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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA             :    IN THE SUPERIOR COURT OF
                                         :          PENNSYLVANIA
                    v.                   :
                                         :
JEROME V. HALL, JR.,                     :         No. 2814 EDA 2014
                                         :
                         Appellant       :


                 Appeal from the PCRA Order, August 22, 2014,
             in the Court of Common Pleas of Montgomery County
               Criminal Division at No. CP-46-CR-0002864-2008


BEFORE: GANTMAN, P.J., FORD ELLIOTT, P.J.E. AND JENKINS, J.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                   FILED JUNE 24, 2015

        Jerome V. Hall, Jr., appeals, pro se, from the order of August 22,

2014, dismissing his second Post Conviction Relief Act (“PCRA”) petition

without a hearing.1 We affirm.

        Appellant entered an open guilty plea to two counts of possession with

intent to deliver cocaine and a single count each of corrupt organizations,

criminal conspiracy, and criminal use of a communication facility.         On

June 16, 2009, appellant was sentenced to an aggregate term of 8 to

16 years’ imprisonment. The sentence included a mandatory sentence of 3

to 6 years and a $15,000 fine pursuant to 18 Pa.C.S.A. § 7508(b).




1
    See 42 Pa.C.S.A. §§ 9541-9546.
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      Appellant did not file a post-sentence motion or a direct appeal. On

June 7, 2010, appellant filed a pro se PCRA petition; counsel was

subsequently appointed. Scott C. McIntosh, Esq., filed a “no merit” letter in

accordance with Turner/Finley2 and a request to withdraw.         The petition

was dismissed and counsel was granted leave to withdraw.

      On July 7, 2014, appellant filed his second pro se PCRA petition. On

July 22, 2014, the court filed notice, pursuant to Pa.R.Crim.P. Rule 907,

42 Pa.C.S.A., of its intention to dismiss appellant’s petition without a

hearing. Appellant’s petition was dismissed in an order filed on August 22,

2014, and this timely appeal followed. (Docket #41, 42.) Appellant filed a

concise statement of matters to be complained of on appeal and presents

the following claims for our review:

            1.    The trial court erred by dismissing [appellant’s]
                  P.C.R.A. when it is clear that [appellant’s]
                  sentence was illegal, the legality of a sentence
                  is a non-waivable issue subject to review at
                  any stage of the judicial process or sua sponte
                  by the court.

            2.    The trial court erred by not utilizing an
                  exception that exist[s] where the trial court
                  discovers that the sentence originally imposed
                  was illegal in which case it may alter the
                  sentence beyond the 30 day period.

            3.    The trial court erred by claiming it does not
                  have jurisdiction to address the merits of
                  [appellant’s]   claim  because   [appellant’s]
                  petition is untimely and [appellant] has not

2
  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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                  satisfied any of the timeliness exceptions. Due
                  to the merits of [appellant’s] claim[,] a
                  challenge to the legality of a sentence may be
                  raised as a matter of right, is non-waivable and
                  may be entertained as long as [the]
                  re[view]ing court has jurisdiction.

            4.    The trial court erred by claiming [appellant] did
                  not satisfy any of the timeliness exceptions.
                  Where the mandatory minimum sentence[s]
                  were     deemed     “Unconstitutional   by    the
                  Supreme Court in August 2014[,]” [w]hich
                  bolstered [appellant’s] argument that the
                  mandatory minimum sentence is illegal and a
                  violation of [appellant’s] constitutional rights
                  and laws of the Commonwealth. Also, being
                  that these facts were unknown to [appellant]
                  at the time and could not have been
                  ascertained by exercise of due diligence. The
                  grounds [appellant] raised in a timely P.C.R.A.
                  and preserved were the denial of his
                  constitutional rights, ineffectiveness of plea
                  counsel, an unlawfully induced guilty plea, the
                  imposition of a sentence in excess of the lawful
                  maximum and lack of jurisdiction.

            5.    The trial court erred claiming [appellant] was
                  not sentenced to an illegal sentence when the
                  mandatory sentence imposed violated the sixth
                  amendment, fifth amendment, and the
                  fourteenth amendment of the constitution of
                  the Commonwealth of Pennsylvania.

Appellant’s brief at 7-8.   Each of these issues essentially claims that the

PCRA court erred in denying his petition as untimely where the sentence he

is serving is illegal. We disagree.

      Our standard of review for an order denying post-conviction relief is

whether the record supports the PCRA court’s determination, and whether

the PCRA court’s determination is free of legal error.    Commonwealth v.


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Franklin, 990 A.2d 795, 797 (Pa.Super. 2010). The PCRA court’s findings

will not be disturbed unless there is no support for the findings in the

certified record. Id.

      A PCRA petition, including a second or subsequent one, must be filed

within one year of the date that the judgment of sentence becomes final.

42 Pa.C.S.A. § 9545(b)(1).       This time requirement is mandatory and

jurisdictional in nature, and the court may not ignore it in order to reach the

merits of the petition.   Commonwealth v. Taylor, 933 A.2d 1035, 1038

(Pa.Super. 2007), appeal denied, 951 A.2d 1163 (Pa. 2008). In this case,

appellant’s judgment of sentence became final on Thursday, July 16, 2009,3

when the time for filing a direct appeal expired.          See 42 Pa.C.S.A.

§ 9545(b)(3); Pa.R.A.P., Rule 903, 42 Pa.C.S.A. The instant petition, filed

July 7, 2014, is manifestly untimely and the PCRA court lacked jurisdiction to

review it unless appellant pleaded and proved a valid exception to the time

bar of the PCRA. See 42 Pa.C.S.A. § 9545(b)(1)(i-iii).

      Appellant’s arguments assume that where a petitioner is challenging

the legality of sentence, the issue cannot be waived and must always be

heard.   This is only partially correct.   While a question pertaining to the

legality of sentence cannot be waived, our supreme court has ruled that it

cannot be reviewed pursuant to an untimely PCRA petition:


3
  We disagree with the PCRA court’s conclusion that appellant’s judgment of
sentence became final on August 16, 2009. (Trial court opinion, 12/2/14 at
4.)


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                   Appellant’s fourth contention is that his petition
            cannot be barred as untimely because to do so would
            result in the execution of an illegal sentence of
            death. Appellant offers that even if untimely, a
            petitioner’s claims will always be considered on the
            merits when the claims challenge the legality of the
            sentence. Appellant is mistaken. Although legality
            of sentence is always subject to review within the
            PCRA, claims must still first satisfy the PCRA’s time
            limits   or    one    of   the   exceptions     thereto.
            Commonwealth v. Chester, 557 Pa. 358, 733 A.2d
            1242 (1999). Thus, Appellant’s contention is easily
            dismissed.

Commonwealth v. Fahy, 737 A.2d 214, 223 (Pa. 1999). This court does

not have jurisdiction to address the legality of sentence pursuant to an

untimely PCRA petition.    Commonwealth v. Slotcavage, 939 A.2d 901,

903 (Pa.Super. 2007).      “Though not technically waivable, a legality [of

sentence] claim may nevertheless be lost should it be raised for the first

time in an untimely PCRA petition for which no time-bar exception applies,

thus depriving the court of jurisdiction over the claim.” Id.

      Appellant’s fourth issue also suggests that his discovery of Alleyne v.

United States, 133 S.Ct. 2151 (2013) (holding that, to comply with the

dictates of the Sixth Amendment, facts that increase mandatory minimum

sentence are elements of offense and must be submitted to jury and proven

beyond a reasonable doubt), is a new fact to satisfy the exception to the

time-bar. However, our supreme court has held that “subsequent decisional

law does not amount to a new ‘fact’ under section 9545(b)(1)(ii) of the

PCRA.” Commonwealth v. Watts, 23 A.3d 980, 987 (Pa. 2011). Thus, an



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assertion that publication of the Alleyne decision qualifies as a previously

unknown        fact,   triggering     the   timeliness        exception      set   forth   in

Section 9545(b)(1)(ii), fails.

      Appellant also suggests he should be afforded the benefit of a newly

recognized, retroactively applied constitutional right to relief predicated on

the Alleyne decision.         He suggests that a challenge to the legality of a

sentence cannot be waived, and that Alleyne retroactively applies to this

case, rendering his untimely petition reviewable on the merits. We conclude

that Alleyne is unavailing to appellant’s claim.

      First,    we     note   that   appellant    did   not    raise   the    exception    at

Section 9545(b)(1)(iii) in a timely manner.                   Alleyne was decided on

June 17, 2013. Appellant did not file the instant PCRA petition until July 7,

2014, well over 60 days after the date the claim could have been presented.

See 42 Pa.C.S.A. § 9545(b)(2) (requiring that any PCRA petition invoking

one of the time-bar exceptions must be filed within 60 days from the date

the claim could have been presented); Commonwealth v. Boyd, 923 A.2d

513, 517 (Pa.Super. 2007).

      Also instructive to the instant case is this court’s decision in

Commonwealth v. Miller, 102 A.3d 988, 993 (Pa.Super. 2014), in which

the appellant argued the applicability of Section 9545(b)(1)(iii) to his

patently untimely PCRA petition. Specifically, the appellant averred that the

Alleyne    decision      announced a        new   constitutional       right that    applies



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retroactively to cases on collateral review. Id. at 993-994. The Miller court

disagreed, explaining:

                  Even assuming that Alleyne did announce a
            new constitutional right, neither our Supreme Court,
            nor the United States Supreme Court has held that
            Alleyne is to be applied retroactively to cases in
            which the judgment of sentence had become final.
            This is fatal to Appellant’s argument regarding the
            PCRA time-bar. This Court has recognized that a
            new rule of constitutional law is applied retroactively
            to cases on collateral review only if the United States
            Supreme Court or our Supreme Court specifically
            holds it to be retroactively applicable to those cases.
            Therefore, Appellant has failed to satisfy the new
            constitutional right exception to the time-bar.

            We are aware that an issue pertaining to Alleyne
            goes to the legality of the sentence. It is generally
            true that this Court is endowed with the ability to
            consider an issue of illegality of sentence
            sua sponte. However, in order for this Court to
            review a legality of sentence claim, there must be a
            basis for our jurisdiction to engage in such review.
            As this Court recently noted, [t]hough not
            technically waivable, a legality [of sentence]
            claim may nevertheless be lost should it be
            raised . . . in an untimely PCRA petition for
            which no time-bar exception applies, thus
            depriving the court of jurisdiction over the
            claim.    As a result, the PCRA court lacked
            jurisdiction    to    consider    the    merits   of
            Appellant’s second PCRA petition, as it was
            untimely filed and no exception was proven.

Id. at 994-996 (emphasis added, quotation marks, footnote, and citations

omitted).

     Miller squarely applies to this case.      Like the appellant in Miller,

appellant raised Alleyne more than one year after his judgment of sentence



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became final.      Moreover, even if Alleyne announced a new constitutional

right, neither the United States Supreme Court nor the Pennsylvania

Supreme Court has held that this right applies retroactively to cases on

collateral review.    See id. at 995.    “This is fatal to appellant’s argument

regarding the PCRA time-bar.” Id. Thus, although Alleyne implicates the

legality of appellant’s sentence, we lack jurisdiction to address this issue.

Id. at 995-996.

      Accordingly, we affirm the PCRA court’s order dismissing appellant’s

second petition.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 6/24/2015




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