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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.

CALVIN HENDERSON

                            Appellant                  No. 318 WDA 2015


            Appeal from the PCRA Order Entered January 20, 2015
             In the Court of Common Pleas of Allegheny County
              Criminal Division at No: CP-02-CR-0011250-2005


BEFORE: STABILE, DUBOW, and MUSMANNO, JJ.

MEMORANDUM BY STABILE, J.:                             FILED APRIL 20, 2016

       Appellant, Calvin Henderson, appeals from the January 20, 2015 order

dismissing his petition pursuant to the Post Conviction Relief Act (“PCRA”),

42 Pa.C.S.A. §§ 9541-46.            Counsel has filed a brief and petition to

withdraw.1 We affirm the order and grant the petition to withdraw.

       In July of 2006, a jury found Appellant guilty of rape, involuntary

deviate sexual intercourse, aggravated indecent assault, simple assault,

kidnapping, and unlawful restraint.2 On November 15, 2006, the trial court

found Appellant to be a sexually violent predator (SVP) and sentenced him

to an aggregate 36 to 90 years of incarceration. Appellant’s post-sentence
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1
    We will address the procedural irregularities of counsel’s petition below.
2
    18 Pa.C.S.A. §§ 3121, 3123, 3125, 2701, 2901, and 2902.
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motion was denied by operation of law on May 3, 2007. Appellant filed a

timely notice of appeal one week later, and this Court affirmed in a

unanimous memorandum filed on September 3, 2008. On June 30, 2009,

our Supreme Court granted allowance of appeal on one issue:      whether a

search warrant was valid under the independent source doctrine. This case

involved two search warrants.    The trial court deemed the first warrant

invalid and granted Appellant’s motion to suppress.    The Commonwealth

procured a second warrant based on the investigation of a police officer who

worked in the same department as the officer who produced an insufficient

affidavit in support of the first warrant. The Supreme Court held that the

second warrant and search were valid, and affirmed Appellant’s conviction in

an opinion filed on April 25, 2012.   Commonwealth v. Henderson, 47
A.3d 797 (Pa. 2012), cert. denied, 133 S. Ct. 435 (2012).

     Appellant filed a timely PCRA petition on April 26, 2013.    The PCRA

court dismissed that petition on June 25, 2014 and we have affirmed that

order in a companion memorandum at docket number 1177 WDA 2014.

Appellant filed the instant pro se petition on October 21, 2014, while the

appeal at 1177 WDA 2014 was pending. The PCRA court appointed counsel.

Appellant alleges his sentence is illegal under Alleyne v. United States,

133 S. Ct. 2151 (2013), wherein the Supreme Court held that the imposition

of a mandatory minimum sentence based on judicial fact finding violates the

Sixth Amendment of the United States Constitution. On December 2, 2014,


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the PCRA court issued a Pa.R.Crim.P. 907 notice of intent to dismiss the

petition. The Court dismissed the petition on January 20, 2015.

       Before we turn to the merits, we consider the adequacy of counsel’s

brief and petition to withdraw.      Appointed counsel has filed a brief and

petition to withdraw pursuant to Anders v. California, 386 U.S. 738 (1967)

and Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009). Since this is a

PCRA    proceeding,    counsel   should    have   proceeded     in   accord    with

Turner/Finley. Nonetheless, this Court typically accepts an Anders brief in

lieu of a Turner/Finley no merit letter because Anders provides greater

protection to the petitioner.    Commonwealth v. Widgins, 29 A.3d 816,

817 n.2 (Pa. Super. 2011).

       A proper Turner/Finley filing must comply with the following:

              The Turner/Finley decisions provide the manner for post-
       conviction counsel to withdraw from representation.               The
       holdings of those cases mandate an independent review of the
       record by competent counsel before a PCRA court or appellate
       court can authorize an attorney’s withdrawal. The necessary
       independent review requires counsel to 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. The PCRA court, or an appellate court if the
       no-merit letter is filed before it, [. . .] then must conduct its own
       independent evaluation of the record and agree with counsel that
       the petition is without merit. [Commonwealth v. Pitts, 981
A.2d 875, 876 n.1 (Pa. 2009)]

             In Commonwealth v. Friend, 896 A.2d 607 (Pa. Super.
       2006) abrogated in part by Pitts, supra, this Court imposed
       additional requirements on counsel that closely track the
       procedure for withdrawing on direct appeal. Pursuant to Friend,
       counsel is required to contemporaneously serve upon his client
       his no-merit letter and application to withdraw along with a

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     statement that if the court granted counsel's withdrawal request,
     the client may proceed pro se or with a privately retained
     attorney. Though Chief Justice Castille noted in Pitts that this
     Court is not authorized to craft procedural rules, the Court did
     not overturn this aspect of Friend as those prerequisites did not
     apply to the petitioner in Pitts. See Pitts, supra at 881
     (Castille, C.J., concurring).

           After the decision in Pitts, this Court held in [Widgins],
     that the additional procedural requirements of Friend were still
     applicable during collateral review.

Commonwealth v. Freeland, 106 A.3d 768, 774-75 (Pa. Super. 2014).

We have reviewed counsel’s purported Anders filing and found that it

complies sufficiently with Turner/Finley.    We therefore conduct our own

review of the record to determine whether Appellant’s appeal lacks merit.

     Appellant’s petition is facially untimely, inasmuch as Appellant filed it

more than one year after his judgment of sentence became final.             42

Pa.C.S.A. § 9545(b).   As noted above, the Pennsylvania Supreme Court

affirmed Appellant’s judgment of sentence in an April 25, 2012 opinion.

Appellant did not file a petition for certiorari in the United States Supreme

Court. Appellant’s October 21, 2014 petition is more than one year late.

     Appellant therefore cannot meet the PCRA’s jurisdictional timeliness

requirements unless Appellant can plead and prove the applicability of a

timeliness exception set forth in § 9545(b)(1). Appellant apparently believes

Alleyne applies retroactively in light of the United States Supreme Court’s

retroactivity analysis in Montgomery v. Louisiana, 136 S. Ct. 718 (2016).




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If Appellant is correct, he could argue3 his petition meets the timeliness

exception of § 9545(b)(1)(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.A.

§ 9545(b)(1)(iii).     The record before us fails to reflect that Appellant is

serving a mandatory minimum sentence.             N.T. Sentencing, 9/17/2007, at

25-26. We therefore need not address whether Montgomery requires this

Court to give retroactive effect to Alleyne.

       We will affirm the PCRA court’s order because Appellant’s petition is

untimely under § 9545(b)(1).          Further, we observe that Appellant had no

right to file a second PCRA petition while the appeal from the dismissal of his

first petition was pending at 1177 WDA 2014.              Our Supreme Court has

written:

              We now hold that when an appellant’s PCRA appeal is
       pending before a court, a subsequent PCRA petition cannot be
       filed until the resolution of review of the pending PCRA petition
       by the highest state court in which review is sought, or upon the
       expiration of the time for seeking such review.             If the
       subsequent petition is not filed within one year of the date when
       the judgment became final, then the petitioner must plead and
       prove that one of the three exceptions to the time bar under 42
       Pa.C.S. § 9545(b)(1) applies. The subsequent petition must also
       be filed within sixty days of the date of the order which finally
       resolves the previous PCRA petition, because this is the first
____________________________________________


3
  Given the circumstances of this case, we have no occasion to decide this
question.



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      ‘date the claim     could   have   been   presented.’   42   Pa.C.S.
      § 9545(b)(2).

Commonwealth v. Lark, 746 A.2d 585, 588 (Pa. 2000).

      For all of the foregoing reasons, we affirm the PCRA court’s order and

grant counsel’s petition to withdraw.

      Order affirmed. Petition to withdraw granted.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/20/2016




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