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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
ANDRE MURRAY :
:
Appellant : No. 2240 EDA 2017
Appeal from the Order Entered May 19, 2017
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0011666-2008
BEFORE: OTT, J., McLAUGHLIN, J., and STEVENS, P.J.E.
MEMORANDUM BY OTT, J.: FILED AUGUST 06, 2018
Andre Murray appeals, pro se, from the order entered May 19, 2017,
dismissing his petition for writ of habeas corpus, which the trial court
construed to be an untimely PCRA1 petition. Murray seeks relief from the
judgment of sentence of 20 to 40 years’ imprisonment imposed on February
17, 2010, following his jury conviction of attempted murder, aggravated
assault, criminal conspiracy, and possession of an instrument of crime
(“PIC”).2 On appeal, Murray contends his sentence is illegal because it was
based upon an unconstitutional mandatory minimum statute, and he has a
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Former Justice specially assigned to the Superior Court.
1 Post Conviction Relief Act, 42 Pa.C.S. §§ 9541-9546.
2 See 18 Pa.C.S. §§ 903/2502(a), 2701(a), 903(a), and 907(a), respectively.
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“valid claim of being innocent of the sentence imposed upon him.” Murray’s
Brief at 3. For the reasons below, we affirm.
The facts underlying Murray’s conviction are well known to the parties
and we need not reiterate them herein. In summary, after Murray was
convicted of the above-stated charges, the trial court sentenced him on
February 17, 2010, to a term of 20 to 40 years’ imprisonment for the charge
of attempted murder, and a concurrent term of one to two years’
imprisonment for the charge of PIC. Murray’s judgment of sentence was
affirmed by this Court on November 12, 2011, and the Pennsylvania Supreme
Court subsequently denied his petition for appeal. See Commonwealth v.
Murray, 38 A.3d 926 (Pa. Super. 2011) (unpublished memorandum), appeal
denied, ___ A.3d ___ (73 EAL 2012) (Pa. 2012).
Murray filed a timely PCRA petition on July 26, 2013, which the PCRA
court later dismissed. A panel of this Court affirmed the dismissal order on
November 14, 2015, and, once again, the Supreme Court denied review. See
Commonwealth v. Murray, 134 A.3d 479 (Pa. Super. 2015) (unpublished
memorandum), appeal denied, 141 A.3d 479 (Pa. 2016). Murray then filed a
second PCRA petition challenging the legality of his sentence under Alleyne
v. United States, 570 U.S. 99 (2013).3 The PCRA court dismissed the
petition as untimely filed.
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3 In Alleyne, the United States Supreme Court held “[a]ny fact that, by law,
increases the penalty for a crime is an ‘element’ that must be submitted to
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Thereafter, on March 27, 2017, Murray filed the instant request for
relief, which he styled as a petition for writ of habeas corpus. On April 12,
2017, the trial court issued notice of its intent to dismiss the petition as an
untimely filed PCRA. Although Murray filed a pro se response, the court
ultimately dismissed the petition on May 19, 2017. This timely appeal
followed.4
“In reviewing the denial of PCRA relief, we examine whether the PCRA
court’s determination is supported by the record and free of legal error.”
Commonwealth v. Mitchell, 141 A.3d 1277, 1283–1284 (Pa. 2016)
(internal punctuation and citation omitted).
Upon our review of Murray’s pro se brief, it is unclear whether he
disputes the court’s determination that his petition for habeas corpus relief
should be construed as a PCRA petition. Nevertheless, we find the court’s
decision was proper. It is well-settled the PCRA is “the sole means of obtaining
collateral relief,”5 and “if the underlying substantive claim is one that could
potentially be remedied under the PCRA, that claim is exclusive to the PCRA.”
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the jury and found beyond a reasonable doubt.” Alleyne, supra, 570 U.S. at
103. In interpreting that decision, the courts of this Commonwealth have
determined that most of our mandatory minimum sentencing statutes are
unconstitutional. See Commonwealth v. Hopkins, 117 A.3d 247, 262 (Pa.
2015); Commonwealth v. Newman, 99 A.3d 86, 98 (Pa. Super. (Pa. Super.
2014) (en banc), appeal denied, 121 A.3d 496 (Pa. 2015).
4 The trial court did not direct Murray to file a concise statement of errors
complained of on appeal pursuant to Pa.R.A.P. 1925(b).
5 42 Pa.C.S. § 9542.
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Commonwealth v. Pagan, 864 A.2d 1231, 1233 (Pa. Super. 2004), cert.
denied, 546 U.S. 909 (2005) (emphasis in original). Moreover, “[i]ssues that
are cognizable under the PCRA must be raised in a timely PCRA petition and
cannot be raised in a habeas corpus petition.” Commonwealth v. Taylor,
65 A.3d 462, 466 (Pa. Super. 2013).
Here, Murray challenges the legality of his sentence under Alleyne.
Such a claim is cognizable under the PCRA. See Commonwealth v.
DiMatteo, 177 A.3d 182, 192 (Pa. 2018) (holding challenge to mandatory
minimum sentence under Alleyne is an illegal sentencing claim cognizable
under the PCRA). Accordingly, the trial court correctly construed Murray’s
request for relief to be a PCRA petition, and, thus, subject to the PCRA’s timing
requirements. Moreover, the court found Murray’s petition was untimely filed,
and his claim was previously litigated:
[Murray] has already filed a PCRA petition raising exactly the same
ground for relief. That petition, which was filed on August 30,
2016, was dismissed by the Court on the ground that it was
untimely filed. Because the instant Petition was not filed until
March 27, 2017, approximately seven months later, it is a fortiori
untimely as well.
Trial Court Order, 4/12/2017, at 1-2. We agree. Murray failed to plead or
prove the applicability of any of the time for filing exceptions. See 42 Pa.C.S.
§ 9454(b).
It appears Murray’s argument on appeal is simply that because the
mandatory minimum statute under which he was sentenced has been declared
unconstitutional, his sentence is null and void, despite any procedural
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challenges. See Murray’s Brief at 1-2. Further, he insists that if he were
compelled to “continue to serve an illegal sentence that is patent and obvious
on the face of the court record, [it] would be a fundamental miscarriage of
justice[.]” Id. at 3.
However, it is axiomatic that all claims, including those implicating the
legality of a sentence or asserting a miscarriage of justice, “must still first
satisfy the PCRA’s time limits or one of the exceptions thereto.”
Commonwealth v. Fahy, 737 A.2d 214, 223 (Pa. 1999). Particularly with
respect to Alleyne claims, our Supreme Court has held that relief is available
under the PCRA only if the petitioner’s judgment of sentence was not final at
the time Alleyne was decided and the petitioner presented his claim in a
timely PCRA petition. See DiMatteo, supra, 171 A.3d at 192. Murray meets
neither criteria, and, consequently, is entitled to no relief.6
Order affirmed.
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6We note, too, that our review of the record reveals Murray was not sentenced
pursuant to any of our now unconstitutional mandatory minimum statutes.
See N.T., 2/17/2010 at 28; Court Commitment Order, 2/17/2010. Rather,
the court imposed a standard range guideline sentence, which was increased
pursuant to the deadly weapon enhancement, a statutory scheme that does
not implicate Alleyne. See Commonwealth v. Shull, 148 A.3d 820, 830
n.6 (Pa. Super. 2016).
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/6/18
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