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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
DONTAY RAYSHAW BREWER
Appellant No. 2437 EDA 2014
Appeal from the PCRA Order July 31, 2014
In the Court of Common Pleas of Montgomery County
Criminal Division at No(s): CP-46-CR-0009340-2009
BEFORE: STABILE, J., JENKINS, J., and MUSMANNO, J.
MEMORANDUM BY JENKINS, J.: FILED APRIL 28, 2015
Dontay Brewer appeals from an order dismissing his petition under the
Post Conviction Relief Act, 42 Pa.C.S. § 9651 et seq. Brewer argues that his
attorney rendered ineffective assistance by failing to file a timely
suppression motion, and that his sentence is unconstitutional under Alleyne
v. United States, -- U.S. --, 133 S.Ct. 2151 (2013). We affirm.
Brewer, the head of a significant and sophisticated cocaine trafficking
ring in Norristown, Pennsylvania, was charged with corrupt organizations,1
conspiracy to engage in corrupt organizations,2 possession with intent to
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1
18 Pa.C.S. § 911.
2
18 Pa.C.S. § 903.
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deliver controlled substances,3 criminal use of communications,4 delivery of
controlled substances5 and possession of drug paraphernalia.6 Prior to trial,
he filed a motion to suppress evidence that police officers seized pursuant to
a search warrant at several locations, including 1015 Beech Street in
Norristown. Following a hearing on January 21, 2011, the trial court denied
the motion to suppress. In the course of its ruling, the trial court stated on
the record that the affidavit of probable cause underlying the search warrant
provided probable cause to search 1015 Beech Street in Norristown. N.T.,
1/21/11, pp. 22-26.
On January 27, 2011, after a five-day trial, a jury found Brewer guilty
of multiple counts of corrupt organizations, conspiracy to deliver cocaine,
possession with intent to deliver, delivery of controlled substances, criminal
use of communications and possession of drug paraphernalia.
On March 7, 2011, the Commonwealth filed a Notice of Intent to Seek
Mandatory Sentence pursuant to 18 Pa.C.S. § 7508 on five counts of
conviction. On March 28, 2011, the trial court sentenced Brewer to a
lengthy term of imprisonment, including five mandatory minimum terms
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3
35 P.S. § 780-113(a)(30).
4
18 Pa.C.S. § 7512.
5
35 P.S. § 780-113(a)(30).
6
35 P.S. § 780-113(a)(33).
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imposed pursuant to section 7508.7 Brewer filed a timely direct appeal. On
May 24, 2012, this Court affirmed his judgment of sentence, and on January
13, 2013, the Supreme Court denied his petition for allowance of appeal.
On December 3, 2013, Appellant filed a timely pro se PCRA petition.
The court appointed the Public Defender to assist Brewer with his petition,
and PCRA counsel subsequently filed an amended PCRA petition. Neither the
original nor the amended PCRA petition raised Alleyne.8 On July 9, 2014,
the court issued a notice of intent to dismiss the amended PCRA petition
without a hearing. Brewer did not file a response. On July 30, 2014, the
court dismissed Brewer’s amended PCRA petition. On August 25, 2014,
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7
The trial court sentenced Brewer to (i) 2-10 years’ imprisonment for
corrupt organizations; (ii) a concurrent term of 2-10 years’ imprisonment for
conspiracy to commit corrupt organizations; (iii) a consecutive mandatory
minimum term of 7-20 years’ imprisonment for delivery of cocaine on
October 11, 2009; (iv) a concurrent mandatory minimum term of 7-20
years’ imprisonment for delivery of a controlled substance on October 19,
2009; (v) a concurrent mandatory minimum term of 5-10 years’
imprisonment for possession with intent to deliver on October 25-26, 2009;
(vi) a consecutive mandatory minimum term of 7-20 years’ imprisonment for
possession with intent to deliver on October 26, 2009; (vii) a concurrent
mandatory minimum term of 5-10 years’ imprisonment for possession with
intent to deliver on October 26-27, 2009; (viii) a concurrent term of 5-10
years’ imprisonment for conspiracy to violate the Drug Act; and (ix) 5
concurrent terms of 1-7 years’ imprisonment for 5 convictions for criminal
use of a communications facility.
8
Brewer’s amended PCRA petition claimed that counsel on direct appeal was
ineffective for failing to challenge the mandatory minimum sentences
imposed on certain counts because there was an insufficient factual basis for
finding that Brewer delivered over 100 grams of cocaine. Amended PCRA
Petition, p. 9. The amended PCRA petition did not claim that any mandatory
minimum sentences were unconstitutional under Alleyne.
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Brewer filed a timely notice of appeal. On September 16, 2014, counsel for
Brewer filed a Pa.R.A.P. 1925(b) statement raising Alleyne for the first
time. The PCRA court issued an opinion reasoning, inter alia, that Alleyne
did not apply retroactively to cases on collateral review.
Brewer raises two issues on appeal in his counseled brief:
1. Did the PCRA court err in dismissing [] Brewer’s
amended [PCRA] petition without a hearing where
trial counsel was ineffective in failing to timely file a
meritorious motion to suppress physical evidence
seized from 1015 Beech Street?
2. Do each of the five (5) mandatory minimum
sentences imposed upon [] Brewer pursuant to [18
Pa.C.S. §] 7508 constitute an illegal sentence
pursuant to the United States Supreme Court’s
decision in Alleyne []?
This Court reviews the PCRA court’s findings of fact to determine
whether they are supported by the record, and reviews its conclusions of law
to determine whether they are free from legal error. Commonwealth v.
Charleston, 94 A.3d 1012, 1019 (Pa.Super.2014). Our scope of review is
limited to the findings of the PCRA court and the evidence of record, viewed
in the light most favorable to the prevailing party at the trial level. Id.
Brewer’s first argument alleges ineffective assistance of trial counsel
for failing to file a timely motion to suppress evidence seized from 1015
Beech Street. To obtain relief on a claim of ineffectiveness, a PCRA
petitioner must satisfy the performance and prejudice test set forth in
Strickland v. Washington, 466 U.S. 668, 687 (1984). Specifically, the
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petitioner must establish that: (1) the underlying claim has arguable merit;
(2) no reasonable basis existed for counsel’s actions or failure to act; and
(3) the petitioner suffered prejudice as a result of counsel’s error, with
prejudice measured by whether there is a reasonable probability that the
result of the proceeding would have been different. Commonwealth v.
Pierce, 527 A.2d 973, 975 (Pa.1987). Counsel is presumed effective.
Charleston, 94 A.3d at 1019. A court need not analyze the elements of an
ineffectiveness claim in any particular order of priority; if a claim fails any
necessary element of the Strickland test, the court may proceed to that
element first. Commonwealth v. Albrecht, 720 A.2d 693, 701 (Pa.1998).
Additionally, counsel cannot be deemed ineffective for failing to raise a
meritless claim. Commonwealth v. Jones, 912 A.2d 268, 278 (Pa.2006).
Here, the PCRA court held that Brewer suffered no prejudice from the
tardy filing of the motion to suppress evidence seized at 1015 Beech Street,
because the trial court not only permitted defense counsel to present
argument on this issue despite the motion’s tardiness but then resolved this
issue on the merits. The trial court stated on the record:
Now, the warrant for Beech Street, in particular,
does set forth two affiants very, very experienced in
narcotics investigations, including wiretapping. And
the Affidavit describes, in some great detail – 100
pages or so - an ongoing drug delivery criminal
enterprise with Mr. Brewer being a central figure in
that. That Affidavit also describes various locations in
which the drug activity comes forth and is carried on,
also describing the use of multiple telephones and
multiple vehicle, things not registered in his name;
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quite clearly, extensive steps were being taken by
him to avoid detection and to keep the operation
from being discovered. All this is set forth in the
Affidavit. There are numerous controlled buys set
forth. There is information from confidential
informants and information dictating reliability there.
The Affidavit does, furthermore, set forth various
intercepted phone calls from the participants,
demonstrating the large-scale and ongoing nature of
this operation. Clearly the Affidavit establishes
probable cause the defendant used Beech Street and
multiple houses and apartments to store his drugs
and carry out his operations. The Beech Street
location is identified later in the development of this
case.
The Affidavit sets forth probable cause to believe
that this secretive location is yet another storage or
stash location for Mr. Brewer to hide his drugs. Yes, I
find that the Affidavit does set forth sufficient
probable cause to search that location for evidence
connected to this crime.
The Affidavit clearly establishes that anywhere that
this defendant spent considerable time in the
Norristown area was a location used to further the
operation, to try to keep it a secret, and tried to
keep it camouflaged from police scrutiny and
investigations. Now, if you look at the language that
Mr. McElroy refers to as just an additional page -
that comes in at Page 100 - it talks about recent
surveillance showed Mr. Brewer using the outer door.
That’s a three-story unit with 11 apartments.
Intercepted conversations had Mr. Brewer using this
to both sleep and take shower. Electronic and
physical surveillance out him at that location on
several occasions throughout the wiretap. PECO told
them that utilities were registered to Mr. Solomon.
That’s also the person’s car that he was driving at
the time of his arrest. And the interceptions show
that Solomon was an associate of Brewer in this
operation. This is consistent with everything he’s
been doing during the course of his ongoing drug
activity.
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Furthermore, the Affidavit sets forth complaints from
neighbors about loud noises coming early in the
morning hours from that apartment, and a neighbor
described a heavyset black male as entering and
exiting the apartment on infrequent occasions, being
consistent with Mr. Brewer, who, when taken into
custody, was found to be in possession of cocaine at
the time of his arrest, driving that vehicle registered
to Solomon, and he had some keys that were
brought in and fit the door to the apartment, the way
I read the Affidavit.
So, once again, I find that Judge Steven T. O’Neill,
Court of Common Pleas of Montgomery County, had
substantial basis for finding probable cause and
issuing this warrant and I agree with his assessment,
even after hearing the arguments of Mr. McElroy and
viewing, at a later time - and probably given more
time than Judge O’Neill had to review it. The
determination of the issuing authority is entitled to
great deference; but notwithstanding that, I
independently find a sufficient and fundamental basis
of probable cause for this warrant to search the
Beech Street address. The suppression motions are
denied, not only as untimely, but also as lacking
merit.
N.T. 1/21/11, pp. 22-26.
Having reviewed the record, we agree with the PCRA court that Brewer
fails the prejudice prong of the Strickland test, because the trial court
decided the suppression issue pertaining to 1015 Beech Street on the merits
despite defense counsel’s tardy suppression motion. Moreover, we conclude
that Brewer’s argument lacks arguable merit for the reasons articulated by
the trial court in the explanation recited above. N.T., 1/21/11, pp. 22-26.
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In his second argument, Brewer contends that his five mandatory
minimum sentences are unconstitutional under Alleyne. Alleyne held that,
other than the fact of a prior conviction, any fact that increases the penalty
for a crime beyond the prescribed statutory minimum must be submitted to
a jury and proved beyond a reasonable doubt. Id., 131 S.Ct. at 2160-61.
Brewer argues his sentences are unconstitutional because the trial court
imposed these sentences without a jury and under a preponderance of the
evidence standard.
Brewer failed to raise Alleyne in his original or amended PCRA petition
and has raised it for the first time in his present appeal, more than one year
after his judgment of sentence became final. This issue is not waived,
because challenges to the legality of a sentence cannot be waived.
Commonwealth v. Miller, 102 A.3d 988, 996 (Pa.Super.2014) (Alleyne
challenge to legality of sentence is “not technically waivable”). On the other
hand, this issue is untimely, because Brewer raised it for the first time more
than one year after his judgment of sentence became final. As a result, we
lack jurisdiction to review it under the PCRA’s statute of limitations, 42
Pa.C.S. § 9545(b).
Section 9545 provides that a 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); accord Commonwealth v.
Bretz, 830 A.2d 1273, 1275 (Pa.Super.2003). No court has jurisdiction to
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hear an untimely PCRA petition. Commonwealth v. Monaco, 996 A.2d
1076, 1079 (Pa.Super.2010) (citing Commonwealth v. Robinson, 837
A.2d 1157, 1161 (Pa.2003)). 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 the review.” 42 Pa.C.S. § 9545(b)(3).
Three exceptions to the PCRA’s time-bar provide for very limited
circumstances under which a court may excuse the late filing of a PCRA
petition. 42 Pa.C.S. § 9545(b)(1); Monaco, 996 A.2d at 1079. The late
filing of a petition will be excused if a petitioner alleges and proves:
(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.
42 Pa.C.S. § 9545(b)(1)(i)-(iii). A petition invoking an exception to the
PCRA time bar must “be filed within 60 days of the date the claim could have
been presented.” 42 Pa.C.S. § 9545(b)(2).
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In our view, these jurisdictional precepts apply when, as here, (1) the
petitioner timely files a PCRA petition, (2) neglects to raise a particular issue
(e.g., Alleyne) in the PCRA court, but then (3) raises that issue for the first
time on appeal, more than one year after his judgment of sentence becomes
final. To entertain an issue on appeal under these circumstances would
circumvent the strict jurisdictional time limitations embodied in section
9545. See Commonwealth v. Edmiston, 851 A.2d 883, 889 (Pa.2004)
(citing Pa.R.A.P. 302(a) & Commonwealth v. Bond, 819 A.2d 33, 52
(2002)) (“[p]ermitting a PCRA petitioner to append new claims to the appeal
already on review would wrongly subvert the time limitation and serial
petition restrictions of the PCRA”)9.
With these principles in mind, we observe that Brewer’s judgment of
sentence became final on April 15, 2013, the last day for filing a petition for
writ of certiorari in the United States Supreme Court.10 Thus, Brewer had
until April 15, 2014 to raise Alleyne in a PCRA petition. Brewer did not raise
Alleyne until September 16, 2014, following his appeal, when he cited
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9
In addition, “the proper vehicle for raising new claims is not on PCRA
appeal, but rather in a subsequent PCRA petition.” Edmiston, 851 A.2d at
889.
10
The ninetieth day after January 13, 2013, the date our Supreme Court
denied Brewer’s petition for allowance of appeal, fell on Saturday, April 13,
2013, thus extending the deadline to Monday, April 15, 2013.
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Alleyne in his Pa.R.A.P. 1925(b) statement. Thus, his attempt to raise
Alleyne is untimely on its face.
Nor do any of the exceptions in section 9545(b)(i-iii) apply to this
case. Brewer suggests in his brief that Alleyne applies retroactively under
section 9545(b)(iii), because challenges to the illegality of his sentence are
never waived. We disagree, based on our analysis of the same issue in
Miller. Miller held that the PCRA court lacked jurisdiction to consider an
Alleyne argument presented in a second PCRA petition filed five years after
the petitioner’s judgment of sentence became final, reasoning:
Subsection (iii) of Section 9545 [(b)(1)] has two
requirements. First, it provides that 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
provided in this section. Second, it provides that the
right ‘has been held’ by ‘that court’ to apply
retroactively. Thus, a petitioner must prove that
there is a ‘new’ constitutional right and that the right
‘has been held’ by that court to apply retroactively.
The language ‘has been held’ is in the past tense.
These words mean that the action has already
occurred, i.e., ‘that court’ has already held the new
constitutional right to be retroactive to cases on
collateral review. By employing the past tense in
writing this provision, the legislature clearly intended
that the right was already recognized at the time the
petition was filed.
…
Even assuming that Alleyne did announce a new
constitutional right, 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.
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This is fatal to Appellant’s argument regarding the
PCRA time-bar. This Court has recognized that a new
rule of constitutional law is applied retroactively to
cases on collateral review only if the United States
Supreme Court or our Supreme Court specifically
holds it to be retroactively applicable to those cases.
Commonwealth v. Phillips, 31 A.3d 317, 320
(Pa.Super.2011), appeal denied, 615 Pa. 784, 42
A.3d 1059 (2012), citing Tyler v. Cain, 533 U.S.
656, 663, 121 S.Ct. 2478, 150 L.Ed.2d 632 (2001);
see also, e.g., Commonwealth v. Taylor, 933
A.2d 1035, 1042 (Pa.Super.2007) (stating, ‘for
purposes of subsection (iii), the language ‘has been
held by that court to apply retroactively’ means the
court announcing the rule must have also ruled on
the retroactivity of the new constitutional right,
before the petitioner can assert retroactive
application of the right in a PCRA petition[ ]’), appeal
denied, 597 Pa. 715, 951 A.2d 1163 (2008).
Therefore, Appellant has failed to satisfy the new
constitutional right exception to the time-bar.
…
We are aware that an issue pertaining to Alleyne
goes to the legality of the sentence. See
Commonwealth v. Newman, 99 A.3d 86, 90
(Pa.Super.2014) (en banc) (stating, ‘a challenge to a
sentence premised upon Alleyne likewise implicates
the legality of the sentence and cannot be waived on
appeal[ ]’). It is generally true that ‘this Court is
endowed with the ability to consider an issue of
illegality of sentence sua sponte.’ Commonwealth
v. Orellana, 86 A.3d 877, 883 n. 7 (Pa.Super.2014)
(citation omitted). However, in order for this Court to
review a legality of sentence claim, there must be a
basis for our jurisdiction to engage in such review.
See Commonwealth v. Borovichka, 18 A.3d 1242,
1254 (Pa.Super.2011) (stating, ‘[a] challenge to the
legality of a sentence ... may be entertained as long
as the reviewing court has jurisdiction[ ]’) (citation
omitted). As this Court recently noted, ‘[t]hough not
technically waivable, a legality [of sentence] claim
may nevertheless be lost should it be raised ... in an
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untimely PCRA petition for which no time-bar
exception applies, thus depriving the court of
jurisdiction over the claim.’ [Commonwealth v.]
Seskey, [86 A.3d 237,] 242 [(Pa.Super.2014)]. As a
result, the PCRA court lacked jurisdiction to consider
the merits of Appellant’s second PCRA petition, as it
was untimely filed and no exception was proven…
Id. at 994, 995, 996 (emphasis added; certain citations omitted). Miller
squarely applies to this case. Like the petitioner in Miller, Brewer raised
Alleyne more than one year after his judgment of sentence became final.
Moreover, even if Alleyne announced a new constitutional right, neither the
United States Supreme Court nor the Pennsylvania Supreme Court has held
that this right applies retroactively. Thus, although Alleyne implicates the
legality of Brewer’s sentence, we lack jurisdiction to address this issue.
Miller, 102 A.3d at 995, 996.
Brewer’s Alleyne argument suffers from an additional jurisdictional
defect not present in Miller. Whereas the petitioner in Miller raised
Alleyne in a PCRA petition within sixty days after Alleyne’s issuance,
Brewer did not raise Alleyne until fifteen months after its issuance.
Consequently, Brewer’s Alleyne claim is untimely under the sixty-day
deadline in section 9545(b)(2) for filing exceptions to the PCRA’s one-year
time bar.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/28/2015
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