J-A18014-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                     IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

HARVEY S. BRENDLE,

                            Appellant                 No. 2074 MDA 2015


            Appeal from the PCRA Order Entered November 13, 2015
                In the Court of Common Pleas of Berks County
                           Criminal Division at No(s):
                           CP-06-CR-0002242-1997
                           CP-06-CR-0002243-1997


BEFORE: FORD ELLIOTT, P.J.E., BENDER, P.J.E., and STEVENS, P.J.E.*

MEMORANDUM BY BENDER, P.J.E.:                      FILED OCTOBER 07, 2016

        Appellant, Harvey S. Brendle, appeals pro se from the post-conviction

court’s order denying, as untimely, his petition filed under the Post

Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. We affirm.

        The PCRA court summarized the procedural history of Appellant’s case

as follows:

              On May 29, 1998, [Appellant] entered guilty pleas to rape
        and related offenses. He was subsequently sentenced on July
        24, 1998[,] and then resentenced on February 7, 2000[,] to a
        term of five to twenty years of incarceration in a state
        correctional facility. [Appellant] did not file a direct appeal.

               On or about August 23, 2004, [Appellant] filed a pro se
        petition pursuant to the [PCRA]. On August 30, 2004, [counsel]
____________________________________________


*
    Former Justice specially assigned to the Superior Court.
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      was appointed to represent [Appellant] with regard to the
      disposition of his PCRA petition.

                                       …

             Thereafter, … [Appellant’s] PCRA counsel filed a petition for
      leave of court to withdraw as counsel and filed a brief in support
      of said petition. This court subsequently provided notice of its
      intention to dismiss [Appellant’s] PCRA petition, granted
      counsel’s motion to withdraw, and then dismissed [Appellant’s]
      petition on February 5, 2005.        [Appellant] appealed to the
      Superior Court of Pennsylvania, which affirmed this court’s Order
      on August 17, 2005. [Commonwealth v. Brendle, 885 A.2d
      572 (Pa. Super. 2005) (unpublished memorandum).]

             On July 16, 2015, [Appellant] filed the instant PCRA
      petition, which is his second.

PCRA Court Opinion, 10/13/15, at 1-2.

      On October 13, 2015, the PCRA court issued a Pa.R.Crim.P. 907 notice

of its intent to dismiss Appellant’s pro se petition without a hearing, along

with an opinion explaining its conclusion that Appellant’s petition was

untimely-filed.   Appellant filed a pro se response, but on November 13,

2015, the court issued an order denying his petition.         Appellant filed a

timely, pro se notice of appeal, and he also timely complied with the court’s

order to file a Pa.R.A.P. 1925(b) concise statement of errors complained of

on appeal. In Appellant’s pro se brief, he presents one issue for our review:

“Whether the [c]ourt erred in denying [Appellant’s] petition for [PCRA]

[r]elief where [Appellant] is currently serving an illegal sentence and is

incarcerated in violation of the due process clauses of both the Constitution

of the United States and the Constitution of the Commonwealth of

Pennsylvania?” Appellant’s Brief at 1.

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      This Court’s standard of review regarding an order denying a petition

under the PCRA is whether the determination of the PCRA court is supported

by the evidence of record and is free of legal error.      Commonwealth v.

Ragan, 923 A.2d 1169, 1170 (Pa. 2007). We must begin by addressing the

timeliness of Appellant’s petition, because the PCRA time limitations

implicate our jurisdiction and may not be altered or disregarded in order to

address the merits of a petition.    Commonwealth v. Bennett, 930 A.2d

1264, 1267 (Pa. 2007).     Under the PCRA, any petition for post-conviction

relief, including a second or subsequent one, must be filed within one year of

the date the judgment of sentence becomes final, unless one of the following

exceptions set forth in 42 Pa.C.S. § 9545(b)(1)(i)-(iii) applies:

      (b) Time for filing petition.--

         (1) Any petition under this subchapter, including a second
         or subsequent petition, shall be filed within one year of the
         date the judgment becomes final, unless the petition
         alleges and the petitioner proves that:

            (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.



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42 Pa.C.S. § 9545(b)(1)(i)-(iii).   Any petition attempting to invoke one of

these exceptions “shall be filed within 60 days of the date the claim could

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

      Here, Appellant’s judgment of sentence became final on March 8,

2000, at the expiration of the thirty-day period for filing a direct appeal with

this Court.   See 42 Pa.C.S. § 9545(b)(3) (stating a judgment of sentence

becomes final at the conclusion of direct review or the expiration of the time

for seeking the review); Pa.R.A.P. 903(a) (directing that a notice of appeal

to Superior Court must be filed within 30 days after the entry of the order

from which the appeal is taken). Consequently, Appellant’s current petition,

filed in 2015, is patently untimely, and for this Court to have jurisdiction to

review the merits thereof, Appellant must prove that he meets one of the

exceptions to the timeliness requirements set forth in 42 Pa.C.S. § 9545(b).

      In his pro se brief, Appellant contends that his sentence is illegal under

the United States Supreme Court’s decision in Alleyne v. United States,

133 S.Ct. 2151, 2163 (2013) (holding that “facts that increase mandatory

minimum sentences must be submitted to the jury” and found beyond a

reasonable doubt), and/or the Pennsylvania Supreme Court’s subsequent

decision in Commonwealth v. Hopkins, 117 A.3d 247, 258-59 (Pa. 2015)

(holding that the mandatory minimum sentencing statute of 18 Pa.C.S. §

6317 (Drug-free school zones) is unconstitutional, in its entirety, under

Alleyne). Appellant seemingly relies on these cases in an attempt to satisfy

the ‘retroactive constitutional right’ exception of section 9545(b)(1)(iii).

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       Preliminarily, Appellant’s reliance on Alleyne cannot meet the 60-day

requirement of section 9545(b)(2), as Alleyne was filed in 2013 and

Appellant’s petition was not filed until 2015. In any event, this Court has

held   Alleyne    does   not   satisfy   the   timeliness   exception   of   section

9545(b)(1)(iii) because “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.” Commonwealth v.

Miller, 102 A.3d 988, 995 (Pa. Super. 2014).           Since Miller, neither our

Supreme Court nor the United States Supreme Court has held that Alleyne

applies retroactively.   In fact, the Pennsylvania Supreme Court recently

reached the opposite conclusion, holding that Alleyne does not apply

retroactively to collateral attacks on mandatory minimum sentences.             See

Commonwealth v. Washington, -- A.3d --, No. 37 EAP 2015 (Pa. filed on

July 19, 2016).

       Additionally, Hopkins does not satisfy the section 9545(b)(1)(iii)

exception. That decision did not announce a new rule - it merely applied the

rule created in Alleyne to declare that a specific, mandatory minimum

sentencing statute in this Commonwealth is unconstitutional.        Nevertheless,

even if Hopkins did create a new constitutional rule, our Supreme Court has

not held that Hopkins applies retroactively. Therefore, neither Alleyne nor

Hopkins meet the ‘retroactive constitutional right’ exception to the PCRA’s

time-bar.




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      Appellant presents one additional, legality of sentencing argument that

we will only briefly address. Appellant maintains that his sentence is illegal

because all of the criminal statutes in this Commonwealth are invalid, as

they do not contain “titles and enacting clauses….” Appellant’s Brief at 25.

Appellant does not attempt to explain which timeliness exception this claim

meets, and the fact that it is a challenge to the legality of his sentence is not

enough, alone, to trigger our jurisdiction to review his claim.             See

Commonwealth v. Fahy, 737 A.2d 214, 223 (Pa. 1999) (holding that

claims challenging the legality of sentence are subject to review within the

PCRA, but must first satisfy the PCRA’s time limits).

      Accordingly, we ascertain no error in the PCRA court’s determination

that Appellant’s petition is untimely, and that he has failed to satisfy an

exception to the PCRA’s one-year time-bar.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/7/2016




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