J-S17029-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v. JESSE LEE ANDERSON, Appellant No. 1241 WDA 2015

Appeal from the PCRA Order July 13, 2015 In the Court of Common Pleas of Crawford County Criminal Division at No(s): CP-20-CR-0000670-2005
BEFORE: GANTMAN, P.J., SHOGAN, and FITZGERALD, * JJ. MEMORANDUM BY SHOGAN, J.: FILED MARCH 7, 2016 Appellant, Jesse Lee Anderson, appeals from the or der denying his petition for relief filed pursuant to the Post Conv iction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-9546. In addition, counsel has filed a petition seeking to withdraw. We grant counsel’s motion to withdraw and affirm the order of the PCRA court. Appellant pled guilty to one count of robbery. At the guilty plea proceeding, the trial court summarized the factual predicate for the robbery, as follows: Factually, it’s alleged that you did on or about A pril 24, 2005 enter the residence of Melvin and June Drake a t . . . Saegertown, Crawford County, and that once inside, you pulled a

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* Former Justice specially assigned to the Superior Court.J-S17029-16

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BB pistol from your person and demanded that the vi ctim give you her prescription medication. And you told June Drake to retrieve the medication or you would shoot Melvin D rake while holding the pistol at Melvin Drake. N.T. (Plea Colloquy), 10/30/06, at 11–12. The PCRA court summarized the ensuing procedural h istory as follows: The Defendant entered a [negotiated] plea of guilt y to one count of robbery, 18 [Pa.C.S.] § 3701(a)([1])(ii), on October 30, 2006. 1 He was sentenced on December 4, 2006 to imprisonment in a state correctional institution fo r a term of five to fifteen years, with 579 days of presentence inca rceration credit. His minimum term of five years was mandato ry under Section 9712 of the Sentencing Code because the rob bery was committed with a visible firearm. 42 Pa.C.S. § 971 2. He did not file a post-sentence motion, or a direct appeal, an d was released on parole on August 16, 2010. [1]

1 Additional counts of burglary, terroristic threats, theft by unlawful taking or disposition, theft by receiving stolen property, and criminal conspiracy were all nol prossed.

2 The Defendant was also sentenced to pay a fine of $300.00, costs of prosecution, and restitution in t he amount of $56.00. He received concurrent sentences of imprisonment at Case No. CR 292- 2006. His pro se “Motion for Post Conviction Collateral Relief” was filed on February 11, 2015, and by our Order of Feb ruary 18, 2015, counsel was appointed to represent him. His counseled, amended PCRA petition was timely filed on April 17, 2015, but

____________________________________________ 1 The PCRA court advised that Appellant was incarce rated when he filed his PCRA petition on February 11, 2015, but he currentl y is on parole. PCRA Court Opinion, 9/1/15, at 2 n.3, 4. See 42 Pa.C.S. § 9543(a)(1)(i) (“To be eligible for relief . . ., the petitioner must plea d and prove by a preponderance of the evidence . . . that the petiti oner . . . is at the time relief is granted . . . currently serving a sentenc e of . . . parole . . . .”).J-S17029-16

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the [c]ourt was unaware of its filing until recentl y reviewing the docket. PCRA Court Opinion, 9/1/15, at 1. The amended PCRA petition asserted that Appellant’ s mandatory minimum sentence is illegal, and Appellant is entit led to be resentenced. Amended PCRA Petition, 4/17/15, at unnumbered 1–2. The PCRA court issued a notice of its intent to dismiss the petiti on pursuant to Pa.R.Crim.P. 907 on June 11, 2015. The trial court ultimately i ssued a final order denying the petition on July 13, 2015. Appellant filed a n otice of appeal to this Court on August 10, 2015. Both Appellant and the PCRA co urt complied with Pa.R.A.P. 1925. Appellate counsel filed a petition to withdraw as counsel and a
Turner / Finley 2 no-merit letter that is styled as an Anders 3 brief. Prior to addressing Appellant’s claims on appeal, we must ad dress counsel’s petition to withdraw as counsel. When counsel seeks to with draw representation in a collateral appeal, the following conditions must be met: 1) As part of an application to withdraw as counsel , PCRA counsel must attach to the application a “no-merit” letter; 2) PCRA counsel must, in the “no-merit” letter, lis t each claim the petitioner wishes to have reviewed, and detail the nature

____________________________________________ 2 Commonwealth v. Turner , 544 A.2d 927 (Pa. 1988); Commonwealth v. Finley , 550 A.2d 213 (Pa. Super. 1988) ( en banc ).

3 Anders v. California , 386 U.S. 738 (1967).J-S17029-16

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and extent of counsel’s review of the merits of eac h of those claims; 3) PCRA counsel must set forth in the “no-merit” le tter an explanation of why the petitioner’s issues are meri tless; 4) PCRA counsel must contemporaneously forward to t he petitioner a copy of the application to withdraw, w hich must include (i) a copy of both the “no-merit” letter, a nd (ii) a statement advising the PCRA petitioner that, in the event the trial court grants the application of counsel to wi thdraw, the petitioner has the right to proceed pro se , or with the assistance of privately retained counsel; 5) The court must conduct its own independent revie w of the record in light of the PCRA petition and the issues set forth therein, as well as of the contents of the petition of PCRA counsel to withdraw; and 6) The court must agree with counsel that the petit ion is meritless. Commonwealth v. Daniels , 947 A.2d 795, 798 (Pa. Super. 2008) (internal punctuation marks omitted) (citing Commonwealth v. Friend , 896 A.2d 607, 615 (Pa. Super. 2006)); see also Commonwealth v. Doty , 48 A.3d 451 (Pa. Super. 2012) (listing conditions to be met by counsel in seeking to withdraw in collateral appeal.). Here, counsel described the extent of his review, evaluated the potential issues, and concluded that the appeal is frivolous. Counsel has also listed an issue relevant to this appeal and ex plained why, in his opinion, the issue is without merit. In addition, counsel h as included a letter sent to Appellant containing a copy of his motion to withdr aw and a statement advising Appellant of his right to proceed pro se or through privatelyretained counsel. Thus, we conclude that counsel h as substantially compliedJ-S17029-16

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with the requirements necessary to withdraw as coun sel. See Commonwealth v. Karanicolas , 836 A.2d 940, 947 (Pa. Super. 2003) (holding that substantial compliance with the requi rements to withdraw as counsel will satisfy the Turner / Finley criteria). We now independently review Appellant’s claim to ascertain whether it en titles him to relief. 4 Counsel identifies the following issue in the Turner / Finley brief: Should the Appellant be entitled to relief under th e Post Conviction Relief Act, 42 Pa.C.S. § 9541 et seq., b ecause the [PCRA] court erred in dismissing the PCRA petition as not timely filed[?]
Turner / Finley Brief at 4 (full capitalization omitted). Appellant asserted to the PCRA court and maintains here that his mandatory minimum sentence pursuant to 42 Pa.C.S. § 9712 is illegal because section 9712 is unconstitutional, citing Commonwealth v. Valentine , 101 A.3d 801 (Pa. Super. 2014), and assumably, it s reliance on Alleyne v. United States , ___ U.S. ___, 133 S.Ct. 2151 (2013). When reviewing the propriety of an order denying P CRA relief, we consider the record “in the light most favorable to the prevailing party at the PCRA level.” Commonwealth v. Stultz , 114 A.3d 865, 872 (Pa. Super. 2015) (quoting Commonwealth v. Henkel , 90 A.3d 16, 20 (Pa. Super. 2014) ( en banc )). This Court is limited to determining whether t he evidence

____________________________________________ 4 We note that Appellant has not filed either a pro se brief or retained alternate counsel for this appeal.J-S17029-16

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of record supports the conclusions of the PCRA cour t and whether the ruling is free of legal error. Commonwealth v. Rykard , 55 A.3d 1177, 1183 (Pa. Super. 2012). We grant great deference to the PCRA court’s findings that are supported in the record and will not disturb th em unless they have no support in the certified record. Commonwealth v. Rigg , 84 A.3d 1080, 1084 (Pa. Super. 2014). “There is no absolute righ t to an evidentiary hearing on a PCRA petition, and if the PCRA court c an determine from the record that no genuine issues of material fact exis t, then a hearing is not necessary.” Commonwealth v. Jones , 942 A.2d 903, 906 (Pa. Super. 2008) (quoting Commonwealth v. Barbosa , 819 A.2d 81 (Pa. Super. 2003)). Appellant’s issue is not waived because challenges to the legality of a sentence cannot be waived. Commonwealth v. Miller , 102 A.3d 988, 996 (Pa. Super. 2014) (challenge to legality of sentenc e is “not technically waivable”). However, the issue is untimely because Appellant raised it for the first time more than one year after his judgmen t of sentence became final, and he has not asserted and proved one of th e PCRA’s enumerated exceptions. As a result, we lack jurisdiction to r eview it. 42 Pa.C.S. § 9545(b). A PCRA petition must be filed within one year of th e date that the judgment of sentence becomes final. 42 Pa.C.S. § 9 545(b)(1). This time requirement is mandatory and jurisdictional in natu re, and the court may notJ-S17029-16

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ignore it in order to reach the merits of the petit ion. Commonwealth v. Murray , 753 A.2d 201, 203 (Pa. 2000). A judgment of sent ence “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 .” 42 Pa.C.S. § 9545(b)(3). Our review of the record reflects that Appellant’s judgment of sentence became final on January 3, 2007, thirty days after the trial court imposed the judgment of sentence, and Appellant failed to f ile a direct appeal with this Court. 42 Pa.C.S. § 9545(b)(3); Pa.R.A.P. 903 (a). Thus, a timely PCRA petition had to have been filed by January 3, 2008. Appellant did not file the instant PCRA petition until February 11, 2015. Thu s, Appellant’s PCRA petition underlying the instant appeal is untimely by more than seven years. The PCRA court dismissed the petition as untimely. Nevertheless, an untimely petition may be received when the petition alleges, and the petitioner proves, that any of the three limited ex ceptions to the time for filing the petition, set forth at 42 Pa.C.S. § 9545 (b)(1)(i), (ii), and (iii), is
met. 5 A petition invoking one of these exceptions must be filed within sixty

____________________________________________ 5 The exceptions to the timeliness requirement are: (i) the failure to raise the claim previously was t he result of interference by government officials with the prese ntation of the (Footnote Continued Next Page)J-S17029-16

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days of the date the claim could first have been pr esented. 42 Pa.C.S. § 9545(b)(2). In his amended PCRA petition, Appellant invoked th e third exception, the “newly recognized constitutional right” excepti on. Amended PCRA Petition, 4/17/15, at ¶ 4. Alleyne was decided on June 17, 2013. Valentine was decided on October 3, 2014. Appellant filed h is PCRA petition on February 11, 2015, well over sixty days after the date the claim could have been presented. See Commonwealth v. Boyd , 923 A.2d 513, 517 (Pa. Super. 2007) (stating that “[w]ith regard to [a newly] recognized constitutional right, this Court has held that the sixty-day period begins to run upon the date of the underlying judicial decisi on.”). Furthermore, this Court has held that, since Alleyne has not been held to be retroactive by either our Supreme Court or the United States

(Footnote Continued) _______________________ claim in violation of the Constitution or laws of t his Commonwealth or the Constitution or laws of the Uni ted States; (ii) the facts upon which the claim is predicated w ere unknown to the petitioner and could not have been ascertain ed 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 State s or the Supreme Court of Pennsylvania after the time period provided in this section and has been held by that court to app ly retroactively. 42 Pa.C.S. § 9545(b)(1)(i), (ii), and (iii).J-S17029-16

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Supreme Court, it does not fall within the newly re cognized constitutional right exception to 42 Pa.C.S. § 9545(b)(iii). Miller , 102 A.3d at 995. Accordingly, the PCRA court properly dismissed Appe llant’s PCRA petition as untimely. Moreover, having conducted an independent review o f the record in light of the PCRA petition and the issue set forth therein, as well as the contents of counsel’s motion to withdraw and brief, we agree that the PCRA petition is meritless and permit counsel to withdra w. Motion to withdraw granted. Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 3/7/2016