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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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 Super. 2005) (unpublished memorandum).]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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