J-S47021-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
FRED MAGONDU
Appellant No. 729 EDA 2017
Appeal from the PCRA Order January 26, 2017
In the Court of Common Pleas of Bucks County
Criminal Division at No(s): CP-09-CR-0005079-2008
BEFORE: LAZARUS, J., MOULTON, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY MOULTON, J.: FILED SEPTEMBER 19, 2017
Fred Magondu appeals from the January 26, 2017 order entered in the
Bucks County Court of Common Pleas dismissing his petition filed under the
Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-46. In lieu of an
advocate’s brief, Magondu’s counsel has filed a Turner/Finley1 “no-merit”
letter and a motion to withdraw as counsel. We affirm the PCRA court’s
order and grant counsel’s motion to withdraw.
On January 6, 2009, Magondu pled guilty to rape of a mentally
disabled person, involuntary deviate sexual intercourse with a mentally
disabled person, involuntary deviate sexual intercourse with a person less
than 16 years of age, sexual assault, indecent assault of a mentally disabled
____________________________________________
1
Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988) and
Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc).
J-S47021-17
person, indecent assault of a person less than 16 years of age, corruption of
minors, and unlawful contact with a minor (sexual offense).2 On April 8,
2009, the trial court sentenced Magondu to 10 to 20 years’ incarceration for
the rape conviction and a consecutive 2½ to 5 years’ incarceration for the
corruption of minors conviction. The trial court imposed no further penalty
for the remaining convictions. On April 17, 2009, Magondu filed a post-
sentence motion to reconsider sentence, which the trial court denied.
Magondu did not file a direct appeal.
On February 27, 2015, Magondu filed a pro se PCRA petition. On May
14, 2015, the PCRA court appointed counsel. On May 27, 2015, the
Commonwealth filed a petition to dismiss Magondu’s PCRA petition without a
hearing. On July 20, 2015, PCRA counsel filed a motion for a hearing, which
the PCRA court granted. On July 13, 2016, the PCRA court held a hearing on
the petition, during which Magondu clarified his claims on the record, but did
not present evidence.
On September 27, 2016, the PCRA court issued a notice of intent to
dismiss the petition pursuant to Pennsylvania Rule of Criminal Procedure
907. On January 27, 2017, the PCRA court dismissed Magondu’s petition.
On February 21, 2017, Magondu timely filed a notice of appeal. On March
____________________________________________
2
18 Pa.C.S. §§ 3121(a)(5), 3213(a)(5), 3123(a)(7), 3124.1,
3126(a)(6), 3126(a)(8), 6301(a)(1)(ii), and 6318(a)(1), respectively.
-2-
J-S47021-17
20, 2017, PCRA counsel filed a statement of intent to file a Turner/Finley
letter under Pennsylvania Rule of Appellate Procedure 1925(c)(4).
Before we may address the merits of Magondu’s appeal, we must
determine whether his PCRA counsel has satisfied the requirements for
withdrawal under Turner/Finley. Counsel must
file a “no-merit” letter detailing the nature and extent of
his review and list each issue the petitioner wishes to have
examined, explaining why those issues are meritless.
Commonwealth v. Rykard, 55 A.3d 1177, 1184 (Pa.Super. 2012).
Counsel also must serve copies of the petition to withdraw and no-merit
letter on the petitioner and advise the petitioner that he or she has the right
to proceed pro se or with privately retained counsel. Commonwealth v.
Widgins, 29 A.3d 816, 818 (Pa.Super. 2011).
In her no-merit letter, PCRA counsel states that she reviewed the
record, identifies the issues that Magondu wishes to raise, and explains why
the issues are meritless. PCRA counsel also mailed a copy of the petition
and no-merit letter to Magondu and informed him that, if he sought to
continue the appeal, Magondu could retain private counsel or proceed
without counsel. We conclude that PCRA counsel has complied with the
dictates of Turner/Finley.
The Turner/Finley letter lists three issues, which are the same issues
raised in Magondu’s pro se PCRA petition:
(1) The lower court erred when it imposed
consecutive instead of concurrent sentences for
the charges of rape of a person with mental
-3-
J-S47021-17
disability and corruption of minors in violation of
legal precedent and the Double Jeopardy clause.
(2) The court imposed an illegal mandatory sentence
in violation of the [Sixth] Amendment and
pursuant to the United States Court’s decision in
Alleyne v. United States, 133 S.Ct. 2151, 2160
(2013), as applied in Commonwealth v. Wolfe,
106 A.3d 800 (Pa.Super. 2014).
(3) Plea counsel was ineffective for failing to
challenge the illegal sentence imposed by the
lower court.
Turner/Finley Ltr. at 3-4. In her Turner/Finley letter, counsel concludes
that Magondu’s issues are meritless because his petition was not timely filed
and the PCRA court was without jurisdiction to consider it. We agree.
“Our standard of review from the grant or denial of post-conviction
relief is limited to examining whether the PCRA court’s determination is
supported by the evidence of record and whether it is free of legal error.”
Commonwealth v. Ousley, 21 A.3d 1238, 1242 (Pa.Super. 2011).
It is well settled that “the timeliness of a PCRA petition is a
jurisdictional requisite.” Commonwealth v. Brown, 111 A.3d 171, 175
(Pa.Super.), app. denied, 125 A.3d 1197 (Pa. 2015). A PCRA petition “shall
be filed within one year of the date the judgment becomes final.” 42 Pa.C.S.
§ 9545(b)(1). A judgment is 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
[] review.” 42 Pa.C.S. § 9545(b)(3).
-4-
J-S47021-17
Magondu’s judgment of sentence became final on May 8, 2009, when
his time to seek review in this Court expired.3 He had one year from that
date, or until May 10, 2010,4 to file a timely PCRA petition. Therefore, his
current petition, filed on February 27, 2015, is facially untimely.
Courts may consider a PCRA petition filed more than one year after a
judgment of sentence became final only if the petitioner alleges and proves
one of the following three statutory exceptions:
(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); see Brown, 111 A.3d at 175-76. In
addition, when invoking an exception to the PCRA time bar, the petition
____________________________________________
3
Magondu had 30 days from his judgment of sentence to file a notice
of appeal with this Court. See Pa.R.A.P. 903(a).
4
May 8, 2010 was a Saturday. Therefore, Magondu had until the next
business day, Monday, May 10, 2010, to file a timely petition. See 1 Pa.C.S.
§ 1908.
-5-
J-S47021-17
must “be filed within 60 days of the date the claim could have been
presented.” 42 Pa.C.S. § 9545(b)(2).
In his petition, Magondu asserted that he established a time-bar
exception5 because the trial court imposed an illegal mandatory minimum
sentence under section 9718 of the Sentencing Code6 and he filed his PCRA
petition within 60 days of this Court’s decision in Commonwealth v. Wolfe,
106 A.3d 800 (Pa.Super. 2014), aff’d, 140 A.3d 651 (Pa. 2016), where we
held that section 9718 violated the Sixth Amendment to the United States
Constitution under Alleyne v. United States, 133 S.Ct. 2151 (2013). We
disagree.
Our Supreme Court has held that Alleyne does not apply retroactively
to cases pending on collateral review. See Commonwealth v.
____________________________________________
5
In his petition, Magondu also asserted that he met a time-bar
exception because “he had no [legal] help and was unfamiliar with the law or
his rights.” PCRA Pet., 2/27/15, at 8. Magondu asserts that he did not
know about the issues of his case until November 2014, when he began
frequenting the prison law library, and acted with due diligence from that
point on when he determined that Alleyne may be applicable to his
mandatory minimum sentence. Id. at 8-9.
To the extent that Magondu argues that his petition meets the “new
facts” exception, his argument is meritless. It is well settled that
“subsequent decisional law does not amount to a new ‘fact’ under section
9545(b)(1)(ii) of the PCRA.” Commonwealth v. Watts, 23 A.3d 980, 987
(Pa. 2011).
6
Section 9718 of the Sentencing Code provided mandatory minimum
sentences for persons who were convicted of sexual or violent crimes against
children. This mandatory minimum sentencing provision is now
unconstitutional. See Commonwealth v. Wolfe, 140 A.3d 651 (Pa. 2016).
-6-
J-S47021-17
Washington, 142 A.3d 810, 820 (Pa. 2016). Further, while our Supreme
Court upheld this Court’s decision in Wolfe, the Supreme Court has not
determined that Wolfe announced a new rule of criminal law that applies
retroactively on collateral review. Thus, Magondu cannot use Alleyne-based
grounds to bring his claim within the third time-bar exception.
Because Magondu’s petition is untimely and does not meet any of the
time-bar exceptions, we conclude that the trial court did not abuse its
discretion in dismissing Magondu’s petition.7 Further, we grant counsel’s
motion to withdraw.
Order affirmed. Motion to withdraw granted.
____________________________________________
7
On March 29, 2017, Magondu filed a motion for remand with this
Court, requesting leave to file a new Rule 1925(b) statement nunc pro tunc
or the appointment of new PCRA counsel. Magondu asserted that his PCRA
counsel was ineffective for filing a Rule 1925(c)(4) statement of intent to file
a Turner/Finley letter and petition to withdraw. On April 24, 2017, we
denied this motion without prejudice to Magondu’s right to reapply for the
requested relief if counsel filed a Turner/Finley letter and petition to
withdraw. After counsel filed these documents, on June 15, 2017, Magondu
reapplied for relief, asserting the same ineffectiveness claim from his March
29, 2017 motion. Because “claims of PCRA counsel ineffectiveness cannot
be raised for the first time after a notice of appeal has been taken from the
underlying PCRA matter,” Commonwealth v. Ford, 44 A.3d 1190, 1201
(Pa.Super. 2012), we deny Magondu’s June 15, 2017 motion.
-7-
J-S47021-17
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/19/2017
-8-