J-S89036-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

v.

JHILEEL BURTON

 Appellant No. 1055 EDA 2016

Appeal from the PCRA Order March 11, 2016

in the Court of Common Pleas of Montgomery County 

Criminal Division at No(s): CP-46-CR-0000116-2013

BEFORE: SHOGAN, MOULTON, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.: FILED AUGUST 21, 2017

Appellant, Jhileel Burton, appeals from the order entered in the 

Montgomery County Court of Common Pleas denying his Post Conviction 

Relief Act1(“PCRA”) petition. This case returns to us after we remanded to 

have counsel comply with all of the requirements of Turner/Finley,

2

including filing a petition to withdraw with this Court.3 Appellant’s counsel 

 

* Former Justice specially assigned to the Superior Court.

1 42 Pa.C.S. §§ 9541-9546.

2 Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth 

v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).

 

3 Appellant’s counsel, John W. Aitchison, Esq., had filed an Anders brief, 

which we regarded as a Turner/Finley brief. See Anders v. California, 

386 U.S. 738 (1967). We note that in Commonwealth v. Wrecks, 931 

A.2d 717 (Pa. Super. 2007), this Court explained the standard for 

withdrawal of counsel on collateral review.
J-S89036-16

- 2 -

has substantially complied. We grant counsel’s petition to withdraw and 

affirm the order below.

 

Counsel petitioning to withdraw from PCRA representation 

must proceed not under Anders but under 

[Turner/Finley]. Similar to the Anders situation, 

Turner/Finley counsel 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 the 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.

* * *

It is thus apparent that Anders and Turner/Finley are 

close cousins, bearing similarities in that counsel is 

required to examine the record, present issues, and 

request permission to withdraw. However, there are also 

significant differences. Anders applies to direct appeals; 

Turner/Finley applies to PCRA cases. Anders counsel is 

not permitted to withdraw unless the appeal is wholly 

frivolous, but Turner/Finley counsel is permitted to do so 

if the case lacks merit, even if it is not so anemic as to be 

deemed wholly frivolous. Also, Anders counsel must not 

argue against the client’s interests while Turner/Finley

counsel must do so, articulating why the client’s claims 

have no merit.

Id. at 721-22 (citations omitted). “Because an Anders brief provides 

greater protection to a defendant, this Court may accept an Anders brief in 

lieu of a Turner/Finley letter.” Commonwealth v. Widgins, 29 A.3d 816, 

817 n.2 (Pa. Super. 2011) (citation omitted).
J-S89036-16

- 3 -

The facts are unnecessary for our disposition. The relevant procedural 

history of this case as stated by the PCRA court is as follows:

On September 6, 2013, [Appellant] entered a plea of 

guilty to one count of conspiracy to commit robbery and 

nineteen counts of robbery. The terms of the plea 

agreement included one limitation on the sentence to be 

imposed: rather than pursue a mandatory minimum 

sentence for each of the nineteen crimes of violence with a 

visibly possessed firearm, pursuant to 42 Pa.C.S. § 9712, 

the Commonwealth would seek only one. [On December 

9, 2013, t]he undersigned judge ordered [Appellant] to 

serve an aggregate term of eight to sixteen years’ 

imprisonment, which included a single mandatory term of 

five years, and a consecutive term of four years’ probation.

[Appellant] did not appeal from his judgment of 

sentence.

 * * *

[O]n May 21, 2015, [A]ppellant, acting pro se, mailed a 

petition for post-conviction collateral relief to the Clerk of 

Courts, who filed the petition on the docket on May 28, 

2015.

By order dated June 24, 2015, filed June 25, 2015, the 

undersigned judge appointed Brendan M. Campbell, 

Esquire, to represent [Appellant], to determine whether 

[Appellant] may be entitled to relief under the [PCRA] and 

to amend the pro se petition as necessary to obtain any 

relief to which [Appellant] may have been entitled under 

the Act. The order appointing counsel expressly directed 

[Appellant] to refrain from filing any documents on the 

record, with the exception of an application for a change of 

counsel, or to proceed without counsel. The undersigned 

judge served [Appellant] with a copy of that order. Before 

Mr. Campbell took any action of record, [Appellant] acting 

pro se, filed an amended PCRA petition on September 8, 

2015. He did so without seeking or obtaining leave of 

court to act on his own behalf while simultaneously 

represented by counsel, and without seeking or obtaining 

leave of court to file an amended PCRA petition. The 
J-S89036-16

- 4 -

undersigned judge disregarded the September 8th 

petition.[4]

On September 23, 2015[,] Mr. Campbell filed an 

application to withdraw from representing [Appellant] and 

submitted a “no merit letter” dated August 21, 2015, in 

accordance with [Turner, 544 A.2d at 927]. Mr. Campbell 

determined [Appellant] was not eligible for relief under the 

Act because his pro se petition was untimely. In response 

to Mr. Campbell’s application and no merit letter, the 

 

4 We note that:

[p]ursuant to our Rules of Appellate procedure and 

decisional law, this Court will not review the pro se filings 

of a counseled appellant. Commonwealth v. Nischan, 

928 A.2d 349, 355 (Pa. Super. 2007) (noting that an 

appellant’s pro se filings while represented by counsel are 

legal nullities) [ ]; Commonwealth v. Ellis, [ ] 626 A.2d 

1137, 1140–41 ([Pa.] 1993) (same). Rule 3304 of the 

Pennsylvania Rules of Appellate procedure provides as 

follows:

Rule 3304. Hybrid Representation

Where a litigant is represented by an attorney before 

the Court and the litigant submits for filing a petition, 

motion, brief or any other type of pleading in the 

matter, it shall not be docketed but forwarded to 

counsel of record.

Pa.R.A.P. 3304.

In Ellis, our Supreme Court wrote that “[a] represented 

appellant may petition to terminate his representation; he 

may, acting pursuant to the rules of criminal procedure, 

proceed on his own behalf. Conversely, he may elect to 

allow counsel to take his appeal[.]” Ellis, [ ] 626 A.2d at 

1141 [ ]. An appellant may not, however, offer pro se

filings while he continues to be represented by counsel. 

Id.

Commonwealth v. Glacken, 32 A.3d 750, 752-53 (Pa. Super. 2011).
J-S89036-16

- 5 -

undersigned judge granted him leave to withdraw as courtappointed counsel for [Appellant] by order dated 

September 29, 2015, filed September 30, 2015.

 * * *

In an abundance of caution, the undersigned judge 

appointed John W. Aitchison, Esquire to review the record

and to determine whether the decision in 

[Commonwealth v. Melendez-Negron, 123 A.3d 1087 

(Pa. Super. 2015)] might apply by analogy to [Appellant’s] 

pro se PCRA petition, and whether court-appointed counsel 

could amend the petition to plead a claim of arguable 

merit.

 * * *

On December 28, 2015, Mr. Aitchison filed an amended 

PCRA petition on behalf of [Appellant]. The amended 

petition pled that [Appellant] was entitled to relief under 

the PCRA on two grounds: a violation of the Constitution 

of the United States and the ineffective assistance of 

counsel.

 * * *

The undersigned judge . . . filed a notice of intention to 

dismiss the amended PCRA petition without a hearing, 

pursuant to Pa.R.Crim.P. 907(1). The notice expressly 

informed [Appellant] that the reason for the dismissal was 

the failure of the PCRA petition to plead an exception to 

the timeliness requirement of 42 Pa.C.S. § 9545(b). . . . 

The notice gave [Appellant] twenty days to file a response. 

[Appellant] did not respond to the notice. On March 11, 

2016[,] the undersigned judged filed an order denying the 

amended PCRA petition without a hearing. The instant 

appeal followed.

PCRA Ct. Op., 5/27/16, at 2-3, 6-8, 10. Appellant filed a court-ordered 

Pa.R.A.P. 1925(b) statement of errors complained of on appeal. The PCRA 

court filed a responsive opinion.
J-S89036-16

- 6 -

Appellant’s counsel filed a petition to withdraw representation pursuant 

to Anders. However, counsel did not file a separate petition to withdraw as 

counsel in this Court. Accordingly, in an abundance of caution to ensure 

proper notice to Appellant, we directed counsel to file a separate petition to 

withdraw from representation. Commonwealth v. Burton, 1055 EDA 2016 

(unpublished judgment order at 2-3) (Pa. Super. Apr. 7, 2017). Counsel 

filed a petition to withdraw. Appellant did not file a pro se response.

Prior to addressing the issues raised in the Anders brief, we first 

examine counsel’s petition to withdraw. See Commonwealth v. Daniels, 

947 A.2d 795, 797 (Pa. Super. 2008).

[I]ndependent review of the record by competent counsel 

is required before withdrawal is permitted. Such 

independent review requires proof of:

1) A “no-merit” letter by PCRA counsel detailing the nature 

and extent of his review;

2) The “no-merit” letter by PCRA counsel listing each issue 

the petitioner wished to have reviewed;

3) The PCRA counsel's “explanation”, in the “no-merit” 

letter, of why the petitioner’s issues were meritless;

4) The PCRA court conducting its own independent review 

of the record; and

5) The PCRA court agreeing with counsel that the petition 

was meritless.

Widgins, 29 A.3d at 817-18 (citations and punctuation omitted). Further, 

the Widgins Court explained:
J-S89036-16

- 7 -

The Supreme Court [in Commonwealth v. Pitts, 981 

A.2d 875 (Pa. 2009),] did not expressly overrule the 

additional requirement imposed by the [Commonwealth 

v. Friend, 896 A.2d 607 (Pa. Super. 2006)] decision, i.e., 

that PCRA counsel seeking to withdraw contemporaneously 

forward to the petitioner a copy of the application to 

withdraw that includes (i) a copy of both the “no-merit” 

letter, and (ii) a statement advising the PCRA petitioner 

that, in the event the trial court grants the application of 

counsel to withdraw, the petitioner has the right to 

proceed pro se, or with the assistance of privately retained 

counsel.

Id. at 818 (some citations omitted).

Instantly, counsel stated that he conducted a conscientious 

examination of the record and reached a determination that the appeal was 

wholly frivolous and that the petition was time barred. See Petition to 

Withdraw as Counsel for Appellant, 5/9/17, at 2. He advised Appellant that 

he had an immediate right to proceed pro se or with private counsel. See 

id. Accordingly, we conclude that counsel’s petition to withdraw 

substantially complies with the requirements set forth by the Widgins

Court. See Widgins, 29 A.3d at 817-18.

Counsel identifies the following issue for our review: “Whether the 

trial court erred by determining that Appellant [ ] cannot plead facts 

establishing jurisdiction over his petition pursuant to the Post Conviction 

Relief Act?” Anders Brief at 4. Appellant claims the court erred by 

imposing an unconstitutional mandatory minimum sentence pursuant to 

Alleyne v. United States, 133 S. Ct. 2151 (2013). Anders Brief at 10.

This Court has stated:
J-S89036-16

- 8 -

In reviewing the propriety of an order denying PCRA 

relief, this Court is limited to examining whether the 

evidence of record supports the determination of the PCRA 

court, and whether the ruling is free of legal error. Great 

deference is given to the findings of the PCRA court, which 

may be disturbed only when they have no support in the 

certified record.

Commonwealth v. Perry, 959 A.2d 932, 934-35 (Pa. Super. 2008) 

(citations omitted).

As a prefatory matter, we determine whether Appellant’s PCRA petition 

is timely. Where a petitioner fails to satisfy the PCRA time requirements, 

this Court has no jurisdiction to entertain the petition. See 

Commonwealth v. Fahy, 737 A.2d 214, 220 (Pa. 1999). In order to 

satisfy the timeliness requirement, a PCRA petition “must normally be filed 

within one year of the date the judgment becomes final unless one of the 

exceptions in § 9545(b)(1)(i)-(iii) applies and the petition is filed within 60 

days of the date the claim could have been presented.” Commonwealth v. 

Copenhefer, 941 A.2d 646, 648 (Pa. 2007) (citations and footnote 

omitted).

The timeliness exceptions to the PCRA requirements are set forth in 42 

Pa.C.S. § 9545, which provides in pertinent part:

(b) Time for filing petition.─

(1) Any petition under this subchapter, including a 

second or subsequent petition, shall be filed within one 

year of the date the judgment becomes final, unless the 

petition alleges and the petitioner proves that:
J-S89036-16

- 9 -

(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).

In Commonwealth v. Marshall, 947 A.2d 714 (Pa. 2008), our 

Supreme Court “emphasize[d] that it is the petitioner who bears the burden 

to allege and prove that one of the timeliness exceptions applies.” Id. at 

719 (citation omitted). “[A]n untimely petition may be received when the 

petition alleges, and the petitioner proves, that any of the three limited 

exceptions to the time for filing the petition, set forth at [42 Pa.C.S. § 9545] 

are met.” Commonwealth v. Lawson, 90 A.3d 1, 5 (Pa. Super. 2014) 

(footnote omitted). Exceptions to the time restrictions of the PCRA must be 

pleaded in the petition and may not be raised for the first time on appeal. 

Commonwealth v. Burton, 936 A.2d 521, 525 (Pa. Super. 2007). Even if 

the legality of the sentence itself is in question, courts lack jurisdiction to 

hear an untimely PCRA. See Fahy, 737 A.2d at 223 (stating that 

“[a]lthough legality of sentence is always subject to review within the PCRA, 
J-S89036-16

- 10 -

claims must still first satisfy the PCRA’s time limits or one of the exceptions 

thereto.”).

This Court has addressed whether Alleyne creates a new 

constitutional right that applies to untimely PCRA petitions. We noted in

Commonwealth v. Ruiz, 131 A.3d 54 (Pa. Super. 2015), that “Alleyne

does not invalidate a mandatory minimum sentence when presented in an 

untimely PCRA petition.” Id. at 58 (citation omitted). Therefore, a claim 

involving Alleyne “may be raised on direct appeal, or in a timely filed

PCRA petition.” Id. at 60 (some emphasis added).

In the case sub judice, Appellant was sentenced on December 9, 2013. 

He did not file a direct appeal. Thus, his judgment of sentence became final 

on January 8, 2014. See 42 Pa.C.S. § 9545(b)(3) (providing “a judgment 

becomes 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 the review”). 

Appellant had until January 8, 2015, to file his PCRA petition. See 42 

Pa.C.S. § 9545(b)(1) (providing PCRA petition must be filed within one year 

of date judgment becomes final). Therefore, because he filed his pro se

PCRA petition on May 21, 2015, it was facially untimely.

Appellant failed to plead any exceptions to the time restrictions of the 

PCRA within his petition or in response to the PCRA court’s Rule 907 notice. 

See Marshall, 947 A.2d at 719. Accordingly, the PCRA court lacked 
J-S89036-16

- 11 -

jurisdiction to decide the merits of Appellant’s untimely petition. See 

Copenhefer, 941 A.2d at 648; Fahy, 737 A.2d at 223. Thus, we agree with 

counsel’s assessment that no relief is due, grant counsel’s petition to 

withdraw, and affirm the PCRA court’s order denying Appellant’s PCRA 

petition.

Order affirmed. Petition to withdraw as counsel granted.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 8/21/2017