J-S26024-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

JAMES MANDEE FUTRELL

Appellant No. 1316 MDA 2014

Appeal from the PCRA Order of July 18, 2014

In the Court of Common Pleas of York County

Criminal Division at No: CP-67-CR-0006077-2006

BEFORE: OTT, J., WECHT, J., and JENKINS, J.

MEMORANDUM BY WECHT, J.: FILED JULY 16, 2015

James Futrell appeals the July 18, 2014 order that denied his petition 

for relief pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 

9541-46, in part as untimely. Notably, the PCRA court also found that 

Futrell was serving an illegal sentence, and modified Futrell’s sentence 

downward to comply with our Crimes Code. 

Counsel for Futrell has filed with this Court a no-merit letter and a 

petition to withdraw as counsel pursuant to Commonwealth v. Turner, 

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

(Pa. Super. 1988) (en banc). For the reasons detailed herein, we agree with 

counsel that Futrell’s appeal has no merit due to the untimeliness of Futrell’s 

PCRA petition. However, we affirm the PCRA court’s order only in part, and 

we vacate the order in part due to the PCRA court’s partial grant of relief 
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without first having proper jurisdiction. We grant counsel’s motion to 

withdraw as counsel, but we also remand the case to the PCRA court with

instructions to re-impose the original judgment of sentence. 

On August 6, 2007, Futrell was convicted after a jury trial of 

possession of a controlled substance with intent to deliver and criminal 

conspiracy.1 On September 24, 2007, the trial court sentenced Futrell to six 

to twelve years in prison. On direct appeal, a panel of this Court reproduced 

the trial court’s summarization of the relevant facts underlying Futrell’s 

convictions and sentence as follows:

On June 28, 2006, Trooper Christopher C. Keppel of the 

Pennsylvania State Police was working with a cooperating source 

in setting up a drug transaction for two (2) ounces, 

approximately fifty-six (56) grams, of cocaine. Between 10:00 

p.m. and 11:00 p.m. that evening, Trooper Keppel’s source 

made a phone call to an individual named “Yaya” and ordered 

two (2) ounces of cocaine. The source and “Yaya” arranged to 

meet at an apartment complex parking lot in the 200 block of 

Park Street in York City. While surveying the arranged meeting 

place from the second floor of the apartment complex, Trooper 

Keppel observed a vehicle, occupied by two (2) individuals, back 

into the parking lot. At the same time, additional phone calls 

were made to “Yaya” who confirmed the location of the 

individuals bringing the cocaine. Trooper Keppel then alerted 

the surveillance team, made up of the York City Police 

Department and York City Drug Task Force, that the vehicle 

observed pulling into the lot was the target. 

Upon approaching the vehicle, Officers Scott Nadzom and [sic] 

Bushman of the York Police Department observed the two (2) 

individuals in the vehicle and a plastic bag containing a white, 

powdery substance next to a Bobcat police scanner on the center 

____________________________________________

1 35 P.S. § 780-113(a)(30); 18 Pa.C.S. § 903. 
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console of the vehicle. The officers then went to the passenger 

side of the vehicle and arrested an individual identified as Arthur 

Hines. Trooper Keppel had identified Mr. Hines as “Yaya” upon 

his arrival at the scene. After Mr. Hines was apprehended, police 

conducted a search of his person and seized the bag containing 

the white substance, police scanner, two (2) cell phones and five 

(5) bags of vegetable matter. It was later determined that the 

white, powdery substance in the plastic bag was cocaine, 

weighing 57.1 grams. The five (5) bags of vegetable matter 

were found to be marijuana, weighing 14.1 grams.

At the same time, police apprehended the second individual in 

the vehicle[, Futrell. Futrell] was then taken to City Hall where 

he was strip-searched, as is customary for every suspect 

arrested for drugs. The search revealed that a large sandwich 

bag, containing eight (8) pieces of crack cocaine, had been 

hidden in [Futrell’s] rectum. The eight pieces had been 

packaged in eight separate plastic baggies within the large 

sandwich bag. Lab results confirmed that the substances found 

in the plastic baggies were crack cocaine and had a total weight 

of 3.9 grams. 

Commonwealth v. Futrell, No. 1809 MDA 2007, slip op. at 2 (Pa. Super. 

Sept. 17, 2008) (quoting Trial Court Opinion, 1/9/2008, at 2-4). 

We affirmed Futrell’s judgment of sentence on direct appeal. Initially, 

Futrell’s counsel did not file a petition for allowance of appeal with the 

Pennsylvania Supreme Court. Subsequently, Futrell filed a PCRA petition 

seeking restoration of his right to file a petition for allowance of appeal. The 

PCRA court granted the petition, and Futrell filed a timely petition with the 

Supreme Court. The petition was denied on November 17, 2009.

On November 9, 2010, Futrell filed a timely PCRA petition. After the 

appointment of counsel and an evidentiary hearing, the PCRA court denied 
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the petition. Futrell, representing himself,2appealed the denial order to this 

Court. On February 10, 2012, we affirmed the PCRA court’s order in an 

unpublished memorandum. See Commonwealth v. Futrell, No. 868 MDA 

2011, slip op. at 1, 13 (Pa. Super. Feb. 10, 2012). On August 22, 2012, the 

Pennsylvania Supreme Court declined Futrell’s request for allowance of 

appeal.

On December 17, 2013, Futrell filed another PCRA petition. Counsel 

was appointed to represent Futrell. Counsel filed an amended PCRA petition. 

Futrell also filed two supplemental motions of law, raising a multitude of 

issues. Within those filings, Futrell argued that his six to twelve-year 

sentence was illegal because it exceeded the statutory maximum of ten 

years. The PCRA court held a hearing on the petition on July 18, 2014, after 

which the court dismissed Futrell’s petition as untimely. However, despite 

the finding of untimeliness, the court granted Futrell relief on his legality of 

sentence claim, and resentenced him to five to ten years’ imprisonment. 

On August 1, 2014, Futrell filed a notice of appeal. In response, the 

PCRA court directed Futrell to file a concise statement of errors complained 

of on appeal pursuant to Pa.R.A.P. 1925(b). On September 10, 2014, Futrell 

____________________________________________

2

Futrell filed a motion to discharge counsel with the PCRA court. The 

motion was granted. However, we then directed the PCRA court to hold a 

hearing pursuant to Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998), 

to ensure that Futrell’s election to represent himself was knowing, voluntary, 

and intelligent. The PCRA court complied with our directive, and concluded 

that Futrell made a valid waiver of counsel. 
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filed a timely concise statement. On September 26, 2014, the PCRA court 

issued an opinion pursuant to Pa.R.A.P. 1925(a).

As noted above, counsel for Futrell has filed with this Court a 

Turner/Finley no-merit letter. We first consider whether counsel has 

complied with the requirements that our courts have established in order for 

appointed counsel to be released pursuant to Turner and Finley. We 

previously have explained this procedure as follows:

Counsel petitioning to withdraw from PCRA representation must 

proceed under [Turner/Finley and] . . . must review the case 

zealously. Turner/Finley counsel must then submit a “nomerit” 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 — [PCRA] 

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) (citations 

omitted). 

We conclude that PCRA counsel has substantially complied with the 

technical requirements of Turner/Finley. In his no-merit letter, counsel 

sets forth the issues as to which Futrell seeks our review on appeal. See
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No-Merit Letter, 11/30/2014, at 4. Counsel also has set forth the history of 

Futrell’s case thoroughly. Id. at 4, and attachment. Futrell’s counsel also 

has reviewed the applicable statutes, case law, and rules of procedure. Id.

at 1-5. In articulating his reasoning as to why he believes that Futrell is not 

entitled to relief, counsel reviews the legal standards that are applicable to 

the timeliness of a PCRA petition. Counsel ultimately concludes that Futrell’s 

PCRA petition was untimely, rendering the PCRA court and this Court without 

jurisdiction. Id. at 5. In addition, counsel also reviews the multitude of 

claims that Futrell has raised throughout the entirety of the PCRA 

proceedings, and demonstrates why those claims lack merit. 

Following a review of the record and the applicable law, Futrell’s 

counsel ultimately has concluded that Futrell is not eligible for PCRA relief. 

Id. at 5 (“On this basis, I must conclude that there is no merit to the issue 

raised in this appeal, and I must petition the Superior Court to withdraw as 

counsel.”). Accordingly, counsel has filed a motion to withdraw as counsel. 

Additionally, counsel has sent a copy of the no-merit brief and counsel’s 

motion to withdraw as counsel to Futrell. In the letter, counsel incorrectly 

informed Futrell that, should this Court grant his motion to withdraw as 

counsel, he has the right continue his appeal pro se, or may retain private 

counsel at his own expense.3 Id. at 20. 

____________________________________________

3 When counsel filed his no-merit letter, this Court recognized the error 

of counsel’s advice. Counsel incorrectly advised Futrell that he had the right 

(Footnote Continued Next Page)
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Based upon the foregoing, we conclude that PCRA counsel has 

complied substantially with the Turner/Finley requirements. See Doty, 

supra. However, before passing upon PCRA counsel’s motion to withdraw, 

we must conduct our own independent review of the record.

Futrell has raised a multitude of issues throughout the PCRA 

proceedings. However, for the reasons detailed immediately below, we 

conclude that Futrell’s PCRA petition was untimely, and that the PCRA court 

did not have jurisdiction to resolve any of the issues presented by Futrell. 

Thus, we need not list all of Futrell’s issues, nor do we need to address them 

with any specificity, except for his claim that his petition is timely in light of 

the United States Supreme Court’s decision in Alleyne v. United States, 

133 S.Ct. 2151 (2013). 

The “standard of review for an order denying post-conviction relief is 

limited to whether the record supports the PCRA court’s determination, and 

(Footnote Continued) _______________________

to proceed pro se or with private counsel should this Court grant his petition 

to withdraw as counsel. Counsel should have instructed Futrell that he had 

those options immediately, not only after we granted his motion to withdraw 

as counsel. Recognizing this error, we afforded Futrell the opportunity to file 

a response to Counsel’s no-merit letter and motion to withdraw as counsel. 

Futrell filed a motion to remand the case for an evidentiary hearing. We 

denied that motion, and gave Futrell a second chance to file an appropriate 

response. Once again, instead of filing a response, Futrell asked this Court 

to remand the case to the PCRA court so that he could raise additional 

issues. We denied that motion as well. Consequently, even though counsel 

gave Futrell incorrect advice, we conclude that he complied with 

Turner/Finley substantially, because we afforded Futrell two chances to 

respond to counsel’s filings, which is the option he would have had if counsel 

had advised him correctly. Futrell elected not to respond. 
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whether that decision is free of legal error.” Commonwealth v. Johnson, 

945 A.2d 185, 188 (Pa. Super. 2008). The PCRA court’s findings “will not be 

disturbed unless there is no support for the findings in the certified record.” 

Id.

The PCRA was amended in 1995 to include strict time limits on filings, 

establishing that “[a]ny petition [filed under the PCRA] . . . shall be filed 

within one year of the date the judgment becomes final.” 42 Pa.C.S. § 

9545(b)(1). Under the PCRA, “[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.” 42 Pa.C.S. § 9545(b)(3). It is wellestablished that these time limits are jurisdictional, and are meant to be 

both mandatory and applied literally by the courts to all PCRA petitions, 

regardless of the potential merit of the claims asserted. Commonwealth v. 

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

737 A.2d 214, 222 (Pa. 1999) (stating that a trial court has no authority to 

extend filing periods except as the statute permits); see Commonwealth 

v. Gamboa-Taylor, 753 A.2d 780, 783 (Pa. 2000). 

On November 17, 2009, the Pennsylvania Supreme Court denied 

Futrell’s petition for allowance of appeal. Futrell had ninety days from that 

day to file a petition for a writ of certiorari with the United States Supreme 

Court. See U.S.Sup.Ct. Rule 13. Futrell’s judgement of sentence became 
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final at the expiration of that time period, see 42 Pa.C.S. § 9545(b)(3), or 

on or before February 15, 2010. To be timely, any PCRA petition must have 

been filed within one year of that date, or on or before February 15, 2011. 

The petition at issue in this case was filed on December 17, 2013, over two 

and one-half years after the PCRA’s time limit expired. Consequently, the 

petition is facially untimely.

Despite the untimeliness of the petition, there are three statutory 

exceptions to this one-year time limit, which, when satisfied, permit a 

defendant to file a PCRA petition more than one year after the underlying 

judgment of sentence becomes final. These exceptions are as follows: 

(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 

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.
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42 Pa.C.S. § 9545(b). “[I]t is the appellant’s burden to allege and prove 

that one of the timeliness exceptions applies.” Commonwealth v. 

Albrecht, 994 A.2d 1091, 1094 (Pa. 2010). 

Futrell has raised in these proceedings the potential applicability of 

subsection (iii), the newly-recognized, and retroactively-applied, 

constitutional right exception, based upon the Supreme Court’s decision in 

Alleyne, in which the Court held that “facts that increase mandatory 

minimum sentences must be submitted to the jury” and must be found 

beyond a reasonable doubt. Alleyne, supra at 2163. 

Subsection (iii) of Section 9545[ (b)(1) ] has two requirements. 

First, it provides that 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 provided 

in this section. Second, it provides that the right “has been 

held” by “that court” to apply retroactively. Thus, a petitioner 

must prove that there is a “new” constitutional right and that the 

right “has been held” by that court to apply retroactively. The 

language “has been held” is in the past tense. These words 

mean that the action has already occurred, i.e., “that court” has 

already held the new constitutional right to be retroactive to 

cases on collateral review. By employing the past tense in 

writing this provision, the legislature clearly intended that the 

right was already recognized at the time the petition was filed.

Commonwealth v. Seskey, 86 A.3d 237, 242-43 (Pa. Super. 2014) 

(quoting Commonwealth v. Copenhefer, 941 A.2d 646, 649-50 (Pa. 

2007)). 

Quite recently, in Commonwealth v. Miller, 102 A.3d 988 (Pa. 

Super. 2014), this Court addressed the exact situation presented in the case 

sub judice: whether Alleyne could serve as the basis for applying 
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subsection (iii) to an otherwise untimely PCRA petition. We squarely 

rejected the claim, holding that, even if Alleyne announced a new 

constitutional right, to date, neither the United States Supreme Court nor 

the Pennsylvania Supreme Court has held that the right applied retroactively 

to an individual whose judgment of sentence has finalized. Miller, 102 A.3d 

at 995. Hence, subsection (iii) does not apply to Futrell, and his petition 

remains untimely.

Because the petition is untimely, we need not address the merits of 

the myriad claims raised by Futrell throughout the proceedings. Similarly,

due to the untimeliness, we also have not detected any other issues of merit 

during our independent review. Therefore, we have completed our 

Turner/Finley analysis and we agree with counsel that this appeal lacks 

merit. 

Unfortunately, we have one other matter that we must discuss. Due 

to the untimeliness of the petition, the PCRA court lacked jurisdiction entirely 

over Futrell’s case. This means that the PCRA court also lacked the 

authority to modify Futrell’s sentence. Even though it appears that Futrell’s 

sentence was illegal, a court nonetheless must have jurisdiction before it can 

void a judgment of sentence and replace it anew. See Fahy, 737 A.2d at 

223 (“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.”). Consequently, we must vacate the PCRA’s order to 

the extent that it vacated Futrell’s judgement of sentence and resentenced 
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Futrell. We remand this case to the PCRA court with instructions to reimpose Futrell’s original sentence. 

PCRA order affirmed in part, reversed in part. Case remanded for 

proceedings consistent with this memorandum. Jurisdiction relinquished. 

Petition to withdraw as counsel granted. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 7/16/2015