J-S27020-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
               v.                              :
                                               :
                                               :
    TERRY HALL                                 :
                                               :
                      Appellant                :   No. 3075 EDA 2016

                  Appeal from the PCRA Order August 22, 2016
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0004620-2012


BEFORE:       GANTMAN, P.J., OTT, J. and PLATT, J.*

MEMORANDUM BY OTT, J.:                              FILED SEPTEMBER 19, 2017

        Terry Hall appeals pro se from the order entered August 22, 2016, in

the Court of Common Pleas of Philadelphia County, that dismissed as

untimely his first petition seeking relief pursuant to the Pennsylvania Post

Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541–9546.1 Hall contends the

PCRA court erred (1) in determining his petition was untimely, (2) in failing

to acknowledge that trial counsel was ineffective for giving fraudulent and

erroneous legal advice, (3) in failing to address issues of prosecutorial

____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
 Appointed counsel filed a Turner/Finley no merit letter and a motion to
withdraw that was granted by the PCRA court on the same day that Hall’s
PCRA petition was dismissed. See Commonwealth v. Turner, 544 A.2d
927 (Pa. 1988); Commonwealth v. Finley, 550 A.2d 213 (Pa. Super.
1988).
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misconduct, and (4) in failing to recognize that he is serving an illegal

sentence. Based upon the following, we affirm.

     The PCRA court summarized the background of this appeal:

            On March 7, 2014, [Hall] plead[ed] guilty to Burglary (18
     Pa.C.S.A. § 3502(a)). On that date, [Hall] was sentenced to the
     negotiated sentence of seven (7) to fourteen (14) years of
     incarceration. [Hall] did not motion to withdraw his guilty [plea]
     or file a direct appeal. Therefore, his sentence became final on
     April 7, 2014.

           On November 17, 2015, [Hall] filed a pro se Post-
     Conviction Relief Act Petition. PCRA counsel was appointed to
     represent [Hall] and subsequently filed a “Finley” letter on July
     14, 2016 stating that [Hall’s] claims in the PCRA petition were
     without merit.     A Notice of Intent to Dismiss pursuant to
     Pa.R.Crim.P. § 907 was filed and sent to [Hall] on July 18, 2016.
     [Hall] filed a response with this court on August 11, 2016. The
     PCRA petition was formally dismissed on August 22, 2016. On
     that date counsel for [Hall’s] PCRA matter was permitted to
     withdraw. [Hall] filed timely direct appeal on September 19,
     2016. This court did not issue an Order pursuant to Pa.R.A.P. §
     1925(b).

PCRA Court Opinion, 11/16/2016, at 1–2.

     Preliminarily, we state our standard of review:

     “In reviewing the denial of PCRA relief, we examine whether the
     PCRA court’s determination ‘is supported by the record and free
     of legal error.’”Commonwealth v. Taylor, 620 Pa. 429, 67
     A.3d 1245, 1248 (Pa. 2013) (quoting Commonwealth v.
     Rainey, 593 Pa. 67, 928 A.2d 215, 223 (Pa. 2007)).

Commonwealth v. Mitchell, 141 A.3d 1277, 1283-1284 (Pa. 2016).

     “It is well-settled that the PCRA’s time restrictions are jurisdictional in

nature.” Commonwealth v. Robinson, 139 A.3d 178, 185 (Pa. 2016). A

PCRA petition must be filed within one year of the date the judgment


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becomes final. See 42 Pa.C.S. § 9545(b)(1). Under the PCRA, “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.” 42 Pa.C.S.

§ 9545(b)(3).

      There are three statutory exceptions to the PCRA’s timeliness

provisions that allow for limited circumstances under which an otherwise

untimely PCRA petition may be reviewed. To invoke an exception, a petition

must allege and the petitioner must prove:

      (i) the failure to raise a claim previously was the result of
      interference by government officials with the presentation of the
      claim in violation of the Constitution or the law of this
      Commonwealth or the Constitution or law 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.

42 Pa.C.S. § 9545(b)(1)(i)-(iii). Furthermore, a petitioner invoking a

timeliness exception must file a petition within 60 days of the date the claim

could have been presented. 42 Pa.C.S. § 9545(b)(2).

      Here, as the PCRA court correctly recognized, Hall’s judgment of

sentence became final on Monday, April 7, 2014, after the expiration of the

30-day appeal period for the sentence imposed on March 7, 2014. See 42

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Pa.C.S. § 9545(b)(3); Pa.R.A.P. 903(a). See also 1 Pa.C.S. § 1908

(“Computation of time”). Therefore, applying the PCRA’s one year time

limitation, Hall had until April 7, 2015, to file a timely PCRA petition.

Accordingly, in this case, there is no jurisdiction to review the present

petition, which was filed on November 17, 2015, unless a timeliness

exception applies. See 42 Pa.C.S. 9545(b)(1)(i)-(iii). Hall asserts that all

three of the PCRA’s timeliness exceptions apply.

      By way of background, Hall’s written guilty plea indicated his case was

a “possible 3rd strike case” and that he faced up to life imprisonment.

Written Guilty Plea, 3/7/2014.   See 42 Pa.C.S. § 9714(a) (“Sentences for

second and subsequent offenses”; “Mandatory sentence”).       However, Hall

entered into a negotiated guilty plea and received a sentence of seven to 14

years’ incarceration.

      The PCRA court opined:

      [Hall] essential[ly] pleads that he did not knowingly enter into
      his guilty plea because he was told that a conviction could
      possibly classify him as a third strike offender. However, 42
      Pa.C.S.A. § 9714 is still valid and has not been ruled
      unconstitutional or preempted.         Based solely on these
      contentions, none of the three exceptions to the timeliness
      requirement have been met.

PCRA Court Opinion, 11/16/2016, at 2.       We agree with the PCRA court’s

determination. Below, we address each of Hall’s arguments.

      First, Hall claims his petition satisfies the after-discovered evidence

exception, 42 Pa.C.S. § 9545(b)(1)(ii). Hall states:


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       As a result of erroneous legal advice from three (3) [attorneys]
       assigned to [Hall’s] case, advising [Hall] that Commonwealth
       v. Armstrong, 74 A.3d 2[2]8 ([Pa. Super.] 2013) [holding the
       defendant should not have been sentenced as a three-strike
       offender pursuant to 42 Pa.C.S. § 9714(a)(2) where he did not
       have the opportunity to reform between his first and second
       convictions] did not apply to [his] case, coerced and convinced
       [Hall] into pleading guilty, to avoid a[n] illegal third strike
       sentence of 25-life. This fraudulent and erroneous legal advice
       caused [Hall] irreparable harm in a Timely filing of his PCRA
       Petition. As a result of malicious erroneous ineffective counsel,
       induced [Hall] into pleading under fraudulent indictment
       information, and based on deception and trickery.

                                           ****

       Around/or about September 2015, [Hall] attended a legal
       seminar held [] at SCI-Houtzdale.        At this seminar [Hall]
       attended, [Hall] was informed that within accordance to Alleyne
       v. United States, [133 S. Ct. 2151,] 186 [L.Ed. 2d] 314
       (2013),[2] which is supported by and cited in [the]
       Commonwealth v. Armstrong, [supra,] decision, … that
       [Hall] could not be not be [sic] deemed a third strike offender
       absent prior convictions and sentences as a 1-2nd strike offender.
       To further affirm what became known to [Hall] at the seminar he
       attended, around/or about September 2015, [Hall] read an
       article in the Philadelphia Daily News Paper, that informed [Hall]
       that the Court[] has ruled Mandatory three strike sentences

____________________________________________



2
  In Alleyne, the Supreme Court held that “any fact that increases the
mandatory minimum is an ‘element’ that must be submitted to the jury” and
found beyond a reasonable doubt. Alleyne, 133 S. Ct. at 2155.

      Following Alleyne, our courts have declared numerous Pennsylvania
mandatory      minimum     sentencing  statutes   unconstitutional.  See
Commonwealth v. Washington, 142 A.3d 810, 812 (Pa. 2016) (“The
effect [of Alleyne] was to invalidate a range of Pennsylvania sentencing
statutes predicating mandatory minimum penalties upon non-elemental facts
and requiring such facts to be determined by a preponderance of the
evidence at sentencing.”).



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      [are] unconstitutional absent prior strike offenses.             This
      information was not known to [Hall] prior to sentencing.

Hall’s Brief at 12 (emphasis and underlining in original).

      Hall also relies on the timeliness exception for a newly recognized

constitutional right that has been held to apply retroactively. 42 Pa.C.S. §

9545(b)(i)(iii).   In support of this exception, Hall asserts: “The fact that

[Hall] is alleging is that he is serving a[n] illegal sentence as a result of

ineffective counsel and interference by the District Attorney for failing to

disclose that [Hall] was not a three strike offender.”         Hall’s Brief at 14

(emphasis and underlining in original).

      Finally, Hall cites the governmental interference exception, 42 Pa.C.S.

§ 9545(b)(b)(i).     Hall alleges the District Attorney gave him “misleading

information” when “she told [Hall] that he would be prosecuted as a third

strike offender.” Hall’s Brief at 15. He argues, “Had [Hall] been told that he

could not be sentence[d] as a third strike offender, he would not have

plead[ed] guilty to avoid a 25-life [sentence].” Id. All of Hall’s claims fail to

warrant relief.

      With regard to Hall’s argument that the after-discovered timeliness

exception applies, it is well settled that an allegation of trial counsel’s

ineffectiveness does not constitute a newly discovered fact for purposes of

Section 9545(b)(1)(ii). See Commonwealth v. Gamboa-Taylor, 753 A.2d

780, 786 (Pa. 2000) (holding claim that PCRA counsel’s ineffectiveness was

after-discovered    fact   will   not   establish   jurisdiction   under   section

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9545(b)(1)(ii)); see also Commonwealth v. Breakiron, 781 A.2d 94, 100

(Pa. 2001). Therefore, Hall’s claim of counsel’s ineffectiveness based upon

the information he learned at the seminar regarding the Alleyne decision

cannot satisfy this exception.    Furthermore, because Alleyne is a judicial

decision, it is not a “fact” that satisfies 42 Pa.C.S. § 9545(b)(1)(ii). See

Commonwealth v. Cintora, 69 A.3d 759, 763 (Pa. Super. 2013) (“Our

Courts have expressly rejected the notion that judicial decisions can be

considered newly-discovered facts which would invoke the protections

afforded by section 9545(b)(1)(ii).”). See also Commonwealth v. Watts,

23 A.3d 980, 987 (Pa. 2011) (judicial decision does not qualify as an

exception under section 9545(b)(1)(ii)).       Therefore, Hall cannot rely on

Section 9545(b)(1)(ii).

      Next, Hall’s claim of governmental interference by the prosecutor

misapprehends the holding of Alleyne.               Contrary to Hall’s apparent

argument,     Alleyne     does   not   apply   to    prior   convictions.   See

Commonwealth v. Reid, 117 A.3d 777, 784–785 (Pa. Super. 2015)

(“Alleyne did not overturn prior precedent that prior convictions are

sentencing factors and not elements of offenses. Section 9714 increases

mandatory minimum sentences based on prior convictions. Accordingly, this

section is not unconstitutional under Alleyne.” (citations omitted)).       See

also Commonwealth v. Bragg, 133 A.3d 328, 333 (Pa. Super. 2016),




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appeal granted in part, 143 A.3d 890 (Pa. 2016).3            Furthermore, it is

apparent that Hall was aware of the sentencing issue with respect to his

prior convictions, and Hall, through counsel, was aware of Alleyne, cited in

Armstrong, supra.           Therefore, there was no governmental interference

that would satisfy Section 9545(b)(1)(i).

       Finally, with regard to Section 9545(b)(1)(iii), Alleyne was decided

before Hall entered into his negotiated guilty plea. Even if Alleyne affected

Hall’s case, which it does not, this Court has held that Alleyne does not

apply when the claim is raised in an untimely PCRA petition. Our Supreme

Court has held that Alleyne does not apply retroactively to cases on

collateral review. Commonwealth v. Washington, 142 A.3d 810, 820 (Pa.

2016).    Therefore, Hall’s reliance on Alleyne to satisfy the constitutional

right exception is misplaced.

       Accordingly, based upon the foregoing, we conclude Hall has failed to

satisfy any exception to the PCRA’s statutory exceptions to overcome the

untimeliness of his first PCRA petition. Therefore, as neither the PCRA Court

nor this Court have jurisdiction to review Hall’s petition, we affirm.

       Order affirmed. All outstanding motions dismissed.



____________________________________________


3
  On August 4, 2016, the Pennsylvania Supreme Court granted allowance of
appeal in Bragg, and two other cases to examine the constitutionality of
section 9714 in light of Alleyne. See Bragg, 143 A.3d 890 (Pa. 2016).



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/19/2017




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