J. S67002/16


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA             :     IN THE SUPERIOR COURT OF
                                         :           PENNSYLVANIA
                    v.                   :
                                         :
MICHAEL WASHINGTON,                      :          No. 1157 EDA 2016
                                         :
                         Appellant       :


                  Appeal from the PCRA Order, March 22, 2016,
                in the Court of Common Pleas of Chester County
               Criminal Division at No. CP-15-CR-0003003-2005,
              CP-15-CR-0003130-2005, CP-15-CR-0005357-2005,
                            CP-15-CR-0005974-2005


BEFORE: FORD ELLIOTT, P.J.E., RANSOM, J. AND STEVENS, P.J.E.*


MEMORANDUM BY FORD ELLIOTT, P.J.E.:             FILED SEPTEMBER 23, 2016

        Michael Washington appeals, pro se, from the order of March 22,

2016, dismissing his PCRA1 petition without a hearing. We affirm.

        The PCRA court summarized the procedural history of this matter as

follows:

                     The PCRA petition now before the Court was
              filed in four docket numbers. We will briefly set out
              the relevant procedural history in those docket
              numbers.        In docket number 53[57]-2005,
              [appellant] was convicted by a jury of one (1) count
              of Possession of a Controlled Substance with the
              Intent to Deliver (“PWID”) cocaine, one count of
              Possession of a Controlled Substance (cocaine), and
              one (1) count of Possession of Drug Paraphernalia.

* Former Justice specially assigned to the Superior Court.
1
    Post-Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-9546.
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          On May 31, 2006, [appellant] was sentenced on the
          one count of PWID to three (3) to six (6) years[’]
          incarceration in a state correctional institution. No
          sentence was imposed on the Possession of Drug
          Paraphernalia or Possession of a Controlled
          Substance counts. [Appellant] received credit for
          time served.

                In docket number 5974-2005, [appellant]
          entered a negotiated guilty plea to one (1) count [of]
          Persons Not to Possess a Firearm and one (1) count
          of PWID (cocaine). On the one count of Persons Not
          to Possess a Firearm, [appellant] was sentenced to
          five (5) to ten (10) years[’] incarceration in a state
          correctional institution. This sentence was to run
          consecutive to the sentence imposed in docket
          number 5357-2005. On the one count of PWID,
          [appellant] received five (5) years of probation to be
          served consecutive to the sentence imposed on the
          Persons Not to Possess a Firearm charge. As part of
          this negotiated plea agreement, the sentences
          imposed in docket numbers 3003-2005 and
          3130-2005 were to run concurrent with the
          sentences imposed in this case and also with docket
          number 53[57]-2005.

                 In docket number 3003-2005, [appellant]
          plead guilty pursuant to a negotiated guilty plea to
          two (2) counts of PWID (cocaine). [Appellant] was
          sentenced on count one to two (2) to four (4)
          years[’] incarceration in a state correctional
          institution. On count two of that same information,
          [appellant] was sentenced to two (2) to four (4)
          years[’] incarceration in a state correctional
          institution. The second PWID count was imposed
          concurrent with the first count.     The sentences
          imposed in this docket number were to run
          concurrent with the sentences imposed in docket
          numbers 53[57]-2005 and 5974-2005.

                In docket number 3130-2005, [appellant]
          plead guilty pursuant to a negotiated guilty plea to
          one (1) count of PWID (cocaine). [Appellant] was
          sentenced on the one count of PWID to two (2) to


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           four (4) years[’] incarceration in a state correctional
           institution followed by two (2) years of consecutive
           probation. The sentence imposed in this docket
           number was to run concurrent to the sentences
           imposed in docket numbers 53[57]-2005 and
           5974-2005.

“Notice of Intent to Dismiss PCRA Petition Pursuant to Pa.R.Crim.P. 907(1),”

2/11/16 at 2-3 n.2.

                 On November 12, 2015, [appellant] filed a
           pro se [PCRA] petition with this Court.          On
           November 24, 2015, Robert P. Brendza, Esquire, was
           appointed to represent [appellant] in all matters
           pertaining to the Petition. On February 2, 2016,
           Attorney Brendza petitioned the Court for leave to
           withdraw as PCRA counsel, filing a “no-merit” letter
           pursuant    to   the     procedures   outlined    in
           Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988)
           and Commonwealth v. Finley, 550 A.2d 213
           (Pa.Super. 1988) [(en banc)].

                  On February 11, 2016, we issued a Notice of
           Intent to Dismiss [Appellant’s] PCRA Petition
           (“907 Notice”), explaining to [appellant] that his
           petition lacked arguable merit. In the 907 Notice,
           we also informed [appellant] that he was not entitled
           to relief under the PCRA and that he had twenty (20)
           days from the date of docketing of the 907 Notice to
           file a response.

                  On February 12, 2016, [appellant] filed a
           pro se pleading entitled “Motion for Extraordinary
           Relief Pursuant to 42 Pa.C.S. § 5504-5505 and
           Article I, Section 14 of the Pennsylvania Constitution
           and for Post Conviction Relief Under the [PCRA],
           42 Pa.C.S. § 9542 et seq.” On February 25, 2016,
           we issued an Order directing the Chester County
           Clerk of Courts to forward a copy of [appellant’s]
           pro se Motion to Attorney Brendza for his review.

Order, 3/22/16 at 1-2 n.1.



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                  In the February 25, 2016 [order], we directed
            Attorney Brendza to review all of [appellant’s]
            pro se concerns raised in the Motion and to file
            either an amended PCRA petition or response to the
            Motion explaining why [appellant’s] pro se concerns
            did not entitle him to relief under the PCRA. On
            February 29, 2016, [appellant] filed a second
            pleading entitled “Pro se Response to PCRA Court’s
            Notice to Dismiss Petition for Writ of Habeas Corpus
            Relief Pursuant to Article I, Section 14 of the
            Pennsylvania Constitution and for Post-Conviction
            Relief Pursuant to 42 Pa.C.S. Section 9542, et seq.”
            Since this pleading was filed after our February 25,
            2016 Order requiring Attorney Brendza to respond to
            the first pleading, that Order did not address the
            second pleading.     However, on March 16, 2016,
            Attorney Brendza filed a Letter containing a response
            to both of [appellant’s] pro se pleadings.

Id. at 2 n.1.

      On March 22, 2016, the PCRA court entered an order dismissing

appellant’s PCRA petition, rejecting appellant’s argument that Alleyne v.

United States,        U.S.     , 133 S.Ct. 2151 (2013), should be applied

retroactively in his case.   The PCRA court also granted Attorney Brendza

leave to withdraw as PCRA counsel. A timely pro se notice of appeal was

filed on April 8, 2016.   On April 13, 2016, appellant was ordered to file a

concise statement of errors complained of on appeal within 21 days pursuant

to Pa.R.A.P. 1925(b); appellant complied on April 27, 2016, and on May 4,

2016, the PCRA court filed a Rule 1925(a) opinion.2


2
  According to the PCRA court, appellant filed his Rule 1925(b) statement but
did not serve it on the judge. (PCRA court opinion, 5/4/16 at 1 n.1.)
Typically, a failure to comply with Rule 1925 by filing a Rule 1925(b)
statement with the court and concurrently serving the statement on the trial


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     Appellant has raised the following issues for this court’s review:

           A.    Does Not A Challenge To A Sentence Pursuant
                 to Alleyne v. United States, 133 S.Ct. 2151
                 (2013), implicates [sic] the legality of the
                 sentence and is therefore non-waivable?



judge results in waiver of all issues. See Pa.R.A.P. 1925(b)(1) (“Appellant
shall file of record the Statement and concurrently shall serve the judge.”);
Egan v. Stroudsburg School Dist., 928 A.2d 400 (Pa.Cmwlth. 2007)
(where appellant filed concise statement of matters complained of on appeal
with prothonotary, but did not concurrently serve the trial judge, all issues
deemed waived); Commonwealth v. $766.00 U.S. Currency, 948 A.2d
912 (Pa.Cmwlth. 2008) (appellant’s issues waived where he filed a 1925(b)
statement with court but did not serve the same on the trial judge). See
also Commonwealth v. Schofield, 888 A.2d 771, 774 (Pa. 2005)
(“[F]ailure to comply with the minimal requirements of Pa.R.A.P. 1925(b)
will result in automatic waiver of the issues raised.”). We further note that
because appellant is pro se, the remand procedure added to Rule 1925 in
2007 does not apply. See Pa.R.A.P. 1925(c)(3) (“If an appellant in a
criminal case was ordered to file a Statement and failed to do so, such that
the appellate court is convinced that counsel has been per se ineffective, the
appellate court shall remand for the filing of a Statement nunc pro tunc and
for the preparation and filing of an opinion by the judge.”) (codifying the
procedure established by this court in Commonwealth v. West, 883 A.2d
654 (Pa.Super. 2005). In addition, this is an appeal from denial of a PCRA
petition. Our supreme court has held that the procedure devised in West,
as codified in Rule 1925(c)(3), does not apply to PCRA appeals.
Commonwealth v. Hill, 16 A.3d 484 (Pa. 2011). Nevertheless, because
appellant’s claim goes to the legality of his sentence, which is non-waivable,
we will not find waiver on this basis. See, e.g., Commonwealth v.
Edrington, 780 A.2d 721, 723 (Pa.Super. 2001), citing Commonwealth v.
Archer, 722 A.2d 203, 209 (Pa.Super. 1998). See also Commonwealth
v. Fennell, 105 A.3d 13, 15 (Pa.Super. 2014), appeal denied, 121 A.3d
494 (Pa. 2015), citing Commonwealth v. Lawrence, 99 A.3d 116, 123
(Pa.Super. 2014) (“issues pertaining to Alleyne go directly to the legality of
the sentence”); Commonwealth v. Miller, 102 A.3d 988, 995 (Pa.Super.
2014) (“this Court is endowed with the ability to consider an issue of
illegality of sentence sua sponte”), quoting Commonwealth v. Orellana,
86 A.3d 877, 883 n.7 (Pa.Super. 2014) (citation omitted).             But see
Commonwealth v. Barnes, 122 A.3d 1034, 1034-1035 (Pa. 2015)
(per curiam) (granting allocatur to determine whether an Alleyne
violation renders a sentence illegal for issue preservation purposes).


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            B.     Did Not The PCRA Court Err in finding
                   Appellant’s PCRA Petition as untimely pursuant
                   to 42 Pa.C.S.A. § 9545(b)(1)(iii)[,](2)?

Appellant’s brief at 1.

            This Court’s standard of review regarding an order
            denying a petition under the PCRA is whether the
            determination of the PCRA court is supported by the
            evidence of record and is free of legal error.
            Commonwealth v. Halley, 582 Pa. 164, 870 A.2d
            795, 799 n. 2 (2005). The PCRA court’s findings will
            not be disturbed unless there is no support for the
            findings in the certified record. Commonwealth v.
            Carr, 768 A.2d 1164, 1166 (Pa.Super. 2001).

Commonwealth v. Turetsky, 925 A.2d 876, 879 (Pa.Super. 2007),

appeal denied, 940 A.2d 365 (Pa. 2007).

      Appellant argues that his mandatory minimum sentence imposed

pursuant to 42 Pa.C.S.A. § 9712.1 (drug offenses committed with firearms)

was illegal in light of Alleyne (holding that any fact that, by law, increases

the penalty for a crime is required to be treated as an element of the

offense, submitted to a jury, rather than a judge, and found beyond a

reasonable doubt). In Commonwealth v. Newman, 99 A.3d 86 (Pa.Super.

2014) (en banc), appeal denied, 121 A.3d 496 (Pa. 2015), we found

Section 9712.1 unconstitutional in its entirety.       “Under Alleyne, the

possession of the firearm must be pleaded in the indictment, and must be

found by the jury beyond a reasonable doubt before the defendant may be

subjected to an increase in the minimum sentence.” Newman, 99 A.3d at

98. Because Section 9712.1 allows the trial court, as opposed to a jury, to


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increase a defendant’s minimum sentence based upon a preponderance of

the evidence that the defendant was dealing drugs while in possession of a

firearm, or that a firearm was “in close proximity” to the drugs, it does not

pass constitutional muster under Alleyne. Id.; see also Commonwealth

v. Valentine, 101 A.3d 801 (Pa.Super. 2014), appeal denied, 124 A.3d

309 (Pa. 2015) (by allowing the jury to determine beyond a reasonable

doubt the elements of the mandatory minimum sentencing provisions of

42 Pa.C.S.A. §§ 9712 and 9713, the trial court performed an impermissible

legislative   function,      effectively   determining    that    the     unconstitutional

provisions were severable).

      Nevertheless, it is well settled that Alleyne does not invalidate a

mandatory minimum sentence when presented in an untimely PCRA petition.

Commonwealth v. Miller, 102 A.3d 988 (Pa.Super. 2014). As the PCRA

court observed, there is no dispute that appellant filed his petition outside

the PCRA’s one-year jurisdictional time limitation. (Rule 907 Notice, 2/11/16

at 4 n.2.)         Appellant relies on the after-recognized constitutional right

exception     to     the   one-year    time     bar   enumerated     at     42   Pa.C.S.A.

§ 9545(b)(1)(iii).         Recently, however, our supreme court decided that

Alleyne does not apply retroactively to collateral attacks on mandatory

minimum       sentences      advanced      in   post-conviction    relief    proceedings.

Commonwealth v. Washington,                       A.3d     , 2016 WL 3909088 (Pa.




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July 19, 2016).3    Alleyne was not a groundbreaking, “watershed” rule of

criminal procedure that applies retroactively on collateral review. Id.; see

Teague v. Lane, 489 U.S. 288 (1989) (plurality) (a new constitutional rule

of criminal procedure does not generally apply to convictions that were final

when the new rule was announced). Therefore, appellant is not entitled to

the benefit of Alleyne.4

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 9/23/2016

3
  Furthermore, appellant did not file his petition within 60 days of Alleyne or
this court’s decision in Newman, invalidating Section 9712.1. (907 Notice,
2/11/16 at 6 n.2.) See 42 Pa.C.S.A. § 9545(b)(2) (a petition invoking one
of the statutory exceptions must be filed within 60 days of the date the claim
could have been presented); Commonwealth v. Brandon, 51 A.3d 231,
235 (Pa.Super. 2012) (“[T]he sixty-day period begins to run upon the date
of the underlying judicial decision.”), quoting Commonwealth v. Boyd, 923
A.2d 513, 517 (Pa.Super. 2007).
4
  Apparently, on August 20, 2015, appellant was found to be in violation of
his probation and was resentenced.            (Commonwealth’s brief at 31.)
However, this did not “reset the clock” for PCRA purposes.                 See
Commonwealth v. Fowler, 930 A.2d 586, 592 (Pa.Super. 2007), appeal
denied, 944 A.2d 756 (Pa. 2008) (“Therefore, the time for seeking PCRA
relief following . . . the imposition of a new sentence runs for one year from
the conclusion of direct review of that new sentencing order, but only as to
the issues of the validity of the revocation proceedings and the
legality of the new sentence.”), quoting Commonwealth v. Anderson,
788 A.2d 1019, 1022 (Pa.Super. 2001) (emphasis in original).             Here,
appellant is challenging the legality of the initial sentence.


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