J-S33017-16 

*Former Justice specially assigned to the Superior Court. 

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA 

 Appellee 

v. 

CONWAY ORLANDO HUSTON 

 Appellant No. 1089 WDA 2015 

Appeal from the PCRA Order July 14, 2015 

In the Court of Common Pleas of Allegheny County 

Criminal Division at No(s): CP-02-CR-0004265-2009 

BEFORE: GANTMAN, P.J., OLSON and FITZGERALD,* JJ. 

MEMORANDUM BY OLSON, J.: FILED APRIL 28, 2016

Appellant, Conway Orlando Huston, appeals from the order entered on 

July 14, 2015, granting him 83 days of credit for time-served and 

dismissing, as untimely, the remaining claims in his petition pursuant to the 

Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. Counsel filed 

a petition to withdraw from further representation and a brief pursuant to 

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

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

grant counsel’s petition to withdraw and vacate the order and remand for 

the entry of an order dismissing Appellant’s untimely PCRA petition in its 

entirety. 

 We briefly summarize the facts and procedural history of this case as 

follows. In September 2008, police arrested Appellant and the 
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Commonwealth charged him with eight criminal offenses in connection with 

various acts of sexual misconduct, spanning from February 2006 until 

August 2008, involving a female minor under the age of 13. On August 25, 

2009, Appellant and the Commonwealth appeared before the trial court to 

enter a guilty plea. Appellant agreed to plead guilty to rape of a child and 

indecent assault;1 in exchange, the Commonwealth agreed to withdraw the 

remaining charges. The parties also agreed to an aggregate sentence of 11 

to 26 years of incarceration. After a colloquy, the trial court accepted 

Appellant’s guilty plea and immediately sentenced Appellant according to the 

terms of the parties’ agreement. Appellant did not file a direct appeal. 

 On March 21, 2015, Appellant filed a pro se PCRA petition. The PCRA 

court appointed counsel for Appellant on April 2, 2015. Counsel filed an 

amended PCRA petition on April 14, 2015 alleging that Appellant was 

entitled to credit for time-served and requesting reinstatement of his direct 

appeal rights nunc pro tunc, because Appellant requested an appeal and trial 

counsel failed to file one. The PCRA court held a hearing on July 9, 2015. 

Initially, the Commonwealth conceded that Appellant was entitled to credit 

for time-served as alleged. Thereafter, trial counsel and Appellant testified. 

On July 14, 2015, the PCRA court entered an order granting Appellant credit 

____________________________________________ 

1

 18 Pa.C.S.A. §§ 3121(c) and 3126(a)(7), respectively. 
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for time-served,2 but dismissing his request for nunc pro tunc relief as 

untimely. This timely appeal resulted.3 

On appeal, counsel for Appellant presents the following issue for our 

review: 

1. Whether [Appellant] is entitled — under Article I, Section 

9 and/or Article V, Section 9 of the Pennsylvania 

Constitution and/or the Sixth and Fourteenth 

Amendments of the United States Constitution – to 

reinstatement of his right of appeal from the August 25, 

2009 conviction and sentence at CP-02-CR-0004265-

2009 because he directed his plea an[d] sentencing 

counsel to file such an appeal but said counsel failed to 

do so? 

Appellant’s Brief at 2. 

Prior to reviewing the merits of this appeal, we first decide whether 

counsel fulfilled the procedural requirements for withdrawing as counsel. 

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

have explained: 

____________________________________________ 

2

 Neither the Commonwealth nor Appellant appeal from the portion of the 

decision granting him credit for time-served. As we discuss infra, 

Appellant’s PCRA petition was patently untimely and not subject to any of 

the PCRA’s timeliness exceptions set forth at 42 Pa.C.S.A. § 9545. As such, 

the PCRA court lacked jurisdiction to reach the merits of Appellant’s claims, 

including his assertion that he was entitled to credit for time-served. 

3

 On July 16, 2015, Appellant filed a notice of appeal and a corresponding 

concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 

1925(b). The trial court issued an opinion pursuant to Pa.R.A.P. 1925(a) on 

January 11, 2016. 

 
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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. 

* * * 

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. 

Id. 

 Here, counsel satisfied all of the above procedural requirements and 

Appellant has not responded to counsel’s request to withdraw. Thus, having 

concluded that counsel's petition to withdraw is Turner/Finley compliant, 

we now undertake our own review of the case to consider whether the PCRA 

court erred in dismissing Appellant's petition. 

 Appellant claims that he is entitled to nunc pro tunc reinstatement of 

his direct appeal rights because trial counsel failed to file an appeal despite 

Appellant’s direction to do so. Appellant’s Brief at 12. Appellant avers that 

he filed his PCRA petition within 60 days of discovering trial counsel’s alleged 

failure. Id. at 12-14. 
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Our standard of review is well-settled: 

In PCRA appeals, our scope of review is limited to the 

findings of the PCRA court and the evidence on the record of 

the PCRA court's hearing, viewed in the light most favorable 

to the prevailing party. Because most PCRA appeals involve 

questions of fact and law, we employ a mixed standard of 

review. We defer to the PCRA court's factual findings and 

credibility determinations supported by the record. In 

contrast, we review the PCRA court's legal conclusions de 

novo. 

Commonwealth v. Reyes-Rodriguez, 111 A.3d 775, 779 (Pa. Super. 

2015) (internal citations and quotations omitted). 

This Court has previously determined: 

we must first consider the timeliness of [an a]ppellant's 

PCRA petition because it implicates the jurisdiction of this 

Court and the PCRA court. Pennsylvania law makes clear 

that when a PCRA petition is untimely, neither this Court 

nor the trial court has jurisdiction over the petition. The 

period for filing a PCRA petition is not subject to the 

doctrine of equitable tolling; instead, the time for filing a 

PCRA petition can be extended only if the PCRA permits it to 

be extended. This is to accord finality to the collateral 

review process. However, an untimely petition may be 

reviewed 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.A. 

§ 9545(b)(1)(i), (ii), and (iii), are met. 

Commonwealth v. Miller, 102 A.3d 988, 992-993 (Pa. Super. 2014) 

(internal citations, quotations, and original brackets omitted). 

The PCRA provides, in relevant part, as follows: 

§ 9545. Jurisdiction and proceedings 

* * * 
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(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: 

(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. 

(2) Any petition invoking an exception provided in 

paragraph (1) shall be filed within 60 days of the date the 

claim could have been presented. 

42 Pa.C.S.A. § 9545(b). 

Appellant’s judgment of sentence became final on September 24, 

2009, after the 30-day appeal period expired. See Pa.R.A.P. 903. As such, 

Appellant’s PCRA petition filed on March 21, 2015, almost six years later, is 

patently untimely. At the PCRA hearing, Appellant claimed that he did not 

know that counsel failed to file a direct appeal until he checked the docket 

on September 8, 2014. N.T., 7/9/2015, at 8-9, 11-12. However, Appellant 

filed his PCRA petition in March 2015, well past 60 days of the date he first 
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discovered the alleged error, in contravention of 42 Pa.C.S.A. § 9545(b)(2). 

Moreover, we have previously determined that a claim that trial counsel 

failed to file a direct appeal is discoverable with due diligence within the 

confines of the PCRA’s one-year timing requirement. See Commonwealth 

v. Carr, 768 A.2d 1164, 1168 (Pa. Super. 2001) (“Appellant had a full year 

to learn if a direct appeal had been filed on his behalf. A phone call to his 

attorney or the clerk of courts would have readily revealed that no appeal 

had been filed. Due diligence requires that Appellant take such steps to 

protect his own interest.”). As such, Appellant’s PCRA petition was untimely 

and not subject to an exception. Accordingly, there was no jurisdiction to 

entertain Appellant’s claim. Thus, the PCRA court properly denied relief. 

 Finally, because Appellant’s PCRA petition was untimely and 

jurisdiction was lacking, the PCRA court was also without authority to grant 

Appellant credit for time-served. “An appellant's challenge to the trial 

court's failure to award credit for time spent in custody prior to sentencing 

involves the legality of sentence.” Commonwealth v. Beck, 848 A.2d 987, 

989 (Pa. Super. 2004) (citation omitted). “Issues concerning the legality of 

sentence are cognizable under the PCRA.” Id. (citation omitted). Legality of 

sentence claims must still meet the jurisdictional requirements of the PCRA. 

See Commonwealth v. Jackson, 30 A.3d 516, 522 (Pa. Super. 2011) 

(where a petitioner files an untimely PCRA petition raising a legality of 

sentence claim, the jurisdictional limits of the PCRA render the claim 
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incapable of review). Having already determined Appellant’s PCRA petition 

was untimely, not subject to an exception, we conclude the PCRA erred in 

granting Appellant credit for time-served. Hence, we are constrained to 

vacate the portion of the order granting Appellant 83 days of credit for timeserved and direct the PCRA court to enter an order dismissing Appellant’s 

PCRA petition, in its entirety, as untimely. 

On the foregoing basis, and because our independent assessment of 

the record yields no meritorious issues for our review, we grant counsel 

leave to withdraw.4

 Leave to withdraw granted. Order vacated. Case remanded for the 

entry of an order consistent with this memorandum. Jurisdiction 

relinquished. 

 President Judge Gantman joins this memorandum. 

 Justice Fitzgerald notes dissent. 

____________________________________________ 

4

 We have permitted counsel to withdraw under the Turner/Finley line of 

cases when counsel examines the merits of Appellant’s underlying claims, 

but jurisdiction is lacking. See Commonwealth v. Merritt, 827 A.2d 485, 

488 (Pa. Super. 2003). 
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Judgment Entered. 

Joseph D. Seletyn, Esq. 

Prothonotary 

Date: 4/28/2016