J-S22036-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                       Appellee                :
                                               :
                v.                             :
                                               :
    MARSHALL L. THOMPSON                       :
                                               :
                       Appellant               :      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
____________________________________________


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).

____________________________________
* Retired Senior Judge assigned to the Superior Court.
J-S22036-18



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.

____________________________________________


2The 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).

                                           -2-
J-S22036-18


            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.


                                     -3-
J-S22036-18


      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

                                      -4-
J-S22036-18



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



                                       -5-
J-S22036-18



(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.

____________________________________________


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).

                                           -6-
J-S22036-18



     Petition to withdraw granted. Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/26/18




                                  -7-
