Com. v. Williams, H. ( 2017 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT
OF
PENNSYLVANIA
Appellee
v.
HERBERT J. WILLIAMS
Appellant No. 380 MDA 2017
Appeal from the PCRA Order January 31, 2017
In the Court of Common Pleas of Luzerne County
Criminal Division at No(s): CP-40-CR-0004045-2013
BEFORE: STABILE, J., MOULTON, J., and STRASSBURGER, J.*
MEMORANDUM BY MOULTON, J.: FILED DECEMBER 15, 2017
Herbert J. Williams appeals from the January 31, 2017 order of the
Luzerne County Court of Common Pleas dismissing his first petition filed under
the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-46. On appeal,
counsel has filed a Turner/Finley 1 brief and a petition to withdraw as counsel.
We affirm and grant counsel’s petition to withdraw.
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
1On appeal, counsel filed a brief pursuant to Anders v. California, 386
U.S. 738 (1967), and a petition to withdraw as counsel. While counsel should
have filed a 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), “an Anders brief provides greater protection to a
defendant[. Therefore,] 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). We will refer to the brief as a Turner/Finley brief.
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On June 16, 2014, Williams pled guilty to possession with intent to
deliver, 35 P.S. § 780-113(a)(30). On August 8, 2014, the trial court
sentenced Williams to 5 to 10 years’ incarceration. Williams did not appeal
from his judgment of sentence. On July 19, 2016, Williams filed, pro se, his
first PCRA petition. Following appointment of counsel, on January 31, 2017,
the PCRA court held a hearing on Williams’ petition. That same day, the PCRA
court dismissed Williams’ petition. Williams filed a timely notice of appeal.
Before we may address the merits of Williams’ appeal, we must
determine whether his PCRA counsel has satisfied the requirements for
withdrawal under Turner/Finley. Counsel must “file a ‘no-merit’ letter
detailing the nature and extent of his review and list each issue the petitioner
wishes to have examined, explaining why those issues are meritless.”
Commonwealth v. Rykard, 55 A.3d 1177, 1184 (Pa.Super. 2012). Counsel
also must serve copies of the petition to withdraw and no-merit letter on the
petitioner and advise the petitioner that he has the right to proceed pro se or
with privately retained counsel. See Commonwealth v. Widgins, 29 A.3d
816, 818 (Pa.Super. 2011).
In his petition to withdraw, PCRA counsel states that upon review of the
record, he “concludes that this appeal is wholly frivolous and that no
meritorious issues exist.” Pet. to Withdraw, 7/24/17, ¶ 3. PCRA counsel also
mailed a copy of the petition and brief to Williams and informed him that, if
he wished to continue the appeal, Williams could retain private counsel or
proceed pro se. See Ltr. to Williams, 7/24/17. Further, counsel’s
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Turner/Finley brief filed with this Court explained why the issue raised in the
PCRA petition lacked merit. Williams has not filed a pro se response to PCRA
counsel’s petition to withdraw. We conclude that PCRA counsel has complied
with the dictates of Turner/Finley. Therefore, we will address the issue
raised in the Turner/Finley brief.
PCRA counsel raises the following issue in his Turner/Finley brief:
“Whether [Williams’] PCRA [petition] was filed [o]n a timely basis and whether
the decision issued in Alleyne v. United States[, 570 U.S. 99 (2013)]
renders [Williams’] sentence unconstitutional.” Turner/Finley Br. at 1.
Our review of an order denying PCRA relief is limited to determining
“whether the decision of the PCRA court is supported by the evidence of record
and is free of legal error.” Commonwealth v. Melendez–Negron, 123 A.3d
1087, 1090 (Pa.Super. 2015). We will not disturb the PCRA court’s factual
findings “unless there is no support for [those] findings in the certified
record.” Id.We must first determine whether Williams’ PCRA petition is timely. A
PCRA petition “shall be filed within one year of the date the judgment becomes
final.” 42 Pa.C.S. § 9545(b)(1). A judgment is 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).
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The trial court sentenced Williams on August 8, 2014. Williams did not
file a direct appeal. Therefore, his judgment of sentence became final 30 days
later, on September 8, 2014. See Pa.R.A.P. 903 (providing that notice of
appeal “shall be filed within 30 days after the entry of the order from which
the appeal is taken”). Williams had one year from that date, or until
September 8, 2015, to file a timely PCRA petition. His current petition, filed
on July 19, 2016, is therefore facially untimely.
To overcome the time bar, Williams was required to plead and prove
one of the following exceptions: (i) unconstitutional interference by
government officials; (ii) newly discovered facts that could not have been
previously ascertained with due diligence; or (iii) a newly recognized
constitutional right that has been held to apply retroactively. See 42 Pa.C.S.
§ 9545(b)(1)(i)-(iii). To invoke one of these exceptions, Williams must have
filed his petition within 60 days of the date the claim could have been
presented. See 42 Pa.C.S. § 9545(b)(2).
Williams attempts to invoke the new constitutional right exception based
on Alleyne. The United States Supreme Court decided Alleyne on June 17,
2013. The trial court sentenced Williams on August 8, 2014. Thus, the
constitutional right announced by the Alleyne Court was recognized prior to
his sentencing. Accordingly, Williams may not invoke the new constitutional
right exception as an exception to the PCRA time bar.
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Accordingly, we conclude that Williams has failed to prove an exception
to the PCRA time bar. Therefore, the PCRA court did not err in dismissing
Williams’ PCRA petition as untimely.
Order affirmed. Petition to withdraw granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/15/2017
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