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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
CORY ROGERS :
:
Appellant : No. 1187 WDA 2016
Appeal from the PCRA Order July 13, 2016
In the Court of Common Pleas of Erie County
Criminal Division at No(s): CP-25-CR-0001584-2001
BEFORE: GANTMAN, P.J., FORD ELLIOTT, P.J.E., and SOLANO, J.
MEMORANDUM BY GANTMAN, P.J.: FILED FEBRUARY 9, 2017
Appellant, Cory Rogers, appeals from the order entered in the Erie
County Court of Common Pleas, denying his petition for collateral relief, per
the Post Conviction Relief Act (“PCRA”), at 42 Pa.C.S.A. §§ 9541-9546. We
affirm and grant counsel’s petition to withdraw.
From 1997 to 2001, while victim was between the ages of 8 and 12
and Appellant was between the ages of 25 and 29, Appellant on several
occasions performed various sexual acts on victim. On September 7, 2001,
Appellant pled guilty to one count of aggravated indecent assault, two
counts of involuntary deviate sexual intercourse, four counts of indecent
assault, four counts of indecent exposure, and five counts of corruption of
minors. The court sentenced Appellant in absentia on October 17, 2001, to
an aggregate term of 20 to 40 years’ imprisonment. On October 24, 2001,
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Appellant filed a post-sentence motion for a sentence reduction, which the
court denied on the following day. This Court affirmed the judgment of
sentence on July 7, 2002. Appellant did not seek further review.
Appellant filed his current PCRA petition on March 4, 2016. The court
appointed counsel on March 24, 2016, who filed a petition to withdraw and
an accompanying “no merit” letter on April 15, 2016.1 On April 27, 2016,
the court denied counsel’s petition to withdraw. The court issued
Pa.R.Crim.P. 907 notice on June 16, 2016. On June 30, 2016, Appellant
filed a pro se response to the court’s Rule 907 notice, objecting to counsel’s
petition to withdraw and requesting a sentence reduction. On July 13, 2016,
the court denied Appellant relief and dismissed his PCRA petition. Appellant
timely filed a counseled notice of appeal on August 10, 2016. The court
ordered Appellant on August 18, 2016, to file a Pa.R.A.P. 1925(b)
statement. On September 9, 2016, counsel filed a statement of intent to file
a “no merit” brief on appeal, per Rule 1925(c)(4). Counsel subsequently
filed with this Court a petition to withdraw representation and a brief,
designated as a brief under Anders v. California, 386 U.S. 738, 87 S.Ct.
1396, 18 L.Ed.2d 493 (1967).2
____________________________________________
1
See Commonwealth v. Turner, 518 Pa. 491, 544 A.2d 927 (1988) and
Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc).
2
In the context of a PCRA petition and request to withdraw, the appropriate
filing is a “no-merit” letter/brief. See Turner, supra; Finley, supra. But
(Footnote Continued Next Page)
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As a prefatory matter, we address whether counsel has complied with
the requirements of Turner/Finley. “Before an attorney can be permitted
to withdraw from representing a petitioner under the PCRA, Pennsylvania
law requires counsel to file and obtain approval of a ‘no-merit’ letter
pursuant to the mandates of Turner/Finley.” Commonwealth v.
Karanicolas, 836 A.2d 940, 947 (Pa.Super. 2003) (emphasis in original).
[C]ounsel must…submit a “no-merit” letter to the trial
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 the petitioner wants to have reviewed,
explaining why and how those issues lack merit, and
requesting permission to withdraw.
Commonwealth v. Wrecks, 931 A.2d 717, 721 (Pa.Super. 2007). Counsel
must also send to the petitioner a copy of the “no-merit” letter or brief and
petition to withdraw and advise the petitioner of his right to proceed pro se
or with new counsel. Id.
Instantly, counsel filed a Turner/Finley brief on appeal
(notwithstanding its designation as an Anders brief) and a petition to
withdraw as counsel. Counsel listed the issues Appellant wished to raise and
explained why the issues merit no relief. Counsel has indicated that he sent
_______________________
(Footnote Continued)
see Commonwealth v. Fusselman, 866 A.2d 1109, 1111 n.3 (Pa.Super.
2004), appeal denied, 584 Pa. 691, 882 A.2d 477 (2005) (stating Superior
Court can accept Anders brief in lieu of Turner/Finley letter, where PCRA
counsel seeks to withdraw on PCRA appeal). Instantly, counsel designated
the brief on appeal as an Anders brief. While the brief has some attributes
of an Anders brief, it is largely a Turner/Finley brief and will be treated as
one.
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Appellant a copy of the brief, a copy of the petition to withdraw, and a letter
advising Appellant of his right to proceed pro se or with private counsel.
Thus, counsel has substantially complied with the Turner/Finley
requirements. See Karanicolas, supra. Accordingly, we proceed to an
independent evaluation. See Turner, supra at 494-95, 544 A.2d at 928-29
(stating appellate court must conduct independent analysis and agree with
counsel that appeal is frivolous).
Appellant raises one issue for our review:
[WHETHER THE TRIAL COURT PROPERLY DISMISSED
APPELLANT’S PCRA PETITION AS UNTIMELY?]
(Appellant’s Brief at 1-4).
Appellant claims he is serving an illegal sentence, relying on the United
States Supreme Court decisions Miller v. Alabama, ___ U.S. ___, 132
S.Ct. 2455, 183 L.Ed.2d 407 (2012), Montgomery v. Louisiana, ___ U.S.
___, 136 S.Ct. 718, 193 L.Ed.2d 599 (filed January 25, 2016, and revised on
January 27, 2016), and Alleyne v. U.S., ___ U.S. ___, 133 S.Ct. 2151, 186
L.Ed.2d 314 (2013) as the bases for exceptions to the PCRA timeliness
requirements as well as for substantive PCRA relief. Counsel nevertheless
observes that Appellant’s judgment of sentence became final in 2002,
whereas Appellant filed his PCRA petition in 2016. Counsel concludes
Appellant’s petition was untimely and does not qualify for any of the PCRA
timeliness exceptions. We agree.
The timeliness of a PCRA petition is a jurisdictional requisite.
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Commonwealth v. Hackett, 598 Pa. 350, 956 A.2d 978 (2008), cert.
denied, 556 U.S. 1285, 129 S.Ct. 2772, 174 L.Ed.2d 277 (2009). A PCRA
petition must be filed within one year of the date the underlying judgment
becomes final. 42 Pa.C.S.A § 9545(b)(1). A judgment is deemed final at
the conclusion of direct review or at the expiration of time for seeking
review. 42 Pa.C.S.A. § 9545(b)(3).
Generally, to obtain merits review of a PCRA petition filed more than
one year after a petitioner’s sentence became final, the petitioner must
allege and prove at least one of the three timeliness exceptions. See 42
Pa.C.S.A. § 9545(b)(1)(i)-(iii). To invoke an exception, the petitioner must
allege and prove:
(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.A. § 9545(b)(1)(i)-(iii). Asserting the newly created constitutional
right exception under Section 9545(b)(1)(iii), requires the petitioner to
“prove that there is a ‘new’ constitutional right and that the right ‘has been
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held’ by that court to apply retroactively.” Commonwealth v. Chambers,
35 A.3d 34, 41 (Pa.Super. 2011), appeal denied, 616 Pa. 625, 46 A.3d 715
(2012). “[W]hen a PCRA petition is not filed within one year of the
expiration of direct review, or not eligible for one of the three limited
exceptions, or entitled to one of the exceptions, but not filed within 60 days
of the date that the claim could have been first brought, the trial court has
no power to address the substantive merits of a petitioner’s PCRA claims.”
Commonwealth v. Gamboa-Taylor, 562 Pa. 70, 77, 753 A.2d 780, 783
(2000); 42 Pa.C.S.A. § 9545(b)(2).
Here, Appellant’s judgment of sentence became final on Tuesday,
August 6, 2002, upon expiration of the time to file a petition for allowance of
appeal with our Supreme Court. See Pa.R.A.P. 1113. Appellant filed his
current PCRA petition on March 4, 2016, over 13 years later; thus, the
petition is patently untimely. See 42 Pa.C.S.A. § 9545(b)(1). Appellant
attempts to invoke the “new constitutional right” exception to the PCRA time
bar by citing the U.S. Supreme Court’s decision in Alleyne, supra. The
Pennsylvania Supreme Court, however, has declared that the rule
announced in Alleyne does not apply retroactively. See Commonwealth
v. Washington, ___ Pa. ___, 142 A.3d 810 (2016) (holding Alleyne does
not apply retroactively on collateral review to challenge mandatory minimum
sentence as “illegal”). See also Commonwealth v. Miller, 102 A.3d 988
(Pa.Super. 2014) (holding that even if Alleyne announced new
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constitutional right, neither our Supreme Court nor U.S. Supreme Court has
held that Alleyne applies retroactively, which is fatal to appellant’s attempt
to satisfy “new constitutional right” exception to timeliness requirements of
PCRA). Therefore, Appellant’s petition remains time barred, and the PCRA
court lacked jurisdiction to review it. See Hackett, supra; Gamboa-
Taylor, supra.
Additionally, Appellant relies on Miller, supra (ruling unconstitutional
mandatory life imprisonment without possibility of parole sentences for
juvenile offenders) and Montgomery, supra (holding Miller applies
retroactively to cases on collateral review), for the proposition that Appellant
is serving an illegal sentence. Although Appellant correctly observes that
mandatory life sentences without the possibility of parole for juvenile
offenders are unconstitutional under Montgomery/Miller, Appellant was
neither a juvenile at the time he committed the offenses nor sentenced to
life imprisonment without the possibility of parole. Therefore, Appellant also
is not entitled to relief under Montgomery/Miller. Based on the foregoing,
we affirm the order denying PCRA relief and grant counsel’s petition to
withdraw.
Order affirmed; petition to withdraw is granted.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/9/2017
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