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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
MICHAEL WASHINGTON, : No. 1157 EDA 2016
:
Appellant :
Appeal from the PCRA Order, March 22, 2016,
in the Court of Common Pleas of Chester County
Criminal Division at No. CP-15-CR-0003003-2005,
CP-15-CR-0003130-2005, CP-15-CR-0005357-2005,
CP-15-CR-0005974-2005
BEFORE: FORD ELLIOTT, P.J.E., RANSOM, J. AND STEVENS, P.J.E.*
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED SEPTEMBER 23, 2016
Michael Washington appeals, pro se, from the order of March 22,
2016, dismissing his PCRA1 petition without a hearing. We affirm.
The PCRA court summarized the procedural history of this matter as
follows:
The PCRA petition now before the Court was
filed in four docket numbers. We will briefly set out
the relevant procedural history in those docket
numbers. In docket number 53[57]-2005,
[appellant] was convicted by a jury of one (1) count
of Possession of a Controlled Substance with the
Intent to Deliver (“PWID”) cocaine, one count of
Possession of a Controlled Substance (cocaine), and
one (1) count of Possession of Drug Paraphernalia.
* Former Justice specially assigned to the Superior Court.
1
Post-Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-9546.
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On May 31, 2006, [appellant] was sentenced on the
one count of PWID to three (3) to six (6) years[’]
incarceration in a state correctional institution. No
sentence was imposed on the Possession of Drug
Paraphernalia or Possession of a Controlled
Substance counts. [Appellant] received credit for
time served.
In docket number 5974-2005, [appellant]
entered a negotiated guilty plea to one (1) count [of]
Persons Not to Possess a Firearm and one (1) count
of PWID (cocaine). On the one count of Persons Not
to Possess a Firearm, [appellant] was sentenced to
five (5) to ten (10) years[’] incarceration in a state
correctional institution. This sentence was to run
consecutive to the sentence imposed in docket
number 5357-2005. On the one count of PWID,
[appellant] received five (5) years of probation to be
served consecutive to the sentence imposed on the
Persons Not to Possess a Firearm charge. As part of
this negotiated plea agreement, the sentences
imposed in docket numbers 3003-2005 and
3130-2005 were to run concurrent with the
sentences imposed in this case and also with docket
number 53[57]-2005.
In docket number 3003-2005, [appellant]
plead guilty pursuant to a negotiated guilty plea to
two (2) counts of PWID (cocaine). [Appellant] was
sentenced on count one to two (2) to four (4)
years[’] incarceration in a state correctional
institution. On count two of that same information,
[appellant] was sentenced to two (2) to four (4)
years[’] incarceration in a state correctional
institution. The second PWID count was imposed
concurrent with the first count. The sentences
imposed in this docket number were to run
concurrent with the sentences imposed in docket
numbers 53[57]-2005 and 5974-2005.
In docket number 3130-2005, [appellant]
plead guilty pursuant to a negotiated guilty plea to
one (1) count of PWID (cocaine). [Appellant] was
sentenced on the one count of PWID to two (2) to
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four (4) years[’] incarceration in a state correctional
institution followed by two (2) years of consecutive
probation. The sentence imposed in this docket
number was to run concurrent to the sentences
imposed in docket numbers 53[57]-2005 and
5974-2005.
“Notice of Intent to Dismiss PCRA Petition Pursuant to Pa.R.Crim.P. 907(1),”
2/11/16 at 2-3 n.2.
On November 12, 2015, [appellant] filed a
pro se [PCRA] petition with this Court. On
November 24, 2015, Robert P. Brendza, Esquire, was
appointed to represent [appellant] in all matters
pertaining to the Petition. On February 2, 2016,
Attorney Brendza petitioned the Court for leave to
withdraw as PCRA counsel, filing a “no-merit” letter
pursuant to the procedures outlined in
Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988)
and Commonwealth v. Finley, 550 A.2d 213
(Pa.Super. 1988) [(en banc)].
On February 11, 2016, we issued a Notice of
Intent to Dismiss [Appellant’s] PCRA Petition
(“907 Notice”), explaining to [appellant] that his
petition lacked arguable merit. In the 907 Notice,
we also informed [appellant] that he was not entitled
to relief under the PCRA and that he had twenty (20)
days from the date of docketing of the 907 Notice to
file a response.
On February 12, 2016, [appellant] filed a
pro se pleading entitled “Motion for Extraordinary
Relief Pursuant to 42 Pa.C.S. § 5504-5505 and
Article I, Section 14 of the Pennsylvania Constitution
and for Post Conviction Relief Under the [PCRA],
42 Pa.C.S. § 9542 et seq.” On February 25, 2016,
we issued an Order directing the Chester County
Clerk of Courts to forward a copy of [appellant’s]
pro se Motion to Attorney Brendza for his review.
Order, 3/22/16 at 1-2 n.1.
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In the February 25, 2016 [order], we directed
Attorney Brendza to review all of [appellant’s]
pro se concerns raised in the Motion and to file
either an amended PCRA petition or response to the
Motion explaining why [appellant’s] pro se concerns
did not entitle him to relief under the PCRA. On
February 29, 2016, [appellant] filed a second
pleading entitled “Pro se Response to PCRA Court’s
Notice to Dismiss Petition for Writ of Habeas Corpus
Relief Pursuant to Article I, Section 14 of the
Pennsylvania Constitution and for Post-Conviction
Relief Pursuant to 42 Pa.C.S. Section 9542, et seq.”
Since this pleading was filed after our February 25,
2016 Order requiring Attorney Brendza to respond to
the first pleading, that Order did not address the
second pleading. However, on March 16, 2016,
Attorney Brendza filed a Letter containing a response
to both of [appellant’s] pro se pleadings.
Id. at 2 n.1.
On March 22, 2016, the PCRA court entered an order dismissing
appellant’s PCRA petition, rejecting appellant’s argument that Alleyne v.
United States, U.S. , 133 S.Ct. 2151 (2013), should be applied
retroactively in his case. The PCRA court also granted Attorney Brendza
leave to withdraw as PCRA counsel. A timely pro se notice of appeal was
filed on April 8, 2016. On April 13, 2016, appellant was ordered to file a
concise statement of errors complained of on appeal within 21 days pursuant
to Pa.R.A.P. 1925(b); appellant complied on April 27, 2016, and on May 4,
2016, the PCRA court filed a Rule 1925(a) opinion.2
2
According to the PCRA court, appellant filed his Rule 1925(b) statement but
did not serve it on the judge. (PCRA court opinion, 5/4/16 at 1 n.1.)
Typically, a failure to comply with Rule 1925 by filing a Rule 1925(b)
statement with the court and concurrently serving the statement on the trial
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Appellant has raised the following issues for this court’s review:
A. Does Not A Challenge To A Sentence Pursuant
to Alleyne v. United States, 133 S.Ct. 2151
(2013), implicates [sic] the legality of the
sentence and is therefore non-waivable?
judge results in waiver of all issues. See Pa.R.A.P. 1925(b)(1) (“Appellant
shall file of record the Statement and concurrently shall serve the judge.”);
Egan v. Stroudsburg School Dist., 928 A.2d 400 (Pa.Cmwlth. 2007)
(where appellant filed concise statement of matters complained of on appeal
with prothonotary, but did not concurrently serve the trial judge, all issues
deemed waived); Commonwealth v. $766.00 U.S. Currency, 948 A.2d
912 (Pa.Cmwlth. 2008) (appellant’s issues waived where he filed a 1925(b)
statement with court but did not serve the same on the trial judge). See
also Commonwealth v. Schofield, 888 A.2d 771, 774 (Pa. 2005)
(“[F]ailure to comply with the minimal requirements of Pa.R.A.P. 1925(b)
will result in automatic waiver of the issues raised.”). We further note that
because appellant is pro se, the remand procedure added to Rule 1925 in
2007 does not apply. See Pa.R.A.P. 1925(c)(3) (“If an appellant in a
criminal case was ordered to file a Statement and failed to do so, such that
the appellate court is convinced that counsel has been per se ineffective, the
appellate court shall remand for the filing of a Statement nunc pro tunc and
for the preparation and filing of an opinion by the judge.”) (codifying the
procedure established by this court in Commonwealth v. West, 883 A.2d
654 (Pa.Super. 2005). In addition, this is an appeal from denial of a PCRA
petition. Our supreme court has held that the procedure devised in West,
as codified in Rule 1925(c)(3), does not apply to PCRA appeals.
Commonwealth v. Hill, 16 A.3d 484 (Pa. 2011). Nevertheless, because
appellant’s claim goes to the legality of his sentence, which is non-waivable,
we will not find waiver on this basis. See, e.g., Commonwealth v.
Edrington, 780 A.2d 721, 723 (Pa.Super. 2001), citing Commonwealth v.
Archer, 722 A.2d 203, 209 (Pa.Super. 1998). See also Commonwealth
v. Fennell, 105 A.3d 13, 15 (Pa.Super. 2014), appeal denied, 121 A.3d
494 (Pa. 2015), citing Commonwealth v. Lawrence, 99 A.3d 116, 123
(Pa.Super. 2014) (“issues pertaining to Alleyne go directly to the legality of
the sentence”); Commonwealth v. Miller, 102 A.3d 988, 995 (Pa.Super.
2014) (“this Court is endowed with the ability to consider an issue of
illegality of sentence sua sponte”), quoting Commonwealth v. Orellana,
86 A.3d 877, 883 n.7 (Pa.Super. 2014) (citation omitted). But see
Commonwealth v. Barnes, 122 A.3d 1034, 1034-1035 (Pa. 2015)
(per curiam) (granting allocatur to determine whether an Alleyne
violation renders a sentence illegal for issue preservation purposes).
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B. Did Not The PCRA Court Err in finding
Appellant’s PCRA Petition as untimely pursuant
to 42 Pa.C.S.A. § 9545(b)(1)(iii)[,](2)?
Appellant’s brief at 1.
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. Halley, 582 Pa. 164, 870 A.2d
795, 799 n. 2 (2005). The PCRA court’s findings will
not be disturbed unless there is no support for the
findings in the certified record. Commonwealth v.
Carr, 768 A.2d 1164, 1166 (Pa.Super. 2001).
Commonwealth v. Turetsky, 925 A.2d 876, 879 (Pa.Super. 2007),
appeal denied, 940 A.2d 365 (Pa. 2007).
Appellant argues that his mandatory minimum sentence imposed
pursuant to 42 Pa.C.S.A. § 9712.1 (drug offenses committed with firearms)
was illegal in light of Alleyne (holding that any fact that, by law, increases
the penalty for a crime is required to be treated as an element of the
offense, submitted to a jury, rather than a judge, and found beyond a
reasonable doubt). In Commonwealth v. Newman, 99 A.3d 86 (Pa.Super.
2014) (en banc), appeal denied, 121 A.3d 496 (Pa. 2015), we found
Section 9712.1 unconstitutional in its entirety. “Under Alleyne, the
possession of the firearm must be pleaded in the indictment, and must be
found by the jury beyond a reasonable doubt before the defendant may be
subjected to an increase in the minimum sentence.” Newman, 99 A.3d at
98. Because Section 9712.1 allows the trial court, as opposed to a jury, to
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increase a defendant’s minimum sentence based upon a preponderance of
the evidence that the defendant was dealing drugs while in possession of a
firearm, or that a firearm was “in close proximity” to the drugs, it does not
pass constitutional muster under Alleyne. Id.; see also Commonwealth
v. Valentine, 101 A.3d 801 (Pa.Super. 2014), appeal denied, 124 A.3d
309 (Pa. 2015) (by allowing the jury to determine beyond a reasonable
doubt the elements of the mandatory minimum sentencing provisions of
42 Pa.C.S.A. §§ 9712 and 9713, the trial court performed an impermissible
legislative function, effectively determining that the unconstitutional
provisions were severable).
Nevertheless, it is well settled that Alleyne does not invalidate a
mandatory minimum sentence when presented in an untimely PCRA petition.
Commonwealth v. Miller, 102 A.3d 988 (Pa.Super. 2014). As the PCRA
court observed, there is no dispute that appellant filed his petition outside
the PCRA’s one-year jurisdictional time limitation. (Rule 907 Notice, 2/11/16
at 4 n.2.) Appellant relies on the after-recognized constitutional right
exception to the one-year time bar enumerated at 42 Pa.C.S.A.
§ 9545(b)(1)(iii). Recently, however, our supreme court decided that
Alleyne does not apply retroactively to collateral attacks on mandatory
minimum sentences advanced in post-conviction relief proceedings.
Commonwealth v. Washington, A.3d , 2016 WL 3909088 (Pa.
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July 19, 2016).3 Alleyne was not a groundbreaking, “watershed” rule of
criminal procedure that applies retroactively on collateral review. Id.; see
Teague v. Lane, 489 U.S. 288 (1989) (plurality) (a new constitutional rule
of criminal procedure does not generally apply to convictions that were final
when the new rule was announced). Therefore, appellant is not entitled to
the benefit of Alleyne.4
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/23/2016
3
Furthermore, appellant did not file his petition within 60 days of Alleyne or
this court’s decision in Newman, invalidating Section 9712.1. (907 Notice,
2/11/16 at 6 n.2.) See 42 Pa.C.S.A. § 9545(b)(2) (a petition invoking one
of the statutory exceptions must be filed within 60 days of the date the claim
could have been presented); Commonwealth v. Brandon, 51 A.3d 231,
235 (Pa.Super. 2012) (“[T]he sixty-day period begins to run upon the date
of the underlying judicial decision.”), quoting Commonwealth v. Boyd, 923
A.2d 513, 517 (Pa.Super. 2007).
4
Apparently, on August 20, 2015, appellant was found to be in violation of
his probation and was resentenced. (Commonwealth’s brief at 31.)
However, this did not “reset the clock” for PCRA purposes. See
Commonwealth v. Fowler, 930 A.2d 586, 592 (Pa.Super. 2007), appeal
denied, 944 A.2d 756 (Pa. 2008) (“Therefore, the time for seeking PCRA
relief following . . . the imposition of a new sentence runs for one year from
the conclusion of direct review of that new sentencing order, but only as to
the issues of the validity of the revocation proceedings and the
legality of the new sentence.”), quoting Commonwealth v. Anderson,
788 A.2d 1019, 1022 (Pa.Super. 2001) (emphasis in original). Here,
appellant is challenging the legality of the initial sentence.
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