Com. v. Burden, J. (memorandum)

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J.S36039/14 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA, Appellee v. JAMES J. BURDEN, Appellant : : : : : : : : : : IN THE SUPERIOR COURT OF PENNSYLVANIA No. 3421 EDA 2013 Appeal from the Order Entered November 1, 2013 In the Court of Common Pleas of Bucks County Criminal Division No(s).: CP-09-CR-0007263-2007 BEFORE: GANTMAN, P.J., JENKINS, and FITZGERALD,* JJ. MEMORANDUM BY FITZGERALD, J.: FILED JUNE 24, 2014 Appellant, James J. Burden, appeals from the order entered in the Bucks County Court of Common Pleas denying, after a hearing, his first Post Conviction Relief Act1 negotiated plea bargain for an aggregate sentence of, inter alia, twelve to twentyconditional minimum sentence pursuant to the Recidivism Risk Reduction Incentive Act.2 His counsel has filed with this Court a Turner/Finley3 letter * Former Justice specially assigned to the Superior Court. 1 42 Pa.C.S. §§ 9541-9546. 2 61 Pa.C.S. §§ 4501-4512. J. S36039/14 and a petition to withdraw. We affirm and withdraw. opinion. See Trial Ct. Op., 2/25/14, at 1-3. Appellant was sentenced on July 22, 2009. He did not appeal. On October 12, 2012, Appellant filed a motion for modification of sentence nunc pro tunc, which the PCRA court construed as a PCRA petition and appointed counsel. After a hearing, the court denied his petition on November 1, 2013, and Appellant filed a timely notice of appeal on Monday, December 2, 2013. Appellant filed a Pa.R.A.P. withdraw and a Turner/Finley letter and Appellant filed a pro se response Turner/Finley letter. ises the following issues: post-conviction motion seeking modification of his sentence to include a conditional minimum sentence pursuant to the Recidivism Risk Reduction Incentive Act? Whether counsel should be permitted to withdraw her appearance . . . when the matter on appeal lacks arguable merit? Turner/Finley Brief at 4. Appellant, in his pro se response, ly 3 Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc). -2- J. S36039/14 -conviction motion seeking imposition of a RRRI sentence and PCRA counsel was ineffective by Pro Se Response, at 3. Prior to addressing the issues raised in the Turner/Finley brief and pro se response, we examine the following in evaluating [I]ndependent review of the record by competent counsel is required before withdrawal is permitted. Such independent review requires proof of: and extent of his review; the petitioner wished to have reviewed; lett 4) The PCRA court conducting its own independent review of the record; and 5) The PCRA court agreeing with counsel that the petition was meritless. Commonwealth v. Widgins, 29 A.3d 816, 817-18 (Pa. Super. 2011) (alterations and citations omitted). Further, the Widgins Court explained: The Supreme Court [in Commonwealth v. Pitts, 981 A.2d 875 (Pa. 2009),] did not expressly overrule the additional requirement imposed by [Commonwealth v. Friend, 896 A.2d 607 (Pa. Super. 2006),] decision, i.e., that PCRA counsel seeking to withdraw contemporaneously forward to the petitioner a copy of the application to letter, and (ii) a statement advising the PCRA petitioner that, in the event the trial court grants the application of -3- J. S36039/14 counsel to withdraw, the petitioner has the right to proceed pro se, or with the assistance of privately retained counsel. Id. withdraw and conclude it complies with the requirements set forth by the Widgins Court. See id. Accordingly, we proceed. has required this Court to examine whether we have jurisdiction to entertain the underlying PCRA petition. See Commonwealth v. Fahy, 737 A.2d 214, determination is supported by the Commonwealth v. Wilson, 824 A.2d 331, 333 (Pa. Super. 2003) (en banc year of the date the judgment becomes final . . . unless one of the exceptions in § 9545(b)(1)(i)-(iii) applies and the petition is filed within 60 Commonwealth v. Copenhefer, 941 A.2d 646, 648 (Pa. 2007) (internal citations and footnote omitted). ss requirements are jurisdictional in nature and must be strictly construed; courts may not address the merits of the issues raised in a petition if it is prove that one of the [three] timeliness exceptions applies. -4- J. S36039/14 Commonwealth v. Abu-Jamal, 941 A.2d 1263, 1267-68 (Pa. 2008) (internal citations omitted). The three timeliness exceptions are: (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. 42 Pa.C.S. § 9545(b)(1)(i)-(iii). Instantly, we review whether the PCRA court erred by holding See 42 Pa.C.S. § 9545(b)(1), (2); Abu-Jamal, 941 A.2d at 1267-68. became final on August 21, 2009, as Appellant did not file a notice of appeal to this Court. Appellant filed the instant petition on October 12, 2012, over three years later. Thus, this Court must discern whether the PCRA court erred in concluding Appellant did not plead and prove one of the three timeliness exceptions. See 42 Pa.C.S. § 9545(b)(1)(i)-(iii); Copenhefer, 941 A.2d at 648. -5- J. S36039/14 In this case, Appellant has not established any of the timeliness exceptions. See 42 Pa.C.S. § 9545(b)(1)(i)-(iii). Accordingly, we agree one of the three timeliness exceptions. See Abu-Jamal, 941 A.2d at 126768; Copenhefer, 941 A.2d at 648. Thus, the PCRA court lacks jurisdiction to consider his petition. See Fahy, 737 A.2d at 223. Having discerned no below. See Wilson, 824 A.2d at 333. Petition to withdraw granted. Order affirmed. Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 6/24/2014 -6-

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