J-A21028-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
ALAN LE GRANDE BARKMAN,
Appellant No. 1587 WDA 2016
Appeal from the PCRA Order September 21, 2016
In the Court of Common Pleas of Erie County
Criminal Division at No(s): CP-25-CR-0001016-2014, CP-25-CR-0001850-
2014 and CP-25-CR-0002252-2012
BEFORE: BENDER, P.J.E., OLSON, J., and STABILE, J.
MEMORANDUM BY OLSON, J.: FILED SEPTEMBER 18, 2017
Appellant, Alan Le Grande Barkman, appeals from the September 21,
2016 order dismissing his first petition filed pursuant to the Post-Conviction
Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. In this appeal from the
denial of PCRA relief, Appellant’s court-appointed counsel filed a petition to
withdraw as counsel and a no-merit brief pursuant to Commonwealth v.
Turner, 544 A.2d 927 (Pa. 1988), and Commonwealth v. Finley, 550
A.2d 213 (Pa. Super. 1988) (en banc). As we conclude that counsel fulfilled
the procedural requirements of Turner/Finley, and this appeal is without
merit, we grant counsel’s petition to withdraw as counsel and affirm the
PCRA court’s order dismissing Appellant’s PCRA petition.
J-A21028-17
The factual background and procedural history of this case are as
follows. On May 28, 2012, a member of the Pennsylvania State Police pulled
Appellant over and determined that he was driving under the influence of
alcohol. On September 11, 2012, the Commonwealth charged Appellant via
criminal information with seven offenses including, inter alia, driving under
the influence of alcohol (“DUI”) – general impairment.1 On October 1, 2012,
Appellant pled guilty to, inter alia, DUI-general impairment and was
immediately sentenced to four years’ intermediate punishment.
On March 16, 2014, a member of the Edinboro Police Department
pulled Appellant over and determined that he was driving under the
influence of alcohol. On May 4, 2014, a member of the Pennsylvania State
Police pulled Appellant over and determined that he was driving under the
influence of alcohol. On May 19, 2014, the Commonwealth charged
Appellant via criminal information with, inter alia, DUI-highest rate2 for the
March 16 incident. On August 20, 2014, the Commonwealth charged
Appellant via criminal information with, inter alia, DUI-highest rate for the
May 4 incident.
On October 7, 2014, Appellant pled guilty to DUI-higher rate3 for the
March 16 incident and DUI-highest rate for the May 4 incident. On
1
75 Pa.C.S.A. § 3802(a)(1).
2
75 Pa.C.S.A. § 3802(c).
3
75 Pa.C.S.A. § 3802(b).
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December 3, 2014, the trial court revoked Appellant’s intermediate
punishment related to the DUI-general impairment conviction and re-
sentenced him to 24 to 60 months’ imprisonment. The trial court also
sentenced Appellant to 16 to 60 months’ imprisonment each for the DUI-
higher rate and DUI-highest rate convictions. The trial court ordered all
three sentences to run consecutively for an aggregate term of 56 to 180
months’ imprisonment. The trial court found Appellant eligible for the
Recidivism Risk Reduction Initiative and, therefore, lowered the minimum
aggregate sentence to 42 months’ imprisonment.
Appellant appealed the judgments of sentence for the DUI-higher rate
and DUI-highest rate convictions and this Court affirmed those judgments of
sentence. See Commonwealth v. Barkman, 134 A.3d 99, 2015 WL
6000781 (Pa. Super. 2015) (unpublished memorandum). Appellant did not
appeal from the judgment of sentence for his DUI-general impairment re-
sentencing.
On April 4, 2016, Appellant filed a pro se PCRA petition and counsel
was appointed. On July 21, 2016, the PCRA court issued notice of its intent
to dismiss the petition without an evidentiary hearing. See Pa.R.Crim.P.
907(A). On September 21, 2016, the PCRA court dismissed the petition.
This timely appeal followed.
Counsel presents one issue in his Turner/Finley brief:
[Was Appellant’s sentence legal?]
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See Turner/Finley Brief at 1-3.
Prior to addressing the merits of the issue raised in counsel’s
Turner/Finley brief, we must determine whether he met the procedural
requirements to withdraw as counsel. Counsel seeking to withdraw in PCRA
proceedings
must review the case zealously. Turner/Finley counsel must
then submit a “no-merit” letter to the [PCRA] 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 — [PCRA]
court or 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.
Commonwealth v. Muzzy, 141 A.3d 509, 510–511 (Pa. Super. 2016)
(ellipses and citation omitted). In this case, counsel fulfilled the procedural
requirements for withdrawing as PCRA counsel.
Turning to the merits of this case, “Crucial to the determination of any
PCRA appeal is the timeliness of the underlying petition. Thus, we must first
determine whether the instant PCRA petition was timely filed.”
Commonwealth v. Brown, 141 A.3d 491, 499 (Pa. Super. 2016) (citation
omitted). The timeliness requirement for PCRA petitions “is mandatory and
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jurisdictional in nature[.]” Commonwealth v. Brown, 143 A.3d 418, 420
(Pa. Super. 2016) (citation omitted). Thus, we sua sponte concentrate our
attention on whether Appellant timely filed his PCRA petition and, if not,
whether he has raised a viable statutory exception to the PCRA’s timeliness
requirement.
A PCRA petition is timely if it is “filed within one year of the date the
judgment [of sentence] becomes final.” 42 Pa.C.S.A. § 9545(b)(1). “[A]
judgment 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.A. § 9545(b)(3). Because Appellant did not file an
appeal from his re-sentencing for DUI-general impairment, that judgment of
sentence became final on January 2, 2015.4 Appellant’s PCRA petition was
filed on April 4, 2016. Thus, the petition was patently untimely.
An untimely PCRA petition may be considered if one of the following
three exceptions applies:
(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
4
If the Court of Common Pleas of Erie County were closed on January 2,
2015, it became final on January 5, 2015.
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(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.
42 Pa.C.S.A. § 9545(b)(1)(i-iii). If an exception applies, a PCRA petition
may be considered if it is filed “within 60 days of the date the claim could
have been presented.” 42 Pa.C.S.A. § 9545(b)(2). “It is the petitioner’s
burden to plead and prove an exception to the PCRA-timeliness rule.”
Commonwealth v. Wiley, 966 A.2d 1153, 1158 (Pa. Super. 2009) (citation
omitted).
As noted above, a petitioner must plead and prove the existence of a
timeliness exception in order for the PCRA court to have jurisdiction over an
untimely petition. Failure to plead the applicability of a timeliness exception
in the PCRA petition renders the PCRA court without jurisdiction to consider
the merits of the petition. See Commonwealth v. Derrickson, 923 A.2d
466, 468-469 (Pa. Super. 2007), appeal denied, 934 A.2d 72 (Pa. 2007). In
this case, Appellant’s PCRA petition did not allege that he satisfied one of the
PCRA’s timeliness exceptions. As such, he failed to plead and prove the
applicability of a timeliness exception and the PCRA court lacked jurisdiction
over his untimely petition as it relates to the DUI-general impairment
conviction.
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Appellant’s judgments of sentence for his DUI-higher rate and DUI-
highest rate convictions did not become final until November 16, 2015.5 As
such, Appellant’s PCRA petition was timely with respect to those two
convictions. Therefore, we turn to the lone issue raised in counsel’s
Turner/Finley brief only as it relates to those two convictions.
Our standard of review when determining if a sentence is illegal is de
novo and our scope of review is plenary. Commonwealth v. Brown, 159
A.3d 531, 532 (Pa. Super. 2017). As noted above, Appellant was sentenced
to a term of 16 to 60 months’ imprisonment for both his DUI-higher rate and
DUI-highest rate convictions. In his pro se response to counsel’s
Turner/Finley letter, Appellant contends that his sentence for DUI-higher
rate was illegal because he only pled guilty to DUI-general impairment (first
offense).6
The record belies Appellant’s assertion. At the plea hearing, Appellant
was asked how he pled to “driving under the influence, high rate of alcohol,
third offense[.]” N.T., 10/7/14, at 10-11. He responded, “Guilty.” Id. at
5
November 14, 2015 was a Saturday.
6
Appellant also argues that both his DUI-higher rate and DUI-highest rate
sentences were manifestly excessive, unreasonable, and inconsistent with
the objectives of the Sentencing Code. These discretionary aspects claims,
however, are not cognizable under the PCRA. Commonwealth v. Wrecks,
934 A.2d 1287, 1289 (Pa. Super. 2007); see 42 Pa.C.S.A. § 9543(a)(2).
Similarly, Appellant’s argument that the trial court violated the parties’ plea
agreement is not cognizable under the PCRA. Commonwealth v. Berry,
877 A.2d 479, 482-484 (Pa. Super. 2005); see 42 Pa.C.S.A. § 9543(a)(2).
As such, the PCRA court correctly denied relief on these claims.
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11. The statutory maximum penalty for DUI-higher rate (third offense) is
five years’ imprisonment. See 75 Pa.C.S.A. § 3803(b)(3); 18 Pa.C.S.A.
§ 106(b)(6). As Appellant was sentenced to a maximum term of five years’
imprisonment, his sentence was legal.
Appellant argues that his DUI-highest rate sentence was illegal
because it was not his third offense. This argument is without merit. As
noted above, Appellant was convicted of DUI-general impairment in 2012.
Moreover, Appellant was sentenced for DUI-higher rate on the same day as
he was sentenced for DUI-highest rate. Therefore, that conviction was
included when calculating the number of prior DUI offenses. 75 Pa.C.S.A.
§ 3806(b)(3). The statutory maximum penalty for DUI-highest rate (third
offense) is five years’ imprisonment. See 75 Pa.C.S.A. § 3803(b)(4); 18
Pa.C.S.A. § 106(b)(6). As Appellant was sentenced to a maximum term of
five years’ imprisonment, his sentence was legal.
In sum, the PCRA court lacked jurisdiction over Appellant’s PCRA
petition as it related to the re-sentencing for his DUI-general impairment
conviction. Appellant’s sentences for DUI-higher rate and DUI-highest rate
were legal. As such, this appeal is without merit. Accordingly, we grant
counsel’s petition to withdraw as counsel and affirm the PCRA court’s order
dismissing Appellant’s PCRA petition.
Petition to withdraw as counsel granted. Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/18/2017
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Com. v. Barkman, A.
Combined Opinion