J-S33012-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    ANDRE MURRAY                               :
                                               :
                       Appellant               :   No. 2240 EDA 2017

                  Appeal from the Order Entered May 19, 2017
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0011666-2008


BEFORE:      OTT, J., McLAUGHLIN, J., and STEVENS, P.J.E.

MEMORANDUM BY OTT, J.:                                 FILED AUGUST 06, 2018

        Andre Murray appeals, pro se, from the order entered May 19, 2017,

dismissing his petition for writ of habeas corpus, which the trial court

construed to be an untimely PCRA1 petition.          Murray seeks relief from the

judgment of sentence of 20 to 40 years’ imprisonment imposed on February

17, 2010, following his jury conviction of attempted murder, aggravated

assault, criminal conspiracy, and possession of an instrument of crime

(“PIC”).2 On appeal, Murray contends his sentence is illegal because it was

based upon an unconstitutional mandatory minimum statute, and he has a


____________________________________________


   Former Justice specially assigned to the Superior Court.

1   Post Conviction Relief Act, 42 Pa.C.S. §§ 9541-9546.

2   See 18 Pa.C.S. §§ 903/2502(a), 2701(a), 903(a), and 907(a), respectively.
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“valid claim of being innocent of the sentence imposed upon him.” Murray’s

Brief at 3. For the reasons below, we affirm.

       The facts underlying Murray’s conviction are well known to the parties

and we need not reiterate them herein.             In summary, after Murray was

convicted of the above-stated charges, the trial court sentenced him on

February 17, 2010, to a term of 20 to 40 years’ imprisonment for the charge

of attempted murder, and a concurrent term of one to two years’

imprisonment for the charge of PIC.            Murray’s judgment of sentence was

affirmed by this Court on November 12, 2011, and the Pennsylvania Supreme

Court subsequently denied his petition for appeal. See Commonwealth v.

Murray, 38 A.3d 926 (Pa. Super. 2011) (unpublished memorandum), appeal

denied, ___ A.3d ___ (73 EAL 2012) (Pa. 2012).

       Murray filed a timely PCRA petition on July 26, 2013, which the PCRA

court later dismissed. A panel of this Court affirmed the dismissal order on

November 14, 2015, and, once again, the Supreme Court denied review. See

Commonwealth v. Murray, 134 A.3d 479 (Pa. Super. 2015) (unpublished

memorandum), appeal denied, 141 A.3d 479 (Pa. 2016). Murray then filed a

second PCRA petition challenging the legality of his sentence under Alleyne

v. United States, 570 U.S. 99 (2013).3             The PCRA court dismissed the

petition as untimely filed.

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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



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        Thereafter, on March 27, 2017, Murray filed the instant request for

relief, which he styled as a petition for writ of habeas corpus. On April 12,

2017, the trial court issued notice of its intent to dismiss the petition as an

untimely filed PCRA.       Although Murray filed a pro se response, the court

ultimately dismissed the petition on May 19, 2017.         This timely appeal

followed.4

        “In reviewing the denial of PCRA relief, we examine whether the PCRA

court’s determination is supported by the record and free of legal error.”

Commonwealth v. Mitchell, 141 A.3d 1277, 1283–1284 (Pa. 2016)

(internal punctuation and citation omitted).

        Upon our review of Murray’s pro se brief, it is unclear whether he

disputes the court’s determination that his petition for habeas corpus relief

should be construed as a PCRA petition. Nevertheless, we find the court’s

decision was proper. It is well-settled the PCRA is “the sole means of obtaining

collateral relief,”5 and “if the underlying substantive claim is one that could

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

____________________________________________


the jury and found beyond a reasonable doubt.” Alleyne, supra, 570 U.S. at
103. In interpreting that decision, the courts of this Commonwealth have
determined that most of our mandatory minimum sentencing statutes are
unconstitutional. See Commonwealth v. Hopkins, 117 A.3d 247, 262 (Pa.
2015); Commonwealth v. Newman, 99 A.3d 86, 98 (Pa. Super. (Pa. Super.
2014) (en banc), appeal denied, 121 A.3d 496 (Pa. 2015).
4 The trial court did not direct Murray to file a concise statement of errors

complained of on appeal pursuant to Pa.R.A.P. 1925(b).

5   42 Pa.C.S. § 9542.


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Commonwealth v. Pagan, 864 A.2d 1231, 1233 (Pa. Super. 2004), cert.

denied, 546 U.S. 909 (2005) (emphasis in original). Moreover, “[i]ssues that

are cognizable under the PCRA must be raised in a timely PCRA petition and

cannot be raised in a habeas corpus petition.” Commonwealth v. Taylor,

65 A.3d 462, 466 (Pa. Super. 2013).

      Here, Murray challenges the legality of his sentence under Alleyne.

Such a claim is cognizable under the PCRA.           See Commonwealth v.

DiMatteo, 177 A.3d 182, 192 (Pa. 2018) (holding challenge to mandatory

minimum sentence under Alleyne is an illegal sentencing claim cognizable

under the PCRA).    Accordingly, the trial court correctly construed Murray’s

request for relief to be a PCRA petition, and, thus, subject to the PCRA’s timing

requirements. Moreover, the court found Murray’s petition was untimely filed,

and his claim was previously litigated:

      [Murray] has already filed a PCRA petition raising exactly the same
      ground for relief. That petition, which was filed on August 30,
      2016, was dismissed by the Court on the ground that it was
      untimely filed. Because the instant Petition was not filed until
      March 27, 2017, approximately seven months later, it is a fortiori
      untimely as well.

Trial Court Order, 4/12/2017, at 1-2. We agree. Murray failed to plead or

prove the applicability of any of the time for filing exceptions. See 42 Pa.C.S.

§ 9454(b).

      It appears Murray’s argument on appeal is simply that because the

mandatory minimum statute under which he was sentenced has been declared

unconstitutional, his sentence is null and void, despite any procedural


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challenges. See Murray’s Brief at 1-2. Further, he insists that if he were

compelled to “continue to serve an illegal sentence that is patent and obvious

on the face of the court record, [it] would be a fundamental miscarriage of

justice[.]” Id. at 3.

       However, it is axiomatic that all claims, including those implicating the

legality of a sentence or asserting a miscarriage of justice, “must still first

satisfy   the   PCRA’s     time   limits   or   one   of   the   exceptions   thereto.”

Commonwealth v. Fahy, 737 A.2d 214, 223 (Pa. 1999). Particularly with

respect to Alleyne claims, our Supreme Court has held that relief is available

under the PCRA only if the petitioner’s judgment of sentence was not final at

the time Alleyne was decided and the petitioner presented his claim in a

timely PCRA petition. See DiMatteo, supra, 171 A.3d at 192. Murray meets

neither criteria, and, consequently, is entitled to no relief.6

       Order affirmed.




____________________________________________


6We note, too, that our review of the record reveals Murray was not sentenced
pursuant to any of our now unconstitutional mandatory minimum statutes.
See N.T., 2/17/2010 at 28; Court Commitment Order, 2/17/2010. Rather,
the court imposed a standard range guideline sentence, which was increased
pursuant to the deadly weapon enhancement, a statutory scheme that does
not implicate Alleyne. See Commonwealth v. Shull, 148 A.3d 820, 830
n.6 (Pa. Super. 2016).

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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/6/18




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