely PCRA Petition “within 60 days of the date the claim could
have been presented.” 42 Pa.C.S. § 9545(b)(2). Since Appellant is unable
to satisfy the 60-day rule, he is unable to satisfy any of the three timeliness
exceptions. The PCRA court, therefore, properly dismissed Appellant’s PCRA
Petition as untimely.
The record supports the PCRA court’s findings and its Order is
otherwise free of legal error. We, thus, affirm the denial of PCRA relief.
Order affirmed. Petition to Withdraw granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/10/2017
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