J-S94010-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
HIEP VAN DIEU
Appellant No. 868 MDA 2016
Appeal from the PCRA Order April 28, 2016
In the Court of Common Pleas of Cumberland County
Criminal Division at No(s): CP-21-CR-0001550-2012
BEFORE: LAZARUS, J., RANSOM, J., and FITZGERALD, J.*
JUDGMENT ORDER BY LAZARUS, J.: FILED JANUARY 20, 2017
Hiep Van Dieu appeals from the order entered in the Court of Common
Pleas of Cumberland County, dismissing his petition filed pursuant to the
Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. We affirm
on the basis of the opinion authored by the Honorable Albert H. Masland.
On December 12, 2012, Dieu entered a negotiated plea of guilty to
one count each of possession with intent to deliver (“PWID”) and theft of
services. The charges stemmed from a large-scale marijuana growing
operation Dieu ran with his co-defendant, Hung Pham. Dieu received an
agreed-upon mandatory minimum sentence of five years’ imprisonment for
PWID and an agreed-upon consecutive sentence of one to three years’
____________________________________________
*
Former Justice specially assigned to the Superior Court.
J-S94010-16
imprisonment, plus restitution, for theft of services. Dieu did not appeal his
judgment of sentence. On July 18, 2014, Dieu filed his first pro se PCRA
petition, which was dismissed as untimely. This Court affirmed the denial of
relief. Dieu filed a second PCRA petition, which was also dismissed. His
appeal of that order was ultimately withdrawn.
The instant petition, Dieu’s third, was filed on February 29, 2016. By
order dated April 28, 2016, the PCRA court dismissed the petition as
untimely. This appeal follows, in which Dieu asserts that he is entitled to
relief under the U.S. Supreme Court’s decision in Alleyne v. U.S., 133 S.Ct.
2151 (2013). Dieu claims that, pursuant to Montgomery v. Louisiana,
136 S.Ct. 758 (2016), the holding of Alleyne is retroactively applicable to
cases on collateral review.
We have reviewed the briefs, the record, and the applicable law and
conclude that Judge Masland’s well-written opinion thoroughly,
comprehensively, and correctly disposes of the Dieu’s appellate claims.
Specifically, we concur with the PCRA court that, under our Supreme Court’s
decision in Commonwealth v. Washington, 142 A.3d 810 (Pa. 2016),
Alleyne does not apply to cases pending on collateral review and, as such,
Dieu is entitled to no relief. Accordingly, we affirm based on Judge
Masland’s opinion and instruct the parties to attach a copy of that opinion in
the event of further proceedings in this matter.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/20/2017
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Circulated 12/30/2016 01:38 PM
COMMONWEAL TH IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
v.
HIEP V. DIEU CP-21-CR-1550-2012
IN RE: OPINION PURSUANT TO PENNSYLVANIA RULE
OF APPELLATE PROCEDURE 1925
Masland, J., September 9, 2016:--
Petitioner, Hiep V. Dieu, appeals this court's order dismissing his third Post
Conviction Relief Act (PCRA) petition after Petitioner failed to respond to our proposed
dismissal order entered on April 6, 2016. The court ordered Petitioner to file a concise
statement of errors as prescribed by Pa.R.A.P. 1925(b) and the court now files this
opinion pursuant to Pa.R.A.P. 1925(a). For the following reasons, the Superior Court
should deny Petitioner's appeal and affirm this court's order.
Background
Petitioner entered into a negotiated guilty plea to one count of possession with
intent to deliver and one count of theft of services arising from his large-scale marijuana
grow operation and the related illegal electricity connection used to power the operation.
On the first count, he received an agreed upon mandatory minimum sentence of five
years of incarceration in a state correctional institution and a $15,000 fine; on the
second, he received an agreed upon consecutive sentence of one to three years of
incarceration in a state correctional institution and restitution to PP&L, the power
company, in the amount of $100,000, owed jointly and severally with his co-defendant,
Hung Pham.1
1
In re: Guilty Pleas and Sentencing Proceedings, December 19, 2012 at 6.
CP-21-CR-1550-2012
Petitioner did not appeal the judgment of sentence. Instead, on July 18, 2014, he
filed his first prose PCRA petition arguing that he was illegally sentenced to a
mandatory minimum sentence in violation of the relatively recent Supreme Court of the
United States decision in Alleyne v. United States, 133 S.Ct. 2151 (2013). As a result,
the court appointed counsel, Jacob M. Jividen, Esquire, to represent Petitioner. After
reviewing Petitioner's claims, counsel petitioned to withdraw his representation and filed
a contemporaneous "No-Merit" letter pursuant to Commonwealth v. Finley, 550 A.2d
213 (Pa. Super. 1988) and Commonwealth v. Turner, 544 A.2d 927 (Pa. Super. 1988).
The court reviewed counsel's letter and, finding it persuasive, granted the petition
to withdraw and served notice on the Petitioner of the court's intention to dismiss the
PCRA without a hearing.2 Petitioner filed a prose response to the order trying to rebut
the arguments detailed in counsel's "No-Merit" letter. The court was not persuaded and
entered an order dismissing the PCRA petition as untimely. Petitioner appealed this
order. The Superior Court reviewed Petitioner's original appeal and affirmed this court's
decision on September 25, 2015.3
While his initial appeal was pending, Petitioner filed a second prose PCRA
petition on July 28, 2015. The court appointed counsel, Nathan Wolf, Esquire, to
represent Petitioner in this matter. On October 7, 2015, counsel Stacy Wolf, Esquire,
petitioned to withdraw her firm's representation of Petitioner and filed a "No-Merit" letter
pursuant to the Finley and Turner decisions. The court reviewed counsel's letter,
granted counsel's petition to withdraw, and notified Petitioner of the court's intention to
2
Order of Court, October 29, 2014.
3
Commonwealth v. oteu, 2015 Pa. Super. Unpub. LEXIS 3494.
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CP-21-CR-1550-2012
dismiss his second PCRA petition.4 Petitioner was given twenty days to respond to this
notice and, following his failure to do so, the court dismissed Petitioner's second PCRA
petition.5 Petitioner filed an appeal of this decision; however he ultimately withdrew and
discontinued this appeal on February 17, 2016.
Petitioner almost immediately filed a third PCRA petition on February 29, 2016.
On March 7, 2016 the court ordered the Commonwealth to file an answer to this
petition.6 The Commonwealth filed its answer on March 31, 2016. After reviewing
Petitioner's third petition and the answer of the Commonwealth, the court found the
petition to be untimely, frivolous, and devoid of merit, gave Petitioner notice of the
court's intention to dismiss his petition, and granted him twenty days to respond to our
proposed dlsmissal," Petitioner failed to respond and the court dismissed his third
PCRA petition.8 This appeal followed.
Discussion
Generally, a PCRA petition must be filed within one year of the date the judgment
of sentence becomes final. 42 Pa. C.S. §9545(b). This time limitation is subject to
three exceptions. The petitioner must allege and prove one of the following:
(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
4
Order of Court, October 12, 2015.
5
Order of Court, November 3, 2015
6
Order of Court, March 7, 2016.
1
Order of Court, April 6, 2016.
8
Order of Court, April 28, 2016.
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CP-21-CR-1550-2012
(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) (emphasis added).
A petition invoking any of these exceptions to the one year limitation must be
filed within sixty days of the date that the claim could have been presented. 42 Pa.C.S.
§ 9545(b)(2). It is well settled that PCRA time restrictions are jurisdictional in nature
and bar the court's power to adjudicate controversies or extend filing periods.
· Commonwealth v. Robinson, 139 A.3d 178, 185 (Pa. 2016).
Petitioner's conviction became final on January 18, 2013, giving him until
January 18, 2014 to file a PCRA petition. He failed to do so. Instead, he filed his first
PCRA petition on July 18, 2014 arguing that his sentence was rendered illegal by the
Alleyne decision. The Supreme Court decision in Alleyne was handed down on June
17, 2013, giving Petitioner until August 13, 2013 to file his PCRA petition. As such, this
PCRA petition was filed almost a year too late and our denial of his original, untimely,
PCRA petition was affirmed on appeal. The instant petition was filed on February 29,
2016, over two years after Petitioner's initial PCRA time bar and two and a half years
after the allowable period to file a PCRA petition following Alleyne.
In this, his third PCRA petition, Petitioner attempts to overcome this timeliness
issue by claiming that the recent Supreme Court case of Montgomery v. Louisiana, 136
S. Ct. 718, (2016) (addressing mandatory life imprisonment without parole for juvenile
offenders) applies to his petition and falls under 42 Pa.C.S. § 9545(b)(1)(iii). He claims
that the holding in Montgomery demonstrates that Alleyne created a new and
retroactive constitutional right. As Montgomery was decided on January 25, 2016
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CP-21-CR-1550-2012
Petitioner had until March 25, 2016 to file a PCRA petition if Montgomery recognized an
applicable constitutional right. Unfortunately for Petitioner, Montgomery does not
address the holding in Alleyne and does not grant him additional time to file another
PCRA petition.
In Montgomery the Court held that "when a new substantive rule of constitutional
law controls the outcome of a case, the Constitution requires state collateral review
courts to give retroactive effect to that rule." Montgomery v. Louisiana, 136 S. Ct. 718,
729 (2016) (emphasis added). It "is undisputed'' that there is required "retroactive
application of new substantive and watershed procedural rules." Id. at 728. However,
our Supreme Court has most recently specifically reaffirmed that Alleyne does not apply
retroactively to cases pending on collateral review. Commonwealth v. Washington, No.
37 EAP 2015, 2016 Pa. LEXIS 1536, at *23 (July 19, 2016). The rule announced by
Alleyne is procedural, not substantive, and it is not a "watershed rule" of criminal
procedure that would require retroactive application. United States v. Reyes, 755 F.3d
210, 212 (3d Cir. Pa. 2014); Commonwealth v. Riggle, 119 A.3d 1058, 1067 (Pa. Super.
2015). The Third Circuit has also clearly held, "Alleyne does not provide [the Petitioner]
with any basis for relief because the Supreme Court has not chosen to apply Alleyne's
new rule retroactively to cases on collateral review." Reyes, 755 F.3d at 213 (emphasis
added).
The holding in Montgomery does not apply to the sentencing issues in Alleyne
and as 42 Pa.C.S. § 9545(b)(1)(iii) is inapplicable in the instant case, this court had no
jurisdiction to address this petition. As Petitioner has again failed to satisfy the
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CP-21-CR-1550-2012
requirements of 42 Pa.C.S. § 9545(b), this court did not err in dismissing his third
untimely PCRA petition without a hearing.
For these reasons, this court's order dismissing the PCRA petition should be
affirmed by the Superior Court.
By the Court,
//~~~
Albert H. Masland, J.
Matthew P. Smith, Esquire
Office of the District Attorney
Hiep V. Dieu, KW6880
SCI Benner Township
301 Institution Drive
Bellefonte, PA 16823
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