J-A18014-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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 Super. 2005) (unpublished memorandum).]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