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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
MICHAEL LOMBARDI :
:
Appellant : No. 2337 EDA 2019
Appeal from the PCRA Order Entered July 10, 2019
In the Court of Common Pleas of Chester County Criminal Division at
No(s): CP-15-CR-0004620-2009
BEFORE: NICHOLS, J., McCAFFERY, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY McCAFFERY, J.: FILED JUNE 22, 2020
Michael Lombardi (Appellant) appeals from the order entered in the
Chester County Court of Common Pleas dismissing his “motion to modify
sentence” as an untimely-filed Post Conviction Relief Act1 (PCRA) petition.
Appellant’s counsel, Deborah Brown, Esquire (Counsel), has filed a
Turner/Finley2 brief and application for leave to withdraw. We grant Counsel
leave to withdraw and affirm the order.
On January 20, 2011, Appellant entered a negotiated guilty plea to one
count of possession of a controlled substance with intent to deliver. 3 On the
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1 42 Pa.C.S. §§ 9541-9546.
2Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth v.
Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
3 35 P.S. § 780-113(a)(30).
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same day, the trial court imposed the agreed-upon sentence of 66 months
(5½ years) to 144 months’ (12 years’) imprisonment. Although the
sentencing sheet indicated a mandatory minimum sentence was imposed, it
did not explain which mandatory sentencing statute was applied.4 Appellant
did not file a post-sentence motion or a direct appeal.
More than eight years later, on March 26, 2019, Appellant, represented
by Adam Sager, Esquire, filed the underlying “Motion to Modify Sentence Due
to Alleyne v. United States.”5 This motion averred Appellant “was given a
mandatory minimum sentence” — likewise without indicating the nature of the
mandatory sentence — that was unconstitutional under Alleyne,
Commonwealth v. Wolfe, 140 A.3d 651 (Pa. 2016), and Commonwealth
v. Valentine, 101 A.3d 801 (Pa. Super. 2014).6 Appellant’s Motion to Modify
Sentence, 3/26/19, at 2.
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4Upon informal inquiry by this Court, the trial court clerk advised the January
20, 2011, plea/sentencing hearing was not transcribed.
5 See Alleyne v. United States, 570 U.S. 99, 103 (2013) (“Any 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.”).
6See Wolfe, 140 A.3d at 663 (42 Pa.C.S. § 9718 — which imposed mandatory
minimum sentences for offenses “against infant persons” — contravenes
Alleyne and is unconstitutional); Valentine, 101 A.3d at 812 (42 Pa.C.S. §
9712 and 9713 — which imposed mandatory minimum sentences for,
respectively, offenses committed with firearms and offenses committed on
public transportation —are unconstitutional pursuant to Alleyne).
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On April 25, 2019, the PCRA court issued a Pa.R.Crim.P. 907 notice of
intent to dismiss the motion without a hearing. The notice explained that
because a collateral challenge to the legality of sentence should be raised
under the PCRA, the court construed Appellant’s motion as a PCRA petition.
Notice of Intent to Dismiss PCRA Petition, 4/25/19, at 2 n.1. The court then
reasoned Appellant’s motion was filed beyond the general PCRA one-year filing
period, and none of the timeliness exceptions applied. See 42 Pa.C.S. §
9545(b)(1)(i)-(iii). Specifically, the court found Appellant was not entitled to
relief under the newly-recognized-retroactive constitutional right exception
because “the Pennsylvania Supreme Court has unambiguously held that
‘Alleyne does not apply retroactively to cases pending on collateral
review[.]’”7 Notice of Intent to Dismiss PCRA Petition at 3 n.1, quoting
Commonwealth v. Washington, 142 A.3d 810, 820 (Pa. 2016).
On July 10, 2019, the PCRA court issued the underlying order dismissing
Appellant’s PCRA petition. Although he was still represented by Attorney
Sager, Appellant filed a timely pro se notice of appeal, along with a pro se
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7The notice also stated Appellant may respond within 20 days, and if he did
not, the court would dismiss his motion. On May 26, 2019, Appellant filed an
untimely pro se “Amended Petition for Relief/Motion to Correct Illegal
Sentence.”
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Pa.R.A.P. 1925(b) statement.8 We note the trial court did not issue any order
requiring a Rule 1925(b) statement.
On September 16, 2019, Attorney Sager filed in this Court a petition to
withdraw from representation. This Court granted the petition and remanded
to the PCRA court to determine whether Appellant was eligible for court-
appointed counsel. The PCRA court consequently appointed the Chester
County Public Defender’s office to represent Appellant, and on November 6,
2019, present counsel, Assistant Public Defender Brown, entered her
appearance in this Court. On December 3rd, this Court granted Appellant’s
request for a second remand so that he may file an amended Rule 1925(b)
statement. On December 9 and 23, respectively, Appellant filed pro se Rule
1925(b) statements.9 On December 23rd, Counsel filed a statement of intent
to file a Turner/Finley brief.10
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8 See Pa.R.Crim.P. 576(A)(4) (if represented criminal defendant files pro se
notice of appeal, clerk of courts shall accept it for filing, and copy of time-
stamped document shall be forwarded to defendant’s attorney and
Commonwealth within 10 days); Commonwealth v. Wooden, 215 A.3d 997,
1000 (Pa. Super. 2019) (although defendant’s attorney remained counsel of
record, it was proper for trial court clerk to docket defendant’s pro se notice
of appeal).
9Appellant filed these pro se filings despite this Court’s reminder against pro
se filings by counseled appellants. See Order, 12/3/19, at 1-2.
10Rule 1925(c)(4) permits an attorney to file “a statement of intent to file an
Anders/Santiago brief in lieu of filing a [Rule 1925(b)] Statement.”
Pa.R.A.P. 1925(c)(4). We note the Anders/Santiago paradigm applies when
counsel seeks to withdraw from representation on direct appeal, whereas
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Counsel has now filed a Turner/Finley petition to withdraw and a brief,
averring the PCRA court properly found Appellant’s PCRA petition was untimely
and, therefore, the within appeal is meritless. Appellant has not responded to
counsel’s petition.
We first consider whether Counsel has satisfied the requirements of
Turner/Finley.
Counsel petitioning to withdraw from PCRA representation must
proceed . . . under Turner[and Finley] and must review the case
zealously. [C]ounsel must then submit a “no-merit” . . . 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, . . . this Court .
. . must then conduct its own review of the merits of the case. If
the court agrees with counsel that the claims are without merit,
the court will permit counsel to withdraw and deny relief.
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Turner/Finley applies in a PCRA appeal. Commonwealth v. Widgins, 29
A.3d 816, 817 n.2. (Pa. Super. 2011); see Anders v. California, 386 U.S.
738 (1967); Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009).
Nevertheless, we emphasize the trial court did not issue any Rule
1925(b) order requiring a statement to be filed. Accordingly, we decline to
find any waiver on the ground that Attorney Brown did not comply with a Rule
1925(b) order.
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Commonwealth v. Walters, 135 A.3d 589, 591 (Pa. Super. 2016) (citations
omitted).
Here, Counsel’s application for leave to withdraw avers: she “made a
conscientious examination of the record, corresponded with Appellant, . . .
research[ed] the merits of Appellant’s claim,” and concluded the PCRA court
properly treated Appellant’s motion as a PCRA petition and found it was
untimely filed. Counsel’s Application for Leave to Withdraw, 3/3/20, at 1-2.
Counsel has attached a copy of a letter she sent to Appellant, which: outlined
her review of the record and why she believed his appeal would have no merit;
informed Appellant she would seek to withdraw from representation; and
advised him he could retain another attorney or proceed pro se. We conclude
Counsel has complied with the requirements of Turner/Finley and thus we
independently review whether the PCRA court properly dismissed Appellant’s
petition as untimely filed. See Walters, 135 A.3d at 591.
The sole issue raised in Appellant’s “Motion to Modify Sentence” was
whether his mandatory minimum sentence was unconstitutional under
Alleyne, Wolfe, and Valentine. This Court has stated that an Alleyne claim
is a challenge to the legality of sentence and is cognizable under the PCRA.
Commonwealth v. Ruiz, 131 A.3d 54, 60 (Pa. Super. 2015). Accordingly,
the PCRA court properly construed Appellant’s motion as a PCRA petition.
“Under our standard of review for an appeal from the denial of PCRA
relief, we must determine whether the ruling of the PCRA court is supported
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by the record and is free of legal error.” Commonwealth v. Paddy, 15 A.3d
431, 442 (Pa. 2011) (citation omitted). This Court has stated:
It is well-established that “the PCRA’s timeliness requirements are
jurisdictional in nature and must be strictly construed; courts may
not address the merits of the issues raised in a petition if it is not
timely filed.” Generally, a PCRA petition must be filed within one
year of the date the judgment of sentence becomes final unless
the petitioner meets his burden to plead and prove one of the
exceptions enumerated in 42 Pa.C.S.A. § 9545(b)(1)(i)–(iii),
which include: (1) the petitioner’s inability to raise a claim as a
result of governmental interference; (2) the discovery of
previously unknown facts or evidence that would have supported
a claim; or (3) a newly-recognized constitutional right. 42
Pa.C.S.A. § 9545(b)(1)(i)–(iii). [A] petition invoking any of the
exceptions must be filed within 60 days of the date the claim first
could have been presented.[11]
Walters, 135 A.3d at 591-92 (some citations omitted).
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11 This Court has explained:
On October 24, 2018, the General Assembly amended section
9545(b)(2) of the PCRA statute to expand the time for filing a
petition from 60 days to one year from the date the claim could
have been presented. See 2018 Pa.Legis.Serv.Act 2018-146
(S.B. 915), effective December 24, 2018. The amendment applies
only to claims arising one year before the effective date of this
section, i.e. December 24, 2017, or thereafter.
Commonwealth v. Brensinger, 218 A.3d 440, 448 (Pa. Super. 2019). As
Appellant sought relief under Alleyne, his claim “arose,” for purposes of
Section 9542(b), on the date the High Court issued that decision, June 17,
2013. Accordingly, Appellant was not entitled to the expanded one-year
deadline in the 2018 amendment. See id.; see also Notice of Intent to
Dismiss PCRA Petition at 3 n.1 (concluding same).
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As stated above, Appellant was sentenced on January 20, 2011. He had
30 days, or until Monday, February 21, 2011, to file a notice of appeal.12 See
Pa.R.A.P. 903(a). When Appellant did not file an appeal, his judgment of
sentence became final on that day, and he then generally had one year, or
until February 21, 2012, to file a PCRA petition. See 42 Pa.C.S. § 9545(b)(1),
(3) (judgment becomes final at conclusion of direct review or at expiration of
time for seeking review). The instant motion was filed more than seven years
later, on March 26, 2019, and thus was patently untimely. See 42 Pa.C.S. §
9545(b)(1).
Furthermore, Appellant’s motion did not plead any of the Section
9545(b)(1) exceptions. Indeed, the motion did not refer at all to the PCRA’s
timeliness requirements. See 42 Pa.C.S. § 9545(b)(1) (petition shall be filed
within one year of the date the judgment becomes final, unless petition
alleges and proves exception applies); Walters, 135 A.3d at 591-92.
Furthermore, even if Appellant had relied on the “newly recognized retroactive
constitutional right” exception, no relief would be due, as we would agree with
the PCRA court that neither Alleyne nor its progeny announce a new
constitutional right that would apply retroactively. See 42 Pa.C.S. §
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12The thirtieth day fell on Saturday, February 19, 2011. Appellant thus had
until Monday, February 21st to file a notice of appeal. See 1 Pa.C.S. § 1908
(when last day of any period of time referred to in any statute falls on
Saturday, Sunday, or legal holiday, such day shall be omitted from
computation);
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9545(b)(1)(ii); Washington, 142 A.3d at 823; Notice of Intent to Dismiss
PCRA Petition at 3 n.1. See also Ruiz, 131 A.3d at 58 (“It is . . . settled that
Alleyne does not invalidate a mandatory minimum sentence when presented
in an untimely PCRA petition.”).
We thus conclude the PCRA court did not abuse its discretion in finding
Appellant’s motion was time-barred by the PCRA timeliness requirements.
See 42 Pa.C.S. § 9545(b)(1); Washington, 142 A.3d at 823; Edmiston, 65
A.3d at 353. We grant Counsel’s application for leave to withdraw and affirm
the order dismissing Appellant’s motion to modify sentence.
Order affirmed. Counsel’s application for leave to withdraw granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/22/20
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