J-S47037-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

MICAH D. HEPLER

                            Appellant                No. 2241 MDA 2015


                Appeal from the PCRA Order November 20, 2015
           In the Court of Common Pleas of Northumberland County
              Criminal Division at No(s): CP-49-CR-0000392-2006


BEFORE: SHOGAN, J., LAZARUS, J., and JENKINS, J.

MEMORANDUM BY LAZARUS, J.:                             FILED JUNE 22, 2016

        Micah D. Hepler appeals pro se from the trial court’s order denying his

Post Conviction Relief Act1 (PCRA) petition. We affirm.

        On February 2, 2007, Hepler entered a guilty plea to aggravated

assault and resisting arrest.2 On April 30, 2007, he was sentenced to 5-10

years’ imprisonment on the assault charge, with a concurrent term of 7-24

months on the resisting arrest charge. The court imposed a deadly weapons

enhancement to Hepler’s sentence, see 18 Pa.C.S. § 2301, and he was

sentenced to a mandatory minimum sentence pursuant to 42 Pa.C.S. §

9712. No direct appeal was filed.

____________________________________________


1
    42 Pa.C.S. §§ 9541-9546.
2
    18 Pa.C.S. § 2702(a)(1); 18 Pa.C.S. § 5104.
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       On August 18, 2015, Hepler filed the instant pro se PCRA petition. On

August 25, 2015, the trial court appointed PCRA counsel to represent Hepler.

See Pa.R.Crim.P. 904(a) (defendant has absolute right to counsel on first

PCRA petition). On September 25, 2015, appointed counsel filed a petition

to withdraw pursuant to Commonwealth v. Finley, 550 A.2d 213 (Pa.

Super. 1988).3 The court sent Hepler Pa.R.Crim.P. 907 notice of its intent to

dismiss his petition as untimely on October 15, 2015.         On November 13,

2015, Hepler filed a pro se motion to stay the court’s disposition of his PCRA

petition based on a “new case that is to be heard on similar issues.” Pro Se

Motion to Stay and Hold in Abeyance, 11/13/15, at 1.          On November 20,

2015, the court granted counsel’s petition to withdraw, dismissed Hepler’s

petition without a hearing, and denied Hepler’s motion for stay.

       This appeal follows, in which Hepler raises the following issues for our

consideration:

       (1)    Did the PCRA court abuse its discretion when it upheld
              unconstitutionally imposed sentences upon appellant that
              have been deemed unconstitutional by the high state and
              federal courts despite the new rulings being substantive
              rule changes requiring retroactive applications, this also
              leaving all prior counsel ineffective for failing to object or
              further a claim on appellant’s behalf?

____________________________________________


3
  In his petition, counsel states that he carefully considered the matter, does
not believe that there is merit to Hepler’s petition and that, in fact, the
petition is frivolous. He also states that he has sent Hepler a “no merit”
letter and attached a Turner/Finley no merit letter to the petition. See
Motion for Leave to Withdraw as Counsel, 9/25/15.



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         (2)   Did the PCRA court abuse its discretion when it denied
               appellant’s PCRA hearing motion to stay and hold in
               abeyance pending a ruling in the state supreme court
               concerning the retroactivity of Alleyne v. United
               States[,133 S. Ct. 2151 (2013)]?

         The standard of review of an order denying a PCRA petition is whether

that determination 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.

Johnston, 42 A.3d 1120, 1126 (Pa. Super. 2012).

         Before we address the merits of Hepler’s claims on appeal, we must

determine whether his petition was timely filed.       Generally, a petition for

PCRA relief, including a second or subsequent petition, must be filed within

one year of the date the judgment is final. See 42 Pa.C.S. § 9545(b)(3);

see also Commonwealth v. Alcorn, 703 A.2d 1054 (Pa. Super. 1997).

There are, however, exceptions to the time requirement, set forth at 42

Pa.C.S. § 9545(b).       Where the petition alleges, and the petitioner proves,

that an exception to the time for filing the petition is met, the petition will be

considered     timely.     Id.    These   exceptions   include   interference   by

government officials in the presentation of the claim, after-discovered facts

or evidence, and an after-recognized constitutional right.         42 Pa.C.S. §

9545(b)(1)(ii)-(iii). A PCRA petition invoking one of these exceptions must

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

Id. at (b)(2). The timeliness requirements of the PCRA are jurisdictional in




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nature and, accordingly, a PCRA court cannot hear untimely petitions.

Commonwealth v. Robinson, 837 A.2d 1157 (Pa. 2003).

      Instantly, Hepler filed his PCRA petition on August 18, 2015. Hepler’s

judgment of sentence became final, for purposes of the PCRA, on May 30,

2007, after the time expired for him to file a direct appeal.   Therefore, in

order to be timely under the PCRA, Hepler would have had to have filed his

petition by May 30, 2008. Accordingly, Hepler’s petition is facially untimely.

However, we must determine whether Hepler has pled and proven an

exception to the PCRA time bar.

      Instantly, Hepler does not allege any section 9545(b)(1) exception.

Rather, his illegal sentence claim is predicated upon the holding of the

United States Supreme Court’s decision, Alleyne, supra. In Alleyne, the

Supreme Court held that “facts that increase mandatory minimum sentences

must be submitted to the jury” and must be found beyond a reasonable

doubt.   Id. at 2163.   A challenge to a sentence premised upon Alleyne

implicates the legality of the sentence.   Commonwealth v. Newman, 99

A.3d 86, 90 (Pa. Super. 2014) (en banc).       While 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.       See 42 Pa.C.S. §

9543(a)(2)(vii).




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       Despite the fact that section 9712 has been declared unconstitutional,4

Hepler    is   not   entitled   to   relief    in   his   untimely   PCRA   petition.   In

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

also filed an untimely PCRA petition raising the claim that his mandatory

minimum sentence was illegal. To overcome the untimeliness of his petition,

the defendant unsuccessfully argued that Alleyne announced a new

constitutional right under the PCRA that applies retroactively. Additionally,

the Court found meritless the defendant’s allegation that his illegal sentence

claim was not waivable on appeal where “in order for th[e] Court to review a

legality of sentence claim, there must be a basis for [its] jurisdiction.” Id. at

995.     Finally, the Miller Court held that Alleyne is not to be applied

retroactively to cases in which the judgment of sentence had become final.

Id.

       Similar to the defendant in Miller, Hepler raises a legality of sentence

claim predicated on the holding of Alleyne and an unconstitutional

mandatory minimum statute. Because Hepler’s petition is facially untimely,

because he does not allege and prove an exception to the timeliness

requirements of the PCRA, and because Alleyne does not apply retroactively

to cases on collateral review, Miller, supra, he is not entitled to relief.




____________________________________________


4
    See Commonwealth v. Valentine, 101 A.3d 801 (Pa. Super. 2013).



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Therefore, the trial court properly concluded that Hepler’s untimely PCRA

petition should be dismissed. Johnston, supra.

          Having found no merit to Hepler’s underlying claim that his sentence is

illegal      under    Alleyne,    we    cannot    deem     counsel    ineffective.

Commonwealth v. Spotz, 47 A.3d 63, 76 (Pa. 2012) (to prevail on

ineffectiveness claim, petitioner must plead and prove, by a preponderance

of the evidence, among other elements, that underlying legal claim has

arguable merit).

          Finally, Hepler claims that the court abused its discretion by denying

him a hearing on his petition and by not granting his motion to stay the

disposition of his petition until the Pennsylvania Supreme Court decides a

case in which it recently granted allowance of appeal.

          Pursuant to Pa.R.Crim.P. 908, a judge shall order a hearing on a PCRA

petition “when the petition . . . raises any material issues of fact.” However,

where, as here, the court is “satisfied from [a review of the petition and any

answer by the Commonwealth or other matters of record] that there are no

genuine issues concerning any material fact and that the defendant is not

entitled to post-conviction collateral relief,” the court may dismiss the

petition without a hearing after giving the defendant proper notice of its

intention to dismiss.      Pa.R.Crim.P. 908(1).    Accordingly, Hepler was not

entitled to a hearing.

          Finally, we find no merit to Hepler’s claim that the PCRA court should

have stayed his case pending the Pennsylvania Supreme Court’s decision in

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Commonwealth v. Barnes, 122 A.3d 1034 (Pa. 2015), in which he claims

the Supreme Court is going to determine “if retroactivity concerning Alleyne

should be applied in regards to Pennsylvania cases and if a claim concerning

sentences in Pennsylvania is nonwaivable.” Appellant’s Brief, at 9. We note

that the Supreme Court granted allowance of appeal in Barnes, limited to

the following issues:

      (1) Whether a challenge to a sentence pursuant to Alleyne v.
      United States, 133 S.Ct. 2151 (2013), implicates the legality of
      the sentence and is therefore non-waivable.

      (2) Whether contemporaneous convictions of possession with
      intent to deliver, pursuant to 35 Pa.C.S. § 780-113, and
      possession of a firearm prohibited, pursuant to 18 Pa.C.S. §
      6105, allow application of the mandatory minimum sentence
      found at 42 Pa.C.S. § 9712.1 in light of our decision in
      Commonwealth v. Hopkins, ___ A.3d ___, 2015 Pa.LEXIS
      1282 (decided June 15, 2015).

Barnes, supra.        Because neither of these issues is relevant to Hepler’s

collateral appeal, nor would they afford him any relief on his petition, his

claim is meritless.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/22/2016




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