J-S14034-16

2016 PA Super 42

*Former Justice specially assigned to the Superior Court.

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

JAMEL WALTERS,

Appellant No. 701 MDA 2015

Appeal from the PCRA Order March 9, 2015

In the Court of Common Pleas of Luzerne County

Criminal Division at No(s): CP-40-CR-0000796-2007; CP-40-CR-0000798-

2007

BEFORE: FORD ELLIOTT, P.J.E., PANELLA, J., and STEVENS, P.J.E.*

OPINION BY STEVENS, P.J.E.: FILED FEBRUARY 19, 2016

Appellant Jamel Walters appeals from the order of the Honorable Fred 

A. Pierantoni of the Court of Common Pleas of Luzerne County dismissing 

Appellant’s second petition pursuant to the Post Conviction Relief Act 

(“PCRA”)1as untimely filed. PCRA appellate counsel has filed a petition to 

withdraw and a no-merit letter pursuant to Commonwealth v. Turner, 518 

Pa. 491, 544 A.2d 927 (1988) and Commonwealth v. Finley, 550 A.2d 

213 (Pa.Super. 1988) (en banc). We grant counsel’s petition to withdraw 

and affirm the order dismissing Appellant’s PCRA petition.

On October 10, 2007, Appellant entered guilty pleas on two separate 

dockets to several counts of possession of a controlled substance with intent 

____________________________________________

1 42 Pa.C.S.A. §§ 9541-9546.
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to deliver2and related crimes. On December 11, 2007, Appellant was 

sentenced accordingly on all charges. Appellant filed a post-sentence motion 

which the trial court subsequently denied. No appeal was filed.

On June 27, 2012, Appellant filed his first PCRA petition, raising 

allegations of judicial misconduct on the part of his sentencing judge, Mark 

Ciavarella, who was convicted of federal corruption charges in February 

2011. The PCRA court dismissed Appellant’s petition as untimely filed, 

finding that Appellant failed to plead and prove that one of the PCRA 

timeliness exceptions was applicable. After Appellant appealed, the Superior 

Court affirmed the trial court’s order dismissing the petition on October 4, 

2013, and the Pennsylvania Supreme Court denied Appellant’s Petition for 

Allowance of Appeal on March 25, 2014.

On June 6, 2014, Appellant filed the instant pro se PCRA petition, 

reiterating his claim that his sentence should be vacated as a result of 

former Judge Ciavarella’s misconduct. After the PCRA court subsequently 

appointed Hugh Taylor, Esq. to assist Appellant, Atty. Taylor filed a “nomerit” letter, asserting that Appellant’s second petition was also untimely 

filed. After a hearing, the PCRA court dismissed Appellant’s PCRA petition on 

March 9, 2015. Appellant filed a pro se notice of appeal directly with this 

____________________________________________

2 35 P.S. § 780-113(a)(30).
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Court on April 7, 2015. This Court forwarded Appellant’s notice of appeal to 

the Court of Common Pleas.3

Upon review of the record, this Court noted that it appeared that 

Appellant was still represented by counsel as the trial court docket contained 

no indication that Atty. Taylor had been granted leave to withdraw. As a 

result, this Court remanded for a determination of whether Atty. Taylor had 

abandoned Appellant and directed the trial court to take any further 

necessary action, including, but not limited to, the appointment of new 

counsel. After a hearing, the trial court determined that Atty. Taylor had not 

abandoned Appellant and remained counsel of record. 

However, it appears that the trial court subsequently allowed Atty. 

Taylor to resign and reassigned the case to Allyson Kacmarski, Esq., who 

filed a “no merit” brief and a petition to withdraw, notifying Appellant of his 

right to proceed pro se or retain new counsel. Appellant did not respond to 

Atty. Kacmarski’s filings. 

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3

Pennsylvania Rule of Appellate Procedure 905(a)(4) provides:

If a notice of appeal is mistakenly filed in an appellate court, or 

is otherwise filed in an incorrect office within the unified judicial 

system, the clerk shall immediately stamp it with the date of 

receipt and transmit it to the clerk of the court which entered the 

order appealed from, and upon payment of an additional filing 

fee the notice of appeal shall be deemed filed in the trial court 

on the date originally filed.

Pa.R.A.P. 905(a)(4).
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When reviewing the denial of a PCRA petition, we are guided by the 

following standard:

The standard of review for an order denying post-conviction 

relief is limited to whether the record supports the PCRA court's 

determination, and whether that decision is free of legal error. 

The PCRA court's findings will not be disturbed unless there is no 

support for the findings in the certified record.

Commonwealth v. Allen, 48 A.3d 1283, 1285 (Pa.Super. 2012) (citations 

omitted).

Before we proceed to review the merits of Appellant’s PCRA petition, 

we must determine whether counsel has satisfied certain procedural 

requirements to withdraw her representation:

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.

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

Commonwealth v. Wrecks, 931 A.2d 717, 721 (Pa.Super. 2007)).
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After reviewing the record and counsel’s petition to withdraw, we find 

that PCRA appellate counsel complied with the requirements of Turner and 

Finley, supra. In her “no-merit” letter, PCRA appellate counsel detailed the 

nature and extent of her review, listed the issue which Appellant raised in 

his pro se petition, and thoroughly explained why she believed Appellant’s 

claim was frivolous and untimely filed. Moreover, PCRA appellate counsel 

indicated that after her own independent review of the record, she could not 

identify any meritorious issues that she could raise on Appellant’s behalf to 

plead and prove that one of the PCRA timeliness exceptions applied. 

Counsel also attached proof that she sent Appellant her petition to withdraw 

along with her no-merit letter and instructed him he had the right to retain 

counsel or proceed pro se. As counsel complied with the Turner-Finley

requirements to withdraw her representation, we must now determine 

whether the PCRA court correctly dismissed Appellant’s PCRA petition as 

untimely filed.

It is well-established that “the PCRA's timeliness requirements are 

jurisdictional in nature and must be strictly construed; courts may not 

address the merits of the issues raised in a petition if it is not timely filed.” 

Commonwealth v. Leggett, 16 A.3d 1144, 1145 (Pa.Super. 2011) 

(citations omitted). Generally, a PCRA petition must be filed within one year 

of the date the judgment of sentence becomes final unless the petitioner 

meets his burden to plead and prove one of the exceptions enumerated in 

42 Pa.C.S.A. § 9545(b)(1)(i)-(iii), which include: (1) the petitioner’s inability 
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to raise a claim as a result of governmental interference; (2) the discovery 

of previously unknown facts or evidence that would have supported a claim; 

or (3) a newly-recognized constitutional right. 42 Pa.C.S.A. § 

9545(b)(1)(i)-(iii). However, the PCRA limits the reach of the exceptions by 

providing that a petition invoking any of the exceptions must be filed within 

60 days of the date the claim first could have been presented. Leggett, 16 

A.3d at 1146 (citing 42 Pa.C.S.A. § 9545(b)(2)).

In this case, the trial court sentenced Appellant on December 11, 

2007, and denied Appellant’s post-sentence motion on December 26, 2007. 

As Appellant did not file a direct appeal, his sentence became final on 

January 25, 2008. As Appellant filed his second PCRA petition on June 6, 

2014, over six years after his sentence became final, his petition is facially 

untimely.

In his pro se PCRA petition, Appellant did not attempt to explain why 

his claims should not be dismissed as untimely filed. Appellant does not 

acknowledge the PCRA’s timeliness requirements or discuss the applicability 

of any of the timeliness exceptions. Appellant does not explain how the 

unrelated misconduct of the sentencing judge affected the legality of his 

sentence. Even assuming arguendo that Appellant could somehow prove a 

connection between his case and former Judge Ciavarella’s criminal conduct, 

he failed to file a PCRA petition invoking a timeliness exception within 60 

days of the date the claim first could have been presented. Accordingly, we 
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conclude that the PCRA court correctly dismissed Appellant’s PCRA petition 

as untimely filed.

Petition to withdraw granted. Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 2/19/2016