J-S23012-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

JUSTIN HALE

                            Appellant                 No. 2883 EDA 2015


                  Appeal from the PCRA Order August 6, 2015
             In the Court of Common Pleas of Northampton County
              Criminal Division at No(s): CP-48-CR-0000226-2007


BEFORE: PANELLA, J., OTT, J., and FITZGERALD, J.*

MEMORANDUM BY PANELLA, J.                                  FILED MAY 20, 2016

        Appellant, Justin Hale, appeals pro se from the order denying his

petition pursuant to the Post Conviction Relief Act (“PCRA”) as untimely. We

conclude that Hale did not plead any viable exceptions to the PCRA’s timebar

in his patently untimely petition, and therefore affirm.

        On July 10, 2007, Hale entered a negotiated open guilty plea to one

count of felony first-degree robbery. The Commonwealth withdrew several

other charges with the understanding that it would pursue a mandatory

minimum sentence due to Hale’s possession of a firearm at the time of the

robbery. On August 31, 2007, the trial court sentenced Hale to a term of

incarceration of six to fifteen years.
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*
    Former Justice specially assigned to the Superior Court.
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      Hale did not file post-sentence motions or a direct appeal. On

September 2, 2008, Hale filed a timely first PCRA petition. The PCRA court

appointed counsel to represent Hale, and counsel filed an amended PCRA

petition. After a hearing, the PCRA court denied Hale’s petition. This Court

affirmed the denial, and the Supreme Court of Pennsylvania denied Hale’s

petition for allowance of appeal on November 29, 2011.

      On June 1, 2015, Hale filed the instant PCRA petition. Shortly

thereafter, the PCRA court filed notice of its intent to dismiss Hale’s petition

without a hearing. Hale filed objections to the PCRA court’s notice, but the

PCRA court dismissed his petition on August 13, 2015. This timely appeal

followed.

      As the PCRA court dismissed Hale’s petition on timeliness grounds, we

must address that issue before any of Hale’s other issues on appeal. See

Commonwealth v. Gandy, 38 A.3d 899, 902 (Pa. Super. 2012) (“[A]

question of timeliness implicates the jurisdiction of our Court.”). “The PCRA

timeliness requirements are jurisdictional in nature and, accordingly, a court

cannot hear untimely PCRA petitions.” Commonwealth v. Flanagan, 854

A.2d 489, 509 (Pa. 2004) (citations omitted).

      A PCRA petition must be filed within one year of the date that the

judgment of sentence becomes final. See 42 Pa.C.S.A. § 9545(b)(1). Hale’s

second PCRA petition, filed on June 1, 2015, is patently untimely, as his

judgment of sentence became final on October 1, 2007. Thus, the PCRA


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court did not have “jurisdiction to grant [him] relief unless he can plead and

prove that one of the exceptions to the time bar provided in 42 Pa.C.S.A. §

9545(b)(1)(i)-(iii) applies.” Commonwealth v. Pursell, 749 A.2d 911, 914

(Pa. 2000).

       Hale has not pled any viable exceptions to the timebar. See PCRA

petition, filed 6/1/15. Hale does argue that the legality of his sentence is an

issue that cannot be waived. See id., at p. 6.1 That is true, but that does not

mean     the   claim    is   subject   to      review   in   an   untimely   PCRA.   See

Commonwealth v. Jones, 932 A.2d 179, 182 (Pa. Super. 2007) (“[W]hen

a petitioner files an untimely PCRA petition raising a legality-of-sentence

claim, the claim is not waived, but the jurisdictional limits of the PCRA itself

render the claim incapable of review.”). Therefore, the PCRA court correctly

determined that it was without jurisdiction to entertain Hale’s petition.

       In his reply brief, Hale argues that he qualifies for a timeliness

exception as he claims to have filed his petition within 60 days of learning of

Alleyne v. United States, 133 S.Ct. 2151 (U.S. 2013). However, Alleyne

is a court decision announcing a rule of law, which is dealt with under a

different timeliness exception. See 42 Pa.C.S.A. § 9545(b)(1)(iii). Thus,

Hale was required to file his petition within sixty days of date Alleyne was

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1
 The pages of Hale’s petition are not numbered. For ease of reference we
begin numbering the pages after the request for in forma pauperis status
and the form order attached to the front of Hale’s petition.



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filed, not sixty days from when he became aware of the decision. See 42

Pa.C.S.A. § 9545(b)(2). Furthermore, this Court has held that Alleyne is not

a decision upon which a petitioner may establish an exception to the PCRA’s

timebar. See Commonwealth v. Miller, 102 A.3d 988, 995 (Pa. Super.

2014). As a result, Hale’s appeal merits no relief.

      Order affirmed. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/20/2016




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