J-S42024-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                       IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA
                            Appellee

                       v.

ANTWON ARRINGTON

                            Appellant                  No. 1423 WDA 2015


                 Appeal from the PCRA Order August 12, 2015
                  In the Court of Common Pleas of Erie County
              Criminal Division at No(s): CP-25-CR-0000027-2005
                            CP-25-CR-0000028-2005


BEFORE: SHOGAN, J., OTT, J., and FITZGERALD, J.*

MEMORANDUM BY OTT, J.:                                   FILED JUNE 09, 2016

        Antwon Arrington appeals pro se from the order entered August 12,

2015, in the Court of Common Pleas of Erie County, that dismissed his

petition for writ of habeas corpus, which the court construed as a second

petition filed pursuant to the Pennsylvania Post Conviction Relief Act1

(PCRA)2 and found untimely.          Arrington contends the PCRA court erred in

____________________________________________


*
    Former Justice specially assigned to the Superior Court.
1
    42 Pa.C.S. §§ 9541–9546.
2
  We note that the PCRA court dismissed the petition on August 12, 2015,
and, therefore, the notice of appeal had to be filed by Friday, September 11,
2015. See Pa.R.A.P. 903(a) (notice of appeal shall be filed within 30 days
after the entry of the order from which the appeal was taken). However,
Arrington’s notice of appeal is docketed as filed on September 17, 2015, in
excess of the 30-day appeal period.
(Footnote Continued Next Page)
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characterizing his petition as a PCRA petition and denying him relief where

he alleges his sentence is illegal in light of the United States Supreme

Court’s holding in Alleyne v. United States, 133 S.Ct. 2151 (2013). Based

on the following, we affirm.

      The PCRA court has summarized the background of this case, as

follows:

      On May 20, 2005, following a jury trial, [Arrington] was found
      guilty of various drug charges. On August 3, 2005, [Arrington]
      was sentenced to an aggregate term of 16 to 32 years’
      imprisonment. [Arrington] filed a post sentence motion, which
      was denied by the trial court. [Arrington] filed a timely appeal
      and on September 15, 2006, [Arrington’s] judgment of sentence
      was affirmed. [Commonwealth v. Arrington, 911 A.2d 176
      (Pa. Super. 2006)].
                       _______________________
(Footnote Continued)

      However, Arrington is incarcerated and therefore, it is likely that he
could have provided prison authorities with the notice of appeal for mailing
before the expiration of the 30-day appeal period. The certified record
contains a letter from Arrington dated “August [sic] 9, 2015,” that indicates
he has enclosed a notice of appeal from the “final order of the court entered
August 12, 2015.” See Letter, 8/9/2015. The letter bears the Erie County
Clerk of Courts’ time-stamp of September 14, 2015, a Monday. Therefore,
the appeal could be timely pursuant to the “prisoner mailbox rule.” See
Commonwealth v. Jones, 700 A.2d 423 (Pa. 1997) (appeal by a pro se
prisoner is deemed filed on the date the prisoner deposits the appeal with
prison authorities and/or places it in the prison mailbox, though the notice of
appeal is actually received by the court after the deadline for filing the
appeal).

      We recognize our prerogative to remand for a hearing to determine
Arrington’s compliance with the prisoner mailbox rule. See Smith v.
Pennsylvania Board of Probation and Parole, 683 A.2d 278, 282–283
(Pa. 1996). However, given our disposition, we decline to remand as it
“would be futile to do so.” See Commonwealth v. Chambers, 35 A.3d 34,
40 (Pa. Super. 2011).



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        On October 15, 2007, [Arrington] filed his first PCRA petition and
        an amended PCRA petition on February 8, 2008. By Order
        entered May 16, 2008, the PCRA court dismissed PCRA relief.
        [Arrington] filed an appeal, and on May 27, 2009, the Superior
        Court affirmed the PCRA court’s final order. [Commonwealth v.
        Arrington, 976 A.2d 1197 (Pa. Super. 2009)].

        On or about May 4, 2015, [Arrington] filed a pro se Petition for
        Writ of Habeas Corpus, essentially his second pro se PCRA
        petition. In his petition, he claims that he was subject to an
        illegal mandatory minimum sentence pursuant to Alleyne v.
        U.S., 133 S.Ct. 2151 (2013).[3]

PCRA Court Notice of Intent to Dismiss Without a Hearing Pursuant to

Pa.R.Crim.P. 907, 7/21/2015, at 1–2.4 The PCRA court treated Arrington’s

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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
the jury and found beyond a reasonable doubt.” Alleyne, supra, 133 S.Ct.
at 2155. Applying Alleyne, the courts of this Commonwealth have found
our mandatory minimum sentencing statutes to be unconstitutional where
the language of those statutes “permits the trial court, as opposed to the
jury, to increase a defendant’s minimum sentence based upon a
preponderance of the evidence” standard. Commonwealth v. Newman,
99 A.3d 86, 98 (Pa. Super. 2014) (en banc), appeal denied, 121 A.3d 496
(Pa. 2015). See Commonwealth v. Hopkins, 117 A.3d 247 (Pa. 2015)
(invalidating 18 Pa.C.S. § 6317); Commonwealth v. Vargas, 108 A.3d 858
(Pa. Super. 2014) (en banc) (invalidating 18 Pa.C.S. § 7508), appeal denied,
121 A.3d 496 (Pa. 2015).         Further, our courts have held that the
unconstitutional provisions of the mandatory minimum statutes are not
severable from the statute as a whole. Hopkins, supra, 117 A.3d at 262;
Newman, supra, 99 A.3d at 101.

      Here, Arrington asserts he was sentenced pursuant to the mandatory
minimum provision at 18 Pa.C.S. § 7508, which, pursuant to the case law
stated above, has been declared unconstitutional “in its entirety.”
Commonwealth v. Carter, 122 A.3d 388, 393 (Pa. Super. 2015).
4
    Arrington did not file a response to the PCRA court’s Rule 907 notice.



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petition as a PCRA petition, provided Rule 907 notice of intent to dismiss the

petition as untimely, and thereafter dismissed the petition on August 12,

2015. This appeal followed.5

       Arrington raises the following claim in this appeal:

       Whether the [PCRA] court committed [an] error in converting
       [his] May 4, 2015 petition for writ of habeas corpus into a
       second PCRA [petition] where the claim for relief does not fall
       within any of the statutorily enumerated bases for relief
       expressly subsumed [in] the [PCRA].

           a) [Arrington] is currently illegally detained serving a
              sentence premised upon a facially unconstitutional
              statute in 18 Pa.C.S. § 7508.

Arrington’s Brief at 4.

       Our standard of review is well settled:

       The standard of review for an order denying post-conviction
       relief is limited to whether the record supports the PCRA court’s
       determination, and whether that decision is free of legal error.
       The PCRA court’s findings will not be disturbed unless there is no
       support for the findings in the certified record.

Commonwealth v. Walters, ___ A.3d ___, ___ [2016 Pa. Super. LEXIS

114, *4; 2016 PA Super 42] (Pa. Super. 2016).

       We first address Arrington’s claim that the PCRA court erred in treating

his writ of habeas corpus as a PCRA petition. The PCRA clearly states it is

“the sole means of obtaining collateral relief and encompasses all other

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5
 Arrington timely complied with the PCRA court’s order to file a statement of
errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).




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common law and statutory remedies …, including habeas corpus and coram

nobis.” 42 Pa.C.S. § 9542. This Court has explained:

      It is well-settled that the PCRA is intended to be the sole means
      of achieving post-conviction relief. 42 Pa.C.S. § 9542;
      Commonwealth v. Haun, 613 Pa. 97, 32 A.3d 697 (Pa. 2011).
      Unless the PCRA could not provide for a potential remedy, the
      PCRA statute subsumes the writ of habeas corpus. Fahy, supra
      at 223-224; Commonwealth v. Chester, 557 Pa. 358, 733
      A.2d 1242 (Pa. 1999). Issues that are cognizable under the
      PCRA must be raised in a timely PCRA petition and cannot be
      raised in a habeas corpus petition. See Commonwealth v.
      Peterkin, 554 Pa. 547, 722 A.2d 638 (Pa. 1998); see also
      Commonwealth v. Deaner, 2001 PA Super 191, 779 A.2d 578
      (Pa.Super. 2001) (a collateral petition that raises an issue that
      the PCRA statute could remedy is to be considered a PCRA
      petition). Phrased differently, a defendant cannot escape
      the PCRA time-bar by titling his petition or motion as a
      writ of habeas corpus.

Commonwealth v. Taylor, 65 A.3d 462, 465–466 (Pa. Super. 2013)

(emphasis added). See also Commonwealth v. Pagan, 864 A.2d 1231,

1233 (Pa. Super. 2004) (“if the underlying substantive claim is one that

could potentially be remedied under the PCRA, that claim is exclusive to

the PCRA”) (emphasis added), cert. denied, 546 U.S. 909 (2005).

      Here, Arrington contends that his sentence is illegal under Alleyne.

An Alleyne claim is a non-waivable challenge to the legality of sentence.

Commonwealth v. Newman, 99 A.3d 86, 90 (Pa. Super. 2014) (en banc).

The PCRA specifically “provides for an action by which … persons serving

illegal sentences may obtain collateral relief.”   42 Pa.C.S. § 9542.     Thus,

contrary to Arrington’s contention, his Alleyne-related claim presents an

issue that is cognizable under the PCRA.

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       Turning to the requirements of the PCRA, we note that even though an

illegal sentencing issue cannot be waived, such issue still must be presented

in a timely PCRA petition. See Commonwealth v. Fahy, 737 A.2d 214 (Pa.

1999).      Under the PCRA, any PCRA petition “including a second or

subsequent petition, shall be filed within one year of the date the judgment

becomes final[.]”      42 Pa.C.S. § 9545(b)(1).    As the PCRA court correctly

determined, Arrington’s judgment of sentence became final on October 16,

2006, at the expiration of the 30-day period for seeking review with the

Pennsylvania Supreme Court.6 Therefore, the time for Arrington to file for

collateral relief expired on October 16, 2007. See 42 Pa.C.S. 9545(b)(1),

supra.

       Nevertheless, we may consider an untimely PCRA petition if the

petitioner pleads and proves one of the PCRA’s three exceptions:

              (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

              (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
____________________________________________


6
  See PCRA Court Notice of Intent to Dismiss, 7/21/2015, at 3, citing 42
Pa.C.S. § 9545(b)(3); Pa.R.A.P. 1113(a); 1 Pa.C.S. § 1908.



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              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).    Furthermore, any petition involving one of

these exceptions “shall be filed within 60 days of the date the claim could

have been presented.” 42 Pa.C.S. § 9545(b)(2).

      Based on our review, we agree with the PCRA court that Arrington’s

reliance on Alleyne to satisfy the PCRA time-bar exception provided at

Section 9545(b)(1)(iii) is unavailing.    As the PCRA court correctly pointed

out, “Alleyne does not apply retroactively to cases in which judgment of

sentence has become final.”        PCRA Court Notice of Intent to Dismiss,

7/21/2015, at 3, citing Commonwealth v. Miller, 102 A.3d 988, 995 (Pa.

Super. 2014).      In Miller, this Court held that the Alleyne decision is not a

sufficient basis to invoke the exception at Section 9545(b)(1)(iii):

      Even assuming that Alleyne did announce a new constitutional
      right, neither our Supreme Court, not the United States Supreme
      Court has held that Alleyne is to be applied retroactively to
      cases in which the judgment of sentence has become final. This
      is fatal to Appellant’s argument regarding the PCRA time-bar.

Id. at 995.

      We also note that Arrington filed this petition on May 4, 2015, more

than 60 days after Alleyne was decided on June 17, 2013. See 42 Pa.C.S.

§ 9545(b)(2).     Therefore, based on Arrington’s failure to satisfy Sections

9545(b)(1)(iii) and (b)(2), and because Arrington failed to plead and prove




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the applicability of any other exception set forth in Section 9545(b)(1),7 the

PCRA court did not err in denying Arrington’s request for collateral relief.

       Order affirmed. Arrington’s May 5, 2016, application to file a reduced

number of copies of reply brief is dismissed.8



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/9/2016




____________________________________________


7
  We also note with regard to Arrington’s Alleyne claim that this Court has
“expressly rejected the notion that judicial decisions can be considered
newly-discovered facts which would invoke the protections afforded by
section 9545(b)(1)(ii).” Commonwealth v. Cintora, 69 A.3d 759, 763 (Pa.
Super. 2013).
8
  According to this Court’s docket, Arrington’s reply brief was due by April
11, 2016. This Court, by Per Curiam order entered April 29, 2016, denied
Arrington’s April 20, 2016, application for extension of time to file a reply
brief. Arrington filed a reply brief on May 5, 2016. We have not considered
Arrington’s untimely reply brief in deciding this appeal.



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