J-S82002-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

SAMUEL ELWOOD DULIO

Appellant No. 743 MDA 2016

Appeal from the PCRA Order May 2, 2016

In the Court of Common Pleas of Lancaster County

Criminal Division at No(s): CP-36-CR-0001122-2012

BEFORE: OTT, J., DUBOW, J., and PLATT, J.*

MEMORANDUM BY OTT, J.: FILED JANUARY 09, 2017

Samuel Elwood Dulio appeals from the order entered May 2, 2016, in 

the Lancaster County Court of Common Pleas, denying his first petition for 

collateral relief filed pursuant to the Post Conviction Relief Act (“PCRA”).1 

Dulio seeks relief from the judgment of sentence of an aggregate five to 10 

years’ imprisonment imposed November 6, 2012, following his negotiated 

guilty plea to charges of possession with intent to deliver cocaine and 

marijuana, and persons not to possess firearms.2 Contemporaneous with 

____________________________________________

* Retired Senior Judge assigned to the Superior Court.

1 42 Pa.C.S. §§ 9541-9546.

2 See 35 P.S. § 780-113(a)(3), and 18 Pa.C.S. § 6105, respectively.
J-S82002-16

- 2 -

this appeal, appointed counsel has filed a Turner/Finley3“no merit” letter 

and a motion seeking leave to withdraw from representation. For the 

reasons set forth below, we affirm the order on appeal, and grant counsel’s 

motion to withdraw.

The relevant facts and procedural history underlying this appeal were 

aptly summarized by the PCRA court as follows:

The Pennsylvania Office of Attorney General charged 

[Dulio] with the offenses of Possession with Intent to Deliver 

Marijuana, Possession with intent to Deliver Cocaine, and 

Persons Not to Possess a Firearm. These offenses allegedly 

occurred on December 1, 2011, when [Dulio] was found to be in 

possession of approximately 89.9 grams of cocaine. Police then 

located approximately three pounds of marijuana and a .40 

caliber Smith & Wesson firearm in the garage of [Dulio’s] 

mother, based on a statement [Dulio] gave to police. Because 

[Dulio] had at least one prior felony drug conviction, he was 

ineligible to possess the firearm.

On November 6, 2012, [Dulio] appeared before the 

Honorable Judge Louis J. Farina and entered into a guilty plea 

pursuant to a negotiated plea agreement with the following 

terms: (Count 1) Possession with Intent to Deliver Marijuana: 5 

to 10 years imprisonment;2(Count 2) Possession with Intent to 

Deliver Cocaine: 5 to 10 years imprisonment;3and (Count 3) 

Persons Not to Possess: 5 to 10 years imprisonment. All 

sentences were made concurrent to one another, so the 

aggregate sentence was imprisonment of not less than 5 years 

nor more than 10 years in the State Correctional Institution 

(“SCI”).

__________

____________________________________________

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

Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
J-S82002-16

- 3 -

2 The Commonwealth filed a Notice of [I]ntent to seek a 

mandatory iminimum of at least five years incarceration 

for the crime of Possession with Intent to Deliver 

Marijuana involving a firearm, pursuant to 42 Pa.C.S.A. § 

9712.1.

3 The Sentencing Guideline Worksheet indicates the 

Commonwealth invoked a five year mandatory minimum 

sentence on the charge of Possession with Intent to Deliver 

Cocaine based on the weight and [Dulio’s] prior felony 

drug conviction, pursuant to 18 Pa.C.S.A. § 7508(a)(3).

__________

On November 13, 2012, [Dulio] filed a counseled Motion to 

Withdraw Guilty Plea & to Appoint New Counsel, claiming 

dissatisfaction with trial counsel and a guilty plea that was not 

knowing or voluntary on his part. On November 26, 2012, Judge 

Farina denied said Motion, noting the grounds asserted 

amounted to claims of ineffective assistance of counsel which 

should be addressed through collateral review. Thereafter, on 

May 20, 2013, [Dulio] filed a pro se Motion for 

Reconsideration/Modification of Sentence – Nunc Pro Tunc.

4

 

[Dulio’s] Motion was denied on May 24, 2013.

__________

4

In his Motion, [Dulio] did not deny involvement in the 

crimes, he did not allege any improprieties with trial 

counsel or the guilty plea proceeding, and he did not claim 

he received an illegal sentence. Rather, [Dulio] asserted 

he was a changed person, and for that reason he was 

asking for a reduced sentence.

__________

On December 21, 2015, [Dulio] filed a pro se PCRA 

petition alleging that trial counsel provided ineffective assistance 

of counsel, the sentence imposed was greater than the lawful 

maximum, a violation of the Pennsylvania and United States 

Constitutions occurred such that no reliable adjudication of guilt 

or innocence could have taken place, and mandatory minimum 

sentences were imposed that have since been declared 

unconstitutional.
J-S82002-16

- 4 -

On December 22, 2015, PCRA counsel was appointed to 

represent [Dulio]. On March 23, 2016, PCRA counsel filed an 

Amended PCRA Motion asserting [Dulio] was subject to 

mandatory minimum sentences that have since been declared 

unconstitutional in the United States Supreme Court case of 

Alleyne v. United States, 133 S.Ct. 2151 (2013), which was 

decided on June 17, 2013. Moreover, it was alleged that trial 

counsel provided ineffective assistance of counsel for failing to 

raise this issue in a post-sentence motion or on appeal. 

According to counsel, “[Dulio] would not have pleaded guilty but 

for the fact that such mandatory minimum sentences were 

applicable at the time of his plea.” On March 24, 2016, the 

Commonwealth filed a Response to the Amended PCRA Motion 

opposing the requested relief and asking for dismissal of the 

action without a hearing.

Pursuant to Pennsylvania Rule of Criminal Procedure 907, 

[the PCRA court] conducted an independent review of the 

record. On April 4, 2015, the Court issued a Rule 907 Notice 

concluding that [Dulio’s] amended PCRA Motion was patently 

frivolous, the allegations were not supported by the record, and 

the Court intended to dismiss the petition without a hearing 

because there were no genuine issues concerning any material 

fact. Thereafter, on May [2], 2016, the Court filed an Order 

dismissing [Dulio’s] amended PCRA motion.

PCRA Court Opinion, 5/24/2016, at 1-4 (record citations and some footnotes 

omitted). This timely appeal followed.4

Prior to addressing the merits of Dulio’s appeal, we must first consider 

whether counsel has fulfilled the procedural requirements for withdrawal as 

outlined in Turner/Finley:

____________________________________________

4 On May 6, 2016, the PCRA court ordered Dulio to file a concise statement 

of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). Dulio 

complied with the court’s directive, and filed a concise statement on May 18, 

2016.
J-S82002-16

- 5 -

Counsel petitioning to withdraw from PCRA representation must 

proceed ... under [Turner, supra and Finley, supra 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) (quotation 

omitted).

Here, counsel has complied with the procedural aspects of 

Turner/Finley by filing a “no merit” letter and motion to withdraw, and 

providing Dulio with a copy of both filings. See Motion to Withdraw as 

Counsel, 8/16/2016; Statement, 8/16/2016. We note, however, that 

counsel incorrectly informed Dulio that Dulio had the right to proceed pro se

or with privately retained counsel “[i]n the event the Court grants the Motion 

to Withdraw.” Statement, 8/16/2016. Therefore, this Court entered an 

order on August 19, 2016, providing Dulio with 30 days to file a response, 

either pro se or via privately retained counsel, to PCRA counsel’s “no merit” 

letter. See Order, 8/19/2016. Dulio has filed no response, and, 
J-S82002-16

- 6 -

accordingly, we proceed to a consideration of whether the court erred in 

dismissing Dulio’s PCRA petition. See Doty, supra.

In his amended petition, Dulio asserted the two mandatory minimum 

sentences5imposed on his convictions of possession with intent to deliver 

controlled substances are illegal under Alleyne, supra, and that he would 

not have pled guilty “but for the fact that such mandatory minimum 

sentences were applicable at the time of his plea.” Amended Motion for 

Post-Conviction Collateral Relief, 3/23/2016, at 4. Further, he claimed plea 

counsel was ineffective for failing to raise this issue in either a post-sentence 

motion or direct appeal. See id. 

Our review of an order denying PCRA relief 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. Mitchell, 141 A.3d 1277, 1283–1284 (Pa. 2016) 

(internal punctuation and citation omitted). Further, a PCRA court may 

dismiss a petition “without an evidentiary hearing if there are no genuine 

issues of material fact and the petitioner is not entitled to relief.” Id.

(citations omitted).

____________________________________________

5 See 18 Pa.C.S. § 7508(a)(3)(ii) (mandatory five-year sentence for 

conviction of possession with intent to deliver at least 10 and less than 100 

grams of cocaine with prior drug trafficking conviction); and 42 Pa.C.S. § 

9712.1(a) (mandatory five-year sentence for conviction of possession with 

intent to deliver controlled substance while in possession of a firearm).
J-S82002-16

- 7 -

Here, the PCRA court determined Dulio’s petition was untimely filed. 

We agree. Pursuant to Section 9545(b)(1), a PCRA petition must be filed 

within one year of the date the judgment of sentence becomes final. See 42 

Pa.C.S. 9545(b)(1). Dulio’s judgment of sentence was final on December 

26, 2012, 30 days after the trial court denied his post-sentence motion, and 

Dulio failed to file a direct appeal. See id. at § 9545(b)(3). Therefore, he 

had until December 26, 2013, to file a timely petition, and the one before 

us, filed nearly two years later, is facially untimely. 

However, the PCRA provides that an otherwise untimely petition is not 

time-barred if a petitioner pleads and proves the applicability of one of three 

time-for-filing exceptions: (1) interference by government officials, (2) 

newly-discovered evidence, or (3) a newly-recognized constitutional right 

which had been applied retroactively. See 42 Pa.C.S. §§ 9545(b)(1)(i)-(iii). 

Any petition invoking one of these exceptions must be filed “within 60 days 

of the date the claim could have been presented.” Id. at § 9545(b)(2).

In the present case, Dulio’s primary claim is a challenge to the legality 

of this sentence based upon Alleyne, supra. In Alleyne, the United States 

Supreme Court held “[a]ny fact that, by law, increases the penalty for a 

crime is an ‘element’ that must be submitted to the jury and found beyond a 

reasonable doubt.” Alleyne, supra, 133 S. Ct. at 2155. In interpreting 

that decision, the courts of this Commonwealth have determined that our 

mandatory minimum sentencing statutes, including Sections 9712.1 and 

7508, are unconstitutional because the language of those statutes “permits 
J-S82002-16

- 8 -

the trial court, as opposed to the jury, to increase the defendant’s minimum 

sentence based upon a preponderance of the evidence” standard. 

Commonwealth v. Newman, 99 A.3d 86, 98 (Pa. Super. 2014) (en banc)

(invalidating 42 Pa.C.S. § 9712.1), appeal denied, 121 A.3d 247 (Pa. 2015); 

Commonwealth v. Mosley, 114 A.3d 1072, 1087-1091 (Pa. Super. 2015) 

(invalidating 18 Pa.C.S. § 7508).

Moreover, the en banc panel in Newman, supra, held that an 

Alleyne challenge “implicates the legality of the sentence, and cannot be 

waived on appeal.” Newman, supra, 99 A.3d at 90.6 Nevertheless, in 

order to obtain collateral relief based upon a legality of sentencing issue, a 

petitioner must “still first satisfy the PCRA’s time limits or one of the 

exceptions thereto.” Commonwealth v. Fahy, 737 A.2d 214, 223 (Pa. 

1999).

However, the Alleyne decision does not satisfy any of the exceptions 

to the time-bar. Indeed, this Court has “expressly rejected the notion that 

judicial decisions can be considered newly-discovered facts which would 

invoke the protections afforded by section 9545(b)(1)(ii).” Commonwealth 

____________________________________________

6 We note the Pennsylvania Supreme Court granted allowance of appeal in 

Commonwealth v. Barnes, 122 A.3d 1034, 1035 (Pa. 2015), to 

determine, inter alia, “[w]hether a challenge to a sentence pursuant to 

Alleyne ... implicates the legality of the sentence and is therefore nonwaivable.” The case was argued before the Court in September of 2016, but 

to date, no decision has been filed. See 36 EAP 2015.

 
J-S82002-16

- 9 -

v. Cintora, 69 A.3d 759, 763 (Pa. Super. 2013), appeal denied, 81 A.3d 75 

(Pa. 2013). Moreover, in Commonwealth v. Miller, 102 A.3d 988 (Pa. 

Super. 2014), a panel of this Court held that an Alleyne challenge cannot 

satisfy the timing exception in Section 9545(b)(1)(iii) because “neither our 

Supreme Court, nor the United States Supreme Court has held that Alleyne

is to be applied retroactively to cases in which the judgment of sentence had 

become final.”7 Id. at 995. Further, Dulio did not meet the 60-day filing 

requirement in Section 9545(b)(2), since his petition was filed two and onehalf years after the Supreme Court handed down Alleyne on June 13, 2013. 

See 42 Pa.C.S. § 9545(b)(2). Therefore, Dulio’s Alleyne claim cannot 

overcome the time-bar. 

Nevertheless, Dulio asserted his petition was timely because he filed it 

within 60 days of the United States Supreme Court’s decision in 

Montgomery v. Louisiana, 136 S.Ct. 718 (U.S. 2016). See Amended 

Motion for Post-Conviction Collateral Relief, 3/23/2016, at 4-5. In 

Montgomery, the United States Supreme Court held its prior decision 

Miller v. Alabama, 132 S.Ct. 2455 (U.S. 2012), should be given retroactive 

____________________________________________

7 Recently, in Commonwealth v. Washington, 142 A.3d 810 (Pa. 2016), 

the Pennsylvania Supreme Court went one step further and definitively held 

that “Alleyne does not apply retroactively to cases pending on collateral 

review.” Id. at 820. But see Commonwealth v. Ruiz, 131 A.3d 54, 59-

60 (Pa. Super. 2015) (invalidating sentence on PCRA review as violative of 

Alleyne; not retroactive application of Alleyne because defendant’s 

judgment of sentence was not final when Alleyne was decided). 

 
J-S82002-16

- 10 -

effect. See Montgomery, supra, 136 S.Ct. at 736. In Miller, the Court 

held that mandatory life imprisonment without parole for juvenile offenders 

violated the constitutional provision prohibiting cruel and unusual 

punishment. Miller, supra, 132 S.Ct. at 2460. Dulio argued the 

“reasoning” in the Montgomery case for giving retroactive effect to the 

Miller decision should be applied herein. See Amended Motion for PostConviction Collateral Relief, 3/23/2016, at 5. We disagree. The 

Montgomery decision has no bearing on the retroactive application of 

Alleyne.

8

 See PCRA Court Opinion, 5/24/2016, at 8-9. 

Neither does Dulio’s claim of plea counsel’s ineffectiveness meet any of 

the time-for-filing exceptions. First, Section 9545 specifically excludes 

defense counsel from the definition of “government officials” in Section 

9545(b)(1)(i). See 42 Pa.C.S. § 9545(b)(4). Moreover, Dulio does not 

claim he recently learned of plea counsel’s failure to file a direct appeal 

and/or post-sentence motion in order to satisfy the newly discovered facts 

exception, and counsel’s ineffectiveness does not constitute a newly 

recognized constitutional right. 

Therefore, we conclude the PCRA court’s determination that Dulio’s 

petition was untimely filed, and he failed to plead and prove any of the time 

____________________________________________

8 We note, too, the Washington Court specifically considered Montgomery

in concluding that Alleyne should not be applied retroactively to sentences 

on collateral appeal. See Washington, supra.
J-S82002-16

- 11 -

for filing exceptions is supported by the record, and Dulio is, accordingly, 

entitled to no relief. Further, because we agree with counsel’s assessment 

that there are no meritorious issues for appeal, we grant counsel’s motion to 

withdraw. 

Order affirmed. Motion for leave to withdraw as counsel granted.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 1/9/2017