J-S21039-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

KEVIN HURLEY,

                            Appellant                No. 2866 EDA 2014


                Appeal from the PCRA Order September 8, 2014
                in the Court of Common Pleas of Chester County
               Criminal Division at No.: CP-15-CR-0002888-2008


BEFORE: BOWES, J., JENKINS, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                              FILED APRIL 06, 2015

        Appellant, Kevin Hurley, appeals pro se from the order dismissing his

first petition filed pursuant to the Post Conviction Relief Act (PCRA), 42

Pa.C.S.A. §§ 9541-9546, as untimely. We affirm.

        The relevant factual and procedural history of this case is as follows.

On January 7, 2009, Appellant entered a negotiated guilty plea to four

counts of possession with intent to deliver (PWID) and one count of criminal

conspiracy.1 The charges stem from Appellant’s sales of methamphetamine

to a confidential informant with the aid of his co-defendants. On the same

date that Appellant entered his plea, January 7, 2009, the trial court

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*
    Retired Senior Judge assigned to the Superior Court.
1
    35 P.S. § 780-113(a)(30) and 18 Pa.C.S.A. § 903(a)(2), respectively.
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sentenced him, in accordance with the plea agreement, to an aggregate

term of not less than ten nor more than twenty years’ incarceration. The

PWID sentences were mandatory minimum terms of incarceration imposed

pursuant to 18 Pa.C.S.A. § 7508(a)(4)(i).          (See Trial Court Opinion,

11/24/14, at 3; N.T. Guilty Plea and Sentencing Hearing, 1/07/09, at 12-

13). Appellant did not file post-sentence motions or a direct appeal.

       On April 4, 2014, Appellant, acting pro se, filed the instant PCRA

petition, claiming, inter alia, that his sentence is illegal based on the United

States Supreme Court’s decision in Alleyne v. United States, 133 S. Ct.

2151, 2155 (2013) (holding that, to comply with dictates of Sixth

Amendment, facts that increase mandatory minimum sentence are elements

of offense and must be submitted to jury and proven beyond reasonable

doubt). (See PCRA Petition, 4/04/14, at 2-3). The PCRA court appointed

counsel to represent Appellant on April 15, 2014. On May 28, 2014, counsel

petitioned to withdraw his appearance and filed a Turner/Finley2 “no merit”

letter, stating that Appellant’s pro se PCRA petition was untimely, that the

issues raised in the petition lacked merit, and that after examining the

record, he found no meritorious issues to address.         On July 18, 2014,

Appellant filed a pro se response. On September 8, 2014, the court entered


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2
  See 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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its order dismissing Appellant’s PCRA petition. On September 15, 2014, the

court granted counsel’s petition to withdraw. This timely appeal followed.3

       Appellant raises the following issues for our review:

       1.    Whether Appellant is entitled to the “new-rule-of-law”
       announced in Alleyne v. United States, declaring mandatory
       sentences unconstitutional, as followed by the [Commonwealth
       v.] Natasha Miller [100 A.3d 293 (Pa. Super. 2014)
       (unpublished memorandum)], [Commonwealth v.] Munday
       [78 A.3d 661 (Pa. Super. 2013)] and [Commonwealth v.]
       Newman [99 A.3d 86 (Pa. Super. 2014) (en banc)] cases, and
       does the constitutionality of retroactivity apply to PCRA cases
       when the Alleyne Court did not specifically declare the ruling to
       be prospective only, thus, does the new rule of law apply
       retroactively to PCRA cases when the Appellant timely preserves
       the issue in the lower court within 60 days of discovering this
       new rule of law pursuant to the “after discovered” evidence
       exception to the PCRA timeliness requirements?

       2.    Whether the trial court violated Appellant’s 5th, 6th, 14th
       Amendments, right to jury trial, erred or abused its discretion,
       by sitting as fact finder in non-jury trial, failed to find all the
       elements as required for an enhanced sentence, weight of or
       possession of [methamphetamine] exceeds 100 [sic] grams,
       which was to be proven beyond a reasonable doubt by a jury,
       and or, by accepting the guilty plea and imposing a mandatory
       consecutive rather than concurrent sentence without discussing
       or setting forth the legal metrics or authorities on the record to
       authorize the sentence imposed?

       3.     Whether the PCRA counsel’s failure to properly present or
       litigate issues raised, or failure to amend the PCRA or
       Supplement PCRA Petitions, or failure to even discuss the “new-
       rule-of-law” announced in Alleyne v. United States, Miller,
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3
  Pursuant to the PCRA court’s order, Appellant filed a timely concise
statement of errors complained of on appeal on October 31, 2014. See
Pa.R.A.P. 1925(b). The trial court entered a Rule 1925(a) opinion on
November 24, 2014. See Pa.R.A.P. 1925(a).



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      Munday and Newman cases in his motion to withdraw as
      counsel, and failure to request a hearing prior to the PCRA court
      dismissing the PCRA Petitions, constitutes ineffective assistance
      of counsel that violated Appellant’s rights under the State
      Constitution or rule based right to effective assistance of
      counsel?


      4.    Whether Appellant’s 5th, 6th, 14th Amendments [sic] were
      violated by the trial counsel’s failure to properly advise Appellant
      that he was subject to a mandatory consecutive rather than
      concurrent sentence, when Appellant understood the plea
      agreement included or meant a concurrent sentence, and or by
      counsel’[s] failure to object to the mandatory consecutive
      sentence, or by his failure to file a motion to withdraw guilty
      plea, or file a direct appeal when Appellant requested the same
      immediately after sentencing, and does the same constitute
      ineffective assistance of counsel under the State and Federal
      Constitutions?


      5.    Whether Appellant’s guilty plea was entered as a result of
      ineffective assistance of counsel or erroneous advi[c]e from
      counsel, whether the guilty plea was entered without proper
      knowledge of the consequences or constitutes an involuntary or
      unknowing plea, and whether Appellant’s mandatory consecutive
      sentence for non-violent offenses is legal or constitutes an illegal
      sentence, when the U.S. Supreme Court has held such a
      sentence to be unconstitutional?

(Appellant’s Brief, at 3) (quotation marks in original).

      Our standard of review of a trial court order granting or denying
      relief under the PCRA calls upon us to determine whether the
      determination of the PCRA court is supported by the evidence of
      record and is free of legal error. The PCRA court’s findings will
      not be disturbed unless there is no support for the findings in the
      certified record.

Commonwealth v. Barndt, 74 A.3d 185, 191-92 (Pa. Super. 2013)

(citations and quotation marks omitted).




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       Before we may consider the merits of Appellant’s claim, we must

consider whether this appeal is properly before us.

       A PCRA petition, including a second or subsequent one, must be
       filed within one year of the date the petitioner’s judgment of
       sentence became final, unless he pleads and proves one of the
       three exceptions outlined in 42 Pa.C.S.[A.] § 9545(b)(1). A
       judgment becomes final at the conclusion of direct review by this
       Court or the United States Supreme Court, or at the expiration
       of the time for seeking such review.             42 Pa.C.S.[A.] §
       9545(b)(3).      The   PCRA’s     timeliness    requirements     are
       jurisdictional; therefore, a court may not address the merits of
       the issues raised if the petition was not timely filed.          The
       timeliness requirements apply to all PCRA petitions, regardless of
       the nature of the individual claims raised therein. The PCRA
       squarely places upon the petitioner the burden of proving an
       untimely petition fits within one of the three exceptions. . . .

Commonwealth v. Jones, 54 A.3d 14, 16-17 (Pa. 2012) (case citations

and footnote omitted).

       In this case, Appellant’s judgment of sentence became final on

February 6, 2009, thirty days after the trial court imposed its sentence and

his time for filing a timely direct appeal expired. See Pa.R.A.P. 903(a); 42

Pa.C.S.A. § 9545(b)(3). Therefore, he had one year from that date to file a

petition for collateral relief, specifically, until February 8, 2010.4   See 42

Pa.C.S.A. § 9545(b)(1). Because Appellant filed the instant petition on April

4, 2014, it is untimely on its face, and the PCRA court lacked jurisdiction to


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4
  The one-year deadline, February 6, 2010, fell on a Saturday. Therefore,
Appellant had until that Monday to file a timely PCRA petition. See 1
Pa.C.S.A. § 1908.



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review it unless he pleaded and proved one of the statutory exceptions to

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

      Section 9545 of the PCRA provides only three limited exceptions that

allow for review of an untimely PCRA petition:

      (i) the failure to raise the claim previously was the result of
      interference by government officials with the presentation of the
      claim in violation of the Constitution or laws of this
      Commonwealth or the Constitution or laws of the United States;

      (ii) the facts upon which the claim is predicated were unknown
      to the petitioner and could not have been ascertained by the
      exercise of due diligence; or

      (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.

Id. “If the [PCRA] petition is determined to be untimely, and no exception

has been pled and proven, the petition must be dismissed without a hearing

because Pennsylvania courts are without jurisdiction to consider the merits

of the petition.”   Commonwealth v. Jackson, 30 A.3d 516, 519 (Pa.

Super. 2011), appeal denied, 47 A.3d 845 (Pa. 2012) (citation omitted). In

addition, a PCRA petition invoking one of these statutory exceptions must

“be filed within 60 days of the date the claim could have been presented.”

42 Pa.C.S.A. § 9545(b)(2).

      Here, Appellant claims the benefit of the exception at 42 Pa.C.S.A. §

9545(b)(1)(iii),    alleging   a   newly-recognized,     retroactively-applied

constitutional right to relief predicated on the United States Supreme Court’s


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decision in Alleyne, supra.          (See Appellant’s Brief, at 14, 22-25).5            He

asserts that his challenge to the legality of his sentence cannot be waived,

and that Alleyne retroactively applies to this case, rendering his untimely

petition reviewable on the merits. (See id. at 14, 16, 22-23, 27-28). We

disagree.

       Initially,   we   reiterate   that      the   exception   set   forth   in   section

9545(b)(1)(iii) applies only where “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) (emphasis added).

              Subsection (iii) of Section 9545 has two requirements.
       First, it provides that the right asserted is a constitutional right
       that was recognized by the Supreme Court of the United States
       or th[e Pennsylvania] Supreme Court after the time provided in
       this section. Second, it provides that the right “has been held”
       by “that court” to apply retroactively. Thus, a petitioner must
       prove that there is a “new” constitutional right and that the right
       “has been held” by that court to apply retroactively.           The
       language “has been held” is in the past tense. These words
       mean that the action has already occurred, i.e., “that court” has
       already held the new constitutional right to be retroactive to
       cases on collateral review. By employing the past tense in

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5
  The United States Supreme Court decided Alleyne on June 17, 2013.
Appellant filed the instant PCRA petition approximately ten months later, on
April 4, 2014. Therefore, Appellant has failed to comply with the PCRA sixty-
day rule. See 42 Pa.C.S.A. § 9545(b)(2). Accordingly, Appellant’s petition
would fail for that reason as well.




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     writing this provision, the legislature clearly intended that the
     right was already recognized at the time the petition was filed.

Commonwealth v. Garcia, 23 A.3d 1059, 1063 (Pa. Super. 2011), appeal

denied, 38 A.3d 823 (Pa. 2012) (citations omitted).

     Directly instructive to the instant case is this Court’s decision in

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

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

untimely PCRA petition. See id. at 993. Specifically, the appellant averred

that the Alleyne decision announced a new constitutional right that applies

retroactively to cases on collateral review. See id. at 993-94. 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


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       of Appellant’s second PCRA petition, as it was untimely filed and
       no exception was proven.

Id. at 995-96 (quotation marks, footnote, and citations omitted).

       In the instant case, although Appellant claims the applicability of

section 9545(b)(1)(iii) based on Alleyne, neither the United States Supreme

Court nor our Supreme Court has held that Alleyne applies retroactively to

cases on collateral review.        See id. at 995.   “This is fatal to Appellant’s

argument regarding the PCRA time-bar.” Id.6 Therefore, Appellant has not

met his burden of proving his untimely petition fits within one of the three

exceptions to the PCRA’s jurisdictional time-bar. See id.; see also Jones,

supra at 17.7        Accordingly, we conclude that the PCRA court properly

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6
   We note for the sake of completeness that in Commonwealth v.
Cardwell, 105 A.3d 748 (Pa. Super. 2014), a case on direct appeal, a panel
of this Court held section 7508(a)(4)(i) unconstitutional in light of Alleyne,
supra, Newman, supra, and Commonwealth v. Valentine, 101 A.3d 801
(Pa. Super. 2014). See Cardwell, supra at 749-50, 755. However, that
decision has not been held to apply retroactively to cases on collateral
review.
7
  To the extent that Appellant argues application of Alleyne pursuant to the
“after discovered facts” exception to the time-bar set forth in section
9545(b)(1)(ii), (see Appellant’s Brief, at 3, 15, 22, 25-26), this argument
also fails. Our Supreme Court, in Commonwealth v. Watts, 23 A.3d 980
(Pa. 2011), expressly cautioned against confusing the concepts of “fact” and
“law”, and rejected the notion that a law can be considered a newly-
discovered fact capable of invoking the protections afforded by the PCRA’s
after-discovered facts exception. See Watts, supra at 986-87 (holding that
“subsequent decisional law does not amount to a new ‘fact’ under section
9545(b)(1)(ii) of the PCRA”). Therefore, Appellant’s apparent 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.




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dismissed Appellant’s petition as untimely with no exception to the time-bar

pleaded or proven.

     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/6/2015




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