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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JASON EVANS,
Appellant No. 368 WDA 2015
Appeal from the PCRA Order Entered February 5, 2015
In the Court of Common Pleas of Erie County
Criminal Division at No(s): CP-25-CR-0003479-2012
BEFORE: FORD ELLIOTT, P.J.E., BENDER, P.J.E., and STRASSBURGER, J.*
MEMORANDUM BY BENDER, P.J.E.: FILED OCTOBER 14, 2015
Appellant, Jason Evans, appeals from the February 5, 2015 order
denying, as untimely, his petition for relief under the Post Conviction Relief
Act (PCRA), 42 Pa.C.S. §§ 9541-9546. Additionally, Appellant’s counsel,
William J. Hathaway, Esq., has filed a petition to withdraw from representing
Appellant, along with a Turner/Finley1 no-merit letter. After careful
review, we affirm the PCRA court’s order denying Appellant’s petition and
grant Attorney Hathaway’s petition to withdraw.
On March 25, 2013, Appellant pled guilty to persons not to possess a
firearm, 18 Pa.C.S. § 6105, graded as a felony of the second degree. See
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*
Retired Senior Judge assigned to the Superior Court.
1
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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18 Pa.C.S. § 6105(a.1)(1). On May 23, 2011, the court imposed a sentence
of five to ten years’ incarceration. Appellant filed a timely post-sentence
motion seeking credit for time served, which the court granted on May 30,
2013. Appellant did not file a direct appeal from his judgment of sentence.
On October 23, 2014, Appellant filed a pro se PCRA petition, asserting
that the trial court imposed a mandatory minimum sentence that is illegal
pursuant to Alleyne v. United States, 133 S.Ct. 2151 (2013), and this
Court’s en banc decision in Commonwealth v. Newman, 999 A.3d 86 (Pa.
2014). See PCRA Petition, 10/23/14, at 4. The PCRA court appointed
Attorney Hathaway to represent Appellant. On November 26, 2014,
Attorney Hathaway filed an amended petition on Appellant’s behalf,
asserting that Appellant did receive a mandatory minimum sentence that
“falls squarely within the parameters of … the new rule of law set forth by
the Alleyne Court thereby compelling the striking of the judgment of
sentence….” Amended PCRA Petition, 11/26/14, at 2 (unpaginated).
On December 23, 2014, the PCRA court issued a Pa.R.Crim.P. 907
notice of its intent to dismiss Appellant’s petition. Therein, the court stated:
As the Pre-Sentence Report (and plea sheet) bears out and the
guidelines confirm, there was no mandatory sentence applicable
for the [trial] [c]ourt to impose. [Appellant] was given a
sentence from the standard range of the sentencing guidelines.
Therefore, [Appellant’s] PCRA petition is clearly untimely as no
exception exists per [42] Pa.C.S.A. [] § 9545([b])(1)(i), (ii), or
(iii), and this Court subsequently has no jurisdiction to grant any
relief.
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Rule 907 Notice, 12/23/14. Appellant did not file a response to the court’s
Rule 907 notice and, on February 5, 2015, the court issued a final order
denying his PCRA petition.
Appellant filed a timely notice of appeal. On March 12, 2015, the
PCRA court issued a Pa.R.A.P. 1925(a) opinion (despite not having ordered
Appellant to file a Rule 1925(b) concise statement), indicating that its
rationale for denying Appellant’s petition was adequately set forth in its Rule
907 notice.
Attorney Hathaway subsequently filed with this Court a petition to
withdraw and Turner/Finley “no-merit” letter. In Turner, our Supreme
Court “set forth the appropriate procedures for the withdrawal of court-
appointed counsel in collateral attacks on criminal convictions[.]” Turner,
544 A.2d at 927. The traditional requirements for proper withdrawal of
PCRA counsel, originally set forth in Finley, were updated by this Court in
Commonwealth v. Friend, 896 A.2d 607 (Pa. Super. 2006), abrogated by
Commonwealth v. Pitts, 981 A.2d 875 (Pa. 2009),2 which provides:
1) As part of an application to withdraw as counsel, PCRA
counsel must attach to the application a “no-merit” letter[;]
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2
In Pitts, our Supreme Court abrogated Friend “[t]o the extent Friend
stands for the proposition that an appellate court may sua sponte review the
sufficiency of a no-merit letter when the defendant has not raised such
issue.” Pitts, 981 A.2d at 879. In this case, Attorney Hathaway filed his
petition to withdraw and no-merit letter with this Court and, thus, our
Supreme Court’s holding in Pitts is inapplicable.
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2) PCRA counsel must, in the “no-merit” letter, list each claim
the petitioner wishes to have reviewed, and detail the nature
and extent of counsel's review of the merits of each of those
claims[;]
3) PCRA counsel must set forth in the “no-merit” letter an
explanation of why the petitioner's issues are meritless[;]
4) PCRA counsel must contemporaneously forward to the
petitioner a copy of the application to withdraw, which must
include (i) a copy of both the “no-merit” letter, and (ii) a
statement advising the PCRA petitioner that, in the event the
trial court grants the application of counsel to withdraw, the
petitioner has the right to proceed pro se, or with the assistance
of privately retained counsel;
5) the court must conduct its own independent review of the
record in the light of the PCRA petition and the issues set forth
therein, as well as of the contents of the petition of PCRA
counsel to withdraw; and
6) the court must agree with counsel that the petition is
meritless.
Friend, 896 A.2d at 615 (footnote omitted).
We have reviewed Attorney Hathaway’s petition to withdraw and no-
merit letter. Counsel’s no-merit letter sets forth the claim that Appellant
“wishes to have reviewed, and detail[s] the nature and extent of counsel’s
review of the merits of” that claim. Friend, 896 A.2d at 615. Attorney
Hathaway concludes that Appellant’s challenge to the legality of his sentence
is meritless, as “there is no factual basis” to support Appellant’s claim that
he was sentenced to a mandatory minimum term of incarceration. No-Merit
Letter, 7/6/15, at 2 (unpaginated). Attorney Hathaway states that he has
forwarded to Appellant a copy of his no-merit letter and application to
withdraw. Counsel also attached a letter addressed to Appellant advising
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him that, if this Court grants counsel’s petition to withdraw, Appellant may
proceed pro se or with the assistance of privately retained counsel. Id. at 2
(unpaginated). Accordingly, we conclude that Attorney Hathaway has
satisfied prongs one through four of the above-stated test.
Next, this Court must conduct our own independent review of the
record in light of the issues presented in Appellant’s PCRA petition. Our
standard of review regarding an order denying 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. Commonwealth v. Ragan, 923 A.2d
1169, 1170 (Pa. 2007). The PCRA court’s findings will not be disturbed
unless there is no support for the findings in the certified record.
Commonwealth v. Carr, 768 A.2d 1164, 1166 (Pa. Super. 2001).
We must begin by addressing the timeliness of Appellant’s petition,
because the PCRA time limitations implicate our jurisdiction and may not be
altered or disregarded in order to address the merits of a petition. See
Commonwealth v. Bennett, 930 A.2d 1264, 1267 (Pa. 2007). Under the
PCRA, any petition for post-conviction relief, including a second or
subsequent one, must be filed within one year of the date the judgment of
sentence becomes final, unless one of the exceptions set forth in 42 Pa.C.S.
§ 9545(b)(1)(i)-(iii) applies. That section states, in relevant part:
(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
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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.
42 Pa.C.S. § 9545(b)(1)(i)-(iii). Any petition attempting to invoke one of
these exceptions “shall be filed within 60 days of the date the claim could
have been presented.” 42 Pa.C.S. § 9545(b)(2).
Here, Appellant’s judgment of sentence became final on June 29,
2013, thirty days after the trial court ruled on his post-sentence motion.
See Pa.R.Crim.P. 720(A)(2)(a) (stating that where a defendant files a timely
post-sentence motion, “the notice of appeal shall be filed: (a) within 30 days
of the entry of the order deciding the motion”); 42 Pa.C.S. § 9545(b)(3)
(directing that a judgment of sentence becomes final at the conclusion of
direct review or the expiration of the time for seeking the review); Pa.R.A.P.
903(a) (notice of appeal to Superior Court must be filed within 30 days after
the entry of the order from which the appeal is taken). Thus, Appellant had
until June 29, 2014, to file a timely PCRA petition, making his instant
petition patently untimely. For this Court to have jurisdiction to review the
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merits of his legality of sentencing claim, Appellant must prove that he
meets one of the exceptions to the timeliness requirements set forth in 42
Pa.C.S. § 9545(b). See Commonwealth v. Fowler, 930 A.2d 586, 592
(2007) (“[A]lthough 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.”).
Appellant’s contention that his sentence is illegal pursuant to Alleyne
does not satisfy any of the above-stated exceptions, namely the “new
constitutional right” exception set forth in section 9545(b)(1)(iii). In
Alleyne, the United States Supreme Court held that “facts that increase
mandatory minimum sentences must be submitted to the jury” and found
beyond a reasonable doubt. Alleyne, 131 S.Ct. at 2163. This Court
recently held that a PCRA petitioner may not rely on Alleyne to satisfy the
timeliness exception of section 9545(b)(1)(iii), stating:
Even assuming that Alleyne did announce a new constitutional
right, neither our Supreme Court, nor the United States
Supreme Court has held that Alleyne is to be applied
retroactively to cases in which the judgment of sentence had
become final. This is fatal to Appellant's argument regarding the
PCRA time-bar. This Court has recognized that a new rule of
constitutional law is applied retroactively to cases on collateral
review only if the United States Supreme Court or our Supreme
Court specifically holds it to be retroactively applicable to those
cases. Commonwealth v. Phillips, 31 A.3d 317, 320 (Pa.
Super. 2011), appeal denied, 615 Pa. 784, 42 A.3d 1059 (2012),
citing Tyler v. Cain, 533 U.S. 656, 663, 121 S.Ct. 2478, 150
L.Ed.2d 632 (2001); see also, e.g., Commonwealth v. Taylor,
933 A.2d 1035, 1042 (Pa. Super. 2007) (stating, “for purposes
of subsection (iii), the language ‘has been held by that court to
apply retroactively’ means the court announcing the rule must
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have also ruled on the retroactivity of the new constitutional
right, before the petitioner can assert retroactive application of
the right in a PCRA petition[ ]”), appeal denied, 597 Pa. 715,
951 A.2d 1163 (2008). Therefore, Appellant has failed to satisfy
the new constitutional right exception to the time-bar.
Commonwealth v. Miller, 102 A.3d 988, 995 (Pa. Super. 2014). Since
Miller, neither our Supreme Court nor the United States Supreme Court has
held that Alleyne applies retroactively. As such, Appellant cannot satisfy
the exception set forth in section 9545(b)(1)(iii). We also ascertain no way
in which his legality of sentencing issue could satisfy either of the exceptions
set forth in section 9545(b)(1)(i) or (ii).
Accordingly, we agree with Attorney Hathaway that the legality of
sentencing issue asserted in Appellant’s petition is meritless, albeit for a
different reason than that presented by counsel in his no-merit letter.3
Thus, we affirm the PCRA court’s denial of Appellant’s untimely petition, and
grant counsel’s petition to withdraw.
Order affirm. Petition to withdraw granted.
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3
Attorney Hathaway concludes that Appellant’s claim that Alleyne renders
his sentence illegal is meritless because no mandatory minimum sentence
was imposed in this case. See No-Merit Letter, 7/6/15, at 2 (unpaginated).
Because Appellant’s legality of sentencing issue does not satisfy a timeliness
exception, we do not have jurisdiction to assess the question of whether a
mandatory minimum sentence was imposed, or whether any such sentence
is illegal under Alleyne.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/14/2015
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