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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
HAMIN AZEEZ GRAY,
Appellant No. 1998 WDA 2015
Appeal from the PCRA Order of November 16, 2015
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0011686-2006
BEFORE: LAZARUS, OLSON AND PLATT,* JJ.
MEMORANDUM BY OLSON, J.: FILED OCTOBER 17, 2016
Appellant, Hamin Azeez Gray, appeals from the order entered on
November 16, 2015, dismissing his first petition filed pursuant to the Post
Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. We affirm.
We briefly summarize the facts and procedural history of this case as
follows. On October 17, 2007, following a bench trial, the trial court found
Appellant guilty of two counts of possession with intent to deliver (PWID),
two counts of possession of a controlled substance, receiving stolen
property, persons not to possess a firearm, and possession of a firearm with
an altered manufacturer’s number.1 On January 15, 2008, the trial court
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1
35 P.S. §§ 780-113(a)(30) and 780-115(a)(second or subsequent offense),
35 P.S. § 780-113(a)(16), 18 Pa.C.S.A. §§ 3925, 6105, and 6110.2,
respectively.
*Retired Senior Judge assigned to the Superior Court.
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sentenced Appellant to a mandatory minimum sentence of five to ten years
of imprisonment pursuant to 42 Pa.C.S.A. § 9712.1 (sentences for certain
drug offenses committed with firearms), plus a consecutive term of five
years’ probation. On June 9, 2009, this Court affirmed Appellant’s judgment
of sentence. Commonwealth v. Gray, 981 A.2d 312 (Pa. Super. 2009)
(unpublished memorandum). On October 15, 2009, our Supreme Court
denied further review. Commonwealth v. Gray, 982 A.2d 64 (Pa. 2009).
On November 3, 2014, Appellant filed a pro se PCRA petition. On
November 14, 2014, the PCRA court appointed counsel to represent
Appellant. PCRA counsel filed an amended PCRA petition on January 29,
2015. The PCRA court held an evidentiary hearing on June 23, 2015. By
order entered on November 16, 2015, the PCRA court denied Appellant
relief. This timely appeal resulted.2 On appeal, Appellant presents the
following issues for our review:
I. Did the [PCRA] court err or abuse its discretion in
dismissing the PCRA matter involving an unconstitutional
and illegal, mandatory sentence imposed on Appellant,
because Appellant is entitled to relief in the form of a new
sentencing hearing not utilizing the mandatory minimums
held to be illegal?
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2
Appellant filed a notice of appeal on December 16, 2015. Upon review of
the record, it does not appear that the PCRA court entered an order directing
Appellant to file a concise statement of errors complained of on appeal
pursuant to Pa.R.A.P. 1925(b). Regardless, Appellant filed a Rule 1925(b)
concise statement on March 24, 2016. The PCRA court filed an opinion
pursuant to Pa.R.A.P. 1925(a) on April 7, 2016.
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II. Did the [PCRA] court err or abuse its discretion in
dismissing the PCRA matter involving an illegal and
mandatory sentence imposed on Appellant, because the
rulings in Alleyne v. United States, 133 S. Ct. 2151
(2013), Commonwealth v. Newman, 99 A.3d 801 (Pa.
Super. 2014), and Commonwealth v. Ferguson, 107 A.3d
206 (Pa. Super. 2015) constitute a substantive “watershed
rule of criminal procedure implicating the fundamental
fairness and accuracy of the criminal proceeding,” requiring
a retroactive application of [Appellant’s] PCRA claim?
Appellant’s Brief at 4.
Appellant’s claims are inter-related, so we will examine them together.
Appellant claims the PCRA court erred by dismissing his PCRA petition
because he received a statutory mandatory minimum sentence and the
United States Supreme Court decision in Alleyne v. United States, 133 S.
Ct. 2151 (2013) entitled him to a new sentencing hearing. Id. at 9.
Appellant asserts the PCRA court had jurisdiction to entertain his untimely
petition and to examine the merits of his claims because they “involved the
legality of Appellant’s sentence and [] claim[s] involving the legality of a
sentence cannot be waived.” Id. at 10. In the alternative, Appellant
argues, “the holding in Alleyne is a watershed rule and as such must be
applied retroactively.” Id. at 11.
We have determined:
Our standard of review of a PCRA court's dismissal of a
PCRA petition is limited to examining whether the PCRA
court's determination is supported by the record evidence
and free of legal error. Commonwealth v. Wilson, 824
A.2d 331, 333 (Pa. Super. 2003) (en banc). Before
addressing the merits of Appellant's claims, we must first
determine whether we have jurisdiction to entertain the
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underlying PCRA petition. See Commonwealth v.
Hackett, 956 A.2d 978, 983 (Pa. 2008) (explaining that the
timeliness of a PCRA petition is a jurisdictional requisite).
The most recent amendments to the PCRA, effective
January 19, 1996, provide that a PCRA petition, including a
second or subsequent petition, shall be filed within one year
of the date the underlying judgment becomes final. 42
Pa.C.S.A. § 9545(b)(1). A judgment is deemed 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 the time for
seeking review.” 42 Pa.C.S.A. § 9545(b)(3).
Commonwealth v. Whitehawk, 2016 WL 4473779, at *2 (Pa. Super.
2016).
Here, our Supreme Court denied review of Appellant’s judgment of
sentence on October 15, 2009. Thus, Appellant’s judgment of sentence
became final 90 days later, at the expiration of the time for review with the
United States Supreme Court, on January 13, 2010. See U.S. Sup.Ct. Rule
13. Appellant’s PCRA petition filed almost five years later on November 3,
2014 was, therefore, patently untimely under the PCRA.
Appellant asserts, however, that his claim implicates the legality of
sentence and cannot be waived. However, we recently reiterated:
As long as this Court has jurisdiction over a matter, a
legality of sentencing issue is reviewable and cannot be
waived. Commonwealth v. Jones, 932 A.2d 179, 182 (Pa.
Super. 2007). However, a legality of sentencing issue must
be raised in a timely filed PCRA petition. See 42 Pa.C.S.A.
§ 9545(b)(2); Commonwealth v. Fahy, 737 A.2d 214,
223 (Pa. 1999) (holding that “[a]lthough a legality of
sentence is always subject to review within the PCRA,
claims must still first satisfy the PCRA's time limits or one of
the exceptions thereto”). Thus, an appellant must present
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an illegal sentencing claim in a timely PCRA petition over
which this Court has jurisdiction. See Fahy supra, and
Commonwealth v. Miller, 102 A.3d 988, 994 (Pa. Super.
2014) (observing Alleyne does not invalidate a mandatory
minimum sentence challenged in an untimely PCRA
petition).
Whitehawk, supra at *3.
There are very limited exceptions under which the late filing of a
petition will be excused. 42 Pa.C.S.A. § 9545(b)(1). In his PCRA petition,
Appellant asserted “a constitutional right that was recognized by the
Supreme Court of Pennsylvania […] and has been held by that court to apply
retroactively.” PCRA Petition, 11/3/2014, at 3, citing 42 Pa.C.S.A.
§ 9545(b)(1)(iii). However, we recently stated
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,
and 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
the Pennsylvania 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, 42 A.3d 1059 (Pa. 2012). To the contrary, our
Supreme Court recently filed an opinion in Commonwealth
v. Washington, ––– A.3d ––––, 2016 WL 3909088 (Pa.
July 19, 2016) wherein it addressed the retroactive effect of
Alleyne and held “that Alleyne [v. United States, –––
U.S. ––––, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013),] does
not apply retroactively to cases pending on collateral
review. ...” Id. at *8.
Whitehawk, supra at *4.
Based upon all of the foregoing, Appellant’s PCRA petition was
untimely and not subject to exception. Our Supreme Court has concluded
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Alleyne does not apply retroactively. The PCRA court, therefore, lacked
jurisdiction to entertain Appellant’s claims. As such, we discern no abuse of
discretion or error of law in dismissing Appellant’s PCRA petition.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/17/2016
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