Com. v. Perez, J.

J-S15004-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JOSE MIGUEL PEREZ
Appellant No. 1092 MDA 2014
Appeal from the PCRA Order June 2, 2014
In the Court of Common Pleas of Lancaster County
Criminal Division at No(s): CP-36-CR-0001497-1991
CP-36-CR-0001533-1991
BEFORE: LAZARUS, J., WECHT, J., and JENKINS, J.
MEMORANDUM BY LAZARUS, J.: FILED MARCH 27, 2015
Miguel Perez appeals from the order entered in the Court of Common
Pleas of Lancaster County dismissing his petition filed under the Post
Conviction Relief Act, 42 Pa.C.S. §§ 9541-9546 (“PCRA”). Counsel for Perez
has filed with this Court an Anders1 brief and a petition to withdraw as
____________________________________________
1
See Anders v. California, 386 U.S. 738 (1967); Commonwealth v.
McClendon, 434 A.2d 1185 (Pa. 1981); see also Commonwealth v.
Santiago, 978 A.2d 349 (Pa. 2009). The proper mechanism for withdrawal
on appeal from the denial of a PCRA petition is a Turner/Finley no-merit
letter. See Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988);
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988). However,
because an Anders brief provides greater protection to a criminal appellant,
we may accept an Anders brief in lieu of a Turner/Finley no-merit letter.
See Commonwealth v. Widgens, 29 A.3d 816, 817 n.2 (Pa. Super.
2011); Commonwealth v. Fusselman, 866 A.2d 1109, 1111 n.3 (Pa
Super. 2004).
J-S15004-15
counsel. After our review, we affirm the PCRA court’s order and grant
counsel’s petition to withdraw.
On July 9, 1992, a jury found Perez guilty of one count of delivery of
cocaine and three counts of possession of cocaine with intent to deliver. On
June 4, 1993, the trial court imposed an aggregate sentence of 24 to 80
years’ incarceration. This Court affirmed Perez’s judgment of sentence on
May 2, 1994. Commonwealth v. Perez, 647 A.2d 266 (Pa. Super. 1994)
(unpublished memorandum).
Over the next several years, Perez filed four petitions for relief under
the PCRA, all of which were dismissed. On August 9, 2013, Perez filed his
fifth PCRA petition asserting that his sentences were illegal under Alleyne v.
United States, 133 S.Ct. 2151 (2013), because he received mandatory
minimum sentences for each of his four convictions.
On August 23, 2013, the court appointed counsel to represent Perez,
and on December 6, 2013, counsel filed an amended PCRA petition. By
order dated March 10, 2014, the court informed Perez of its intent to dismiss
the petition within twenty days without a hearing pursuant to Pa.R.Crim.P.
907. The court dismissed the petition by order filed June 2, 2014.
Perez filed a timely notice of appeal, and on November 24, 2014,
counsel filed an Anders brief in which he concluded that no meritorious
issues existed. This Court granted Perez an extension of time, and on
December 22, 2014, he filed a pro se brief in which he raises the following
issues for our review:
-2-
J-S15004-15
1. Whether the sentence in this case is illegal and violates the
Sixth Amendment to the United States Constitution because
the sentencing judge relied upon conduct not found by a jury
or admitted in a plea.
2. Whether the petition in this case was timely filed pursuant to
42 Pa.C.S. § 9545(b)(1)(ii) and (ii).
3. Whether under Teague v. Lane, 489 U.S. 288 (1989) and its
progeny the United States Supreme Court’s decision in
Alleyne v. United States, 133 S. Ct. 2151 (2013) should be
applied retroactively.
4. Whether the application of the mandatory provision in
sentencing now determined to be unconstitutional, vitiates
the sentence and eliminates all questions of waiver,
timeliness and due diligence as bars to the relief sought.
5. Whether having declared the mandatory provision relied upon
herein illegal, allowing [Perez] to continue to suffer that
sentence constitute[s] cruel and unusual punishment in
violation of the Eighth Amendment to the United States
Constitution.
Appellant’s Brief, at 3.
Our standard of review regarding a PCRA court’s order is whether the
determination of the PCRA court is supported by the evidence of record and
is free of legal error. The PCRA court’s findings will not be disturbed unless
there is no support for those findings in the certified record.
Commonwealth v. Garcia, 23 A.3d 1059, 1061 (Pa. Super. 2011) (citing
Commonwealth v. Smith, 995 A.2d 1143, 1149 (Pa. 2010)). Because this
is an appeal from a PCRA order, we will treat PCRA counsel’s Anders brief
as a Turner/Finley no-merit letter. See supra n.1.
First, we determine whether PCRA counsel has complied with the
technical requirements of Turner/Finley:
-3-
J-S15004-15
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 “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. Doty, 48 A.3d 451, 454 (Pa. Super. 2012) (citations
omitted). If counsel’s petition and no-merit letter satisfy Turner/Finley, we
then conduct an independent review of the merits of the case. If this Court
agrees with counsel that the claims are meritless, we will permit counsel to
withdraw and deny relief. Commonwealth v. Wrecks, 931 A.2d 717, 721
(Pa. Super. 2007) (citing Commonwealth v. Mosteller, 633 A.2d 615, 617
(Pa. Super. 1993)).
Here, Perez’s counsel has complied with the technical requirements of
Turner/Finley. He forwarded to Perez a copy of the brief and the petition
to withdraw along with a letter informing him of his right to hire private
counsel or proceed pro se.2 In his brief, counsel sets forth the claims that
____________________________________________
2
Counsel’s motion to withdraw states that he sent to Perez a copy of the
motion, the Anders brief, and a letter explaining the right to proceed pro se.
(Footnote Continued Next Page)
-4-
J-S15004-15
Perez sought to raise before this Court. Counsel also sets forth the
procedural and factual background of the case, and an explanation as to why
the record does not support the claims raised by Perez in his PCRA petition.
Specifically, counsel concludes Perez’s petition is untimely on its face.
A PCRA petition, including a second or subsequent petition, must be
filed within one year of the date the underlying judgment becomes final. 42
Pa.C.S. § 9545(b)(1); Commonwealth v. Bretz, 830 A.2d 1273 (Pa.
Super. 2003); Commonwealth v. Vega, 754 A.2d 714 (Pa. Super. 2000).
A judgment is deemed 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
review.” 42 Pa.C.S. § 9545(b)(3). Here, Perez was sentenced on June 4,
1993, and this Court affirmed his judgment of sentence on May 2, 1994.
The judgment became final on June 2, 1994, upon expiration of the time in
which Perez could have sought discretionary review in our Supreme Court.
Accordingly, he had one year from that date in which to file any petition
under the PCRA. Because Perez filed the instant petition on August 9, 2013,
it is untimely on its face.
Perez asserts that Alleyne recognized a new constitutional right that
applies retroactively, see 42 Pa.C.S. § 9545(b)(1)(iii), and thus is an
_______________________
(Footnote Continued)
In his motion for an extension of time in which to file a pro se brief, Perez
asserts that he did not receive a copy of the Anders brief.
-5-
J-S15004-15
exception to the timeliness requirements of the PCRA under section
9545(b)(1). He further notes that he filed his petition within sixty days of
publication of the Alleyne decision, thus making it timely under section
9545(b)(2). However, in Commonwealth v. Miller, 102 A.3d 988 (Pa.
Super. 2014) this Court held to the contrary, noting, “neither our Supreme
Court nor the Supreme Court of the United States has held that Alleyne is
to be applied retroactively to cases in which the judgment of sentence has
become final.” Id. at 995.
A court has no jurisdiction to consider an untimely PCRA petition.
Commonwealth v. Robinson, 837 A.2d 1157, 1161 (Pa. 2003). Because
Perez has failed to plead and prove an exception to the timeliness
requirements of section 9545(b), the trial court did not err in dismissing his
petition.
We agree with counsel’s assessment that Perez’s claims are meritless.
Furthermore, our independent review of the certified record has uncovered
no additional meritorious issues. Thus, we affirm the PCRA court’s order and
we grant counsel’s petition to withdraw.
-6-
J-S15004-15
Order affirmed. Petition to withdraw granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/27/2015
-7-