J-S03033-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :         PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    ARNOLD HAIRE,                              :
                                               :
                       Appellant               :      No. 2349 EDA 2017

                    Appeal from the PCRA Order July 5, 2017
              in the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0313402-2003

BEFORE: BENDER, P.J.E., OLSON, J., and MUSMANNO, J.

MEMORANDUM BY MUSMANNO, J.:                             FILED MARCH 15, 2019

       Arnold Haire (“Haire”), pro se, appeals from the Order dismissing his

third Petition for relief filed pursuant to the Post Conviction Relief Act

(“PCRA”). See 42 Pa.C.S.A. §§ 9541-9546. We affirm.

       In August 2003, a jury convicted Haire of, inter alia, robbery,

aggravated assault, and firearms offenses. On October 27, 2003, the trial

court imposed an aggregate sentence of 33½ to 67 years in prison.1 This

Court affirmed the judgment of sentence. See Commonwealth v. Haire,

974 A.2d 1182 (Pa. Super. 2009) (unpublished memorandum).

____________________________________________


1 Relevant to this appeal, because Haire was deemed a “second strike” violent
offender due to his prior criminal record, the trial court imposed mandatory
minimum sentences pursuant to 42 Pa.C.S.A. § 9714(a)(1) (providing that
“[a]ny person who is convicted … of a crime of violence shall, if at the time of
the commission of the current offense the person had previously been
convicted of a crime of violence, be sentenced to a minimum sentence of at
least ten years of total confinement ….”).
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       In the following years, Haire filed two PCRA Petitions, both of which were

dismissed. Haire filed the instant pro se PCRA Petition, his third, on August

9, 2016. Therein, he asserted that his mandatory minimum sentences under

subsection 9714(a)(1) were illegal pursuant to Alleyne v. United States,

570 U.S. 99, 108 (2013) (holding that, under the Sixth Amendment’s right to

a jury trial, facts that increase mandatory minimum sentences must be

submitted to the jury and found beyond a reasonable doubt). In response,

the PCRA court appointed Haire PCRA counsel. PCRA counsel thereafter filed

a Turner/Finley2 “no-merit” letter (and an accompanying Petition to

withdraw as counsel), stating counsel’s opinion that Haire’s claim was time-

barred under the PCRA and failed to meet any of the PCRA’s timeliness

exceptions.

       On May 22, 2017, the PCRA court issued a Pa.R.Crim.P. 907 Notice,

announcing its intent to dismiss Haire’s Petition without a hearing.       Haire

subsequently filed a pro se Response to the Rule 907 Notice, asserting that

his legality claim under Alleyne entitled him to relief.

       By an Order entered on July 5, 2017, the PCRA court dismissed Haire’s

Petition. Haire timely filed a Notice of Appeal. In response, the PCRA court

entered an Order on October 31, 2017, directing Haire to file a Pa.R.A.P.




____________________________________________


2 See Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).

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1925(b) concise statement within 21 days of the Order.            Haire failed to

comply.

       Instead, on December 11, 2017, Haire filed a pro se Motion for Extension

of Time to file a concise statement, asserting that his failure to timely file was

attributable to a serious medical emergency. On December 15, 2017, the trial

court entered an Order granting the Motion for Extension of Time, and

directing Haire to file a concise statement within twenty days of the Order.3

Thirty-four days later, in violation of the Order, Haire filed a Concise

Statement.

       On April 11, 2018, the PCRA court issued a Pa.R.A.P. 1925(a) Opinion.

Therein, the court briefly addressed the merits of Haire’s claims. However,

the court noted that it could find the claims waived for Haire’s (1) failure to

file a timely concise statement; (2) presenting overly vague issues in his

untimely-filed Concise Statement; and (3) failure to previously raise most of

the issues before the PCRA court. See PCRA Court Opinion, 4/11/18, at 4-5.

       On appeal, Haire presents the following issues for our review:

       I.    Did the PCRA court err in dismissing [Haire’s] pro [] se PCRA
             [Petition] under the guise that there was no legal merit to
             the allegations within?

       II.   Was [Haire] pre[]judiced by the PCRA court, when the PCRA
             court failed to hold an evidentiary hearing, based on [Haire’s]
             allegations of layered ineffective assistance of counsel(s)?
____________________________________________


3 Additionally, this Order cautioned that “[a]ny issue not properly included in
the statement timely filed and served shall be deemed waived.” Order,
12/15/17.

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       III. Did the [s]entencing [c]ourt err when it sentenced [Haire] to
            mandatory sentencing, despite such having been declared
            unconstitutional?

       IV. Was [Haire] prejudiced, when the Commonwealth failed to
           file an application for enhanced sentencing, based upon
           [Haire’s] [offense] gravity score?

       V.   We[]re there Constitutional violations that prejudiced [Haire]
            (i.e.[,] Speedy Trial/Rule Pa.R.Crim.P. [] 600, renumbered
            1003), and 6, 8, [and] 14 Amendment violations?

       VI. Was trial/defense counsel ineffective in layered forms (failure
           to meet/prepare/investigate)?

       VII. Did the sentencing court err, when it sentenced [Haire] to
            the mandatory terms of incarceration?

Brief for Appellant at 6-7 (some capitalization and punctuation omitted).

      Preliminarily, we must determine whether Haire properly preserved his

claims for our review. It is well-settled law that when a trial court orders an

appellant to file a Rule 1925(b) concise statement, they must timely comply

to preserve their claims on appeal. See Commonwealth v. Castillo, 888

A.2d 775, 779-80 (Pa. 2005); Commonwealth v. Lord, 719 A.2d 306, 309

(Pa. 1998). An appellant’s failure to comply with such an order constitutes a

waiver of all issues raised on appeal. Castillo, 888 A.2d at 780. Moreover,

our   Pennsylvania   Supreme     Court   has   explained   that   adherence   to

Rule 1925(b) is mandatory, and we do not have discretion to permit

departures from the rule’s requirements. See Commonwealth v. Hill, 16




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A.3d 484, 494 (Pa. 2011). On this basis, Haire has waived all of his issues on

appeal.4

        Nevertheless, even if Haire had not waived his issues, we would

determine     that   the    sole   issue   that   he   preserved   below   (i.e.,   his

Alleyne/legality of sentence challenge) does not entitle him to relief, and does

not save his facially-untimely third PCRA Petition from the jurisdictional

timeliness requirements of the PCRA.5 According to Haire, the trial court’s

imposition of mandatory minimum sentences pursuant to 42 Pa.C.S.A.

§ 9714(a)(1) violated Alleyne, because the determination of whether this

statute was satisfied must be made by a fact-finder, and be proven beyond a

reasonable doubt. See Brief for Appellant at 13-14. We disagree.


____________________________________________


4   We recognize that Haire is proceeding before this Court pro se. However,

        [u]nder Pennsylvania law, pro se defendants are subject to the
        same rules of procedure as are represented defendants. See
        Commonwealth v. Williams, 586 Pa. 553, 896 A.2d 523, 534
        (Pa. 2006) (pro se defendants are held to same standards as
        licensed attorneys). Although the courts may liberally construe
        materials filed by a pro se litigant, pro se status confers no special
        benefit upon a litigant ….

Commonwealth v. Blakeney, 108 A.3d 739, 766 (Pa. 2014).

5 Haire did not file his instant PCRA Petition until over ten years after his
judgment of sentence became final. Moreover, we note that Haire does not
expressly invoke any of the exceptions to the PCRA’s time bar. See
Commonwealth v. Crews, 863 A.2d 498, 501 (Pa. 2004) (stating that “[i]t
is the petitioner’s burden to plead in the petition and prove that one of the
exceptions applies. That burden necessarily entails an acknowledgement by
the petitioner that the PCRA petition under review is untimely but that one or
more of the exceptions apply.” (citations and emphasis omitted)).

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      This Court has explained the holding in Alleyne as follows:

      According to the Alleyne Court, a fact that increases the
      sentencing floor is an element of the crime. Thus, it ruled that
      facts that mandatorily increase the range of penalties for a
      defendant must be submitted to a fact-finder and proven beyond
      a reasonable doubt. The Alleyne decision, therefore, renders
      those Pennsylvania mandatory minimum sentencing statutes that
      do not pertain to prior convictions constitutionally infirm
      insofar as they permit a judge to automatically increase a
      defendant’s sentence based on a preponderance of the evidence
      standard.

Commonwealth v. Watley, 81 A.3d 108, 117 (Pa. Super. 2013) (en banc)

(emphasis added; footnotes omitted); see also Alleyne, 570 U.S. 99, 111

n.1 (wherein the Alleyne Court upheld the Supreme Court’s prior holding in

Almendarez-Torres v. U.S., 523 U.S. 224 (1998), that the fact of a prior

conviction does not need to be submitted to the jury and found beyond a

reasonable doubt).

      In the instant case, the sentencing court applied mandatory minimum

sentences under section 9714(a)(1) based upon Haire’s prior conviction of a

crime of violence at the time of sentencing. Therefore, Haire’s sentence is not

illegal and does not run afoul of Alleyne. See Watley, supra. Moreover,

Alleyne   is   not   applicable   retroactively   to   cases   on   PCRA   review.

Commonwealth v. Washington, 142 A.3d 810, 820 (Pa. 2016) (holding

that “Alleyne does not apply retroactively to cases pending on collateral

review.”); see also Commonwealth v. Miller, 102 A.3d 988, 995 (Pa.

Super. 2014) (rejecting the PCRA petitioner’s challenge to the application of




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the 25-year mandatory minimum sentence under section 9714(a)(2) based

upon Alleyne).

      Accordingly, the PCRA court did not err in dismissing Haire’s third PCRA

Petition.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/15/19




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