Com. v. Hurley, L.

J-S48002-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
LANE C. HURLEY :
:
Appellant : No. 360 MDA 2017

Appeal from the PCRA Order February 13, 2017
In the Court of Common Pleas of Cumberland County
Criminal Division at No(s): CP-21-CR-0001595-2002

BEFORE: OTT, J., STABILE, J., and PLATT, J.*

MEMORANDUM BY OTT, J.: FILED AUGUST 21, 2017

Lane C. Hurley appeals from the order entered February 13, 2017, in

the Court of Common Pleas of Cumberland County, that dismissed, after a

hearing, his second petition filed pursuant to the Post Conviction Relief Act 1

(PCRA), on the basis of untimeliness. Concomitant with this appeal,

appointed counsel2 has filed an Anders3 brief and a petition for leave to
____________________________________________

*
Retired Senior Judge assigned to the Superior Court.
1
42 Pa.C.S. §§ 9541–9546.
2
After Hurley filed the present PCRA petition on November 7, 2016, the
PCRA court appointed counsel to represent him. See Order, 11/21/2016.
3
Anders v. California, 386 U.S. 738 (1967). Although counsel has
submitted an Anders brief to this Court, we note that in the PCRA context,
counsel should have filed a no-merit letter in accordance with
Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), Commonwealth v.
Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc). See Commonwealth v.
(Footnote Continued Next Page)
J-S48002-17

withdraw from representation. Based upon the following, we affirm and

grant the motion to withdraw.

The PCRA court summarized the procedural history of this case, as

follows:

… [Hurley] was found guilty following a jury trial in 2006 of
corruption of minors, indecent assault, aggravated indecent
assault, and involuntary deviate sexual intercourse. The charges
arose from alleged incidents in 1997 involving [Hurley’s] 10-
year-old niece.

[Hurley] was sentenced on December 19, 2006. He
received concurrent statutorily mandated minimum prison
sentences of 2½ to 5 and 5 to 10 years respectively for the
offenses of aggravated indecent assault and involuntary deviate
sexual intercourse, and sentences of probation consecutive
thereto for the remaining two offenses.

The mandatory minimum sentences for aggravated
indecent assault and involuntary deviate sexual intercourse were
imposed pursuant to 42 Pa.C.S. § 9718(a)(1), (2), prescribing
minimum sentences for certain offenses involving a victim less
than 13 years old and 16 years old respectively. Following an
unsuccessful direct appeal, he was committed to prison on July
21, 2007. For purposes of the Post Conviction Relief Act,
his judgment of sentence became final on October 7,
2009.10
__________________________________
10
On direct appeal, the judgment of sentence was affirmed
by the Pennsylvania Superior Court on December 29,
2008. Commonwealth v. Hurley, [965 A.2d 295] 596 MDA
2007 (Pa. Super. Ct. Dec. 29, 2008). [Hurley’s] petition for
allowance of appeal from the affirmance was denied by the
_______________________
(Footnote Continued)

Widgins, 29 A.3d 816, 817 n.2 (Pa. Super. 2011). However, “[b]ecause an
Anders brief provides greater protection to a defendant, this Court may
accept an Anders brief in lieu of a Turner/Finley letter.” Id. (citation
omitted).

-2-
J-S48002-17

Pennsylvania Supreme Court on July 9, 2009.
Commonwealth v. Hurley, 602 Pa. 676, 981 A.2d 218
(2009). See 42 Pa.C.S. § 9545(b)(3) (“For purposes of this
subchapter, 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.”) (emphasis added); Commonwealth
v. Owens, 718 A.2d 330 (Pa. Super. Ct. 1998)
(acknowledgment of 90-day period within which to seek
review in United States Supreme Court by petition for writ
of certiorari).
__________________________________

[Hurley’s] first petition for collateral relief under the Post
Conviction Relief Act was filed on June 17, 2010, and
supplemented on August 23, 2010. It was denied by order of this
court dated December 5, 2011. The order denying the petition
was affirmed by the Pennsylvania Superior Court on October 4,
2012,14 and [Hurley’s] petition for allowance of appeal from the
affirmance was denied by the Pennsylvania Supreme Court on
May 15, 2013.15
__________________________________

14
Commonwealth v. Hurley, [62 A.3d 450] 2220 MDA
2011 (Pa. Super. Ct. Oct. 4, 2012).
15
Commonwealth v. Hurley, 620 Pa. 697, 67 A.3d 794
(May 15, 2013). [Hurley] has also pursued what has thus
far been an unsuccessful collateral challenge to his
convictions in federal court. See Hurley v. Thompson,
2016 U.S. Dist. LEXIS 87527 (magistrate’s
recommendation) (M.D. Pa. June 29, 2016).
__________________________________

[Hurley’s] current Post Conviction Relief Act petition, filed
November 7, 2016, in substance challenges the legality of his
sentences for aggravated indecent assault and involuntary
deviate sexual intercourse, citing Alleyne v. United States, ___
U.S. ___, 133 S. Ct. 2151, 186 L. Ed. 2d 314 (June 17, 2013)
(holding that sixth amendment requires that [any] factor which
increases [the] mandatory minimum sentence be considered
element of offense to be found by trier-of-fact by proof beyond a

-3-
J-S48002-17

reasonable doubt), and its progeny. A hearing on the petition
was held on February 2, 2017.

PCRA Court Opinion, 2/13/2017, at 1–3 (emphasis added) (footnotes

omitted, except as noted).

Following the hearing, the PCRA court denied relief, finding that

Hurley’s PCRA petition was untimely and Hurley could not satisfy the PCRA

time-bar exception set forth in Section 9545(b)(1)(iii) and (2) by relying on

Alleyne, supra, and Commonwealth v. Wolfe, 140 A.3d 651 (Pa. June

20, 2016). See PCRA Court Opinion, supra, at 4–6. Appointed counsel filed

a timely appeal and, pursuant to court order, filed a Pa.R.A.P. 1925(b)

statement.

We first consider whether counsel has fulfilled the procedural

requirements for withdrawal as outlined in Turner/Finley:

The Turner/Finley decisions provide the manner for
postconviction counsel to withdraw from representation. The
holdings of those cases mandate an independent review of the
record by competent counsel before a PCRA court or appellate
court can authorize an attorney's withdrawal. The necessary
independent review requires counsel to file a ‘no-merit’ letter
detailing the nature and extent of his review and list each issue
the petitioner wishes to have examined, explaining why those
issues are meritless. The PCRA court, or an appellate court if the
no-merit letter is filed before it, [...] then must conduct its own
independent evaluation of the record and agree with counsel that
the petition is without merit. See [Commonwealth v. Pitts,
603 Pa. 1, 981 A.2d 875, 876 n.1 (Pa. 2009)].

In Commonwealth v. Friend, 2006 PA Super 70, 896
A.2d 607 (Pa. Super. 2006), abrogated in part by Pitts, supra,
this Court imposed additional requirements on counsel that
closely track the procedure for withdrawing on direct appeal.
Pursuant to Friend counsel is required to contemporaneously

-4-
J-S48002-17

serve upon his client his no-merit letter and application to
withdraw along with a statement that if the court granted
counsel’s withdrawal request, the client may proceed pro se or
with a privately retained attorney.

Commonwealth v. Rykard, 55 A.3d 1177, 1184 (Pa. Super. 2012)

(footnote omitted).

Here, PCRA counsel’s Anders brief addresses the only claim presented

by this appeal — “whether the [PCRA] court erred in denying [Hurley’s]

petition as untimely in addressing the retroactivity of Alleyne on mandatory

minimums as to attacks on collateral review”4 — and explains why the claim

fails. In addition to the brief, counsel filed a withdrawal petition and a letter,

both of which were sent to Hurley. The letter indicates the brief is enclosed,

and notifies Hurley of his rights pursuant to Commonwealth v. Friend, 896

A.2d 607 (Pa. Super. 2006).5 Based on our review, we conclude counsel has

complied with the procedural requirements of Turner and Finley.

Therefore, we turn to the issue presented in this appeal.

Our standard of review is well settled:

When reviewing the propriety of an order denying PCRA relief,
this Court is limited to a determination of whether the evidence
of record supports the PCRA court's conclusions and whether its
ruling is free of legal error. This Court will not disturb the PCRA

____________________________________________

4
Hurley’s Statement of Matters Complained of on Appeal Pursuant to
Pa.R.A.P. 1925(b), 3/7/2016; Anders Brief at 4.
5
Hurley has not filed a response to the petition to withdraw or letter with
enclosed brief.

-5-
J-S48002-17

court’s findings unless there is no support for them in the
certified record.

Commonwealth v. Woods, ___ A.3d ___, ___ [2017 PA Super 181] (Pa.

Super. 2017) (citations omitted). Additionally, the timeliness of a PCRA

petition is a jurisdictional requisite. Commonwealth v. Murray, 753 A.2d

201, 203 (Pa. 2000).

Here, the Honorable J. Wesley Oler, analyzed Hurley’s petition, as

follows:

… As noted above, [Hurley’s] sentence became final on
October 7, 2009, and his current PCRA petition was filed on
November 7, 2016.

In response to [Hurley’s] petition challenging the legality
of his mandatory minimum sentences for aggravated indecent
assault and involuntary deviate sexual intercourse, pursuant to
Alleyne and its progeny, the Commonwealth filed an answer and
motion to dismiss. This response contended that the petition was
neither timely under the Post Conviction Relief Act nor
meritorious inasmuch as the constitutional rule recognized in
Alleyne was not retroactive for purposes of collateral review.

[Hurley] filed a reply to the Commonwealth’s response.
His reply contended that the issue of timeliness depended upon
an application of an exception to the general one-year period of
limitation in the Post Conviction Relief Act, relating to recent
decisions, and that the court should “address the retroactivity of
Alleyne on mandatory minimums as to attacks on collateral
review.”

STATEMENT OF LAW

Under Section 9545(b) of the Post Conviction Relief Act, it is
provided as follows:

-6-
J-S48002-17

(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: . . .

(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.

(2) Any petition invoking an exception provided in
paragraph (1) shall be filed within 60 days of the
date the claim could have been presented.

[42 Pa.C.S. § 9545(b)(1)(iii), (2).]

The limitation periods for filing PCRA petitions provided for
in the act are jurisdictional. Commonwealth v. Burton, 2007 PA
Super 319, 936 A.2d 521.

In Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348,
147 L. Ed. 2d 435 (2000), the United States Supreme [C]ourt
held that the due process clause of the fourteenth amendment to
the federal constitution, in conjunction with the sixth
amendment, entitles a state defendant to a jury finding on the
basis of proof beyond a reasonable doubt of a factor that
statutorily increases the maximum sentence applicable to an
offense. In Alleyne v. United States, 133 S. Ct. 2151, 186 L. Ed.
2d 314 (2013), the Court extended the principle of Apprendi to
encompass a factor that increases a mandatory minimum
sentence applicable to an offense, pursuant to the federal
constitution’s sixth amendment.

The rule in Alleyne has been widely applied to factors that
mandate minimum sentences for offenses. See, e.g.,
Commonwealth v. Hopkins, ___ Pa. ___, 117 A.3d 247 (2015).
And on June 20, 2016, the Alleyne principle was held by the

-7-
J-S48002-17

Pennsylvania Supreme Court to extend to a factor mandating a
minimum sentence without regard to whether the factor was a
statutory element of the offense upon which the guilty verdict
had been predicated. Commonwealth v. Wolfe, ___ Pa. ___, 140
A.3d 651 (2016) (affirming remand for resentencing on direct
appeal where defendant subjected to mandatory minimum
sentence, on basis of victim’s age, for offense of involuntary
deviate sexual intercourse with child under age of 16).

However, the current state of the law in Pennsylvania is
that the rule of Alleyne is not to be applied retroactively on
collateral review of a sentence that became final before the
decision in Alleyne, notwithstanding that it may serve to render
a sentence impeachable on a direct appeal. Commonwealth v.
Washington, ___ Pa. ___, 142 A.3d 810 (2016); cf.
Commonwealth v. Barnes, ___ Pa. ___, [151 A.3d 121] (2016)
(holding that, for purposes of issue preservation on direct
appeal, sentence in violation of Alleyne rule is illegal and thus
non-waivable).

APPLICATION OF LAW TO FACTS

In the present case, [Hurley’s] petition under the Post
Conviction Relief Act is not timely under the general rule
requiring a filing within one year of sentence finality. Nor is the
60-day exception to the general rule in the case of a newly
recognized constitutional right applicable to [Hurley’s] petition.

In the latter regard, even if the application in
Commonwealth v. Wolfe, ___ Pa. ___, 140 A.3d 651 (June 20,
2016) of the Alleyne rule to sentences such as [Hurley’s] where
the mandatory sentencing factor was necessarily found to have
been proven beyond a reasonable doubt by the trier-of-fact in
returning a guilty verdict is regarded as advancing a new
constitutional right, the decision (a) preceded Hurley’s current
petition by more than 60 days and (b) did not involve a
retroactive right for purposes of collateral relief.

PCRA Court Opinion, 2/13/2016, at 3–6 (footnotes omitted).

We agree with the sound reasoning of Judge Oler. Wolfe, which was

decided more than 60 days before Hurley’s present petition, involved a

-8-
J-S48002-17

direct appeal from a judgment of sentence that post-dated Alleyne and

applied Alleyne to hold Section 9718 was unconstitutional; Wolfe did not

establish a new constitutional right, much less a constitutional right that

applies retroactively. Furthermore, in Washington, supra, the

Pennsylvania Supreme Court held “Alleyne does not apply retroactively to

cases pending on collateral review.” Id., 142 A.3d at 820.

In short, because the present petition is patently untimely and does

not satisfy any PCRA statutory exception, Hurley’s second PCRA petition was

properly dismissed as the PCRA court lacked jurisdiction to review the

petition.

Order affirmed. Motion to withdraw as counsel granted.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 8/21/2017

-9-