J-S45011-15



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

HIEP VAN DIEU,

                            Appellant                No. 1962 MDA 2014


                 Appeal from the PCRA Order October 29, 2014
             In the Court of Common Pleas of Cumberland County
             Criminal Division at No(s): CP-21-CR-0001550-2012


BEFORE: BOWES, WECHT, AND FITZGERALD * JJ.

MEMORANDUM BY BOWES, J:                         FILED SEPTEMBER 25, 2015

       Hiep Van Dieu appeals from the October 29, 2014 order dismissing his

PCRA petition as untimely. We affirm.

       On December 19, 2012, Appellant pled guilty pursuant to a negotiated

plea agreement to possession with intent to deliver (“PWID”) marijuana and

theft of services.1         He was sentenced the same day to five years

incarceration on the drug charge based on a mandatory minimum under 18

Pa.C.S. § 7508(a)(1)(iii) (involving at least fifty pounds of marijuana or at

least 51 live plants). On the theft charge, the court ordered him to make
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1
  Appellant was charged with two counts of PWID, and one count each of
conspiracy to commit PWID, conspiracy to violate § 911 (corrupt
organizations), and theft of services.

*
    Former Justice specially assigned to the Superior Court.
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restitution and sentenced him to one to three years of imprisonment to run

consecutive to the sentence imposed on the drug charge. Appellant did not

file a direct appeal.

       On July 18, 2014, Appellant filed a pro se PCRA petition and counsel

was appointed.       Counsel filed a thorough Turner/Finley no-merit letter2

and sought permission to withdraw.             On September 17, 2014, the court

granted counsel that right. The trial court dismissed the petition without a

hearing on October 29, 2014, after serving notice of its intention to do so,

and considering Appellant’s pro se response. Appellant timely appealed, was

ordered to file a Pa.R.A.P. 1925(b) concise statement of errors complained of

on appeal within twenty-one days, but filed that statement two months late.

       Appellant presents two issues for our review:

       [I.] Whether the imposition of consecutive sentences resulting in
       an aggregate sentence of not less than five nor more than five
       years was so manifestly excessive as to constitute an abuse of
       discretion?

       [II.] Whether the imposition of mandatory minimum sentence
       pursuant to 18 Pa.C.S.A. § 7508 were illegal and
       unconstitutional pursuant to Alleyne v. United States, 133
       S.Ct. 2151, 186 L.Ed.2d 314 (2013)?

Appellant’s brief at 4.



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2
  Commonwealth v. Finley, 550 A.2d 213 (Pa.Super.                        1988);
Commonwealth v. Turner, 544 A.2d 927 (Pa.Super. 1988).



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      The PCRA court dismissed the within petition since it was not filed

within one year of the date the judgment of sentence became final, and

Appellant did not allege and prove the applicability of any of the three

exceptions to the time bar. 42 Pa.C.S. § 9545(b). We agree that dismissal

was proper on that basis, and thus, we do not reach the merits of

Appellant’s claims.

      The Post-Conviction Relief Act, 42 Pa.C.S. § 9545(b)(1) provides that,

“[a]ny petition . . . including a second or subsequent petition, shall be filed

within one year of the date the judgment becomes final, unless the petition

alleges and the petitioner proves one of the exceptions to the time-bar. The

time limitations of the PCRA are jurisdictional.” Commonwealth v. Crews,

863 A.2d 498 (Pa. 2004).

      The three delineated exceptions to the one-year time-bar are set forth

at 42 Pa.C.S. § 9545(b)(1)(i-iii): (1) that the claim was not previously raised

due to governmental interference; (2) that the claim is based on facts that

were not previously known to petitioner and which could not have been

discovered through the exercise of due diligence; or (3) the petition asserts

a new constitutional right that has been held to apply retroactively by either

our state Supreme Court or the United States Supreme Court.         A petition

invoking one of the statutory exceptions must also be filed within sixty days

of the date the claim could have been presented. 42 Pa.C.S. § 9545(b)(2).




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      Appellant’s judgment of sentence became final on January 18, 2013,

thirty days after sentence was imposed and no direct appeal was filed.

Thus, Appellant had until January 18, 2014 to file a timely PCRA petition.

His petition, which was filed July 18, 2014, was facially untimely.

      Appellant    acknowledges   that   his   PCRA   petition   was   untimely.

Appellant’s brief at 5.   Nonetheless, Appellant fails to invoke any of the

timeliness exceptions as the basis for avoiding the PCRA time-bar on either

of his claims. With regard to his second issue implicating Alleyne v. United

States, 133 S.Ct. 2151 (2013) (holding that any fact that increases a

mandatory minimum sentence is an element of the crime that must be

submitted to the fact-finder and proven beyond a reasonable doubt),

Appellant argues that it is an illegal sentencing claim that is non-waivable on

direct appeal. He seems to suggest that the nature of the claim circumvents

the PCRA time-bar.

      We agree that a challenge to the imposition of a mandatory minimum

sentence implicates legality of sentencing. However, Appellant is mistaken

in his belief that he is on direct appeal. This is an appeal from the denial of

PCRA relief, which is a collateral proceeding.     Even an illegal sentencing

claim must be presented in a timely PCRA petition over which we have

jurisdiction.     Commonwealth v. Fahy, 737 A.2d 214 (Pa. 1999);




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Commonwealth v. Miller, 102 A.3d 988, 994 (Pa.Super. 2014) (en banc).3

Having failed to plead and prove the applicability of one of the timeliness

exceptions, Appellant’s PCRA petition was properly dismissed as untimely.

       Order affirmed.

       Justice Fitzgerald joins this memorandum.

       Judge Wecht concurs in the result.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/25/2015




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3
   Appellant does not renew the timeliness argument he made below: that he
filed his petition within sixty days of May 19, 2014, the date he first learned
of the Alleyne decision (decided June 17, 2013), due to the fact that the
computers in the prison library had not been updated.




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