J-S34017-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    DANIEL HURLEY                              :
                                               :
                       Appellant               :   No. 1392 WDA 2018

             Appeal from the PCRA Order Entered August 22, 2018
     In the Court of Common Pleas of Allegheny County Criminal Division at
                       No(s): CP-02-CR-0016287-2005


BEFORE:      DUBOW, J., McLAUGHLIN, J., and COLINS*, J.

MEMORANDUM BY McLAUGHLIN, J.:                      FILED SEPTEMBER 13, 2019

       Daniel Hurley appeals the denial of his fourth Post-Conviction Relief Act

(“PCRA”) petition as untimely. See 42 Pa.C.S.A. §§ 9541-9546. Hurley

maintains that he satisfied the governmental interference time-bar exception.

We affirm.

       A jury convicted Hurley of two counts of aggravated assault and one

count each of criminal attempt, persons not to possess, use, manufacture,

control, sell, or transfer firearms, and firearms not to be carried without a

license.1 He filed a direct appeal and we affirmed in July 2008. See

Commonwealth v. Hurley, No. 170 WDA 2007 (Pa.Super. filed July, 16,

2008) (unpublished memorandum).
____________________________________________


*    Retired Senior Judge assigned to the Superior Court.

1 18 Pa.C.S.A §§ 2702(a)(1), 2702(a)(4), 901(a), 6105(a), and 6106(a)(1),
respectively.
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      In July 2018, Hurley filed the instant pro se petition. The PCRA court

issued its notice of intent to dismiss the petition without a hearing pursuant

to Pa.R.Crim.P. 907. Hurley responded to the Rule 907 notice and the PCRA

court denied the petition. This timely appeal followed.

      Hurley raises the following issues on appeal:

         1. Whether the Court of Common Pleas erred in dismissing
         Appellants PCRA, addressing [Hurley’s] merits stating there
         are no meritorious issues when the issues do have merit and
         they should have addressed the timeliness issue only?

         2. Whether there was governmental interference and
         prosecution misconduct when assistant D/A Holy [sic] Guna
         falsely stated that the Defendant was a fugitive to proceed
         without the holding of a preliminary hearing when in fact
         [Hurley] was incarcerated?

         3. Whether the Court of Common Pleas erred in granting
         assistant D/A Holy [sic] Guna’s motion to proceed without
         the holding of a preliminary hearing under Pa. Rules of
         Criminal Procedure 565 (a) without following statutory
         procedures and due diligence?

         4. Whether [Hurley] was denied his Constitutional right to
         counsel at every stage, right to Due Process, face to face
         confrontation, right to be present at every stage of the
         criminal process, right to a fair trial and ANY right attached
         to a preliminary hearing when [Hurley] was denied a
         preliminary hearing under a false statement made by the
         prosecution to gain a tactical advantage over the defense?

         5. Whether [Hurley] was denied Equal Protection of the
         Laws when he was denied the same rights that every other
         citizen in Pennsylvania that is arrested is afforded once the
         criminal process is started and they are formally charged?

Hurley’s Br. at 4.




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       Our standard of review of the denial of a PCRA petition is limited to

examining whether the evidence of record supports the PCRA court’s

determination and whether its decision is free of legal error.                 See

Commonwealth v. Conway 14 A.3d 101, 108 (Pa.Super. 2011).

       The PCRA’s time-bar is jurisdictional in nature and a court lacks

jurisdiction to entertain a PCRA petition if it is untimely. See Commonwealth

v. Peterkin 722 A.2d 638, 641 (Pa. 1998). A PCRA petitioner has one year

from the date the judgment of sentence becomes final to file a PCRA petition

unless a time-bar exception applies. See 42 Pa.C.S.A § 9545(b)(1). “[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.” See Commonwealth v. Staton, 184 A.3d 949, 954 (Pa. 2018)

(quoting 42 Pa.C.S.A. § 9545(b)(3)).

       The petitioner bears the burden of pleading and proving at least one of

the time-bar exceptions. See Commonwealth v. Pursell, 749 A.2d 911,

913-14 (Pa. 2000). These exceptions are: (1) the failure to raise the claim

previously was due to interference by government officials; (2) the facts of

the claim were unknown to the petitioner and could not have been ascertained

by the exercise of due diligence; or (3) a newly recognized constitutional right

that the United States Supreme Court or the Pennsylvania Supreme Court has

held   to   apply   retroactively.   See   42   Pa.C.S.A.   §   9545(b)(1)(i)-(iii).

Additionally, a time-bar exception must be raised within 60 days from the time

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the claim could have first been raised by the petitioner. See Commonwealth

v. Kretchmar, 189 A.3d 459, 462 (Pa.Super. 2018) (citing 42 Pa.C.S.A §

9545(b)(2)).2

        Here, Hurley’s judgment of sentence became final on August 15, 2008,

after his time to file a petition for allowance of appeal with our Supreme Court

expired. See 42 Pa.C.S.A. § 9545(b)(3). Therefore, he had until August 17,

2009, to file a timely PCRA petition.3 Hurley’s instant PCRA petition, which he

filed on July 16, 2018, was patently untimely and the PCRA court was without

jurisdiction to hear the petition unless Hurley pleaded and proved at least one

of the time-bar exceptions. See Commonwealth v. Hudson, 156 A.3d 1194,

1197 (Pa.Super. 2017).

        In his petition and on appeal, Hurley asserts the governmental

interference time-bar exception. He claims that the trial court granted the

prosecution’s motion to proceed with the filing of a criminal information

without a preliminary hearing, based on the prosecutor’s representation that

Hurley was a fugitive. See Pa.R.Crim.P. 565(A). Hurley claims he in fact was

in Allegheny County Jail at the time.

        This claim fails because Hurley did not raise it within 60 days of when

he could have first raised it. See Kretchmar, 189 A.3d at 462. Hurley
____________________________________________


2Effective December 24, 2018, a petitioner has one year to raise a time-bar
exception arising on or after December 24, 2017. See Act 2018, Oct. 24, P.L.
894, No. 146, § 3. This extension does not apply here because Hurley filed his
petition before the effective date of the amendment.

3   August 15, 2009 was a Saturday. See 1 Pa.C.S.A. § 1908.

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attached to his PCRA petition a letter from his trial counsel, dated August 1,

2006, that informed Hurley of the trial court’s decision not to hold the

preliminary hearing, and its reason for doing so. See Hurley’s PCRA Petition,

filed 7/16/18 at Exhibit #14. Thus, Hurley was on notice in 2006 of these

facts. Yet he waited almost 12 years – until 2018 – to claim governmental

interference. His argument therefore fails because he did not raise it within 60

days of learning of this information. The PCRA court did not err in denying

Hurley’s petition as untimely.

     Order affirmed.
Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/13/2019




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