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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA                         1   IN THE SUPERIOR COURT OF
                                                               PENNSYLVANIA
                              Appellee

                         v.

KEVIN HURLEY

                              Appellant                        No. 2457 EDA 2016


                   Appeal from the PCRA Order July 18, 2016
               In the Court of Common Pleas of Chester County
              Criminal Division at No(s): CP-15-CR-0002888-2008


BEFORE:      SHOGAN, J., OTT, J., and STEVENS, P.J.E.*

MEMORANDUM BY OTT, J.:                                         FILED APRIL 04, 2017

        Kevin Hurley appeals, pro se, from the order entered July 18, 2016, in

the Chester County Court of Common Pleas, dismissing his second petition

for collateral relief filed pursuant to the Post Conviction Relief Act ("PCRA"),

42 Pa.C.S. §§ 9541-9546.                 Hurley seeks relief from the judgment of

sentence of an aggregate term of 10 to 20 years' imprisonment imposed on

January 7, 2009, following his entry of        a   negotiated guilty plea to charges of

possession     within     intent to deliver        ("PWID")    methamphetamines and

criminal conspiracy.'         On appeal, Hurley contends the PCRA court erred in

dismissing his petition as untimely filed. For the reasons below, we affirm.



*   Former Justice specially assigned to the Superior Court.

1   See 35 P.S.   §   780-113(a)(30), and 18 Pa.C.S.      §   903, respectively.
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        The relevant facts and procedural history underlying this appeal are as

follows. On January 7, 2009, Hurley entered                a   negotiated guilty plea to four

counts of possession with intent to deliver methamphetamines and one

count of criminal conspiracy.             The charges originated from Hurley's sale of

methamphetamines to             a   confidential informant on four occasions in March

and April of 2008.     Pursuant to the negotiated plea, the trial court sentenced

Hurley to an aggregate term of 10 to 20 years' imprisonment. The sentence

was comprised of four mandatory minimum terms for the drug offenses,

imposed     pursuant       to       18   Pa.C.S.    §   7508(a)(4),    two   of which    ran

consecutively, and     a    concurrent term of imprisonment for the conspiracy

charge.2 No direct appeal was filed.

        On April 4, 2014, Hurley filed a pro se PCRA petition, asserting                 that
the mandatory minimum sentences imposed were illegal under Alleyne v.

United States, 133 S.Ct. 2151 (2013).3 Counsel was appointed, but later

2
  Specifically, Hurley was sentenced as follows: (1) for PWID of 6.7 grams,
a term of five to 10 years' imprisonment; (2) for PWID of 6.8 grams, a
consecutive term of five to 10 years' imprisonment; (3) for PWID of 13.3
grams, a concurrent term of seven to 14 years' imprisonment; (4) for PWID
of 8.6 grams, a concurrent term of five to 10 years' imprisonment; and (5)
for criminal conspiracy, a concurrent term of five to 10 years' imprisonment.

3 In Alleyne, the United States Supreme Court held "[a]ny fact that, by law,
increases the penalty for a crime is an 'element' that must be submitted to
the jury and found beyond a reasonable doubt." Alleyne, supra, 133 S.Ct.
at 2155. In interpreting that decision, the courts of this Commonwealth
have determined that most of our mandatory minimum sentencing statutes,
including Section 7508, are unconstitutional because the language of those
statutes "permits the trial court, as opposed to the jury, to increase a
(Footnote Continued Next Page)


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filed    a   motion to withdraw and Turner/Finley4 "no merit" letter finding

Hurley's petition was untimely filed.          Hurley filed   a   pro se response on July

18, 2014. However, the PCRA court subsequently issued notice, pursuant to

Pa.R.Crim.P. 907, of its intent to dismiss the petition without first conducting

an evidentiary hearing. Although Hurley filed another pro se response to the

Rule 907        notice, the PCRA court ultimately dismissed the petition on

September 8, 2014, and granted counsel's petition to withdraw.

         On appeal, a panel of this Court         affirmed, concluding Hurley's petition

was untimely filed, and his        Alleyne claim     did not satisfy any of the time -for -

filing exceptions in the PCRA.           See Commonwealth v. Hurley, 121 A.3d

1121 [2866 EDA 2014] (Pa. Super. 2015) (unpublished memorandum at *3-

5).     Hurley did not file   a   petition for allowance of appeal in the Pennsylvania

Supreme Court.

         On March 16, 2016, Hurley filed the instant, pro se PCRA             petition, his

second.       On May 26, 2016, the PCRA court issued Pa.R.Crim.P. 907 notice,


(Footnote Continued)

defendant's minimum sentence based upon a preponderance of the
evidence" standard. Commonwealth v. Newman, 99 A.3d 86, 98 (Pa.
Super. (Pa. Super. 2014) (en banc), appeal denied, 121 A.3d 496 (Pa.
2015). See Commonwealth v. Mosley, 114 A.3d 1072, 1091 (Pa. Super.
2015) (invalidating 18 Pa.C.S. § 7508). Further, our courts have held that
the unconstitutional provisions of the mandatory minimum statutes are not
severable from the statute as a whole. Commonwealth v. Hopkins, 117
A.3d 247, 262 (Pa. 2015); Newman, supra, 99 A.3d at 101.

4 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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and Hurley, once again, filed        a   pro se response.   Nevertheless, the PCRA

court dismissed the instant petition as untimely filed on July 18, 2016. This

timely appeal followed.5
        Although Hurley purports to raise five issues in his questions for

review,6 essentially, he challenges the PCRA court's finding that his petition

was untimely filed and that he failed to prove any of the time -for -filing

exceptions.      Specifically, he argues the PCRA court had jurisdiction to

consider his illegal sentencing claims based on "retroactive principles"

outlined by the United States Supreme Court in Montgomery v. Louisiana,

136 S.Ct. 718 (U.S. 2016), and           Miller   v. Alabama, 132 S.Ct. 2455 (U.S.

2012).

        When considering an appeal from an order denying PCRA relief,

        [o]ur standard of review    ... is whether the record supports the
        PCRA    court's determination and whether the PCRA court's
        decision 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. Lawson, 90 A.3d                    1, 4 (Pa. Super. 2014)   (internal

citations omitted).

        Before we may address any substantive issues on appeal, however, we

must first determine whether     a   petition was timely filed.


5
  Hurley filed a concise statement of errors complained on appeal the same
day as his notice of appeal.

6   See Hurley's Brief at 3-4.


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        The    PCRA timeliness         requirement        ...   is        mandatory   and
        jurisdictional in nature.      Commonwealth v. Taylor, 933 A.2d
        1035, 1038 (Pa. Super. 2007), appeal denied, 597 Pa. 715, 951
        A.2d 1163 (2008) (citing Commonwealth v. Murray, 562 Pa.
        1, 753 A.2d 201, 203 (2000)).        The court cannot ignore a
        petition's untimeliness and reach the merits of the petition. Id.

Commonwealth v. Taylor, 67 A.3d 1245, 1248                           (Pa. 2013), cert. denied,

134 S.Ct. 2695 (U.S. 2014).

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

underlying judgment becomes final. 42 Pa.C.S.                   §   9545(b)(1). In our prior

decision affirming the denial of relief on Hurley's first PCRA petition, we

agreed with the determination of the PCRA court that the petition was

untimely filed.       See Hurley, supra.            The same is true here.              Hurley's

judgment of sentence was final on February 6, 2009, 30 days after he was

sentenced and the time for filing       a   direct appeal had expired. Therefore, he

had until February of 2010 to file a timely PCRA petition, and the one

presently before us, filed more than six years later,                is   facially untimely. See

id. at *3.

        Nevertheless, an untimely PCRA petition may still be considered if one

of the       three time -for -filing   exceptions applies.                 See 42     Pa.C.S.   §


9545(b)(1)(i)-(iii).     A PCRA petition alleging any of the exceptions under

Section 9545(b)(1) must be filed within 60 days of when the PCRA claim

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

        Here, Hurley argues his claim is cognizable under the newly recognized

constitutional right exception, which permits the filing of an otherwise

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untimely petition when "the right asserted      is a   constitutional right that was

recognized by the Supreme Court of the United States              ...   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)(iii).     Specifically, he claims the

United States Supreme Court's recent decision in         Montgomery allows him
to seek relief under Alleyne. He contends:

      [T]he retroactive principles of Montgomery/Miller, or the "new
      substantive rule of constitutional law" opens the door or entitles
      Hurley to PCRA relief pursuant to the [holdings] in Alleyne v.
      Unites States, ... because the trial court's imposition of the
      "consecutive mandatory minimum sentences" constitutes 'cruel
      and unusual punishment' in violation of Hurley's right under the
      Eighth Amendment, when the statutes the trial court relied upon
      for imposition of said mandatory minimum sentences, have been
      deemed unconstitutional and illegal sentences by Alleyne and
      several other state courts.
Hurley's Brief at 24.

      Our review of Hurley's brief reveals the underlying claim in the present

appeal is the same as that pursued in his prior appeal                  - that   is, the

mandatory minimum sentences imposed by the trial court pursuant to

Section 7508 have since been declared unconstitutional under Alleyne.                 In

the prior appeal, the panel found this claim did not satisfy any of the time -

for -filing exceptions under the PCRA.          See Hurley, supra at *3-4.

Specifically, the panel concluded the decision in Alleyne did not meet the

newly recognized constitutional right exception because the ruling had not

been held to apply retroactively to cases on collateral review by either the

United States Supreme Court or the Pennsylvania Supreme Court.                   See id.

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at    *4.      After that decision,       the     Pennsylvania     Supreme        Court,    in

Commonwealth v. Washington, 142 A.3d 810                   (Pa. 2016), explicitly held:

"Alleyne does not apply retroactively to                case     pending     on    collateral

review[.]" Id. at 820.

        Nevertheless, Hurley now argues the United States Supreme Court's

decision in    Montgomery somehow causes the Alleyne "line of cases" to                     be

retroactive.' We disagree. In Montgomery, the Supreme Court held that

its prior decision in      Miller    v. Alabama, supra         -   which declared that

mandatory life without parole for juvenile homicide offenders violates the

Eighth Amendment's prohibition on cruel and unusual                     punishments         -
constituted     a   new substantive rule that must be applied retroactively to

cases on collateral review.         Hurley's reliance on Montgomery is misplaced

because, as noted above, subsequent to and mindful of the                   Montgomery
decision, the Pennsylvania Supreme Court in Washington held Alleyne

does     not    apply   retroactively   to    cases   on   collateral      review.         See

Washington, supra, 142 A.3d at 818 (explaining, inter alia, "[T]he Alleyne
rule neither alters the range of conduct or the class of persons punished by

the law. See Montgomery, []136 S. Ct. at 729-30."). To date, there                     is no




7   We note    Montgomery was filed      on January 25, 2016. Therefore, Hurley's
PCRA petition, filed on March 16, 2016, was properly filed within 60 days of
the Montgomery decision pursuant to Section 9545(b)(2).


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United     States   Supreme   Court   decision   holding   that Alleyne applies

retroactively to untimely PCRA petitions. Accordingly, no relief    is   warranted.

        Because Hurley's challenge to his mandatory minimum sentences does

not invoke any of the time -for -filing exceptions, we agree with the ruling of

the PCRA court that Hurley's petition was untimely filed.8

        Order affirmed.

Judgment Entered.




J   Tseph D. Seletyn,
Prothonotary


Date: 4/4/2017




8  Although not included in his statement of questions, Hurley also argues the
trial court erred in failing to impose the Recidivism Risk Reduction Incentive
("RRRI") program at sentencing. See Hurley's Brief at 29, 34-35. Hurley
correctly states a trial court's failure to determine a defendant's eligibility for
an RRRI minimum sentence is a "non-waivable illegal sentence claim." Id.
at 35, citing Commonwealth v. Tobin, 89 A.3d 663 (Pa. Super. 2014).
However, Hurley fails to explain how this claim meets one of the time -for -
filing exceptions. Indeed, "[a]lthough 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." Commonwealth v. Fahy, 737
A.2d 214, 223 (1999). Therefore, Hurley is entitled to no relief on this claim
either.


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