J-S25020-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF 

PENNSYLVANIA 

 Appellee 

v.

CHALLAN GALLEHER 

 Appellant No. 365 MDA 2013 

Appeal from the Order Entered May 10, 2013

In the Court of Common Pleas of Bradford County 

Criminal Division at No: CP-08-CR-0000295-2006 

BEFORE: OTT, STABILE, and MUSMANNO, JJ. 

MEMORANDUM BY STABILE, J.: FILED AUGUST 28, 2014 

Appellant, Challan Galleher, appeals from the May 10, 2013 order 

dismissing his petition pursuant to the Post Conviction Relief Act (“PCRA”), 

42 Pa.C.S.A. § 9541-9546. Counsel has filed a no merit letter and 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). 

We affirm the PCRA court’s order and grant counsel’s petition to withdraw. 

The record reveals that Appellant appeared at an October 16, 2006 

hearing and pled guilty to involuntary deviate sexual intercourse with a child 

and involuntary deviate sexual intercourse with a person less than 16 years 
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of age.1 Pursuant to the parties’ plea agreement, the trial court imposed a 

sentence of 13 to 45 years of incarceration at a January 15, 2007 sentencing 

hearing. Also pursuant to the parties’ plea agreement, the Commonwealth 

dismissed numerous other charges and did not seek to have Appellant 

declared a sexually violent predator. This Court affirmed the judgment of 

sentence on November 2, 2007. Appellant did not seek allowance of appeal 

in the Pennsylvania Supreme Court. 

On May 15, 2009, Appellant filed a pro se petition for a writ of habeas 

corpus. The PCRA court treated that filing as a first PCRA petition, and on 

August 31, 2010 the court filed its notice of intent to dismiss the petition 

without a hearing pursuant to Pa.R.Crim.P. 907. The PCRA court dismissed 

the petition on September 8, 2010 without ever having appointed counsel, 

and Appellant filed a timely pro se appeal. In an unpublished memorandum 

filed August 11, 2011, this court vacated and remanded for appointment of 

counsel. The PCRA court appointed counsel on March 19, 2012. On January 

29, 2013, the trial court once again entered notice of its intent to dismiss 

Appellant’s petition without a hearing. The PCRA court dismissed Appellant’s 

petition on May 10, 2013. This timely appeal followed.2

 

____________________________________________ 

1

 18 Pa.C.S.A. § 3123(a)(7) and (b). 

2

 Counsel and Appellant filed separate notices of appeal from the PCRA 

court’s January 29, 2013 order, docketed at 365 and 366 MDA 2013. By per 

curiam order of August 14, 2013, we dismissed the appeal at 366 MDA 2013 

(Footnote Continued Next Page) 
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Procedure under Turner/Finley entails the following: 

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 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 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. 

[W]here counsel submits a petition and no-merit letter that 

... satisfy the technical demands of Turner/Finley, the court —

trial 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). Instantly, 

counsel’s no merit letter and petition to withdraw meet the foregoing 

requirements. 

We begin our own review with an analysis of the timeliness of 

Appellant’s petition. The PCRA’s jurisdictional timeliness provision requires a 

petitioner to file a PCRA petition within one year of the date on which the 

judgment of sentence becomes final. 42 Pa.C.S.A. § 9545(b)(1). This Court 

(Footnote Continued) _______________________ 

as duplicative. We further noted that the trial court’s May 10, 2013 order 

dismissing Appellant’s petition perfected this appeal. In this memorandum, 

we treat counsel’s premature notice of appeal as an appeal from the May 10, 

2013 order. 
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affirmed Appellant’s judgment of sentence on November 2, 2007. Because 

Appellant did not seek allowance of appeal to our Supreme Court, his 

judgment of sentence became final thirty days later, on December 3, 2007. 

See Pa.R.A.P. 1113(a) (requiring an appellant to seek allowance of appeal to 

the Supreme Court within 30 days of this Court’s order). Accordingly, 

Appellant had until December 3, 2008 to file a timely PCRA petition. 

Appellant’s May 15, 2009 filing is therefore facially untimely. A 

petitioner can avoid the time bar if he or she pleads and proves the 

applicability of one of three timeliness exceptions set forth in § 9545(b)(1)(iiii). Since Appellant has not attempted to plead or prove the applicability of 

any of the three timeliness exceptions,3

 the PCRA court was without 

____________________________________________ 

3

 Appellant asserts in his pro se brief that he filed a PCRA petition on 

December 21, 2007, but he concedes that document does not appear in the 

certified record. Appellant’s pro se Brief at 21-22. Appellant also asserts 

that a time-stamped copy of his December 21, 2007 PCRA petition is 

attached to a copy of his “pending motion to supplement the record.” Id. at 

22. That pending motion also does not appear anywhere in the certified 

record. The only mention of it is in this Court’s February 28, 2014 per 

curiam order denying Appellant’s motion to compel this Court to docket his 

motion to supplement the record. Since the certified record contains no 

evidence that Appellant filed, or attempted to file, a timely PCRA petition, 

Appellant cannot avoid the jurisdictional time bar. 

Appellant requested permission to proceed pro se in an application for relief 

filed November 26, 2013. In an order filed December 4, 2013, this Court 

deferred decision on that application to this memorandum, advising 

Appellant that when counsel proceeds under Turner/Finley, this Court will 

decide whether to accept counsel’s petition and permit the petitioner to 

proceed pro se. By this memorandum, we are granting counsel’s petition to 

(Footnote Continued Next Page) 
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jurisdiction to entertain his petition.4 We therefore affirm the PCRA court’s 

order and grant counsel’s petition to withdraw. 

Order affirmed. Application for Relief Granted. Petition to withdraw 

granted. 

Judgment Entered. 

Joseph D. Seletyn, Esq. 

Prothonotary 

Date: 8/28/2014 

(Footnote Continued) _______________________ 

withdraw and granting Appellant’s application for relief. We have accepted 

and reviewed his pro se brief. 

4

 Our prior memorandum vacating the PCRA court’s order and remanding 

for appointment of counsel has no bearing on the jurisdictional issue. See 

Commonwealth v. Smith, 818 A.2d 494, 500-01 (Pa. 2003) (holding that 

the PCRA court must appoint counsel to represent a first time petitioner, 

even where the petition appears untimely).