J-S58007-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                                          :
              v.                          :
                                          :
                                          :
 RYAN WHITTINGTON                         :
                                          :
                    Appellant             :   No. 1643 WDA 2017

               Appeal from the PCRA Order October 12, 2017
             In the Court of Common Pleas of Allegheny County
            Criminal Division at No(s): CP-02-CR-0000986-2007


BEFORE: OLSON, J., MURRAY, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY OLSON, J.:                         FILED OCTOBER 15, 2018

      Appellant, Ryan Whittington, appeals from the October 12, 2017 order

denying his first petition filed pursuant to the Post-Conviction Relief Act

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

      This Court previously set forth the factual background of this case as

follows:

      [O]n October 17, 2006, Damien Graves was visiting the home of
      his girlfriend, [P.M.] . . . where she resided with her two minor
      children. At approximately 9:00 p.m., co-defendant Taneesha
      Middleton knocked on the apartment door and asked to borrow
      Graves’ [cellular telephone].       Middleton used the [cellular
      telephone] to place a [tele]phone call in the hallway, after which,
      she returned the [tele]phone to Graves and left. Approximately
      five minutes later, Middleton returned and again requested to use
      Graves’ [cellular telephone]. At that time, two armed men, one of
      whom was masked, burst into the apartment. The masked man
      was subsequently identified as [Appellant]; the other as Steven
      Ashby.
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        The two men instructed Graves to lie down and demanded money.
        Ashby then instructed [Appellant] to retrieve [P.M.] from the
        bathroom, and subsequently ordered her to remove her clothes.
        While [P.M.] removed her clothing, Ashby and [Appellant] took
        turns pistol whipping Graves in the face and head with their
        weapons, as a result of which Graves suffered lacerations to his
        head and jaw.

        After [P.M.] had stripped naked, [Appellant] retrieved her minor
        children from the rear bedroom. Ashby proceeded to put a gun to
        the head of one child and threatened to kill him if more money
        was not turned over. Frustrated that no additional money was
        found, [Appellant] removed his mask and demanded that Graves
        call someone to bring more money or else everyone would be
        killed. Although Graves complied and called his brother to bring
        over extra money for [Appellant] and Ashby, Graves’ brother
        never arrived. While they waited, Ashby and [Appellant] took
        turns sexually assaulting [P.M.] in the bedroom.

        [P.M.] eventually escaped from the apartment through an open
        window, whereupon Ashby and [Appellant] fled the premises.
        Approximately two weeks later, [P.M.] and Graves went to the
        police to report the robbery. While at the police station, Graves
        identified [Appellant], Ashby, and Middleton as the individuals
        involved in the burglary through a photo array.

Commonwealth v. Whittington, 996 A.2d 559 (Pa. Super. 2010)

(unpublished memorandum), at 1-3, appeal denied, 17 A.3d 1254 (Pa. 2011).

        On June 30, 2008, Appellant was convicted of five counts of simple

assault,1 two counts of robbery,2 two counts of making terroristic threats,3


____________________________________________


1   18 Pa.C.S.A. § 2702(a)(1), (a)(3).

2   18 Pa.C.S.A. § 3701.

3   18 Pa.C.S.A. § 2706(a)(1).




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two counts of recklessly endangering another person,4 burglary,5 aggravated

assault,6 and conspiracy.7 On September 23, 2008, the trial court sentenced

appellant to an aggregate term of 20½ to 44 years’ imprisonment. This Court

vacated the judgment of sentence and remanded for re-sentencing.             See

generally id.

        On July 6, 2011, the trial court re-sentenced Appellant to 20½ to 44

years’ imprisonment. This Court affirmed that judgment of sentence and our

Supreme      Court    denied     allowance     of   appeal.   Commonwealth    v.

Whittington, 64 A.3d 9 (Pa. Super. 2012) (unpublished memorandum),

appeal denied, 69 A.3d 602 (Pa. 2013).

        On January 15, 2015, the PCRA court docketed Appellant’s pro se PCRA

petition.8 Counsel was appointed and filed an amended petition. On October




____________________________________________


4   18 Pa.C.S.A. § 2705.

5   18 Pa.C.S.A. § 3502.

6   18 Pa.C.S.A. § 2702(a)(1) and (a)(4).

7   18 Pa.C.S.A. § 903.

8 Appellant’s judgment of sentence became final on January 13, 2014. Thus,
he had until January 13, 2015, to file a timely PCRA petition. We believe that
the petition was placed in the stream of prison mail on or before January 13,
2015. Accordingly, we conclude that under the prisoner mailbox rule,
Appellant’s petition was timely and the PCRA court had jurisdiction to reach
the merits of the petition.



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12, 2017, after two hearings were conducted, the PCRA court denied the

petition. This timely appeal followed.9

       Appellant presents one issue for our review:

       Whether the trial court erred in sentencing Appellant under an
       illegal sentencing scheme following Alleyne v. United States,
       [570 U.S. 99] (2013)[?]

Appellant’s Brief at 4.

       Appellant contends that he received an illegal sentence that violated

Alleyne. “When reviewing the legality of a sentence, our standard of review

is de novo and our scope of review is plenary.” Commonwealth v. Seskey,

170 A.3d 1105, 1107 (Pa. Super. 2017) (citation omitted).

       Appellant argues that the trial court imposed mandatory minimum

sentences pursuant to 42 Pa.C.S.A. § 9712.            This Court has held that

mandatory minimum sentences imposed under section 9712 are illegal in light

of Alleyne. Commonwealth v. Valentine, 101 A.3d 801, 812 (Pa. Super.

2014), appeal denied, 124 A.3d 309 (Pa. 2015). Hence, if Appellant were

sentenced under section 9712, he received an illegal sentence.

       Our review of the record, however, indicates that the trial court did not

re-sentence Appellant pursuant to section 9712.         Under section 9712(a),



____________________________________________


9 On November 14, 2017, the PCRA court ordered Appellant to file a concise
statement of errors complained of on appeal (“concise statement”). See
Pa.R.A.P. 1925(b).     On February 20, 2018, Appellant filed his concise
statement. On March 14, 2018, the PCRA court issued its Rule 1925(a)
opinion. Appellant’s lone issue was included in his concise statement.

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Appellant was subject to a five-year mandatory minimum sentence for each

robbery conviction.    Moreover, under section 9712(b), the Commonwealth

was required to provide notice of its intent to invoke the mandatory minimum

prior to sentencing.   The Commonwealth provided that notice prior to the

original sentencing hearing.     The trial court and counsel discussed the

mandatory minimums at the original sentencing hearing. See N.T., 9/23/08,

at 4.

        The Commonwealth did not file notice of its intent to invoke the

mandatory minimum sentences prior to re-sentencing and the mandatory

minimums were never discussed at the re-sentencing hearing. See generally

N.T., 7/6/11. Moreover, the trial court did not re-sentence Appellant to the

mandatory minimums, i.e., five to ten years’ imprisonment at each robbery

count.    Instead, the trial court sentenced Appellant to 7 to 15 years’

imprisonment at each robbery count. This indicates that the trial court did

not impose the mandatory minimum sentences but instead carefully

considered the statutory sentencing factors and concluded that a sentence of

7 to 15 years’ imprisonment for each robbery conviction was appropriate.

Finally, in its Rule 1925(a) opinion the PCRA court states that it did not impose

the mandatory minimum sentences. See PCRA Court Opinion, 3/14/18, at 3.

Instead, the PCRA court states that it sentenced Appellant to a period of

incarceration within the standard range of the guidelines. See id. Combined,

these facts show that the trial court did not impose an illegal sentence and the


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PCRA court properly denied relief. See Commonwealth v. Zeigler, 112 A.3d

656, 662 (Pa. Super. 2015) (“[T]he sentencing court exceeded the mandatory

minimum sentence when it applied the standard guideline range sentence

where a deadly weapon was used.      Hence, the court did not sentence the

defendant based on the mandatory statute, and his sentence is not illegal.”).

     Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/15/2018




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