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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
HUNG QUANG PHAM
Appellant No. 355 MDA 2016
Appeal from the PCRA Order Entered January 15, 2016
In the Court of Common Pleas of Cumberland County
Criminal Division at No: CP-21-CR-0001546-2012
BEFORE: LAZARUS, STABILE, and RANSOM, JJ.
JUDGMENT ORDER BY STABILE, J.: FILED JANUARY 13, 2017
Appellant, Hung Quang Pham, appeals from the January 15, 2016
order denying Appellant’s petition pursuant to the Post Conviction Relief Act
(“PCRA”), 42 Pa.C.S.A. §§ 9541-46. We affirm.
On August 1, 2012, the Commonwealth filed a criminal information
charging Appellant with, among other things, possession with intent to
deliver (“PWID”) a controlled substance and theft of services.1 On December
19, 2012, Appellant pleaded guilty to those offenses. The trial court
imposed the parties’ agreed-upon sentence of five years of incarceration—
the mandatory minimum—and a $15,000 fine for PWID. For theft of
services, the trial court imposed a consecutive one to three years of
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1
35 P.S. § 780-113(a)(30), 18 Pa.C.S.A. § 3926.
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incarceration and $100,000 in restitution. Appellant did not file a direct
appeal, and therefore his judgment of sentence became final on January 18,
2013, when the thirty-day deadline for filing an appeal expired (see
Pa.R.A.P. 903(a)). Appellant filed the instant PCRA petition, his first, on
September 17, 2015.
The PCRA requires a petitioner to file his or her petition within one
year of the date of finality of the petitioner’s judgment of sentence. 42
Pa.C.S.A. § 9545(a). A petitioner who misses that deadline, as Appellant did
in this case, must plead and prove the applicability of one of the timeliness
exceptions set forth in § 9545(b)(1). Section 9545(b)(1)(iii) permits an
untimely petition if it is based on a newly recognized constitutional right.
Appellant alleges his petition is timely under § 9545(b)(1)(iii) and Alleyne
v. United States, 133 S. Ct. 2151 (2013), in which the United States
Supreme Court held that any fact, other than a prior conviction, triggering a
mandatory minimum must be proven to a jury beyond a reasonable doubt.
In Commonwealth v. Washington, 142 A.3d 810, 820 (Pa. 2016), the
Pennsylvania Supreme Court held that Alleyne does not apply retroactively
to cases pending on collateral review. Appellant’s judgment of sentence was
final before Alleyne, and he sought collateral relief more than two years
afterward. Appellant’s petition is untimely, and the PCRA court correctly
denied relief.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/13/2017
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