Com. v. Lopez, J.

J-S37045-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
JULIO LOPEZ, :
:
Appellant : No. 969 MDA 2013
Appeal from the Order entered on May 3, 2013
in the Court of Common Pleas of Luzerne County,
Criminal Division, No. CP-40-CR-0003535-2003
BEFORE: LAZARUS, STABILE and MUSMANNO, JJ.
MEMORANDUM BY MUSMANNO, J.: FILED AUGUST 11, 2014
See 42 Pa.C.S.A.
§§ 9541-
On June 7, 2004, Lopez pled guilty to one count of escape. That same
day, the trial court sentenced Lopez to nine to eighteen months in county
prison. Lopez did not file a direct appeal.
On October 27, 2011, Lopez filed a pro se Motion to Expunge the
escape conviction. The trial court denied the Motion. Lopez filed a Notice of
On January 18, 2013, Lopez, pro se, filed the instant PCRA Petition,
seeking, inter alia, the expungement of his escape conviction. The PCRA
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PCRA Petition as untimely. Lopez filed a timely Notice of Appeal.
owed counsel
to withdraw and appointed Attorney Galante as appellate counsel.
Counsel.1 Where counsel seeks to withdraw on collateral appeal, the
procedure outlined in Turner/Finley2 must be followed. In
Commonwealth v. Pitts, 981 A.2d 875 (Pa. 2009), our Supreme Court
explained that independent review by competent counsel is required before
withdrawal is permitted. Id. at 876 n.1. Such review requires the
following:
1) - ter by [] counsel detailing the nature and
extent of his review;
2) -
petitioner wished to have reviewed;
3) -
ithout merit];
4) The PCRA court conducting its own independent review of the
record; and
1
We note that Attorney Galante initially did not file a petition to withdraw
with this Court. See Order, 6/5/14. We entered an Order, allowing
Attorney Galante thirty days to either file a proper petition to withdraw or
See id. In response to the Order, Attorney Galante
filed his Petition to Withdraw as Counsel.
2
See Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988);
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
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5) The PCRA court agreeing with counsel that the petition was
[without merit].
Id. (citation and brackets omitted).
Further, we have held that the Supreme Court in Pitts did not
expressly overrule the additional requirement imposed by this Court in
Commonwealth v. Friend, 896 A.2d 607, 615 (Pa. Super. 2006), stating
that
counsel seeking to withdraw [must] contemporaneously forward
to the petitioner a copy of the application to withdraw that
-
statement advising the PCRA petitioner that, in the event the
trial court grants the application of counsel to withdraw, the
petitioner has the right to proceed pro se, or with the assistance
of privately retained counsel.
Commonwealth v. Widgins, 29 A.3d 816, 818 (Pa. Super. 2011).
Here, Attorney Galante filed a Turner/Finley -
Petition to Withdraw. Attorney Galante described the extent of his review,
identified the issue that Lopez sought to raise, and explained why that issue
lacks merit. In addition, Attorney Galante provided Lopez with Notice of his
intention to seek permission to withdraw from representation, a copy of the
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- advised Lopez of his rights in lieu of representation.3
Thus, we conclude that Attorney Galante has substantially complied with the
requirements necessary to withdraw as counsel. We now independently
ut merit.
On appeal, Lopez raises the following question for our review:
Turner/Finley Brief at 4.
standard of review regarding an order
[denying] a petition under the PCRA is whether the
determination of the PCRA court is supported by the evidence of
not be disturbed unless there is no support for the findings in the
certified record. Moreover, a PCRA court may decline to hold a
hearing on the petition if the PCRA court determines that
support in either the record or from other evidence.
Commonwealth v. Ortiz, 17 A.3d 417, 420 (Pa. Super. 2011) (citations
omitted).
thus, he is not eligible for relief under the PCRA. See 42 Pa.C.S.A.
§ 9543(a)(1)(i) (stating that to be eligible for relief under the PCRA the
3
We note that in his letter to Lopez, Attorney Galante erroneously states
that he was withdrawing under Anders v. California, 386 U.S. 738, 744
(1967). However, Anders applies to withdrawal of counsel in a direct
appeal. As noted above, the appropriate practice for withdrawing from a
collateral appeal is Turner/Finley
statement, we conclude that Attorney Galante fulfilled the requirements of
Turner/Finley. See Widgins [b]ecause
an Anders brief provides greater protection to a defendant, this Court may
accept an Anders brief in lieu of a Turner/Finley
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serving a sentence of imprisonment, probation
or parole see also Commonwealth v. Hart, 911 A.2d 939,
941-42 (Pa. Super. 2006).
Moreover, even if Lopez were eligible for PCRA relief, his Petition was
facially untimely under the PCRA. See 42 Pa.C.S.A. § 9545(b)(1) (stating
date the judgment becomes final[ Commonwealth v. Albrecht, 994
requirements are jurisdictional in nature, and a court may not address the
merits of the issues raised if the PCRA petition was not timely filed).
Further, Lopez has failed to plead or prove the applicability of any of the
exceptions to the PCRA timeliness requirements. See 42 Pa.C.S.A.
§ 9545(b)(1); see also Albrecht, 994 A.2d at 1094. Thus, the PCRA court
Based upon the foregoing, Attorney Galante is permitted to withdraw
pursuant to the precepts of Turner/Finley, and we affirm the Order of the
PCRA court.
Petition to Withdraw as Counsel granted. Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/11/2014
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