J-S48002-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
               v.                              :
                                               :
                                               :
    LANE C. HURLEY                             :
                                               :
                      Appellant                :   No. 360 MDA 2017

                 Appeal from the PCRA Order February 13, 2017
              In the Court of Common Pleas of Cumberland County
              Criminal Division at No(s): CP-21-CR-0001595-2002


BEFORE:      OTT, J., STABILE, J., and PLATT, J.*

MEMORANDUM BY OTT, J.:                                 FILED AUGUST 21, 2017

        Lane C. Hurley appeals from the order entered February 13, 2017, in

the Court of Common Pleas of Cumberland County, that dismissed, after a

hearing, his second petition filed pursuant to the Post Conviction Relief Act 1

(PCRA), on the basis of untimeliness.              Concomitant with this appeal,

appointed counsel2 has filed an Anders3 brief and a petition for leave to
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
    42 Pa.C.S. §§ 9541–9546.
2
  After Hurley filed the present PCRA petition on November 7, 2016, the
PCRA court appointed counsel to represent him. See Order, 11/21/2016.
3
  Anders v. California, 386 U.S. 738 (1967). Although counsel has
submitted an Anders brief to this Court, we note that in the PCRA context,
counsel should have filed a no-merit letter in accordance with
Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), Commonwealth v.
Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc). See Commonwealth v.
(Footnote Continued Next Page)
J-S48002-17



withdraw from representation.            Based upon the following, we affirm and

grant the motion to withdraw.

      The PCRA court summarized the procedural history of this case, as

follows:

            … [Hurley] was found guilty following a jury trial in 2006 of
      corruption of minors, indecent assault, aggravated indecent
      assault, and involuntary deviate sexual intercourse. The charges
      arose from alleged incidents in 1997 involving [Hurley’s] 10-
      year-old niece.

            [Hurley] was sentenced on December 19, 2006. He
      received concurrent statutorily mandated minimum prison
      sentences of 2½ to 5 and 5 to 10 years respectively for the
      offenses of aggravated indecent assault and involuntary deviate
      sexual intercourse, and sentences of probation consecutive
      thereto for the remaining two offenses.

            The mandatory minimum sentences for aggravated
      indecent assault and involuntary deviate sexual intercourse were
      imposed pursuant to 42 Pa.C.S. § 9718(a)(1), (2), prescribing
      minimum sentences for certain offenses involving a victim less
      than 13 years old and 16 years old respectively. Following an
      unsuccessful direct appeal, he was committed to prison on July
      21, 2007. For purposes of the Post Conviction Relief Act,
      his judgment of sentence became final on October 7,
      2009.10
      __________________________________
           10
              On direct appeal, the judgment of sentence was affirmed
           by the Pennsylvania Superior Court on December 29,
           2008. Commonwealth v. Hurley, [965 A.2d 295] 596 MDA
           2007 (Pa. Super. Ct. Dec. 29, 2008). [Hurley’s] petition for
           allowance of appeal from the affirmance was denied by the
                       _______________________
(Footnote Continued)

Widgins, 29 A.3d 816, 817 n.2 (Pa. Super. 2011). However, “[b]ecause an
Anders brief provides greater protection to a defendant, this Court may
accept an Anders brief in lieu of a Turner/Finley letter.” Id. (citation
omitted).



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        Pennsylvania    Supreme    Court  on July      9,   2009.
        Commonwealth v. Hurley, 602 Pa. 676, 981 A.2d 218
        (2009). See 42 Pa.C.S. § 9545(b)(3) (“For purposes of this
        subchapter, a judgment becomes 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 the review.”) (emphasis added); Commonwealth
        v. Owens, 718 A.2d 330 (Pa. Super. Ct. 1998)
        (acknowledgment of 90-day period within which to seek
        review in United States Supreme Court by petition for writ
        of certiorari).
     __________________________________



           [Hurley’s] first petition for collateral relief under the Post
     Conviction Relief Act was filed on June 17, 2010, and
     supplemented on August 23, 2010. It was denied by order of this
     court dated December 5, 2011. The order denying the petition
     was affirmed by the Pennsylvania Superior Court on October 4,
     2012,14 and [Hurley’s] petition for allowance of appeal from the
     affirmance was denied by the Pennsylvania Supreme Court on
     May 15, 2013.15
     __________________________________


        14
          Commonwealth v. Hurley, [62 A.3d 450] 2220 MDA
        2011 (Pa. Super. Ct. Oct. 4, 2012).
        15
           Commonwealth v. Hurley, 620 Pa. 697, 67 A.3d 794
        (May 15, 2013). [Hurley] has also pursued what has thus
        far been an unsuccessful collateral challenge to his
        convictions in federal court. See Hurley v. Thompson,
        2016     U.S.    Dist.   LEXIS    87527    (magistrate’s
        recommendation) (M.D. Pa. June 29, 2016).
     __________________________________



           [Hurley’s] current Post Conviction Relief Act petition, filed
     November 7, 2016, in substance challenges the legality of his
     sentences for aggravated indecent assault and involuntary
     deviate sexual intercourse, citing Alleyne v. United States, ___
     U.S. ___, 133 S. Ct. 2151, 186 L. Ed. 2d 314 (June 17, 2013)
     (holding that sixth amendment requires that [any] factor which
     increases [the] mandatory minimum sentence be considered
     element of offense to be found by trier-of-fact by proof beyond a


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J-S48002-17


     reasonable doubt), and its progeny. A hearing on the petition
     was held on February 2, 2017.

PCRA Court Opinion, 2/13/2017, at 1–3 (emphasis added) (footnotes

omitted, except as noted).

     Following the hearing, the PCRA court denied relief, finding that

Hurley’s PCRA petition was untimely and Hurley could not satisfy the PCRA

time-bar exception set forth in Section 9545(b)(1)(iii) and (2) by relying on

Alleyne, supra, and Commonwealth v. Wolfe, 140 A.3d 651 (Pa. June

20, 2016). See PCRA Court Opinion, supra, at 4–6. Appointed counsel filed

a timely appeal and, pursuant to court order, filed a Pa.R.A.P. 1925(b)

statement.

     We      first consider   whether   counsel has fulfilled the   procedural

requirements for withdrawal as outlined in Turner/Finley:

            The Turner/Finley decisions provide the manner for
     postconviction 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. See [Commonwealth v. Pitts,
     603 Pa. 1, 981 A.2d 875, 876 n.1 (Pa. 2009)].

           In Commonwealth v. Friend, 2006 PA Super 70, 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

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       serve upon his client his no-merit letter and application to
       withdraw along with a statement that if the court granted
       counsel’s withdrawal request, the client may proceed pro se or
       with a privately retained attorney.

Commonwealth v. Rykard, 55 A.3d 1177, 1184 (Pa. Super. 2012)

(footnote omitted).

       Here, PCRA counsel’s Anders brief addresses the only claim presented

by this appeal — “whether the [PCRA] court erred in denying [Hurley’s]

petition as untimely in addressing the retroactivity of Alleyne on mandatory

minimums as to attacks on collateral review”4 — and explains why the claim

fails. In addition to the brief, counsel filed a withdrawal petition and a letter,

both of which were sent to Hurley. The letter indicates the brief is enclosed,

and notifies Hurley of his rights pursuant to Commonwealth v. Friend, 896

A.2d 607 (Pa. Super. 2006).5 Based on our review, we conclude counsel has

complied     with   the   procedural     requirements   of   Turner   and   Finley.

Therefore, we turn to the issue presented in this appeal.

       Our standard of review is well settled:

       When reviewing the propriety of an order denying PCRA relief,
       this Court is limited to a determination of whether the evidence
       of record supports the PCRA court's conclusions and whether its
       ruling is free of legal error. This Court will not disturb the PCRA

____________________________________________


4
  Hurley’s Statement of Matters Complained of on Appeal Pursuant to
Pa.R.A.P. 1925(b), 3/7/2016; Anders Brief at 4.
5
  Hurley has not filed a response to the petition to withdraw or letter with
enclosed brief.



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      court’s findings unless there is no support for them in the
      certified record.

Commonwealth v. Woods, ___ A.3d ___, ___ [2017 PA Super 181] (Pa.

Super. 2017) (citations omitted). Additionally, the timeliness of a PCRA

petition is a jurisdictional requisite. Commonwealth v. Murray, 753 A.2d

201, 203 (Pa. 2000).

      Here, the Honorable J. Wesley Oler, analyzed Hurley’s petition, as

follows:

           … As noted above, [Hurley’s] sentence became final on
      October 7, 2009, and his current PCRA petition was filed on
      November 7, 2016.

            In response to [Hurley’s] petition challenging the legality
      of his mandatory minimum sentences for aggravated indecent
      assault and involuntary deviate sexual intercourse, pursuant to
      Alleyne and its progeny, the Commonwealth filed an answer and
      motion to dismiss. This response contended that the petition was
      neither timely under the Post Conviction Relief Act nor
      meritorious inasmuch as the constitutional rule recognized in
      Alleyne was not retroactive for purposes of collateral review.

              [Hurley] filed a reply to the Commonwealth’s response.
      His reply contended that the issue of timeliness depended upon
      an application of an exception to the general one-year period of
      limitation in the Post Conviction Relief Act, relating to recent
      decisions, and that the court should “address the retroactivity of
      Alleyne on mandatory minimums as to attacks on collateral
      review.”

                               STATEMENT OF LAW

         Under Section 9545(b) of the Post Conviction Relief Act, it is
      provided as follows:




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        (b) Time for filing petition

           (1) Any petition under this subchapter, including a
           second or subsequent petition, shall be filed within
           one year of the date the judgment becomes final,
           unless the petition alleges and the petitioner proves
           that: . . .

              (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.

           (2) Any petition invoking an exception provided in
           paragraph (1) shall be filed within 60 days of the
           date the claim could have been presented.

     [42 Pa.C.S. § 9545(b)(1)(iii), (2).]

           The limitation periods for filing PCRA petitions provided for
     in the act are jurisdictional. Commonwealth v. Burton, 2007 PA
     Super 319, 936 A.2d 521.

           In Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348,
     147 L. Ed. 2d 435 (2000), the United States Supreme [C]ourt
     held that the due process clause of the fourteenth amendment to
     the federal constitution, in conjunction with the sixth
     amendment, entitles a state defendant to a jury finding on the
     basis of proof beyond a reasonable doubt of a factor that
     statutorily increases the maximum sentence applicable to an
     offense. In Alleyne v. United States, 133 S. Ct. 2151, 186 L. Ed.
     2d 314 (2013), the Court extended the principle of Apprendi to
     encompass a factor that increases a mandatory minimum
     sentence applicable to an offense, pursuant to the federal
     constitution’s sixth amendment.

          The rule in Alleyne has been widely applied to factors that
     mandate minimum sentences for offenses. See, e.g.,
     Commonwealth v. Hopkins, ___ Pa. ___, 117 A.3d 247 (2015).
     And on June 20, 2016, the Alleyne principle was held by the

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     Pennsylvania Supreme Court to extend to a factor mandating a
     minimum sentence without regard to whether the factor was a
     statutory element of the offense upon which the guilty verdict
     had been predicated. Commonwealth v. Wolfe, ___ Pa. ___, 140
     A.3d 651 (2016) (affirming remand for resentencing on direct
     appeal where defendant subjected to mandatory minimum
     sentence, on basis of victim’s age, for offense of involuntary
     deviate sexual intercourse with child under age of 16).

            However, the current state of the law in Pennsylvania is
     that the rule of Alleyne is not to be applied retroactively on
     collateral review of a sentence that became final before the
     decision in Alleyne, notwithstanding that it may serve to render
     a sentence impeachable on a direct appeal. Commonwealth v.
     Washington, ___ Pa. ___, 142 A.3d 810 (2016); cf.
     Commonwealth v. Barnes, ___ Pa. ___, [151 A.3d 121] (2016)
     (holding that, for purposes of issue preservation on direct
     appeal, sentence in violation of Alleyne rule is illegal and thus
     non-waivable).

                     APPLICATION OF LAW TO FACTS

           In the present case, [Hurley’s] petition under the Post
     Conviction Relief Act is not timely under the general rule
     requiring a filing within one year of sentence finality. Nor is the
     60-day exception to the general rule in the case of a newly
     recognized constitutional right applicable to [Hurley’s] petition.

            In the latter regard, even if the application in
     Commonwealth v. Wolfe, ___ Pa. ___, 140 A.3d 651 (June 20,
     2016) of the Alleyne rule to sentences such as [Hurley’s] where
     the mandatory sentencing factor was necessarily found to have
     been proven beyond a reasonable doubt by the trier-of-fact in
     returning a guilty verdict is regarded as advancing a new
     constitutional right, the decision (a) preceded Hurley’s current
     petition by more than 60 days and (b) did not involve a
     retroactive right for purposes of collateral relief.

PCRA Court Opinion, 2/13/2016, at 3–6 (footnotes omitted).

     We agree with the sound reasoning of Judge Oler. Wolfe, which was

decided more than 60 days before Hurley’s present petition, involved a



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direct appeal from a judgment of sentence that post-dated Alleyne and

applied Alleyne to hold Section 9718 was unconstitutional; Wolfe did not

establish a new constitutional right, much less a constitutional right that

applies     retroactively.   Furthermore,   in   Washington,   supra,   the

Pennsylvania Supreme Court held “Alleyne does not apply retroactively to

cases pending on collateral review.” Id., 142 A.3d at 820.

      In short, because the present petition is patently untimely and does

not satisfy any PCRA statutory exception, Hurley’s second PCRA petition was

properly dismissed as the PCRA court lacked jurisdiction to review the

petition.

      Order affirmed. Motion to withdraw as counsel granted.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/21/2017




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