J-S23012-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JUSTIN HALE
Appellant No. 2883 EDA 2015
Appeal from the PCRA Order August 6, 2015
In the Court of Common Pleas of Northampton County
Criminal Division at No(s): CP-48-CR-0000226-2007
BEFORE: PANELLA, J., OTT, J., and FITZGERALD, J.*
MEMORANDUM BY PANELLA, J. FILED MAY 20, 2016
Appellant, Justin Hale, appeals pro se from the order denying his
petition pursuant to the Post Conviction Relief Act (“PCRA”) as untimely. We
conclude that Hale did not plead any viable exceptions to the PCRA’s timebar
in his patently untimely petition, and therefore affirm.
On July 10, 2007, Hale entered a negotiated open guilty plea to one
count of felony first-degree robbery. The Commonwealth withdrew several
other charges with the understanding that it would pursue a mandatory
minimum sentence due to Hale’s possession of a firearm at the time of the
robbery. On August 31, 2007, the trial court sentenced Hale to a term of
incarceration of six to fifteen years.
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*
Former Justice specially assigned to the Superior Court.
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Hale did not file post-sentence motions or a direct appeal. On
September 2, 2008, Hale filed a timely first PCRA petition. The PCRA court
appointed counsel to represent Hale, and counsel filed an amended PCRA
petition. After a hearing, the PCRA court denied Hale’s petition. This Court
affirmed the denial, and the Supreme Court of Pennsylvania denied Hale’s
petition for allowance of appeal on November 29, 2011.
On June 1, 2015, Hale filed the instant PCRA petition. Shortly
thereafter, the PCRA court filed notice of its intent to dismiss Hale’s petition
without a hearing. Hale filed objections to the PCRA court’s notice, but the
PCRA court dismissed his petition on August 13, 2015. This timely appeal
followed.
As the PCRA court dismissed Hale’s petition on timeliness grounds, we
must address that issue before any of Hale’s other issues on appeal. See
Commonwealth v. Gandy, 38 A.3d 899, 902 (Pa. Super. 2012) (“[A]
question of timeliness implicates the jurisdiction of our Court.”). “The PCRA
timeliness requirements are jurisdictional in nature and, accordingly, a court
cannot hear untimely PCRA petitions.” Commonwealth v. Flanagan, 854
A.2d 489, 509 (Pa. 2004) (citations omitted).
A PCRA petition must be filed within one year of the date that the
judgment of sentence becomes final. See 42 Pa.C.S.A. § 9545(b)(1). Hale’s
second PCRA petition, filed on June 1, 2015, is patently untimely, as his
judgment of sentence became final on October 1, 2007. Thus, the PCRA
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court did not have “jurisdiction to grant [him] relief unless he can plead and
prove that one of the exceptions to the time bar provided in 42 Pa.C.S.A. §
9545(b)(1)(i)-(iii) applies.” Commonwealth v. Pursell, 749 A.2d 911, 914
(Pa. 2000).
Hale has not pled any viable exceptions to the timebar. See PCRA
petition, filed 6/1/15. Hale does argue that the legality of his sentence is an
issue that cannot be waived. See id., at p. 6.1 That is true, but that does not
mean the claim is subject to review in an untimely PCRA. See
Commonwealth v. Jones, 932 A.2d 179, 182 (Pa. Super. 2007) (“[W]hen
a petitioner files an untimely PCRA petition raising a legality-of-sentence
claim, the claim is not waived, but the jurisdictional limits of the PCRA itself
render the claim incapable of review.”). Therefore, the PCRA court correctly
determined that it was without jurisdiction to entertain Hale’s petition.
In his reply brief, Hale argues that he qualifies for a timeliness
exception as he claims to have filed his petition within 60 days of learning of
Alleyne v. United States, 133 S.Ct. 2151 (U.S. 2013). However, Alleyne
is a court decision announcing a rule of law, which is dealt with under a
different timeliness exception. See 42 Pa.C.S.A. § 9545(b)(1)(iii). Thus,
Hale was required to file his petition within sixty days of date Alleyne was
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1
The pages of Hale’s petition are not numbered. For ease of reference we
begin numbering the pages after the request for in forma pauperis status
and the form order attached to the front of Hale’s petition.
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filed, not sixty days from when he became aware of the decision. See 42
Pa.C.S.A. § 9545(b)(2). Furthermore, this Court has held that Alleyne is not
a decision upon which a petitioner may establish an exception to the PCRA’s
timebar. See Commonwealth v. Miller, 102 A.3d 988, 995 (Pa. Super.
2014). As a result, Hale’s appeal merits no relief.
Order affirmed. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/20/2016
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