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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
STUART W. WEIDOW, III :
:
Appellant : No. 174 MDA 2017
Appeal from the PCRA Order December 21, 2016
In the Court of Common Pleas of Luzerne County Criminal Division at
No(s): CP-40-CR-0003841-2010
BEFORE: LAZARUS, J., DUBOW, J., and STRASSBURGER*, J.
MEMORANDUM BY LAZARUS, J.: FILED NOVEMBER 14, 2017
Stuart W. Weidow, III, appeals from the trial court’s order denying his
petition1 filed pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.
§§ 9541-9546. Counsel has also filed a petition to withdraw, pursuant to
Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and Commonwealth
v. Finley, 550 A.2d 213 (Pa. Super. 1988). After careful review, we affirm
and grant counsel’s petition to withdraw.
____________________________________________
1 Our standard of review is well established. “In reviewing the denial of PCRA
relief, we examine whether the PCRA court's determination ‘is supported by
the record and free of legal error.’” Commonwealth v. Taylor, 67 A.3d
1245, 1248 (Pa. 2013) (quoting Commonwealth v. Rainey, 928 A.2d 215,
223 (Pa. 2007)).
____________________________________
* Retired Senior Judge assigned to the Superior Court.
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On May 26, 2011, Weidow pled guilty to one count of Rape of a Child,
18 Pa.C.S. § 3121(c).2 On August 30, 2011, the trial court sentenced Weidow
to 120-240 months’ imprisonment, which included the application of a
mandatory minimum sentence under 42 Pa.C.S. § 9718.3 No direct appeal
was filed. On November 19, 2015, Weidow filed a pro se PCRA petition;
counsel was appointed and he filed a supplemental petition raising the
constitutionality of Weidow’s mandatory minimum sentence. On August 15,
2016, the court held a hearing, calling to counsels’ attention the recently
decided Supreme Court case, Commonwealth v. Washington, 142 A.3d
810 (Pa. 2016), which held that Alleyne4 does not apply retroactively to cases
pending on collateral review. The trial court denied Weidow’s petition on
December 21, 2016. This timely appeal follows.
We first consider whether counsel has complied with the technical
requirements necessary to withdraw under Turner/Finley.
Counsel petitioning to withdraw from PCRA representation must
proceed [under Turner/Finley and] must review the case
zealously. Turner/Finley counsel must then submit a “no-merit”
letter to the [PCRA] court, or [a] brief on appeal to this Court,
detailing the nature and extent of counsel’s diligent review of the
____________________________________________
2After an assessment by the Sexual Offenders Assessment Board (SOAB),
Weidow was determined not to be a Sexually Violent Predator.
3 Section 9718(a)(3) imposes a 10-year mandatory minimum sentence for
persons convicted under 3121(c) who commit offenses against infant persons.
4In Alleyne v. United States, 133 S. Ct. 2151 (2013), the United States
Supreme Court held that an element of an offense that increases the
mandatory minimum sentence must be found by a jury beyond a reasonable
doubt. Id. at 2155.
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case, listing the issues [that] 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. Doty, 48 A.3d 451, 454 (Pa. Super. 2012) (quoting
Commonwealth v. Wrecks, 2007 PA Super 239, 931 A.2d 717, 721 (Pa.
Super. 2007)).
In his brief, counsel has set forth the issues that Weidow seeks to raise
on appeal. See Turner/Finley Brief, at 1. He has also set forth a detailed
procedural history of the case, cited to applicable statutes and case law and
explained why he believes that Weidow has no meritorious issues to pursue
on appeal. We also note that counsel provided Weidow a copy of his
Turner/Finley brief and a letter advising him of his intent to seek to withdraw
as counsel and apprising him of his right to retain new counsel or proceed pro
se. Thus, counsel has complied with the technical requirements under
Turner/Finley.
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We must now independently review the record, beginning with the
claims that Weidow has raised. Attorney Kelly has identified two issues for
our review:
(1) Whether the holding in Alleyne v. United States, 133 S.
Ct. 2151 (2013)[,] applies retroactively to attacks upon
mandatory minimum sentence[s] advanced on collateral
review.
(2) Whether the mandatory minimums related to crimes of
improper sexual contact with minors are unconstitutional
pursuant to Commonwealth v. Wolfe, 140 A.3d 641 (Pa.
2016).
Instantly, the PCRA court determined that Weidow’s petition was
untimely filed. The PCRA requires that any petition must be filed within one
year of the date the judgment becomes final. 42 Pa.C.S.A. § 9545(b)(1). “A
judgment becomes final at the conclusion of direct review . . . or at the
expiration of time for seeking the review.” 42 Pa.C.S.A. § 9545(b)(3).
Moreover, it is important to note that “although illegal sentencing issues
cannot be waived, they still must be presented in a timely PCRA petition.”
Commonwealth v. Taylor, 65 A.3d 462 (Pa. Super. 2013) (emphasis
added).
Here, Weidow was sentenced on August 30, 2011; he did not file a direct
appeal. Thus, his judgment of sentence became final after the time expired
for him to file a notice of appeal with this Court, or on September 30, 2011.
See Pa.R.A.P. 903(a). Therefore, Weidow had one year from that date, or
until September 30, 2012, to file a timely PCRA petition. See 42 Pa.C.S. §
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9545(b)(1). He did not file the instant petition until November 19, 2015, more
than three years late. Accordingly, the PCRA court had no jurisdiction to
entertain Weidow’s petition unless he established one of the exceptions to the
jurisdictional time bar.
A PCRA court will entertain an otherwise untimely petition if the
petitioner pleads and proves that: (1) the failure to raise a timely claim was
the result of interference by government officials; (2) 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 (3) the right asserted is
a constitutional right that has been recognized by the United States Supreme
Court or the Supreme Court of Pennsylvania after the one-year time period,
and has been held to apply retroactively. 42 Pa.C.S. § 9545(b)(1)(i), (ii), and
(iii). Any petition invoking one of these exceptions must be filed within 60
days of the date the claim could have been presented. 42 Pa.C.S.A. §
9545(b)(2).
Weidow contends that he was sentenced under an unconstitutional
mandatory minimum statute, 42 Pa.C.S. § 9718, and that his sentence should
be vacated as illegal pursuant to Alleyne. See supra n.4. In
Commonwealth v. Wolfe, 140 A.3d 651, 663 (Pa. 2016), our Supreme Court
held section 9718 is “irremediably unconstitutional on its face, non-severable,
and void” under the principles espoused in Alleyne. However, because
Weidow’s judgment of sentence became final before Alleyne was decided, he
is not entitled to relief on his untimely filed PCRA petition. See Washington,
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supra. Moreover, pursuant to Commonwealth v. Riggle, 119 A.3d 1058,
1064 (Pa. Super. 2015), Alleyne does not meet the new constitutional right
exception to the PCRA time bar and, as such, Alleyne will only be applied to
cases pending on direct appeal when Alleyne was issued. Accordingly,
Weidow is not entitled to relief; the trial court lacked jurisdiction to consider
his petition and properly dismissed it as untimely. Taylor, supra.
Order affirmed. Petition to Withdraw granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/14/2017
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