J-S62030-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT 

OF

PENNSYLVANIA

Appellee

v.

HERBERT J. WILLIAMS

Appellant No. 380 MDA 2017

Appeal from the PCRA Order January 31, 2017

In the Court of Common Pleas of Luzerne County

Criminal Division at No(s): CP-40-CR-0004045-2013

BEFORE: STABILE, J., MOULTON, J., and STRASSBURGER, J.*

MEMORANDUM BY MOULTON, J.: FILED DECEMBER 15, 2017

Herbert J. Williams appeals from the January 31, 2017 order of the 

Luzerne County Court of Common Pleas dismissing his first petition filed under 

the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-46. On appeal, 

counsel has filed a Turner/Finley 1 brief and a petition to withdraw as counsel. 

We affirm and grant counsel’s petition to withdraw.

____________________________________________

* Retired Senior Judge assigned to the Superior Court.

1 On appeal, counsel filed a brief pursuant to Anders v. California, 386 

U.S. 738 (1967), and a petition to withdraw as counsel. While counsel should 

have filed a no-merit letter pursuant to Commonwealth v. Turner, 544 A.2d 

927 (Pa. 1988), and Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 

1988) (en banc), “an Anders brief provides greater protection to a 

defendant[. Therefore,] 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). We will refer to the brief as a Turner/Finley brief.
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On June 16, 2014, Williams pled guilty to possession with intent to 

deliver, 35 P.S. § 780-113(a)(30). On August 8, 2014, the trial court 

sentenced Williams to 5 to 10 years’ incarceration. Williams did not appeal 

from his judgment of sentence. On July 19, 2016, Williams filed, pro se, his 

first PCRA petition. Following appointment of counsel, on January 31, 2017, 

the PCRA court held a hearing on Williams’ petition. That same day, the PCRA 

court dismissed Williams’ petition. Williams filed a timely notice of appeal.

Before we may address the merits of Williams’ 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 has the right to proceed pro se or 

with privately retained counsel. See Commonwealth v. Widgins, 29 A.3d 

816, 818 (Pa.Super. 2011).

In his petition to withdraw, PCRA counsel states that upon review of the 

record, he “concludes that this appeal is wholly frivolous and that no 

meritorious issues exist.” Pet. to Withdraw, 7/24/17, ¶ 3. PCRA counsel also 

mailed a copy of the petition and brief to Williams and informed him that, if 

he wished to continue the appeal, Williams could retain private counsel or 

proceed pro se. See Ltr. to Williams, 7/24/17. Further, counsel’s 
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Turner/Finley brief filed with this Court explained why the issue raised in the 

PCRA petition lacked merit. Williams has not filed a pro se response to PCRA 

counsel’s petition to withdraw. We conclude that PCRA counsel has complied 

with the dictates of Turner/Finley. Therefore, we will address the issue

raised in the Turner/Finley brief.

PCRA counsel raises the following issue in his Turner/Finley brief: 

“Whether [Williams’] PCRA [petition] was filed [o]n a timely basis and whether 

the decision issued in Alleyne v. United States[, 570 U.S. 99 (2013)] 

renders [Williams’] sentence unconstitutional.” Turner/Finley Br. at 1.

Our review of an order denying PCRA relief is limited to determining 

“whether the decision of the PCRA court is supported by the evidence of record 

and is free of legal error.” Commonwealth v. Melendez–Negron, 123 A.3d 

1087, 1090 (Pa.Super. 2015). We will not disturb the PCRA court’s factual 

findings “unless there is no support for [those] findings in the certified 

record.” Id.

We must first determine whether Williams’ PCRA petition is timely. 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 the review.” 42 Pa.C.S. § 9545(b)(3).
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The trial court sentenced Williams on August 8, 2014. Williams did not 

file a direct appeal. Therefore, his judgment of sentence became final 30 days 

later, on September 8, 2014. See Pa.R.A.P. 903 (providing that notice of 

appeal “shall be filed within 30 days after the entry of the order from which 

the appeal is taken”). Williams had one year from that date, or until 

September 8, 2015, to file a timely PCRA petition. His current petition, filed 

on July 19, 2016, is therefore facially untimely.

To overcome the time bar, Williams was required to plead and prove 

one of the following exceptions: (i) unconstitutional interference by 

government officials; (ii) newly discovered facts that could not have been 

previously ascertained with due diligence; or (iii) a newly recognized 

constitutional right that has been held to apply retroactively. See 42 Pa.C.S. 

§ 9545(b)(1)(i)-(iii). To invoke one of these exceptions, Williams must have 

filed his petition within 60 days of the date the claim could have been 

presented. See 42 Pa.C.S. § 9545(b)(2).

Williams attempts to invoke the new constitutional right exception based 

on Alleyne. The United States Supreme Court decided Alleyne on June 17, 

2013. The trial court sentenced Williams on August 8, 2014. Thus, the 

constitutional right announced by the Alleyne Court was recognized prior to 

his sentencing. Accordingly, Williams may not invoke the new constitutional 

right exception as an exception to the PCRA time bar.
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Accordingly, we conclude that Williams has failed to prove an exception 

to the PCRA time bar. Therefore, the PCRA court did not err in dismissing 

Williams’ PCRA petition as untimely.

Order affirmed. Petition to withdraw granted.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 12/15/2017