J-S34007-17



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                  IN THE SUPERIOR COURT OF
                                                    PENNSYLVANIA


                   v.

CRAIG WOODARD

                          Appellant                 No. 722 EDA 2016


              Appeal from the PCRA Order February 26, 2016
           In the Court of Common Pleas of Philadelphia County
           Criminal Division at No(s): CP-51-CR-0009209-2009


BEFORE: BOWES, SOLANO, AND PLATT,* JJ.

MEMORANDUM BY BOWES, J.:                             FILED JUNE 13, 2017

     Craig Woodard appeals from the February 26, 2016 order denying

PCRA relief. We affirm.

     Appellant was convicted of attempted murder, aggravated assault,

robbery, conspiracy to commit murder, possession of instruments of crime,

and three violations of the Uniform Firearms Act (“VUFA”), and was

sentenced to an aggregate term of thirty to sixty years imprisonment. The

charges stemmed from the October 16, 2008 attack by Appellant, Eligah

Hayes, and a third unidentified man, upon Vernon Kulb, III, as the victim

was riding his bicycle away from a grocery store in Philadelphia. Appellant

and Hayes approached Mr. Kulb on foot with guns drawn, and the third man

was on a bicycle. Appellant struck Mr. Kulb in the head with his gun, threw


* Retired Senior Judge specially assigned to the Superior Court.
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him to the ground, and sat on his back as he rummaged through his pockets

while Hayes pointed a gun in the victim’s face. Appellant then shot Mr. Kulb

in the back, and the three men fled.

     Police officers recovered firearms near the site of the shooting.     Mr.

Kulb identified Appellant and Hayes from separate photographic arrays.

Appellant and co-defendant Hayes were tried together and convicted by a

jury of all offenses except one VUFA. At a subsequent waiver trial, he was

convicted of possession of a firearm by a prohibited person. Appellant was

sentenced on July 30, 2010, to an aggregate sentence of thirty to sixty

years imprisonment.

     Appellant filed a timely post-sentence motion, which was denied on

December 6, 2010.       On appeal, judgment of sentence was affirmed.

Commonwealth v. Woodard, 38 A.3d 921 (Pa.Super. 2011) (unpublished

memorandum).      His petition for allowance of appeal to the Pennsylvania

Supreme Court was denied on May 23, 2012.               Commonwealth v.

Woodard, 46 A.3d 717 (Pa. May 23, 2012).

     Appellant timely filed this, his first PCRA petition, on March 8, 2013.

Counsel was appointed, an amended petition was filed, and relief was denied

on February 26, 2016, without a hearing.      On appeal from the denial of

PCRA relief, Appellant presents one issue for our review:

     1. Was trial and appellate counsel ineffective for failing to raise
        the issue of the sentence being illegal due to the Appellant’s



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         being subject to a mandatory minimum sentence which was
         unconstitutional?

Appellant’s brief at 8.

      In reviewing the denial of PCRA relief, we are “limited to examining

whether the PCRA court's determination is supported by the evidence of

record and whether it is free of legal error.” Commonwealth v. Watley,

153 A.3d 1034, 1039 (Pa.Super. 2016). We “will not disturb findings that

are supported by the record.” Id. at 1040. Where, as here, the allegation is

one of trial counsel’s ineffectiveness, the following principles inform our

review. Counsel is presumed to be effective and in order to overcome that

presumption, the petitioner must establish all of the following:

      (1)   the underlying substantive claim has arguable merit;

      (2)   counsel whose effectiveness is being challenged did not
            have a reasonable basis for his or her actions or failure to
            act; and

      (3)   the petitioner suffered prejudice as a result of counsel’s
            deficient performance.

Commonwealth v. Ligons, 971 A.2d 1125, 1137 (Pa. 2009).

      Appellant alleges that trial and appellate counsel were ineffective in

failing to argue that his sentence was illegal under the U.S. Supreme Court’s

decision in Alleyne v. United States, 570 U.S. 1 (2013), as applied to

mandatory minimum sentences in Pennsylvania in Commonwealth v.

Hopkins, 117 A.3d 247 (Pa. 2015). Alleyne mandates that any fact that

results in imposition of a mandatory minimum sentence is an element that

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must be submitted to the jury and found beyond a reasonable doubt.           In

Hopkins, the drug-free school zone statute, which provided for mandatory

minimum sentences based on facts that were not found by a jury, was held

to be unconstitutional under Alleyne.

       In essence, Appellant faults counsel for failing to anticipate the

Supreme Court’s decision in Alleyne and challenge his sentence on that

ground. Although Appellant maintains that the statute under which he was

sentenced was held to be unconstitutional, he characterizes his issue as a

challenge to “counsel’s ineffectiveness rather than the illegal sentence

itself.”1   Appellant’s brief at 15.      He asks us to vacate his sentence and

remand for a new sentencing.

       The Commonwealth counters first that, at the July 30, 2010

sentencing, no mandatory minimum sentencing provisions were invoked. In

fact, the sentence imposed actually exceeded any potentially applicable

mandatory minimum.            The Commonwealth relies upon our decision in

Commonwealth v. Zeigler, 112 A.3d 656, 662 (Pa.Super. 2015), for the

proposition that where a “sentencing court exceeded the mandatory

minimum sentence . . . the court did not sentence the defendant based on

the mandatory statute, and his sentence was not illegal on that ground.”).
____________________________________________


1
  Moreover, although Appellant denies that he is challenging the legality of
his sentence herein, he suggests that Alleyne might be made retroactive to
timely first PCRA petitions.



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      Furthermore, the Commonwealth points out that, when Appellant was

sentenced in 2010, mandatory minimum sentences associated with certain

firearm-related offenses were upheld as constitutional.     See McMillan v.

Pennsylvania, 477 U.S. 79 (1986) (upholding constitutionality of 42 P.C.S.

§ 9712’s five-year mandatory minimum for certain firearms offenses).

Finally,   the   Commonwealth   argues   that   counsel   cannot   be   deemed

ineffective for failing to anticipate a change in the law three years hence.

Commonwealth v. Bennett, 57 A.3d 1185, 1201 (Pa. 2012) (“[C]ounsel

will not be faulted for failing to predict change in the law.”).   Finally, the

Commonwealth points out that Alleyne is not retroactive to cases such as

this one where direct review was concluded prior to announcement of

Alleyne, which overruled prior case law on the subject. Commonwealth v.

Washington, 142 A.3d 810, 818 (Pa. 2016).

      The PCRA court concluded that Appellant’s claim lacked merit as he

failed to identify the mandatory sentencing statute that was allegedly

applied. Furthermore, the court stated that it did not consider or impose a

mandatory minimum sentence. We agree. Thus, Alleyne is inapplicable in

this PCRA proceeding.

      Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/13/2017




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