J-S79021-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

SAMUEL HALL

Appellant No. 3726 EDA 2015

Appeal from the PCRA Order October 30, 2015

In the Court of Common Pleas of Chester County

Criminal Division at No(s): CP-15-CR-0002984-2007 

 CP-15-CR-0002985-2007 

 CP-15-CR-0002986-2007 

 CP-15-CR-0002987-2007 

 CP-15-CR-0002988-2007 

BEFORE: GANTMAN, P.J., MOULTON, J., and MUSMANNO, J.

MEMORANDUM BY MOULTON, J.: FILED NOVEMBER 21, 2016

Samuel L. Hall appeals, pro se, from the October 30, 2015 order of the 

Court of Common Pleas of Chester County dismissing as untimely his fourth 

petition filed pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. 

§§ 9541-9546. We affirm.

On August 13, 2008, after a non-jury trial on stipulated facts, the trial 

court convicted Hall of five counts of delivery or possession with intent to 

deliver (“PWID”) (cocaine), one count of PWID (marijuana), one count of 

PWID (MDMA1and methamphetamine), one count of possession of drug 

____________________________________________

1 MDMA is the acronym for 3,4-methylenedioxymethamphetamine, 

colloquially known as “ecstasy.”
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paraphernalia, and four counts of criminal use of a communications facility.2 

That same day, the trial court sentenced Hall to an aggregate sentence of 15 

to 30 years’ incarceration, which included mandatory minimum sentences on 

all of Hall’s PWID convictions.3 On August 25, 2008, Hall filed a notice of 

appeal, and on August 26, 2008, the trial court issued an order directing 

Hall’s trial counsel to prepare and serve a Pennsylvania Rule of Appellate 

Procedure 1925(b) statement of matters complained of on appeal (“1925(b) 

statement”). On September 3, 2008, Hall’s trial counsel filed a statement of 

intent to file an Anders/McClendon4 brief pursuant to Pennsylvania Rule of 

Appellate Procedure 1925(c)(4). Trial counsel filed his Anders brief and 

motion to withdraw as counsel with this Court on November 14, 2008, 

stating that Hall’s desired challenge of a suppression decision was meritless. 

On July 29, 2009, this Court affirmed the judgment of sentence and granted 

trial counsel’s petition to withdraw.

____________________________________________

2 35 P.S. § 780-113(a)(30), 35 P.S. § 780-113(a)(32), and 18 Pa.C.S. 

§ 7512(a), respectively.

3 The mandatory minimum sentencing statute upon which Hall was 

sentenced, 18 Pa.C.S. § 7508, was later found by this Court to be 

unconstitutional in Commonwealth v. Fennell, 105 A.3d 13 (Pa.Super. 

2014).

4 Anders v. California, 386 U.S. 738 (1967), and Commonwealth 

v. McClendon, 434 A.2d 1185 (Pa. 1981), abrogated by Commonwealth 

v. Santiago, 978 A.2d 349 (Pa. 2009). Trial counsel filed his brief before 

our Supreme Court’s decision in Santiago.
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On September 9, 2009, Hall filed his first PCRA petition, arguing that 

the trial court abused its discretion when it did not merge some of Hall’s 

convictions for sentencing purposes. On September 15, 2009, the PCRA 

court appointed counsel, who subsequently filed a petition for leave to 

withdraw as counsel with an attached Turner/Finley5letter on September 

30, 2009. Based on appointed counsel’s representations and the PCRA 

court’s independent review of the record, the PCRA court issued a notice of 

intent to dismiss the petition pursuant to Pennsylvania Rule of Criminal 

Procedure 907 on October 22, 2009, to which Hall filed a response on 

November 16, 2009.6 On December 11, 2009, the PCRA court dismissed 

Hall’s PCRA petition. Hall filed a motion for reconsideration on December 21, 

2009, which the trial court denied without hearing on December 29, 2009.7 

Hall did not file a notice of appeal.

____________________________________________

5 Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); 

Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc).

6

In his response, Hall raised a new claim of ineffective assistance of 

PCRA counsel. Hall argued that PCRA counsel was ineffective because 

counsel filed a Turner/Finley letter without first consulting Hall about the 

merits of his case. Hall also requested appointment of new PCRA counsel. 

In its December 11, 2009 order, the PCRA court found that appointed 

counsel fully complied with the mandates of Turner/Finley. 

7

In his motion for reconsideration, Hall raised another new claim of 

ineffective assistance of counsel, claiming that his pre-trial counsel and trial 

counsel failed to raise an issue regarding the Commonwealth’s approval of 

the criminal complaints and arrest warrants. In its December 29, 2009 

order, the PCRA court found this claim lacked merit. 
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Hall filed a second PCRA petition on July 29, 2010, again raising 

merger issues and alleging ineffective assistance of PCRA counsel. The 

PCRA court issued a notice of intent to dismiss Hall’s second PCRA petition 

on August 11, 2010. On August 26, 2010, Hall filed a response to the 

notice,8and the trial court ordered the Commonwealth to respond to the 

petition. The Commonwealth complied on November 3, 2010, and Hall filed 

a second response on November 9, 2010. The PCRA court dismissed the 

second PCRA petition on February 8, 2011. Hall subsequently filed a notice 

of appeal on March 7, 2011. On March 15, 2011, the PCRA court ordered a 

1925(b) statement, which Hall filed on April 18, 2011. In an unpublished 

memorandum, this Court affirmed the PCRA court’s dismissal of the second 

PCRA petition.9 On May 3, 2012, Hall filed a petition for allowance of appeal, 

which our Supreme Court denied on October 11, 2012. 

____________________________________________

8

In his response, Hall raised three new claims: (1) the trial court 

erred as a matter of law by failing to order a pre-sentence investigation 

report; (2) the trial court erred as a matter of law by failing to state 

adequate reasons for its sentence; and (3) Hall’s sentence was the result of 

sentencing manipulation or entrapment. The PCRA court found that these 

claims lacked merit, as all three challenged discretionary aspects of 

sentencing. On appeal, Hall raised only the sentencing entrapment issue 

and this Court affirmed.

9 During the appeal, Hall filed a reply brief, which raised a new claim 

that the trial court failed to make a determination as to Hall’s eligibility for 

the Recidivism Risk Reduction Incentive (“RRRI”) program. Finding that this 

claim was a non-waivable challenge to the legality of Hall’s sentence, this 

Court addressed that issue on the merits and determined that Hall was not 

entitled to relief because he was sentenced before the RRRI statute became 

effective.
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Hall filed his third PCRA petition on May 21, 2012, alleging that his trial 

counsel was ineffective for failing to advise him about the RRRI program. 

The PCRA court issued a notice of intent to dismiss this petition on May 24, 

2012, to which Hall responded on June 22, 2012. On July 10, 2012, the 

PCRA court dismissed Hall’s third petition. Hall filed a motion to reconsider 

on August 13, 2012, and the PCRA court vacated its prior order dismissing 

the petition on August 17, 2012, as it was unaware that Hall had filed a 

petition for allowance of appeal.10 After our Supreme Court denied Hall’s 

petition for allowance of appeal on the second PCRA petition, the PCRA court 

issued another notice of intent to dismiss Hall’s third PCRA petition on 

October 17, 2012. On October 26, 2012, Hall filed a petition to amend his 

third PCRA petition, to which the PCRA court issued an order on November 

15, 2012, allowing Hall 60 days to respond to the notice of intent to dismiss. 

Hall then filed another motion and petition to amend his third PCRA petition 

on November 26, 2012. On February 6, 2013, the trial court dismissed 

Hall’s third PCRA petition.11 Hall filed a notice of appeal on March 2, 2013. 

____________________________________________

10 In its order vacating the dismissal, the PCRA court determined that 

it did not have jurisdiction to consider the merits of Hall’s third PCRA petition 

while our Supreme Court considered Hall’s petition for allowance of appeal. 

See Commonwealth v. Lark, 746 A.2d 585, 588 (Pa. 2000) (“[W]hen an 

appellant’s PCRA appeal is pending before a court, a subsequent PCRA 

petition cannot be filed until the resolution of review of the pending PCRA 

petition by the highest state court in which review is sought”).

(Footnote Continued Next Page)
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This Court dismissed Hall’s appeal on May 9, 2013 for failure to return a 

docketing statement as required by Pennsylvania Rule of Appellate 

Procedure 3517.

Hall filed the instant PCRA petition, his fourth, on June 19, 2014. In 

his petition, Hall asked the trial court to “review the sentencing records of 

the [m]andatory sentences,” including “the [p]ast criminal cases that [Hall] 

attached was retroactively [sic],” and “to review all issue [sic] of this 

matter.” The trial court issued a notice of intent to dismiss Hall’s fourth 

PCRA petition on June 23, 2014,12 and dismissed the petition on October 30, 

2015. Hall filed a notice of appeal on November 27, 2015.

Hall raises the following issues on appeal:

1. When trial/sentencing counsel and [a]ppe[llate] counsel as 

well as PCRA counsel were all associated with the same 

office of the Public Defender, and trial/sentencing counsel 

only filed the direct appeal, but did not perfect it but 

withdrew, and appellate counsel as well as PCRA counsel 

failed to preserve Hall’s direct appeal rights, doesn’t this 

amount to an abandonment of their duty to raise the 

conflict of interest created by their association in the past 

or at present with the same office of trail[sic]/sentencing 

counsel? And does it not also amount to a total and 

constructive denial of counsel as guaranteed under, by, 

and through the Constitution[s] for the United States, 

Pennsylvania, and International Law and Treaty? And if 

this is true, does that not require the court to remand the 

(Footnote Continued) _______________________

11 In dismissing Hall’s third PCRA petition, the PCRA court considered 

Hall’s response to the notice of intent to dismiss, Hall’s motion to reconsider, 

and Hall’s petition to amend.

12 Hall did not respond to the trial court’s notice of intent to dismiss.
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matter for an evidentiary hearing and the appointment of 

conflict counsel to assist Hall in the marshalling and 

presentation of his evidence of the same, and not a 

summary dismissal of his PCRA as of right? Wasn’t [Hall] 

deprived of his right to file and perfect a direct appeal as 

of right based on all prior counsel’s conflict of interest in 

their representation when all prior counsel failed to raise, 

preserve, and brief the claim of their conflict and move the 

court to appoint conflict counsel?

2. Did the PCRA court err, as [a] matter of law, by dismissing 

[Hall]’s Petition for collateral relief as untimely when his 

claim is a constitutional violation of his due process rights?

3. Did the PCRA court err, as a matter of law, by dismissing 

[Hall]’s Petition for Collateral Relief even though his claim 

has retroactive effect?

Hall’s Br. at 3.

Before addressing the merits of Hall’s PCRA petition, we must first 

determine whether his petition is timely. It is well settled that “the 

timeliness of a PCRA petition is a jurisdictional requisite.” Commonwealth 

v. Brown, 111 A.3d 171, 175 (Pa.Super.), app. denied, 125 A.3d 1197 

(Pa. 2015). A PCRA petition, “including a second or subsequent petition, 

shall be filed within one year of the date the judgment becomes final.” 42 

Pa.C.S. § 9545(b)(1). A judgment is 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 such review.” 42 Pa.C.S. § 9545(b)(3).
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Hall’s judgment of sentence became final on August 28, 2009, when 

his time to seek review in the Pennsylvania Supreme Court expired.13 He 

had one year from that date, or until August 30, 2010,14 to file a timely 

PCRA petition. Therefore, his current petition, filed on June 19, 2014, is 

facially untimely.

Courts may consider a PCRA petition filed more than one year after a 

judgment of sentence became final only if the petitioner alleges and proves 

one of the following three statutory exceptions:

(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.

____________________________________________

13 Hall had 30 days from July 29, 2009, the date this Court affirmed 

the trial court and granted appellate counsel’s motion to withdraw, to file a 

petition for allowance of appeal with our Supreme Court. See Pa. R. App. P. 

1113.

14 Hall’s judgment of sentence became final on August 28, 2010. 

However, because August 28, 2010 was a Saturday, Hall had until the 

following Monday, August 30, 2010, to file a timely PCRA petition. See 1 

Pa.C.S. § 1908.
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42 Pa.C.S. § 9545(b)(1)(i)-(iii); see Brown, 111 A.3d at 175.

Hall’s petition meets none of the three exceptions to the one-year time 

bar. First, Hall raises an ineffective assistance of counsel claim, arguing that 

a conflict of interest existed among his trial and PCRA counsel, as they all 

worked for the Chester County Public Defender’s office, and that his PCRA 

counsel’s failure to advise Hall of this conflict before filing the Turner/Finley

letter constituted abandonment. Hall’s Br. at 9-10. Hall asserts that his 

PCRA counsel’s actions interfered with his Sixth Amendment right to 

effective assistance of counsel. Id.

“It is well settled that allegations of ineffective assistance of counsel 

will not overcome the jurisdictional timeliness requirements of the PCRA.” 

Commonwealth v. Wharton, 886 A.2d 1120, 1127 (Pa. 2005). Because 

Hall makes a claim of ineffective assistance of counsel, his petition remains 

untimely unless he asserts and proves a different exception to the time bar.

In his remaining issues,15 Hall contends that he is entitled to relief 

because the trial court imposed an illegal sentence. Hall argues that the trial 

court imposed illegal mandatory minimum sentences under 18 Pa.C.S. § 

____________________________________________

15 In his statement of questions presented, Hall’s second issue 

questioned whether the trial court erred by dismissing his PCRA petition as 

untimely where he asserted a due process claim. However, Hall failed to 

advance this argument in his brief, instead arguing, under his second 

argument heading, that his sentence was illegal and Alleyne should apply. 

Hall’s Br. at 10-12. Because Hall failed to argue his due process claim, we 

find that he has waived this issue. See Pa. R. App. P. 2119; 

Commonwealth v. Johnson, 985 A.2d 915, 924 (Pa. 2009).
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7508. Hall’s Br. at 10. He claims he is entitled to relief pursuant to Alleyne 

v. United States, 133 S.Ct. 2151, 2158 (2013), in which the United States 

Supreme Court found that “facts that increase the mandatory minimum are . 

. . elements and must be submitted to the jury and found beyond a 

reasonable doubt.” Hall reasons that this Court must give Alleyne

retroactive effect because Alleyne announced a new substantive rule of 

constitutional law that controls the outcome of his case. Hall’s Br. at 13-15 

(citing Montgomery v. Louisiana, __ U.S. __, 136 S.Ct. 718 (2016)).

Hall’s claims are not entitled to retroactive effect on collateral review. 

Our Supreme Court has held that “Alleyne does not apply retroactively to 

cases pending on collateral review.” Commonwealth v. Washington, 142 

A.3d 810, 820 (Pa. 2016). Because the constitutional violation asserted by 

Hall is not one that the Pennsylvania or United States Supreme Court has 

given retroactive effect, his Alleyne challenge does not excuse his failure to 

timely file his petition.16

We conclude that Hall’s PCRA petition is untimely and that he has 

failed to prove any exception to the PCRA’s one-year time-bar.17 Therefore, 

____________________________________________

16 Even if we could give Hall’s Alleyne challenge retroactive effect, 

Hall’s challenge would not clear the one-year time-bar because he failed to 

file the instant PCRA petition within 60 days of the Alleyne decision. See

42 Pa.C.S. § 9545 (b)(1).

17 In his PCRA petition, Hall asserted that he found “exculpatory 

evidence” that was unavailable at the time of trial and “would have changed 

the outcome of trial if it had been introduced.” However, Hall did not explain 

(Footnote Continued Next Page)
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the trial court appropriately dismissed Hall’s PCRA petition for lack of 

jurisdiction.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 11/21/2016

(Footnote Continued) _______________________

this assertion nor did he raise the issue before this Court. Therefore, he has 

waived the issue. See Gilmore ex rel. Gilmore v. Dondero, 582 A.2d 

1106, 1108 (Pa.Super. 1990).