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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
BRYAN MILLER :
:
Appellant : No. 3215 EDA 2017
Appeal from the PCRA Order, September 14, 2017,
in the Court of Common Pleas of Philadelphia County,
Criminal Division at No(s): CP-51-CR-0605031-2006.
BEFORE: BOWES, J., SHOGAN, J., and KUNSELMAN, J.
MEMORANDUM BY KUNSELMAN, J.: FILED OCTOBER 10, 2018
Bryan Miller appeals from the order denying his first petition for relief
pursuant to the Post Conviction Relief Act (“PCRA”). 42 Pa.C.S.A. §§ 9541-
9546. We affirm.
The pertinent facts and procedural history are as follows: On May 29,
2009, Miller entered a nolo contendere plea to one count of possession of a
controlled substance (cocaine) with intent to deliver. That same day, the
parties stipulated that the weight of the drug was 61 grams. Pursuant to 18
Pa.C.S.A. § 7508(a)(3)(i), the trial court imposed a mandatory term of five to
ten years of imprisonment. Miller did not file a direct appeal.
On March 4, 2010, Miller filed a pro se PCRA petition. The PCRA court
appointed counsel, who subsequently filed an amended petition on May 9,
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2012. No action was taken on the amended petition for the next five years.1
On June 13, 2017, new counsel for Miller filed a second amended petition,
without leave of court, in which he alleged that the trial court sentenced Miller
to a mandatory minimum sentence in violation of Alleyne v. United States,
570 U.S. 99 (2013). On July 25, 2017, the PCRA court issued Pa.R.Crim.P.
907 notice of its intent to dismiss Miller’s PCRA petition without a hearing.
Miller did not file a response. By order entered September 14, 2017, the PCRA
court denied Miller’s petition. This appeal follows. Both Miller and the PCRA
court have complied with Pa.R.A.P. 1925.
Miller raises the following issue:
1. Was counsel ineffective for failing to raise the issue of
[Miller’s] being subject to an illegal mandatory minimum
sentence?
Milller’s Brief at 3.
Our scope and standard of review is well settled:
In PCRA appeals, our scope of review is limited to the
findings of the PCRA court and the evidence on the record
of the PCRA court's hearing, viewed in the light most
favorable to the prevailing party. Because most PCRA
appeals involve questions of fact and law, we employ a
mixed standard of review. We defer to the PCRA court's
factual findings and credibility determinations supported by
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1The certified record does not reveal clearly the reasons for this lengthy delay,
although several requests for continuance were filed by defense counsel, and
counsel had changed more than once. See PCRA Court Opinion, 2/7/18, at
2-3.
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the record. In contrast, we review the PCRA court's legal
conclusions de novo.
Commonwealth v. Reyes-Rodriguez, 111 A.3d 775, 779 (Pa. Super. 2015)
(en banc) (citations omitted).
Miller raises a claim of ineffective assistance of counsel. To obtain relief
under the PCRA premised on a claim that counsel was ineffective, a petitioner
must establish, by a preponderance of the evidence, that counsel's
ineffectiveness so undermined the truth-determining process that no reliable
adjudication of guilt or innocence could have taken place. Commonwealth
v. Johnson, 966 A.2d 523, 532 (Pa. 2009). “Generally, counsel’s
performance is presumed to be constitutionally adequate, and counsel will
only be deemed ineffective upon a sufficient showing by the petitioner.” Id.
This requires the petitioner to demonstrate that: (1) the underlying claim is
of arguable merit; (2) counsel had no reasonable strategic basis for his or her
action or inaction; and (3) counsel’s act or omission prejudiced the petitioner.
Id. at 533.
As to the first prong, “[a] claim has arguable merit where the factual
averments, if accurate, could establish cause for relief.” Commonwealth v.
Stewart, 84 A.3d 701, 707 (Pa. Super. 2013) (en banc). “Whether the facts
rise to the level of arguable merit is a legal determination.’” Id. (citing
Commonwealth v. Saranchak, 866 A.2d 292, 304 n.14 (Pa. 2005).
Miller claims that trial “counsel failed to raise the illegal sentence issue
on direct appeal. This was ineffective.” Miller’s Brief at 16. Additionally, he
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is “challenging counsel’s ineffectiveness rather than the illegal sentence itself.”
Id. According to Miller, “[t]he Apprendi/Alleyne principles had been
announced by the U.S. Supreme Court prior to the judgment of sentence in
this matter.” Id. Thus, Miller claims that he is “entitled to a determination
as to whether counsel was ineffective for failure to pursue the issue at trial
and on direct appeal.” Id.
The PCRA court found no merit to Miller’s claim. It concluded that it
“was perfectly justified in dismissing the claim without a hearing because it
was patently clear from a glance at the record that the underlying claim [of
ineffectiveness] lacked merit.” PCRA Court Opinion, 2/20/18, at 2. The PCRA
court recognized that, essentially, Miller’s argument “was that [Miller’s] trial
counsel should have objected to or moved to have his sentence vacated and
to be resentenced because the court sentenced him pursuant to a mandatory
sentencing statute which counsel should have anticipated would be deemed
to be rendered unconstitutional pursuant to the decisions in Apprendi v. New
Jersey, [530 U.S. 466 (2000)], Alleyne v. United States, [570 U.S. 1
(2013)], and Commonwealth v. Hopkins, 632 Pa. 36, 117 A.2d 247
(2015).” PCRA Court Opinion, 2/20/18, at 2. The PCRA court then discussed
these decisions, and concluded that, even though Section 7508 had
subsequently been declared unconstitutional, Miller is not entitled to relief,
because his illegal sentence claim was first presented “long after his judgment
of sentence became final.” Id. at 7.
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The PCRA court further concluded that Miller’s argument “that trial
counsel should have drawn the conclusion himself that the statute was
unconstitutional fails,” because trial counsel cannot be deemed to have
rendered ineffective assistance for failing to anticipate a change in the law.
See PCRA Court Opinion, 2/20/18, at 12 (citing Commonwealth v.
Santiago, 855 A.2d 682 (Pa. 2004)).
Finally, the PCRA court cited our Supreme Court’s decision in
Commonwealth v. Washington, 142 A.2d 810, 812 (Pa. 2016), for the
proposition that “a new rule of law does not automatically render final, pre-
existing sentences illegal.” As noted by the PCRA court, our Supreme Court
in Washington conducted a retroactivity analysis, and then held that
“Alleyne does not apply retroactively to cases pending on collateral review,
and that [Washington’s] judgment of sentence, therefore, is not illegal on
account of Alleyne.” Id.
Here, the PCRA court concluded that Miller “commenced the proceeding
timely, but he didn’t raise an illegal sentencing issue. His counsel sua sponte
inserted it just shy of eight years after his judgment [of sentence] became
final.” PCRA Court Opinion, 2/20/18, at 9. Our review of the record reveals
that the PCRA court has correctly outlined the relevant case law and properly
concluded that Miller’s sentence was not rendered illegal by
Apprendi/Alleyne.
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Miller argues that his case is similar to our Supreme Court’s more recent
decision in Commonwealth v. DiMatteo, 177 A.3d 182 (Pa. 2018). He is
mistaken. In DiMatteo, our Supreme Court clarified that Alleyne applies
only to cases where the judgment of sentence was final prior to the Alleyne
decision. DiMatteo, 177 A.3d at 192. In DiMatteo, the trial court denied
DiMatteo’s post-sentence motion only five days before the Alleyne decision.
Thus, on appeal our Supreme Court held that “[b]ecause DiMatteo’s sentence
was rendered illegal before his judgment of sentence became final and
he presented his claim in a timely petition for post conviction relief, he is
entitled to have his illegal sentence remedied.” Id. (emphasis added).
Although Miller’s timely PCRA petition was still pending when the United
States Supreme Court decided Alleyne in 2013, Miller’s judgment of sentence
became final in 2009, approximately four years before the Alleyne decision.
See Commonwealth v. Ciccone, 152 A.2d 1004 (Pa. Super. 2016) (en banc)
(rejecting a similar illegal sentence claim when Ciccone’s judgment of
sentence became final before Alleyne was decided). Thus, Miller’s illegal
sentence claim is controlled by Washington, supra, and, his derivative
ineffective assistance of counsel claim fails.2 See Commonwealth v. Loner,
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2 To the extent Miller claims trial counsel should have relied on Apprendi,
supra, to raise the illegal sentence claim, we note that Apprendi has never
been held to apply retroactively. See Washington, 142 A.3d at 814, 815
n.5; see also Ciccone, supra.
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836 A.2d 125, 132 (Pa. Super. 2003) (en banc) (holding counsel cannot be
deemed ineffective for failing to pursue a meritless claim).
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/10/18
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