Case Information

NON-PRECEDENTIAL DECISION SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA ^[1] IN THE SUPERIOR COURT OF PENNSYLVANIA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. EDA 2016 Appeal from the Order July 18, 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.* FILED APRIL 04, 2017

MEMORANDUM BY OTT, J.: Kevin Hurley appeals, se, from order entered July in the Chester County Court of Common Pleas, dismissing his second petition for collateral relief pursuant to Post Conviction Relief Act ("PCRA"), seeks relief from judgment of Pa.C.S. §§ 9541-9546. sentence of aggregate term of years' imprisonment imposed on January 2009, following his entry negotiated guilty plea charges of possession within intent deliver ("PWID") methamphetamines and criminal conspiracy.' On appeal, Hurley contends the erred in dismissing filed. For reasons below, we affirm. * Former Justice specially assigned the Superior Court. P.S. 780-113(a)(30), § 903, respectively.

The relevant facts and procedural history underlying this appeal are as follows. On January 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 four occasions March and April of 2008. Pursuant to the negotiated plea, the trial sentenced Hurley to an aggregate term of 10 to 20 years' imprisonment. The sentence comprised of four mandatory minimum terms for the drug offenses, to 18 7508(a)(4), imposed pursuant two of which ran consecutively, a concurrent term of imprisonment for the conspiracy charge.2 No direct appeal was filed.

On April 2014, Hurley a se asserting that mandatory minimum sentences imposed were illegal under v. United States, 133 S.Ct. 2151 (2013).3 Counsel was appointed, but later Specifically, Hurley sentenced as follows: (1) for PWID of 6.7 grams, a term of five to years' imprisonment; (2) for PWID of 6.8 grams, a consecutive term of five years' imprisonment; (3) for PWID of 13.3 grams, a concurrent term seven to years' imprisonment; (4) for PWID of 8.6 grams, a concurrent term of five years' imprisonment; (5) for criminal conspiracy, concurrent term of five years' imprisonment. In Alleyne, States Supreme Court held "[a]ny fact that, by law, increases the penalty for crime 'element' that submitted jury found beyond reasonable doubt." Alleyne, supra, 133 S.Ct. In interpreting decision, the courts of this Commonwealth at 2155. have determined most of our mandatory minimum sentencing statutes, including Section 7508, are unconstitutional because the language of those statutes "permits trial court, opposed to jury, increase a (Footnote Continued Next Page) a motion withdraw Turner/Finley4 "no merit" letter finding

Hurley's petition filed. Hurley a se response July 18, 2014. However, the PCRA court subsequently issued notice, pursuant Pa.R.Crim.P. 907, of its intent dismiss the petition without conducting evidentiary hearing. Although Hurley filed another pro se response to Rule 907 notice, PCRA ultimately dismissed the petition on September 8, 2014, granted counsel's withdraw.

On appeal, a panel of this Court affirmed, concluding Hurley's petition filed, claim did not satisfy any of the filing exceptions PCRA. See Commonwealth v. Hurley, 121 A.3d 1121 [2866 EDA 2014] (Pa. Super. 2015) (unpublished memorandum at *3- 5). did not file petition for allowance of Pennsylvania Supreme Court.

On March 16, 2016, Hurley filed the instant, pro se his second. On May 2016, the issued Pa.R.Crim.P. 907 notice, (Footnote Continued)

defendant's minimum sentence based upon preponderance of the evidence" standard. Commonwealth v. Newman, A.3d 86, 98 (Pa. Super. (Pa. Super. 2014) (en banc), appeal denied, A.3d (Pa. 2015). See Commonwealth v. Mosley, 114 A.3d (Pa. Super. 2015) (invalidating 18 Pa.C.S. 7508). Further, our courts have held that unconstitutional provisions of the mandatory minimum statutes are not severable from the statute whole. Commonwealth v. Hopkins, 117 (Pa. 2015); Newman, supra, A.3d 101. Commonwealth Turner, 544 A.2d (Pa. 1988); Finley, 550 A.2d 213 1988) (en banc). and Hurley, once again, filed se response. Nevertheless, the PCRA dismissed instant petition as filed on July 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 his petition he failed to prove any of the -filing exceptions. Specifically, he argues the PCRA had jurisdiction illegal sentencing claims based on "retroactive principles" consider his outlined by States Supreme Court Montgomery v. Louisiana, 136 S.Ct. (U.S. 2016), Miller Alabama, 132 S.Ct. (U.S. 2012).

When considering appeal from an order denying PCRA relief, [o]ur standard of review ... is whether record supports the court's determination whether PCRA court's free of legal error. The court's findings will not disturbed unless there no support for the findings certified record. Lawson, 1, 4 2014) (internal

citations omitted).

Before we may address any substantive issues on appeal, however, we determine whether timely filed. concise statement of errors complained same day notice of appeal. Hurley's Brief at 3-4. timeliness requirement is mandatory and

The PCRA ... jurisdictional nature. Commonwealth v. Taylor, 933 A.2d 1035, 1038 (Pa. 2007), appeal denied, 597 Pa. 715, A.2d 1163 (2008) (citing Commonwealth Murray, 562 Pa. 1, 753 A.2d 201, 203 (2000)). The cannot ignore a petition's untimeliness reach the merits of the petition. Id. Taylor, 1248 2013), cert. denied, 134 S.Ct. (U.S. 2014).

A PCRA petition must be filed within one year of the date the underlying judgment becomes final. Pa.C.S. § 9545(b)(1). In our prior affirming denial of relief on Hurley's first PCRA petition, we agreed with determination of the PCRA the petition was untimely filed. See Hurley, supra. The same is true here. Hurley's judgment of sentence final February days after he was sentenced time for filing direct had expired. Therefore, he had until February of 2010 file timely PCRA one presently before us, more than six years later, facially untimely. See id. *3.

Nevertheless, an petition may still be considered if one of the three -filing exceptions applies. Pa.C.S. § 9545(b)(1)(i)-(iii). A PCRA alleging any of the exceptions under Section 9545(b)(1) within 60 days of when claim could have been brought. 9545(b)(2).

Here, Hurley argues claim cognizable under the newly recognized constitutional right exception, which permits the filing otherwise when "the right asserted 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 apply retroactively." 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 relief pursuant the [holdings] in Alleyne v. Unites States, ... because the trial court's imposition of the "consecutive mandatory minimum sentences" constitutes 'cruel unusual punishment' in violation of Hurley's right under the Eighth Amendment, when the statutes the trial relied upon for imposition of said mandatory minimum sentences, have been deemed unconstitutional 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 the same pursued prior appeal - is, the mandatory minimum sentences imposed by trial court pursuant Section 7508 have since been declared unconstitutional under Alleyne. In prior appeal, panel found this claim did not satisfy any of the time - for -filing exceptions under the PCRA. See Hurley, supra *3-4. Specifically, the panel concluded did not meet the newly recognized constitutional right exception because ruling had not been held to apply retroactively cases collateral review by either States Supreme Court or the Pennsylvania Supreme Court. id. at *4. After decision, the Pennsylvania Supreme Court, in Washington, 142 A.3d 2016), explicitly held: "Alleyne does not apply retroactively case pending on collateral review[.]" Id. at 820.

Nevertheless, Hurley now argues the 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 Miller Alabama, supra which declared that mandatory life without parole for juvenile homicide offenders violates Eighth Amendment's prohibition on cruel unusual punishments constituted new substantive rule applied retroactively cases on collateral review. Hurley's reliance on Montgomery misplaced because, noted above, subsequent mindful of the Montgomery decision, the Pennsylvania Supreme Court Washington held Alleyne does not apply retroactively cases on collateral See review. Washington, supra, 142 A.3d at 818 (explaining, inter alia, "[T]he Alleyne rule neither alters the range of conduct or the class persons punished by law. See Montgomery, []136 S. Ct. 729-30."). To date, there no We note Montgomery filed on January 2016. Therefore, Hurley's March 16, properly within days of the Montgomery pursuant to Section 9545(b)(2).

J applies States Supreme Court decision holding

retroactively to petitions. Accordingly, no relief is warranted.

Because Hurley's challenge to his mandatory minimum sentences does not invoke any of the -filing exceptions, we agree with the ruling of Hurley's filed.8

Order affirmed.

Judgment Entered. Tseph D. Seletyn,

Prothonotary

Date: 4/4/2017 Although not included statement of questions, Hurley also argues trial court erred failing to impose Recidivism Risk Reduction Incentive ("RRRI") program at sentencing. Hurley's Brief at 34-35. Hurley correctly states trial court's failure determine defendant's eligibility for an RRRI minimum sentence is "non-waivable illegal sentence claim." Id. citing Commonwealth Tobin, 89 A.3d 663 2014). However, Hurley fails explain how this claim meets one of the time -for filing exceptions. Indeed, "[a]lthough legality of sentence always subject review within the PCRA, claims must still satisfy PCRA's time limits or one of the exceptions thereto." Fahy, (1999). Therefore, entitled no relief this claim either.