J-S79021-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

SAMUEL HALL

                            Appellant                 No. 3726 EDA 2015


                 Appeal from the PCRA Order October 30, 2015
                In the Court of Common Pleas of Chester County
              Criminal Division at No(s): CP-15-CR-0002984-2007
                                          CP-15-CR-0002985-2007
                                          CP-15-CR-0002986-2007
                                          CP-15-CR-0002987-2007
                                          CP-15-CR-0002988-2007


BEFORE: GANTMAN, P.J., MOULTON, J., and MUSMANNO, J.

MEMORANDUM BY MOULTON, J.:                      FILED NOVEMBER 21, 2016

       Samuel L. Hall appeals, pro se, from the October 30, 2015 order of the

Court of Common Pleas of Chester County dismissing as untimely his fourth

petition filed pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.

§§ 9541-9546. We affirm.

       On August 13, 2008, after a non-jury trial on stipulated facts, the trial

court convicted Hall of five counts of delivery or possession with intent to

deliver (“PWID”) (cocaine), one count of PWID (marijuana), one count of

PWID (MDMA1 and methamphetamine), one count of possession of drug
____________________________________________


       1
         MDMA is the acronym for 3,4-methylenedioxymethamphetamine,
colloquially known as “ecstasy.”
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paraphernalia, and four counts of criminal use of a communications facility.2

That same day, the trial court sentenced Hall to an aggregate sentence of 15

to 30 years’ incarceration, which included mandatory minimum sentences on

all of Hall’s PWID convictions.3       On August 25, 2008, Hall filed a notice of

appeal, and on August 26, 2008, the trial court issued an order directing

Hall’s trial counsel to prepare and serve a Pennsylvania Rule of Appellate

Procedure 1925(b) statement of matters complained of on appeal (“1925(b)

statement”). On September 3, 2008, Hall’s trial counsel filed a statement of

intent to file an Anders/McClendon4 brief pursuant to Pennsylvania Rule of

Appellate Procedure 1925(c)(4).           Trial counsel filed his Anders brief and

motion to withdraw as counsel with this Court on November 14, 2008,

stating that Hall’s desired challenge of a suppression decision was meritless.

On July 29, 2009, this Court affirmed the judgment of sentence and granted

trial counsel’s petition to withdraw.


____________________________________________


       2
       35 P.S. § 780-113(a)(30), 35 P.S. § 780-113(a)(32), and 18 Pa.C.S.
§ 7512(a), respectively.
       3
       The mandatory minimum sentencing statute upon which Hall was
sentenced, 18 Pa.C.S. § 7508, was later found by this Court to be
unconstitutional in Commonwealth v. Fennell, 105 A.3d 13 (Pa.Super.
2014).
       4
       Anders v. California, 386 U.S. 738 (1967), and Commonwealth
v. McClendon, 434 A.2d 1185 (Pa. 1981), abrogated by Commonwealth
v. Santiago, 978 A.2d 349 (Pa. 2009). Trial counsel filed his brief before
our Supreme Court’s decision in Santiago.



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J-S79021-16



       On September 9, 2009, Hall filed his first PCRA petition, arguing that

the trial court abused its discretion when it did not merge some of Hall’s

convictions for sentencing purposes.           On September 15, 2009, the PCRA

court appointed counsel, who subsequently filed a petition for leave to

withdraw as counsel with an attached Turner/Finley5 letter on September

30, 2009.      Based on appointed counsel’s representations and the PCRA

court’s independent review of the record, the PCRA court issued a notice of

intent to dismiss the petition pursuant to Pennsylvania Rule of Criminal

Procedure 907 on October 22, 2009, to which Hall filed a response on

November 16, 2009.6          On December 11, 2009, the PCRA court dismissed

Hall’s PCRA petition. Hall filed a motion for reconsideration on December 21,

2009, which the trial court denied without hearing on December 29, 2009.7

Hall did not file a notice of appeal.

____________________________________________


       5
      Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988);
Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc).
       6
       In his response, Hall raised a new claim of ineffective assistance of
PCRA counsel. Hall argued that PCRA counsel was ineffective because
counsel filed a Turner/Finley letter without first consulting Hall about the
merits of his case. Hall also requested appointment of new PCRA counsel.
In its December 11, 2009 order, the PCRA court found that appointed
counsel fully complied with the mandates of Turner/Finley.
       7
         In his motion for reconsideration, Hall raised another new claim of
ineffective assistance of counsel, claiming that his pre-trial counsel and trial
counsel failed to raise an issue regarding the Commonwealth’s approval of
the criminal complaints and arrest warrants. In its December 29, 2009
order, the PCRA court found this claim lacked merit.



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       Hall filed a second PCRA petition on July 29, 2010, again raising

merger issues and alleging ineffective assistance of PCRA counsel.          The

PCRA court issued a notice of intent to dismiss Hall’s second PCRA petition

on August 11, 2010.          On August 26, 2010, Hall filed a response to the

notice,8 and the trial court ordered the Commonwealth to respond to the

petition. The Commonwealth complied on November 3, 2010, and Hall filed

a second response on November 9, 2010.           The PCRA court dismissed the

second PCRA petition on February 8, 2011. Hall subsequently filed a notice

of appeal on March 7, 2011. On March 15, 2011, the PCRA court ordered a

1925(b) statement, which Hall filed on April 18, 2011.      In an unpublished

memorandum, this Court affirmed the PCRA court’s dismissal of the second

PCRA petition.9 On May 3, 2012, Hall filed a petition for allowance of appeal,

which our Supreme Court denied on October 11, 2012.
____________________________________________


       8
        In his response, Hall raised three new claims: (1) the trial court
erred as a matter of law by failing to order a pre-sentence investigation
report; (2) the trial court erred as a matter of law by failing to state
adequate reasons for its sentence; and (3) Hall’s sentence was the result of
sentencing manipulation or entrapment. The PCRA court found that these
claims lacked merit, as all three challenged discretionary aspects of
sentencing. On appeal, Hall raised only the sentencing entrapment issue
and this Court affirmed.
       9
        During the appeal, Hall filed a reply brief, which raised a new claim
that the trial court failed to make a determination as to Hall’s eligibility for
the Recidivism Risk Reduction Incentive (“RRRI”) program. Finding that this
claim was a non-waivable challenge to the legality of Hall’s sentence, this
Court addressed that issue on the merits and determined that Hall was not
entitled to relief because he was sentenced before the RRRI statute became
effective.



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       Hall filed his third PCRA petition on May 21, 2012, alleging that his trial

counsel was ineffective for failing to advise him about the RRRI program.

The PCRA court issued a notice of intent to dismiss this petition on May 24,

2012, to which Hall responded on June 22, 2012.               On July 10, 2012, the

PCRA court dismissed Hall’s third petition. Hall filed a motion to reconsider

on August 13, 2012, and the PCRA court vacated its prior order dismissing

the petition on August 17, 2012, as it was unaware that Hall had filed a

petition for allowance of appeal.10            After our Supreme Court denied Hall’s

petition for allowance of appeal on the second PCRA petition, the PCRA court

issued another notice of intent to dismiss Hall’s third PCRA petition on

October 17, 2012. On October 26, 2012, Hall filed a petition to amend his

third PCRA petition, to which the PCRA court issued an order on November

15, 2012, allowing Hall 60 days to respond to the notice of intent to dismiss.

Hall then filed another motion and petition to amend his third PCRA petition

on November 26, 2012.            On February 6, 2013, the trial court dismissed

Hall’s third PCRA petition.11 Hall filed a notice of appeal on March 2, 2013.



____________________________________________


       10
         In its order vacating the dismissal, the PCRA court determined that
it did not have jurisdiction to consider the merits of Hall’s third PCRA petition
while our Supreme Court considered Hall’s petition for allowance of appeal.
See Commonwealth v. Lark, 746 A.2d 585, 588 (Pa. 2000) (“[W]hen an
appellant’s PCRA appeal is pending before a court, a subsequent PCRA
petition cannot be filed until the resolution of review of the pending PCRA
petition by the highest state court in which review is sought”).

(Footnote Continued Next Page)


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This Court dismissed Hall’s appeal on May 9, 2013 for failure to return a

docketing     statement      as   required       by   Pennsylvania   Rule   of   Appellate

Procedure 3517.

      Hall filed the instant PCRA petition, his fourth, on June 19, 2014. In

his petition, Hall asked the trial court to “review the sentencing records of

the [m]andatory sentences,” including “the [p]ast criminal cases that [Hall]

attached was retroactively [sic],” and “to review all issue [sic] of this

matter.”     The trial court issued a notice of intent to dismiss Hall’s fourth

PCRA petition on June 23, 2014,12 and dismissed the petition on October 30,

2015. Hall filed a notice of appeal on November 27, 2015.

      Hall raises the following issues on appeal:

      1. When trial/sentencing counsel and [a]ppe[llate] counsel as
         well as PCRA counsel were all associated with the same
         office of the Public Defender, and trial/sentencing counsel
         only filed the direct appeal, but did not perfect it but
         withdrew, and appellate counsel as well as PCRA counsel
         failed to preserve Hall’s direct appeal rights, doesn’t this
         amount to an abandonment of their duty to raise the
         conflict of interest created by their association in the past
         or at present with the same office of trail[sic]/sentencing
         counsel? And does it not also amount to a total and
         constructive denial of counsel as guaranteed under, by,
         and through the Constitution[s] for the United States,
         Pennsylvania, and International Law and Treaty? And if
         this is true, does that not require the court to remand the
                       _______________________
(Footnote Continued)
      11
         In dismissing Hall’s third PCRA petition, the PCRA court considered
Hall’s response to the notice of intent to dismiss, Hall’s motion to reconsider,
and Hall’s petition to amend.
      12
           Hall did not respond to the trial court’s notice of intent to dismiss.



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J-S79021-16


         matter for an evidentiary hearing and the appointment of
         conflict counsel to assist Hall in the marshalling and
         presentation of his evidence of the same, and not a
         summary dismissal of his PCRA as of right? Wasn’t [Hall]
         deprived of his right to file and perfect a direct appeal as
         of right based on all prior counsel’s conflict of interest in
         their representation when all prior counsel failed to raise,
         preserve, and brief the claim of their conflict and move the
         court to appoint conflict counsel?

      2. Did the PCRA court err, as [a] matter of law, by dismissing
         [Hall]’s Petition for collateral relief as untimely when his
         claim is a constitutional violation of his due process rights?

      3. Did the PCRA court err, as a matter of law, by dismissing
         [Hall]’s Petition for Collateral Relief even though his claim
         has retroactive effect?

Hall’s Br. at 3.

      Before addressing the merits of Hall’s PCRA petition, we must first

determine whether his petition is timely.        It is well settled that “the

timeliness of a PCRA petition is a jurisdictional requisite.” Commonwealth

v. Brown, 111 A.3d 171, 175 (Pa.Super.), app. denied, 125 A.3d 1197

(Pa. 2015).    A PCRA petition, “including a second or subsequent petition,

shall be filed within one year of the date the judgment becomes final.” 42

Pa.C.S. § 9545(b)(1).     A judgment is 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 such review.” 42 Pa.C.S. § 9545(b)(3).




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       Hall’s judgment of sentence became final on August 28, 2009, when

his time to seek review in the Pennsylvania Supreme Court expired.13        He

had one year from that date, or until August 30, 2010,14 to file a timely

PCRA petition.      Therefore, his current petition, filed on June 19, 2014, is

facially untimely.

       Courts may consider a PCRA petition filed more than one year after a

judgment of sentence became final only if the petitioner alleges and proves

one of the following three statutory exceptions:

            (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.

____________________________________________


       13
          Hall had 30 days from July 29, 2009, the date this Court affirmed
the trial court and granted appellate counsel’s motion to withdraw, to file a
petition for allowance of appeal with our Supreme Court. See Pa. R. App. P.
1113.
       14
         Hall’s judgment of sentence became final on August 28, 2010.
However, because August 28, 2010 was a Saturday, Hall had until the
following Monday, August 30, 2010, to file a timely PCRA petition. See 1
Pa.C.S. § 1908.



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42 Pa.C.S. § 9545(b)(1)(i)-(iii); see Brown, 111 A.3d at 175.

       Hall’s petition meets none of the three exceptions to the one-year time

bar. First, Hall raises an ineffective assistance of counsel claim, arguing that

a conflict of interest existed among his trial and PCRA counsel, as they all

worked for the Chester County Public Defender’s office, and that his PCRA

counsel’s failure to advise Hall of this conflict before filing the Turner/Finley

letter constituted abandonment.          Hall’s Br. at 9-10.   Hall asserts that his

PCRA counsel’s actions interfered with his Sixth Amendment right to

effective assistance of counsel. Id.

       “It is well settled that allegations of ineffective assistance of counsel

will not overcome the jurisdictional timeliness requirements of the PCRA.”

Commonwealth v. Wharton, 886 A.2d 1120, 1127 (Pa. 2005). Because

Hall makes a claim of ineffective assistance of counsel, his petition remains

untimely unless he asserts and proves a different exception to the time bar.

       In his remaining issues,15 Hall contends that he is entitled to relief

because the trial court imposed an illegal sentence. Hall argues that the trial

court imposed illegal mandatory minimum sentences under 18 Pa.C.S. §
____________________________________________


       15
          In his statement of questions presented, Hall’s second issue
questioned whether the trial court erred by dismissing his PCRA petition as
untimely where he asserted a due process claim. However, Hall failed to
advance this argument in his brief, instead arguing, under his second
argument heading, that his sentence was illegal and Alleyne should apply.
Hall’s Br. at 10-12. Because Hall failed to argue his due process claim, we
find that he has waived this issue.          See Pa. R. App. P. 2119;
Commonwealth v. Johnson, 985 A.2d 915, 924 (Pa. 2009).



                                           -9-
J-S79021-16



7508. Hall’s Br. at 10. He claims he is entitled to relief pursuant to Alleyne

v. United States, 133 S.Ct. 2151, 2158 (2013), in which the United States

Supreme Court found that “facts that increase the mandatory minimum are .

. . elements and must be submitted to the jury and found beyond a

reasonable doubt.”         Hall reasons that this Court must give Alleyne

retroactive effect because Alleyne announced a new substantive rule of

constitutional law that controls the outcome of his case. Hall’s Br. at 13-15

(citing Montgomery v. Louisiana, __ U.S. __, 136 S.Ct. 718 (2016)).

       Hall’s claims are not entitled to retroactive effect on collateral review.

Our Supreme Court has held that “Alleyne does not apply retroactively to

cases pending on collateral review.” Commonwealth v. Washington, 142

A.3d 810, 820 (Pa. 2016). Because the constitutional violation asserted by

Hall is not one that the Pennsylvania or United States Supreme Court has

given retroactive effect, his Alleyne challenge does not excuse his failure to

timely file his petition.16

       We conclude that Hall’s PCRA petition is untimely and that he has

failed to prove any exception to the PCRA’s one-year time-bar.17 Therefore,
____________________________________________


       16
          Even if we could give Hall’s Alleyne challenge retroactive effect,
Hall’s challenge would not clear the one-year time-bar because he failed to
file the instant PCRA petition within 60 days of the Alleyne decision. See
42 Pa.C.S. § 9545 (b)(1).
       17
         In his PCRA petition, Hall asserted that he found “exculpatory
evidence” that was unavailable at the time of trial and “would have changed
the outcome of trial if it had been introduced.” However, Hall did not explain
(Footnote Continued Next Page)


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the trial court appropriately dismissed Hall’s PCRA petition for lack of

jurisdiction.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/21/2016




                       _______________________
(Footnote Continued)

this assertion nor did he raise the issue before this Court. Therefore, he has
waived the issue. See Gilmore ex rel. Gilmore v. Dondero, 582 A.2d
1106, 1108 (Pa.Super. 1990).



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