J-S80025-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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


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.


                                    -2-
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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/13/2017




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