Com. v. Wurst, A.

J-S08035-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
:
ANDREW JEROME WURST :
:
Appellant No. 998 WDA 2016
Appeal from the PCRA Order June 6, 2016
In the Court of Common Pleas of Erie County
Criminal Division at No(s): CP-25-CR-0001337-1998
BEFORE: GANTMAN, P.J., FORD ELLIOTT, P.J.E., and SOLANO, J.
MEMORANDUM BY GANTMAN, P.J.: FILED JANUARY 26, 2017
Appellant, Andrew Jerome Wurst, appeals pro se from the order
entered in the Allegheny County Court of Common Pleas, which denied his
first petition filed under the Post Conviction Relief Act (“PCRA”), at 42
Pa.C.S.A. §§ 9541-9546. On September 9, 1999, Appellant entered an open
guilty plea to one count of third-degree murder, two counts of attempted
murder, and related offenses arising from his involvement in a shooting
death on April 24, 1998. Appellant was 14 years old at the time of the
incident. On September 9, 1999, the court sentenced Appellant to an
aggregate term of 30-60 years’ incarceration. Appellant did not seek direct
review. Appellant filed the current PCRA petition on March 16, 2016, and
the PCRA court appointed counsel, who, on May 9, 2016, filed a petition to
withdraw and a “no-merit” letter pursuant to Commonwealth v. Turner,
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518 Pa. 491, 544 A.2d 927 (1988) and Commonwealth v. Finley, 550
A.2d 213 (Pa.Super. 1988) (en banc). The PCRA court did not rule on PCRA
counsel’s petition to withdraw. The PCRA court issued Rule 907 notice on
May 10, 2016, and denied Appellant’s petition on June 6, 2016. Appellant
timely filed a counseled notice of appeal on July 5, 2016, and on July 6,
2016, the PCRA court ordered Appellant to file a Rule 1925(b) statement.
On July 27, 2016, in lieu of a Rule 1925(b) statement, PCRA counsel filed a
Rule 1925(c)(4) statement of intent to file a Turner/Finley brief and
petition to withdraw. Counsel filed his petition to withdraw as counsel with
this Court on November 16, 2016.
Preliminarily, before counsel can be permitted to withdraw from
representing a petitioner under the PCRA, counsel must file a “no-merit”
brief or letter pursuant to Turner and Finley. Commonwealth v.
Karanicolas, 836 A.2d 940 (Pa.Super. 2003).
[C]ounsel must…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 the petitioner wants to have reviewed,
explaining why and how those issues lack merit, and
requesting permission to withdraw.
Commonwealth v. Wrecks, 931 A.2d 717, 721 (Pa.Super. 2007). Counsel
must also send to the petitioner a copy of the “no-merit” letter or brief and
motion to withdraw and advise petitioner of his right to proceed pro se or
with privately retained counsel. Id. “Substantial compliance with these
requirements will satisfy the criteria.” Karanicolas, supra at 947.
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Instantly, PCRA counsel’s motion to withdraw and Turner/Finley brief
detail the nature of counsel’s review and explain why Appellant’s issue lacks
merit. Counsel’s brief also demonstrates he reviewed the certified record
and determined the record was devoid of meritorious issues for appeal.
Counsel notified Appellant of counsel’s request to withdraw and advised
Appellant regarding his rights. Thus, counsel substantially complied with the
Turner/Finley requirements. See Wrecks, supra; Karanicolas, supra.The timeliness of a PCRA petition is a jurisdictional requisite.
Commonwealth v. Turner, 73 A.3d 1283 (Pa.Super. 2013), appeal denied,
625 Pa. 649, 91 A.3d 162 (2014). A PCRA petition must be filed within one
year of the date the underlying judgment becomes final. 42 Pa.C.S.A §
9545(b)(1). A judgment is deemed final at the conclusion of direct review or
at the expiration of time for seeking review. 42 Pa.C.S.A. § 9545(b)(3).
The three statutory exceptions to the timeliness provisions in the PCRA allow
for very limited circumstances under which the late filing of a petition will be
excused. 42 Pa.C.S.A. § 9545(b)(1). A petitioner asserting a timeliness
exception must file a petition within sixty days of the date the claim could
have been presented. 42 Pa.C.S.A. § 9545(b)(2). When asserting the
newly created constitutional right exception under Section 9545(b)(1)(iii), “a
petitioner must prove that there is a new constitutional right and that the
right has been held by that court to apply retroactively.” Commonwealth
v. Chambers, 35 A.3d 34, 41 (Pa.Super. 2011), appeal denied, 616 Pa.
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625, 46 A.3d 715 (2012) (internal quotations omitted).
Instantly, Appellant relies upon two United States Supreme Court
decisions as the bases for an exception to the PCRA timeliness requirement
as well as for substantive PCRA relief: Miller v. Alabama, ___ U.S. ___,
132 S.Ct. 2455, 183 L.Ed.2d 407 (2012) (ruling unconstitutional mandatory
life without possibility of parole (“LWOP”) sentences for juvenile offenders),
and Montgomery v. Louisiana ___ U.S. ___, 136 S.Ct. 718, 193 L.Ed.2d
599 (filed January 25, 2016, and revised on January 27, 2016) (holding
Miller applies retroactively to cases on collateral review). Appellant filed the
current PCRA petition on March 16, 2016, within sixty days of the
Montgomery decision. See Commonwealth v. Secreti, 134 A.3d 77(Pa.Super. 2016) (holding date of Montgomery decision controls for
juveniles, who received LWOP sentences, for purposes of 60-day rule in 42
Pa.C.S.A. § 9545(b)(2)). Appellant also correctly observes that mandatory
LWOP sentences for juvenile offenders are unconstitutional under
Montgomery/Miller. See id. (holding retroactivity under Montgomery is
effective as of date of Miller decision; orders denying PCRA relief in cases
involving Montgomery/Miller must be reversed and remanded for
resentencing consistent with this new rule of substantive law and
Commonwealth v. Batts, 620 Pa. 115, 131-32, 66 A.3d 286, 296 (2013)).
Appellant, however, did not receive a LWOP sentence; he received an
aggregate sentence of 30-60 years’ incarceration. Therefore, Appellant is
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not entitled to PCRA relief under Montgomery/Miller. Accordingly, we
affirm the PCRA court’s order denying PCRA relief and grant PCRA counsel’s
petition to withdraw.
Order affirmed. Counsel’s motion to withdraw is granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/26/2017
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