J-S15005-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

GEORGE F. SIMS, JR.

Appellant No. 1366 MDA 2014

Appeal from the PCRA Order June 24, 2014

In the Court of Common Pleas of Luzerne County

Criminal Division at No(s): CP-40-CR-0001235-2008

BEFORE: LAZARUS, J., WECHT, J., and JENKINS, J.

MEMORANDUM BY LAZARUS, J.: FILED MARCH 13, 2015

George F. Sims, Jr., appeals from the order entered in the Court of 

Common Pleas of Luzerne County dismissing his petition filed under the Post 

Conviction Relief Act (PCRA).1 Counsel for Sims has filed with this Court a 

Turner/Finley brief and a petition to withdraw as counsel.2 After our 

review we affirm the PCRA court’s order and grant counsel’s petition to 

withdraw.

____________________________________________

1 42 Pa.C.S. §§ 9541-9546.

2 The proper mechanism for withdrawal on appeal from the denial of a PCRA 

petition is to file a no-merit letter. See Commonwealth v. Turner, 544 

A.2d 917 (Pa. 1988); Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 

1988). Nevertheless, we will accept the brief in lieu of a letter. See 

Commonwealth v. Widgens, 29 A.3d 816, 817 n.2 (Pa. Super. 2011). 
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On January 12, 2009, Sims pled guilty to two counts of arson. On 

March 16, 2009, the court sentenced him to 72-240 months’ imprisonment 

on count 1, and to a consecutive sentence of 21-42 month’s imprisonment 

on count 2, followed by 60 months’ probation. The sentence fell within the 

standard range of the sentencing guidelines.

Following reinstatement of his appellate rights, Sims filed a timely 

notice of appeal on June 24, 2010. This Court affirmed Sims’ judgment of 

sentence on March 11, 2011. Commonwealth v. Sims, 26 A.3d 1189 (Pa. 

Super. 2011 (unpublished memorandum). On March 31, 2011, Sims 

transmitted to the trial court a pro se motion for reconsideration of sentence 

nunc pro tunc, which on April 18, 2011, the court directed be treated as a 

PCRA petition.

On August 5, 2011, the court appointed counsel, who filed a 

supplemental PCRA petition. At a hearing on March 29, 2012, the 

Commonwealth and Sims agreed that Sims had requested his counsel file a 

timely motion for reconsideration of sentence, which counsel failed to do. 

The trial court determined that Sims was not prejudiced by counsel’s failure 

to file the motion, and on April 24, 2012, it denied his request for PCRA 

relief. Sims filed an appeal, and our Court affirmed the trial court on April 5, 

2013. Commonwealth v. Sims, 75 A.3d 546 (Pa. Super. 2013) 

(unpublished memorandum). Our Supreme Court denied allowance of 

appeal on November 13, 2013. Commonwealth v. Sims, 80 A.3d 777 (Pa. 

2013).
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On February 24, 2014, Sims transmitted to the court a pro se “motion 

to consolidate sentencing cases under Rule 701 Pa.R.Crim.P.”3 In the 

motion, he seeks the court’s “mercy to run his sentences concurrent [sic], 

modify, and/or to reduce the sentences imposed.” Motion to Consolidate, 

2/24/14, at 1. By order filed March 18, 2014, the court noted that Rule 701 

did not apply to this matter, and directed that the motion be filed as a PCRA 

petition. In the same order, the court notified Sims of its intent to dismiss 

the petition without a hearing within 20 days pursuant to Pa.R.Crim.P. 907. 

On March 24, 2014, Sims filed a motion for a new trial, which by order dated 

April 1, 2014, the court directed to be filed as a supplement to his PCRA 

petition.

On June 13, 2013, court-appointed counsel filed a “Supplement to 

PCRA Petition” asserting ineffective assistance of trial counsel and asking the 

court to permit Sims to withdraw his guilty plea.

____________________________________________

3 Rule 701, which governs pleas of guilty to multiple offenses, provides:

(A) Before the imposition of sentence, the defendant may 

plead guilty to other offenses that the defendant 

committed within the jurisdiction of the sentencing court.

(B) When such pleas are accepted, the court shall sentence 

the defendant for all the offenses.

Pa.R.Crim.P. 701. 
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The court dismissed the PCRA petition as untimely on June 24, 2014, 

and on July 21, 2014, Sims’ counsel filed a notice of appeal. The trial court 

filed its Pa.R.A.P. 1925(a) opinion on September 18, 2014.

The sole issue raised on appeal is whether the trial court erred by 

dismissing Sims’ PCRA petition.

Our standard of review regarding a PCRA court’s order is whether the 

determination of the PCRA court is supported by the evidence of record and 

is free of legal error. The PCRA court’s findings will not be disturbed unless 

there is no support for those findings in the certified record. 

Commonwealth v. Garcia, 23 A.3d 1059, 1061 (Pa. Super. 2011) (citing 

Commonwealth v. Smith, 995 A.2d 1143, 1149 (Pa. 2010)). 

First, we determine whether PCRA counsel has complied with the 

technical requirements of 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 “nomerit” 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. 

Where 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.
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Commonwealth v. Doty, 48 A.3d 451, 454 (Pa. Super. 2012) (citations 

omitted). If counsel’s petition and no-merit letter satisfy Turner/Finley, 

we then conduct an independent review of the merits of the case. If this 

Court agrees with counsel that the claims are meritless, we will permit 

counsel to withdraw and deny relief. Commonwealth v. Wrecks, 931 A.2d 

717, 721 (Pa. Super. 2007) (citing Commonwealth v. Mosteller, 633 A.2d 

615, 617 (Pa. Super. 1993)). 

Here, Sims’ counsel has complied with the technical requirements of 

Turner/Finley. He forwarded to Sims a copy of the brief and the petition to 

withdraw along with a letter informing him of his right to hire private counsel 

or proceed pro se. In his brief, counsel sets forth the claims that Sims 

sought to raise before this Court. Counsel also sets forth the background of 

the case, and an explanation as to why the record does not support the 

claims raised by Sims in his PCRA petition. Specifically, counsel concludes 

Sims’ petition is untimely on its face.

A PCRA petition, including a second or subsequent petition, must be 

filed within one year of the date the underlying judgment becomes final. 42 

Pa.C.S. § 9545(b)(1); Commonwealth v. Bretz, 830 A.2d 1273 (Pa. 

Super. 2003); Commonwealth v. Vega, 754 A.2d 714 (Pa. Super. 2000). 

A judgment is deemed 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). Here, Sims did not file a petition for 
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allowance of appeal from this Court’s order affirming his judgment of 

sentence. Therefore, his judgment became final 30 days after March 11, 

2011, on April 10, 2011. Sims had one year from that date to file his 

petition. Since the instant petition was filed on February 24, 2014, it is 

untimely on its face.

Section 9545(b)(1) of the PCRA provides limited exceptions to the 

timeliness requirements where 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).

Because Sims did not allege any of these exceptions, counsel 

concluded that Sims was not eligible for PCRA relief.

We agree with counsel’s assessment that Sims’ claims are meritless. 

Furthermore, our independent review of the certified record has uncovered 

no additional meritorious issues. Thus, we affirm the PCRA court’s order and

we grant counsel’s petition to withdraw. 
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Order affirmed. Petition to withdraw granted. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 3/13/2015