J. S36021/16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

:

v. :

:

JOSE GUADALUPE ROJO, JR., :

:

Appellant : No. 1846 MDA 2015

Appeal from the PCRA Order September 30, 2015

In the Court of Common Pleas of Adams County 

Criminal Division No.: CP-01-CR-0000237-2010

BEFORE: MUNDY, J., DUBOW, J., and STEVENS, P.J.E.*

MEMORANDUM BY DUBOW, J.: FILED JULY 22, 2016

Appellant, Jose Guadalupe Rojo, Jr., appeals from the Order entered in 

the Adams County Court of Common Pleas dismissing his first Petition filed 

under the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-9546, as 

untimely. Additionally, Appellant’s appointed counsel, Thomas R. Nell, 

Esquire (“Attorney Nell”), has filed a Petition to Withdraw as counsel and an 

accompanying no-merit letter pursuant to Commonwealth v. Turner, 544 

A.2d 927 (Pa. 1988), and Commonwealth v. Finley, 550 A.2d 213 (Pa. 

Super. 1988) (en banc). After careful review, we grant Attorney Nell’s 

Petition to Withdraw and affirm on the basis that Appellant’s PCRA Petition is 

untimely and that this Court lacks jurisdiction to review the Petition.

 

*

Former Justice specially assigned to the Superior Court.
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On June 28, 2010, Appellant entered a negotiated guilty plea to one 

count of Possession of a Controlled Substance With Intent to Deliver 

(“PWID”).1 The same day, the trial court imposed the negotiated sentence 

of 5 to 10 years’ incarceration.2 Appellant did not file a direct appeal. His 

Judgment of Sentence, therefore, became final on July 28, 2010. See 42 

Pa.C.S. § 9545(b)(3).

Appellant filed the instant pro se PCRA Petition, his first, on July 20, 

2015. Appellant claimed his plea counsel had been ineffective and that his 

sentence is excessive and illegal. On August 12, 2015, the PCRA court 

issued a Pa.R.Crim.P. 907 Notice advising Appellant of its intent to dismiss 

his Petition based on lack of jurisdiction, and appointed Attorney Nell as 

counsel. Appellant filed an Amended PCRA Petition on September 21, 2015, 

raising additional claims of ineffective assistance of counsel and 

constitutional violations.

On September 30, 2015, the PCRA court dismissed Appellant’s Petition 

without a hearing, concluding it lacked jurisdiction to consider Appellant’s 

underlying claim because the Petition was untimely and Appellant failed to 

plead and prove a timeliness exception. Appellant filed a Notice of Appeal 

 

1 35 P.S. § 780-113(a)(30).

2 The sentence included a sentence imposed for a conviction in another 

matter docketed at CP-01-CR-00104-2010. That matter is not at issue in this 

appeal.
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on October 21, 2015. Both Appellant and the PCRA court complied with 

Pa.R.A.P. 1925.

On February 1, 2016, Attorney Nell filed with this Court a Petition to 

Withdraw as counsel, and an accompanying Turner/Finley no-merit letter, 

asserting counsel’s opinion that there were no non-frivolous issues to be 

raised on appeal. Appellant did not respond to Attorney Nell’s Petition to 

Withdraw as Counsel.

Before we consider Appellant’s arguments, we must review Attorney 

Nell’s request to withdraw from representation. Pursuant to Turner/Finley, 

independent review of the record by competent counsel is required before 

withdrawal on collateral appeal is permitted. Commonwealth v. Pitts, 981 

A.2d 875, 876 n.1 (Pa. 2009). Counsel is then required to submit a “no 

merit” letter (1) detailing the nature and extent of his or her review; (2) 

listing each issue the petitioner wished to have reviewed; and (3) providing 

an explanation of why the petitioner’s issues were meritless. Id. The court 

then conducts its own independent review of the record to determine if the 

Petition is meritless. Id. 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.” Commonwealth v. Wrecks, 931 A.2d 717, 721 

(Pa. Super. 2007) (citation omitted).
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Our review of the record discloses that Attorney Nell has complied with 

each of the above requirements. In addition, Attorney Nell sent Appellant 

copies of the Turner/Finley no-merit letter and his Petition to Withdraw, 

and advised him of his rights in lieu of representation in the event that the 

court granted Attorney Nell permission to withdraw. See Commonwealth 

v. Widgins, 29 A.3d 816, 818 (Pa. Super. 2011). Since Attorney Nell has 

complied with the Turner/Finley requirements, we will proceed with our 

independent review of the record and the merits of Appellant’s claims.

We review the denial of a PCRA Petition to determine whether the 

record supports the PCRA court’s findings and whether its Order is otherwise 

free of legal error. Commonwealth v. Fears, 86 A.3d 795, 803 (Pa. 

2014). There is no right to a PCRA hearing; a hearing is unnecessary where 

the PCRA court can determine from the record that there are no genuine 

issues of material fact. Commonwealth v. Jones, 942 A.2d 903, 906 (Pa. 

Super. 2008). 

In the Turner/Finley letter, Attorney Nell indicated Appellant wished 

to challenge the effectiveness of counsel and the legality of his sentence. 

Before addressing the merits of Appellant’s claims, we must first determine 

whether we have jurisdiction to entertain the underlying PCRA Petition. See 

Commonwealth v. Hackett, 956 A.2d 978, 983 (Pa. 2008) (explaining that 

the timeliness of a PCRA Petition is a jurisdictional requisite).
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Under the PCRA, any Petition “including a second or subsequent 

petition, shall be filed within one year of the date the judgment becomes 

final[.]” 42 Pa.C.S. § 9545(b)(1). A Judgment of Sentence 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 the expiration of time for seeking the review.” 42 Pa.C.S. § 9545(b)(3). 

The PCRA’s timeliness requirements are jurisdictional in nature, and a court 

may not address the merits of the issues raised if the PCRA petition was not 

timely filed. Commonwealth v. Albrecht, 994 A.2d 1091, 1093 (Pa. 

2010).

Here, Appellant’s Judgment of Sentence became final on July 28, 

2010, upon expiration of the time to file a Notice of Appeal with the 

Pennsylvania Superior Court. See 42 Pa.C.S. § 9545(b)(3). In order to be 

timely, Appellant needed to submit his PCRA Petition by July 28, 2011. Id. 

Appellant filed this PCRA Petition on July 20, 2015, well after the one-year 

deadline. The PCRA court properly concluded that Appellant’s Petition is 

facially untimely. PCRA Court Opinion, dated 12/28/15, at 3.

Pennsylvania courts may consider an untimely PCRA petition, however, 

if the appellant pleads and proves one of the three exceptions set forth in 42 

Pa.C.S. § 9545(b), which provides the following:

(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 
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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. § 9545(b)(1)-(2). See, e.g., Commonwealth v. Lark, 746 

A.2d 585, 588 (Pa. 2000) (reviewing specific facts that demonstrated the 

claim had been timely raised within 60-day timeframe).

Appellant attempts to invoke the timeliness exception under Section 

9545(b)(1)(iii) in his challenge to the legality of his sentence, relying on 

Alleyne v. United States, __ U.S. __, 133 S.Ct. 2151, 186 L.Ed.2d 314 

(2013). As long as this Court has jurisdiction over the matter, a legality of 

sentencing issue is reviewable and cannot be waived. Commonwealth v. 

Jones, 932 A.2d 179, 182 (Pa. Super. 2007). However, a legality of 

sentencing issue must be raised in a timely filed PCRA Petition. See 42 

Pa.C.S. § 9545(b)(2); Commonwealth v. Fahy, 737 A.2d 214, 223 (Pa. 
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1999) (“Although legality of sentence is always subject to review within the 

PCRA, claims must still first satisfy the PCRA’s time limits or one of the 

exceptions thereto”). Appellant must present an illegal sentencing claim in a 

timely PCRA Petition over which we have jurisdiction. See Fahy, supra at 

223, and Commonwealth v. Miller, 102 A.3d 988, 994 (Pa. Super. 2014) 

(en banc) (explaining that the decision in Alleyne does not invalidate a 

mandatory minimum sentence when presented in an untimely PCRA 

Petition).

The United States Supreme Court decided Alleyne on June 17, 2013. 

In order to invoke the “constitutional right” exception under 42 Pa.C.S. § 

9545(b)(1)(iii), Appellant needed to submit his PCRA petition within 60 days 

of June 17, 2013. See Commonwealth v. Boyd, 923 A.2d 513, 517 (Pa. 

Super. 2007) (stating that the 60-day period begins to run upon the date of 

the underlying judicial decision). Appellant filed this PCRA Petition on July 

20, 2015, well after 60 days of the Alleyne decision.

Because Appellant’s Judgment of Sentence was final when Alleyne

was decided and because he filed an untimely PCRA Petition, the instant 

case is indistinguishable from Miller. Accordingly, the PCRA court properly 

concluded that Appellant failed to plead and prove any of the timeliness 

exceptions provided in 42 Pa.C.S. § 9545(b)(1), and properly dismissed 

Appellant’s Petition is untimely. PCRA Court Opinion, dated 12/28/15, at 2-

5.
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In sum, (1) Appellant’s PCRA Petition was facially untimely and he did

not plead and prove the applicability of any of the three statutory timeliness 

exceptions; (2) the PCRA court properly dismissed Appellant’s PCRA Petition 

without an evidentiary hearing; and (3) Attorney Nell fulfilled the procedural 

requirements of Turner/Finley. We, thus, affirm the denial of PCRA relief 

and grant counsel’s Petition to Withdraw.

Order affirmed. Petition to Withdraw granted. Jurisdiction 

relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 7/22/2016