J-S22008-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

CHARLES VASQUEZ, JR.

Appellant No. 1794 MDA 2015

Appeal from the PCRA Order September 16, 2015

In the Court of Common Pleas of Lancaster County

Criminal Division at No(s): CP-36-CR-0001511-2007

 CP-36-CR-0001527-2007

 CP-36-CR-0005118-2009

 CP-36-CR-0005327-2008

BEFORE: MUNDY, J., DUBOW, J., and STRASSBURGER, J.*

MEMORANDUM BY MUNDY, J.: FILED MARCH 09, 2016

Appellant, Charles Vasquez, Jr., appeals from the September 16, 2015 

order dismissing, as untimely, his petition for relief filed pursuant to the Post 

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

Contemporaneously with this appeal, counsel has requested leave to 

withdraw in accordance with Commonwealth v. Turner, 544 A.2d 927 (Pa. 

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

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* Retired Senior Judge assigned to the Superior Court.
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banc), and their progeny. After careful review, we affirm and grant 

counsel’s petition to withdraw.1

We summarize the relevant procedural history of this case as follows. 

On March 10, 2010, Appellant entered into a negotiated guilty plea 

agreement with the Commonwealth and pled guilty to two counts of 

possession with intent to deliver, two counts of possession of drug 

paraphernalia, one count of fleeing from a police officer, five counts of 

receiving stolen property, one count of possession of a firearm prohibited, 

one count of theft by unlawful taking, and one count of operating a chop 

shop.2 The trial court imposed an aggregate sentence of 5 to 10 years’ 

imprisonment to cover all charges. Relevant to this appeal, two of the 

sentences were mandatory minimum sentences imposed pursuant to 42 

Pa.C.S.A. § 9712.1. Appellant did not file a post-sentence motion, nor a 

direct appeal with this Court.

On May 5, 2014, Appellant filed the instant pro se PCRA petition. The 

PCRA court appointed counsel, who filed an amended petition on July 15, 

2014. The Commonwealth filed its answer on August 14, 2014. On July 8, 

2015, the PCRA court entered an order notifying Appellant of its intention to 

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1 The Commonwealth has elected not to file a brief in this matter.

2 35 P.S. §§ 780-113(a)(30), 780-113(a)(32), 75 Pa.C.S.A. § 3733(a), 18 

Pa.C.S.A. §§ 3925(a), 6105(a)(1), 3921(a), and 18 P.S. § 1.3(1), 

respectively.
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dismiss his PCRA petition without a hearing pursuant to Pennsylvania Rule of 

Criminal Procedure 907. Appellant did not file a response. The PCRA court

entered an order dismissing Appellant’s PCRA petition on September 16, 

2015. On October 14, 2015, Appellant filed a timely notice of appeal.3

On appeal, counsel raises the following issue on Appellant’s behalf.

Whether the [PCRA] court erred when it denied 

[PCRA] relief on the basis that the PCRA petition was 

filed untimely?

Turner/Finley Brief at 2.

Prior to considering Appellant’s issue, we must review PCRA counsel’s 

request to withdraw from representation. Our Supreme Court has 

articulated the requirements PCRA counsel must adhere to when requesting 

to withdraw, which include the following.

1) A “no-merit” letter by PC[R]A counsel detailing 

the nature and extent of his review; 

2) The “no-merit” letter by PC[R]A counsel listing 

each issue the petitioner wished to have reviewed; 

3) The PC[R]A counsel’s “explanation”, in the “nomerit” letter, of why the petitioner’s issues were 

meritless[.] 

Commonwealth v. Pitts, 981 A.2d 875, 876 (Pa. 2009), quoting Finley, 

supra at 215. “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) 

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3 Appellant and the PCRA court have complied with Pennsylvania Rule of 

Appellate Procedure 1925.
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a statement advising petitioner of the right to proceed pro se or by new 

counsel.” Commonwealth v. Wrecks, 931 A.2d 717, 721 (Pa. Super. 

2007) (citation omitted). 

[W]here counsel submits a petition and nomerit letter that do 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. By contrast, if 

the claims appear to have merit, the court will deny 

counsel’s request and grant relief, or at least instruct 

counsel to file an advocate’s brief.

Id. (citation omitted).

Instantly, we determine that PCRA counsel has complied with the 

requirements of Turner/Finley. Specifically, PCRA counsel’s Turner/Finley

brief and petition to withdraw4 detail the nature and extent of PCRA 

counsel’s review, address the untimeliness of Appellant’s PCRA petition, and 

explain and conclude that the issue lacks merit. Additionally, PCRA counsel 

served Appellant with a copy of the petition to withdraw and Turner/Finley

brief, advising Appellant that, if PCRA counsel was permitted to withdraw, 

Appellant had the right to proceed pro se or with privately retained counsel. 

Appellant has not filed any response. We proceed, therefore, to conduct an 

independent merits review of Appellant’s issue.

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4 We note that counsel has included his petition to withdraw as a section of 

his Turner/Finley brief, rather than filing a separate petition to withdraw.
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We begin by noting our well-settled standard of review. “In reviewing 

the denial of PCRA relief, we examine whether the PCRA court’s 

determination is supported by the record and free of legal error.” 

Commonwealth v. Fears, 86 A.3d 795, 803 (Pa. 2014) (internal quotation 

marks and citation omitted). “The scope of review is limited to the findings 

of the PCRA court and the evidence of record, viewed in the light most 

favorable to the prevailing party at the trial level.” Commonwealth v. 

Spotz, 84 A.3d 294, 311 (Pa. 2014) (citation omitted). “It is well-settled 

that a PCRA court’s credibility determinations are binding upon an appellate 

court so long as they are supported by the record.” Commonwealth v. 

Robinson, 82 A.3d 998, 1013 (Pa. 2013) (citation omitted). However, this 

Court reviews the PCRA court’s legal conclusions de novo. Commonwealth 

v. Rigg, 84 A.3d 1080, 1084 (Pa. Super. 2014) (citation omitted).

As noted above, Appellant’s issue on appeal addresses the timeliness 

of his instant PCRA petition, which implicates the jurisdiction of this Court 

and the PCRA court. Commonwealth v. Davis, 86 A.3d 883, 887 (Pa. 

Super. 2014) (citation omitted). Pennsylvania law makes clear that when “a 

PCRA petition is untimely, neither this Court nor the trial court has 

jurisdiction over the petition.” Commonwealth v. Seskey, 86 A.3d 237, 

241 (Pa. Super. 2014) (citation omitted), appeal denied, 101 A.3d 103 (Pa. 

2014). 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 
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only if the PCRA permits it to be extended[.]” Commonwealth v. Ali, 86 

A.3d 173, 177 (Pa. 2014) (internal quotation marks and citation omitted), 

cert. denied, Ali v. Pennsylvania, 135 S. Ct. 707 (2014). This is to “accord 

finality to the collateral review process.” Commonwealth v. Watts, 23 

A.3d 980, 983 (Pa. 2011) (citation omitted). “However, an untimely petition 

may be received 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. Lawson, 90 A.3d 1, 5 (Pa. Super. 2014) (citation 

omitted). The PCRA provides, in relevant part, as follows.

§ 9545. Jurisdiction and proceedings

...

(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 
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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).

In the instant case, Appellant was sentenced on March 4, 2010 and did 

not file a direct appeal with this Court. Therefore, Appellant’s judgment of 

sentence became final on April 5, 2010, when the 30-day period for filing a 

notice of appeal with this Court expired.5 See 42 Pa.C.S.A. § 9545(b)(3) 

(stating, “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[]”); Pa.R.A.P. 903(c)(3) (stating, “[i]n a criminal case in which no 

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5 We observe that the 30th day fell on Saturday, April 3, 2010. When 

computing the 30-day filing period “[if] the last day of any such period shall 

fall on Saturday or Sunday ... such day shall be omitted from the 

computation.” 1 Pa.C.S.A. § 1908. Therefore, the 30th day for Appellant to 

file a timely notice of appeal was Monday, April 5, 2010.
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post-sentence motion has been filed, the notice of appeal shall be filed 

within 30 days of the imposition of the judgment of sentence in open 

court[]”). Appellant filed his petition on May 5, 2014, and therefore it is 

patently untimely. See 42 Pa.C.S.A. § 9545(b)(1) (stating, “[a]ny petition 

under this subchapter, including a second or subsequent petition, shall be 

filed within one year of the date the judgment becomes final[]”).

Instantly, Appellant’s PCRA petition asserts that Appellant’s mandatory 

minimum sentences under Section 9712.1 are unconstitutional under 

Alleyne v. United States, 133 S. Ct. 2151 (2013) and therefore illegal. 

Turner/Finley Brief at 2. However, as counsel acknowledges, judicial 

opinions are not considered new facts for the purposes of Section 

9545(b)(1)(ii). See Watts, supra at 987. Furthermore, counsel 

acknowledges that Alleyne does not satisfy the new constitutional right 

exception to the time-bar. See generally Commonwealth v. Miller, 102 

A.3d 988, 994-995 (Pa. Super. 2014). In addition, Alleyne was decided on 

June 17, 2013, and Appellant’s petition was filed on May 5, 2014, 322 days 

later, in violation of the 60-day rule at Section 9545(b)(2). Therefore, 

counsel is correct that Appellant’s PCRA petition was untimely filed and no 

time-bar exception applied.

Based on the foregoing, we conclude the PCRA court properly 

dismissed Appellant’s PCRA petition as untimely. Accordingly, we affirm the 
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PCRA court’s September 16, 2015 order and grant counsel’s petition to 

withdraw.

Order affirmed. Petition to withdraw as counsel granted.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 3/9/2016