J-S22036-18

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* Retired Senior Judge assigned to the Superior Court.

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

 Appellee

v.

MARSHALL L. THOMPSON 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 677 EDA 2017

Appeal from the PCRA Order February 21, 2017

in the Court of Common Pleas of Philadelphia County 

Criminal Division at No.: CP-51-CR-0604141-2004

BEFORE: BENDER, P.J.E., STABILE, J., and PLATT*, J.

MEMORANDUM BY PLATT, J.: FILED JUNE 26, 2018

Appellant, Marshall L. Thompson, appeals from the order dismissing his 

first petition filed pursuant to the Post Conviction Relief Act (PCRA), 42 

Pa.C.S.A. §§ 9541-9546, as untimely. Counsel for Appellant has filed a motion 

to withdraw from representation and an Anders brief.

1

 We grant counsel’s 

petition to withdraw, and affirm the order of the PCRA court.

We take the following relevant facts and procedural history from the trial 

court’s September 20, 2017 opinion and our independent review of the 

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1 Counsel filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967), 

instead of a Turner/Finley no-merit letter, which is the appropriate filing in 

the PCRA context. See Commonwealth v. Turner, 544 A.2d 927 (Pa. 

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

banc). However, “[b]ecause an Anders brief provides greater protection to a 

defendant, this Court may accept an Anders brief in lieu of a Turner/Finley

letter.” Commonwealth v. Widgins, 29 A.3d 816, 817 n.2 (Pa. Super. 

2011) (citation omitted).
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certified record. On September 18, 2006, a jury found Appellant guilty of 

robbery and criminal conspiracy to commit robbery. The charges stem from 

Appellant’s armed robbery of a liquor store with his co-defendant in May 2004. 

On November 3, 2006, the trial court sentenced Appellant to an aggregate

mandatory minimum term of not less than ten nor more than twenty years’ 

incarceration.

2

 This Court affirmed the judgment of sentence on July 15, 

2008. Appellant did not file a petition for allowance of appeal with our 

Supreme Court.

On December 19, 2011, Appellant filed a pro se PCRA petition. 

Appointed counsel filed an amended petition on June 27, 2016, arguing that 

Appellant’s mandatory minimum sentence is illegal. The PCRA court issued 

notice of its intent to dismiss the petition as untimely on February 1, 2017, 

see Pa.R.Crim.P. 907(1), and its order dismissing the petition on February 21, 

2017. Appellant timely appealed.3 He filed a timely, court-ordered concise 

statement of errors complained of on appeal on April 13, 2017, and the PCRA

court entered an opinion on September 20, 2017. See Pa.R.A.P. 1925. 

Counsel filed his motion to withdraw from representation and Anders brief on 

November 26, 2017. 

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2 The trial court sentenced Appellant pursuant to 42 Pa.C.S.A. § 9714(a)(1),

as a second strike offender. (See PCRA Court Opinion, 9/20/17, at 2 n.2, 5; 

Anders Brief, at 7, 18; Commonwealth’s Brief, at 3 n.1).

3 Appellant filed his notice of appeal prior to the court’s entry of its final order 

dismissing the petition. Although the notice was premature when filed, we 

will regard this appeal as timely. See Pa.R.A.P. 905(a)(5).
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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.

Commonwealth v. Walters, 135 A.3d 589, 591 (Pa. Super. 2016) (citation

omitted).

Upon our review of counsel’s motion to withdraw and the appellate brief 

submitted on Appellant’s behalf, we conclude that counsel has substantially 

complied with the procedural requirements of Turner and Finley. Therefore, 

we must proceed with our independent review of this case. See Walters, 

supra at 591.

The Anders brief raises the following issues for our review:

[1.] Whether there is anything in the record that might arguably 

support the appeal that obviates a conclusion that the appeal is 

frivolous?

[2.] Whether the court erred when it dismissed the PCRA petition 

because the Appellant is entitled to retroactive application of the 

prohibition of mandatory sentences pursuant to 42 Pa.C.S.A. 
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Section 9545(b)(1)(iii) and should be resentenced consistent with 

the current state of the law?

(Anders Brief, at 6) (unnecessary capitalization omitted). 

We begin by addressing the timeliness of Appellant’s petition.

. . . [A] PCRA petition, including a second or subsequent 

petition, must be filed within one year of the date that judgment 

becomes final. A judgment becomes final for purposes of the 

PCRA 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.

It is well-settled that the PCRA’s time restrictions are 

jurisdictional in nature. As such, this statutory time-bar implicates 

the court’s very power to adjudicate a controversy and prohibits 

a court from extending filing periods except as the statute 

permits. Accordingly, 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 by operation of one of 

the statutorily enumerated exceptions to the PCRA time-bar.

The exceptions to the PCRA time-bar are found in Section 

9545(b)(1)(i)–(iii) . . . and it is the petitioner’s burden to allege 

and prove that one of the timeliness exceptions applies. Whether 

a petitioner has carried his burden is a threshold inquiry that must 

be resolved prior to considering the merits of any claim. . . . 

Commonwealth v. Robinson, 139 A.3d 178, 185-86 (Pa. 2016) (quotation 

marks and citations omitted).

In the instant case, Appellant’s judgment of sentence became final on 

August 14, 2008, when his time to file a petition for allowance of appeal with 

our Supreme Court expired. See Pa.R.A.P. 903(a); 42 Pa.C.S.A. § 

9545(b)(3). Therefore, he had until August 14, 2009, to file a timely PCRA 

petition. See 42 Pa.C.S.A. § 9545(b)(1). Because Appellant filed the instant 

petition on December 19, 2011, it is untimely on its face, and the PCRA court 
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lacked jurisdiction to review it unless he pleaded and proved one of the 

statutory exceptions to the time-bar. See 42 Pa.C.S.A. § 9545(b)(1)(i)-(iii).

Section 9545 of the PCRA provides only three limited exceptions that 

allow for review of an untimely PCRA petition:

(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.

Id.

Any petition invoking an exception must “be filed within 60 days of the 

date the claim could have been presented.” Id. at § 9545(b)(2). “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. Hudson, 156 A.3d 1194, 1197 (Pa. Super. 2017), appeal 

denied, 170 A.3d 1007 (Pa. 2017) (citation omitted).

Here, Appellant invokes the benefit of section 9545(b)(1)(iii) by arguing

that his mandatory minimum sentence is illegal, based on the United States 

Supreme Court’s decision in Alleyne v. United States, 133 S.Ct. 2151 
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(2013).4 (See Anders Brief, at 6, 13, 15). However, this claim does not 

allow him to circumvent the PCRA’s timeliness requirements.

It is well settled that, “in order for this Court to review a legality of 

sentence claim, there must be a basis for our jurisdiction to engage in such 

review. . . . [T]hough not technically waivable, a legality [of sentence] claim 

may nevertheless be lost should it be raised . . . in an untimely PCRA petition 

for which no time-bar exception applies, thus depriving the court of jurisdiction 

over the claim.” Commonwealth v. Miller, 102 A.3d 988, 995 (Pa. Super. 

2014) (citations and internal quotation marks omitted). Our Supreme Court 

has addressed the retroactive effect of Alleyne, and has expressly held “that 

Alleyne does not apply retroactively to cases pending on collateral review[.]” 

Commonwealth v. Washington, 142 A.3d 810, 820 (Pa. 2016). 

Moreover, because “[s]ection 9714 increases mandatory minimum 

sentences based on prior convictions[,] [it] is not unconstitutional under 

Alleyne.” Reid, supra at 785 (citations omitted). Therefore, Appellant’s 

claims based on Alleyne fail. Because Appellant has not met his burden of 

proving that his untimely PCRA petition fits within one of the three exceptions

to the PCRA’s time-bar, we affirm the order of the PCRA court.

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4 “In Alleyne, the Supreme Court of the United States held that the Sixth 

Amendment requires that any fact—other than a prior conviction—that 

increases a mandatory minimum sentence for an offense must be submitted 

to the jury and proven beyond a reasonable doubt. Importantly, Alleyne did 

not overturn prior precedent that prior convictions are sentencing factors and 

not elements of offenses.” Commonwealth v. Reid, 117 A.3d 777, 784 (Pa. 

Super. 2015) (citations omitted; emphasis added).
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Petition to withdraw granted. Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 6/26/18