J-S72033-17

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* Former Justice specially assigned to the Superior Court.

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF 

PENNSYLVANIA

v.

AMEL D. JONES 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1166 EDA 2017

Appeal from the PCRA Order March 9, 2017

In the Court of Common Pleas of Delaware County Criminal Division at 

No(s): CP-23-CR-0005078-2011

BEFORE: BENDER, P.J.E., MUSMANNO, J., and STEVENS*, P.J.E.

MEMORANDUM BY STEVENS, P.J.E.: FILED DECEMBER 11, 2017

Appellant, Amel D. Jones, appeals from the order entered in the Court 

of Common Pleas of Delaware County dismissing as untimely his third petition 

filed under the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-

9546. In addition, appointed counsel seeks to withdraw from this appeal on 

the grounds that the issues raised under the PCRA are meritless. After review, 

we affirm the order denying PCRA relief and grant counsel’s petition for leave 

to withdraw.

On December 15, 2011, Appellant entered a negotiated guilty plea to 

one count each of possession with the intent to deliver a controlled substance 

and possession of a firearm and was sentenced to a term of incarceration of 

78 to 156 months’ incarceration to be followed by five years’ consecutive 

probation. Appellant filed no direct appeal.
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On October 21, 2014, Appellant filed his first PCRA petition alleging that 

his sentence was unlawful under Alleyne v. United States, __ U.S. ___, 133 

S.Ct. 2151 (2013). The PCRA court appointed counsel, who subsequently filed 

a petition under Commonwealth Turner, 544 A.2d 927 (Pa. 1988) and 

Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc) to 

withdraw from the collateral appeal. The PCRA court granted counsel’s motion 

to withdraw and dismissed Appellant’s PCRA petition as untimely.

On July 30, 2015, Appellant filed a second PCRA petition again raising 

the Alleyne illegal-sentencing claim. As with Appellant’s first collateral 

appeal, the PCRA court granted appointed counsel’s motion to withdraw and 

dismissed Appellant’s second petition as untimely.

On February 18, 2016, Appellant filed this, his third PCRA petition, and 

appointed counsel filed an amended petition on September 2, 2016, raising, 

again, the Alleyne issue. The PCRA court issued Pa.R.Crim.P. 907 notice of 

its intent to dismiss Appellant’s petition as raising issues previously litigated, 

and, by its Order of March 9, 2017, dismissed the petition. This timely appeal 

followed.

On August 2, 2017, present counsel filed an application to withdraw his 

appearance, but he has erroneously filed a brief seeking to withdraw under 

the Anders v. California, 386 U.S. 738 (1967), standard for withdrawal, 

which applies when counsel seeks to withdraw from a direct appeal, instead 

of under the Turner and Finley standard. However, because an Anders brief 

provides greater protection to a defendant, this Court may accept an Anders
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brief in lieu of a Turner/Finley “no merit” letter. Commonwealth v. Reed,

107 A.3d 137, 139 n. 5 (Pa.Super. 2014). We will refer to counsel's 

erroneously titled Anders Brief as a Turner/Finley brief. Appellant has not 

responded to the petition to withdraw as counsel, nor has he retained alternate 

counsel for this appeal.

Prior to addressing the merits of Appellant's claims on appeal, we must 

first decide whether counsel has fulfilled the procedural requirements for 

withdrawing his representation. Commonwealth v. Daniels, 947 A.2d 795, 

797 (Pa.Super. 2008). This Court has listed the conditions to be met by 

counsel in seeking to withdraw in a collateral appeal as follows:

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

omitted).

Herein, counsel indicates he made a thorough review of Appellant's case

and concluded the appeal is wholly frivolous. See Application to Withdraw 

Appearance, filed 8/2/17, at ¶¶ 2–3. Counsel also lists in the Turner/Finley

brief the issue Appellant wishes to this appeal and explains why, in his view, 

it lacks merit. Turner/Finley brief at 7-8. In addition, counsel has attached 

to his motion a copy of the letter he sent to Appellant wherein counsel advised 

Appellant of his right to proceed pro se or through privately-retained counsel. 

Counsel also attached to the letter a copy of his application to withdraw and 

Turner/Finley brief. 

Thus, we conclude that counsel has substantially complied with the 

requirements necessary to withdraw as counsel. See Commonwealth v. 

Karanicolas, 836 A.2d 940, 947 (Pa.Super. 2003) (holding that substantial 

compliance with the requirements to withdraw as counsel will satisfy the 

Turner/Finley criteria). We now review this appeal based on the issue of 

arguable merit counsel presented in the Turner/Finley brief to ascertain 

whether it entitles Appellant to relief.

Counsel identifies the following issue for appellate review:

WAS THE SENTENCE IMPOSED IN THIS MATTER IN 

CONTRAVENTION OF ALLEYNE V. UNITED STATES AND 

SUBSEQUENT DECISIONS?

Turner/Finley brief at 4.
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When reviewing the propriety of an order denying PCRA relief, this Court 

is limited to a determination of whether the evidence of record supports the 

PCRA court's conclusions and whether its ruling is free of legal error. 

Commonwealth v. Robinson, 139 A.3d 178, 185 (Pa. 2016). This Court 

will not disturb the PCRA court's findings unless there is no support for them 

in the certified record. Commonwealth v. Lippert, 85 A.3d 1095, 1100 

(Pa.Super. 2014).

At the outset, we consider whether this appeal is properly before us. 

The question of whether a petition is timely raises a question of law, and where 

a petitioner raises questions of law, our standard of review is de novo and our 

scope of review is plenary. Commonwealth v. Callahan, 101 A.3d 118, 121 

(Pa.Super. 2014).

All PCRA petitions must be filed within one year of the date upon which 

the judgment of sentence became final, unless one of the statutory exceptions 

set forth in 42 Pa.C.S.A. § 9545(b)(1)(i)-(iii) applies. The petitioner bears the 

burden of pleading and proving an applicable statutory exception. If the 

petition is untimely and the petitioner has not pled and proven an exception, 

the petition must be dismissed without a hearing because Pennsylvania courts 

are without jurisdiction to consider the merits of the petition. 

Commonwealth v. Taylor, 65 A.3d 462, 468 (Pa.Super. 2013).

42 Pa.C.S.A. § 9545(b)(1)(i)-(iii) states:

(b) Time for filing petition.—
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(1) Any petition under this subchapter, including a second or 

subsequent petition, shall be filed within one year of the date the 

judgment of sentence 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.

42 Pa.C.S.A. § 9545(b)(1). In addition, any petition attempting to invoke one 

of these exceptions “shall be filed within 60 days of the date the claim could 

have been presented.” 42 Pa.C.S.A. § 9545(b)(2).

Herein, Appellant was sentenced on December 15, 2011, and filed no 

post sentence motion. As such, Appellant's notice of appeal had to be filed by 

January 14, 2012. As Appellant failed to do so, his judgment of sentence 

became final for purposes of the PCRA on that date. See 42 Pa.C.S.A. § 

9545(b)(3) (“a judgment 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”); see also U.S. Sup.Ct.R. 13.1.

Under this timeline, Appellant had until Monday, January 14, 2013, to 

file a timely PCRA petition. Therefore, the instant petition initially filed pro se
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on February 18, 2016, was patently untimely, and the burden fell upon 

Appellant to plead and prove that one of the enumerated exceptions to the 

one-year time-bar applied to his case. See 42 Pa.C.S.A. § 9545(b)(1); 

Commonwealth v. Perrin, 947 A.2d 1284, 1286 (Pa.Super. 2008) (to invoke 

a statutory exception to the PCRA time-bar, a petitioner must properly plead 

and prove all required elements of the exception).

We find that Appellant has not proven the applicability of any exception 

to the PCRA time-bar under Section 9545(b). Specifically, Appellant contends 

that his sentence is illegal under Alleyne, which held that any 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. However, the rule 

established in Alleyne does not apply retroactively where, as here, the

judgment of sentence is final. See Commonwealth v. Washington, 142 

A.3d 810, 820 (Pa. 2016) (holding that “Alleyne does not apply retroactively

to cases pending on collateral review”); see also Commonwealth v. Miller, 

102 A.3d 988, 995 (Pa. Super. 2014) (stating that while Alleyne claims go to 

the legality of the sentence, a court cannot review a legality claim where it 

does not have jurisdiction).

Therefore, Appellant’s third PCRA petition is manifestly untimely, which 

divests this Court of jurisdiction to offer him any form of relief.

Motion to withdraw as counsel granted. Order affirmed.
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 12/11/2017