J-S46019-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    KAREEM MCNEIL                              :
                                               :
                       Appellant               :   No. 1686 EDA 2017

                    Appeal from the PCRA Order May 18, 2017
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                        No(s): CP-51-CR-0002557-2010,
                             CP-51-CR-0004305-2010


BEFORE: BOWES, J., SHOGAN, J., and KUNSELMAN, J.

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

       Appellant, Kareem McNeil, appeals from the order denying his petition

filed pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541–

9546. We affirm.

       The PCRA court summarized the procedural history of this case as

follows:

             On April 25, 2011, at the conclusion of his jury trial,
       [Appellant] was found guilty on the charges of Attempt to Commit
       Criminal Trespass, Possession of a Firearm by a Prohibited Person,
       Possession of a Firearm Without a License, and Carrying a Firearm
       on the Streets of Philadelphia.[1] On June 10, 2011, [Appellant]
       was sentenced to an aggregate period of confinement of 10 to 20
       years, followed by consecutive terms of probation totaling 12
       years. The [c]ourt denied [Appellant’s] post-sentence motion for
       reconsideration on June 15, 2011.
____________________________________________


1   18 Pa.C.S. § 3503(a)(1)(ii), 18 Pa.C.S. § 6105(a)(1), 18 Pa.C.S.
§ 6106(a)(1), and 18 Pa.C.S. § 6108, respectively.
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            On June 30, at 1768 EDA 2011, [Appellant] filed a direct
      appeal to the Superior Court of Pennsylvania. [Appellant] raised
      two issues in his appeal, namely, that the [c]ourt erred in not
      granting his motion for a new trial or evidentiary hearing based
      on alleged juror partiality, and that the [c]ourt erred in its
      discretion in imposing [Appellant’s] sentence. On July 19, 2012,
      the Superior Court affirmed [Appellant’s] judgement [sic] of
      sentence.

            [Appellant] timely filed the instant PCRA Petition on
      November 21, 2012, which was amended by Counsel and filed on
      August 21, 2015. The Commonwealth filed its motion and brief to
      dismiss [Appellant’s] PCRA Petition on February 17, 2017.

            On March 3, 2017, after careful review of the record, the
      [c]ourt issued its notice, pursuant to the Pennsylvania Rules of
      Criminal Procedure (Pa.R.Crim.P.) Rule 907, advising Counsel and
      [Appellant] that it intended to dismiss [Appellant’s] petition within
      twenty days of issuance. On May 18, 2017, the [c]ourt entered
      an Order dismissing [Apellant’s] PCRA Petition for lack of merit.

             On May 24, 2017, [Appellant] timely filed the instant appeal
      to the Superior Court of Pennsylvania. On May 25, 2017, this
      Court filed and served on [Appellant] an Order pursuant to Rule
      1925(b) of the Pennsylvania Rules of Appellate Procedure,
      directing [Appellant] to file and serve a Statement of Errors
      Complained of on Appeal, within twenty-one days of the [c]ourt’s
      Order. On June 8, 2017, [Appellant] filed his Statement of Matters
      Complained of on Appeal.

PCRA Court Opinion, 3/9/18, at 1-2.

   Appellant presents the following issues for our review:

      1. Did the PCRA court err in failing to grant relief where trial
         counsel failed to raise the issue of an illegal mandatory
         minimum sentence?

      2. Did the PCRA court err in dismissing the PCRA petition without
         granting discovery or holding an evidentiary hearing?

Appellant’s Brief at 9.




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       When reviewing the propriety of an order denying PCRA relief, we

consider the record “in the light most favorable to the prevailing party at the

PCRA level.”     Commonwealth v. Stultz, 114 A.3d 865, 872 (Pa. Super.

2015) (quoting Commonwealth v. Henkel, 90 A.3d 16, 20 (Pa. Super. 2014)

(en banc)).     This Court is limited to determining whether the evidence of

record supports the conclusions of the PCRA court and whether the ruling is

free of legal error. Commonwealth v. Robinson, 139 A.3d 178, 185 (Pa.

2016).    The PCRA court’s findings will not be disturbed unless there is no

support for them in the certified record. Commonwealth v. Lippert, 85 A.3d

1095, 1100 (Pa. Super. 2014).

       In his first issue, Appellant asserts that he was subject to a mandatory

minimum sentence pursuant to 42 Pa.C.S. § 9712(a),2 due to his use of a

firearm while committing the crimes for which he was convicted. Appellant’s

Brief at 12. Appellant maintains that pursuant to Alleyne v. United States,

133 S.Ct. 2151 (2013), “the application of the factors triggering mandatory

minimum sentences are unconstitutional and therefore the entire sentencing

statute is void[.]” Id. at 13. Appellant further contends:

             While neither the Pennsylvania Supreme Court nor the 3rd
       Circuit have ruled on the retroactivity of the mandatory minimum
       sentencing issues in a matter involving a timely PCRA petition,
____________________________________________


2  Section 9712 of the Sentencing Code provided that any person convicted of
a crime of violence who committed the crime while in visible possession of a
firearm and who placed the victim in reasonable fear of death or serious bodily
injury during the commission of the crime be sentenced to a mandatory
minimum of five years’ incarceration. See 42 Pa.C.S. § 9712(a).

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      since the U.S. Supreme Court rulings as applied in Pennsylvania
      have rendered the statute under which [Appellant] in this matter,
      was sentenced, the sentence is now illegal.

Id. at 13. Accordingly, Appellant argues, counsel was ineffective for failing to

raise the “illegal sentence issue” at sentencing or on direct appeal. Id. at 15.

      This Court has explained the rulings and impact of Alleyne and related

cases as follows:

      In Alleyne, the Supreme Court held that the constitutional jury
      trial right requires any fact, other than a prior conviction, that
      triggers a mandatory minimum sentence to be proven beyond a
      reasonable doubt before the finder of fact.        Alleyne is an
      application of the Court’s prior pronouncement in Apprendi v.
      New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435
      (2000), which ruled that any fact that increases a maximum
      sentence must be found by the factfinder beyond a reasonable
      doubt or admitted by the defendant during his guilty plea. In
      Alleyne, the United States Supreme Court expressly overruled
      Harris v. United States, 536 U.S. 545, 122 S.Ct. 2406, 153
      L.Ed.2d 524 (2002), which held that a fact that involves a
      mandatory minimum sentence does not implicate jury trial rights.
      Alleyne also implicitly abrogated McMillan v. Pennsylvania,
      477 U.S. 79, 106 S.Ct. 2411, 91 L.Ed.2d 67 (1986), which
      withstood an Apprendi attack in the Harris decision.

             In  Commonwealth v. Newman,              99    A.3d   86
      (Pa.Super.2014) (relying upon Commonwealth v. Watley, 81
      A.3d 108, 118 (Pa.Super.2013) (en banc)), we noted that Alleyne
      will be applied to cases pending on direct appeal when Alleyne
      was issued.

Commonwealth v. Riggle, 119 A.3d 1058, 1064 (Pa. Super. 2015)

(emphasis added).

      While Alleyne applies retroactively to cases that were on direct appeal

when Alleyne was issued, our Supreme Court has ruled that Alleyne does

not apply retroactively to cases on PCRA review. See Commonwealth v.

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Washington, 142 A.3d 810, 820 (Pa. 2016) (holding that Alleyne does not

apply retroactively to cases pending on collateral review.). Thus, Appellant’s

assertion that the Pennsylvania Supreme Court has not ruled on the

retroactivity of the mandatory minimum sentence issue in a matter involving

a timely PCRA petition is incorrect.

       Accordingly, Alleyne does not apply to this case. Appellant’s sentence

became final on August 20, 2012, thirty days after this Court affirmed his

judgment of sentence and time expired for Appellant to file an appeal to the

Pennsylvania Supreme Court.3 42 Pa.C.S. § 9545(b)(3); Pa.R.A.P. 1113(a).

Alleyne was decided on June 17, 2013. Because Appellant’s case was not on

direct appeal when Alleyne was decided, Appellant is not entitled to relief on

this basis.

       Furthermore, Appellant cannot establish counsel’s ineffectiveness on

this basis. Because the underlying challenge to the legality of sentence fails,

the derivative claim of trial counsel’s ineffectiveness fails as the claim lacks

arguable merit. See Commonwealth v. Marinelli, 910 A.2d 672, 680 (Pa.

2006) (explaining that “[c]ounsel will not be deemed ineffective for failing to


____________________________________________


3  Because the thirtieth day of the appeal period, August 18, 2012, fell on a
Saturday, Appellant had until Monday, August 20, 2012, to file his petition for
allowance of appeal. See 1 Pa.C.S. § 1908 (stating that, for computations of
time, whenever the last day of any such period shall fall on Saturday or
Sunday, or a legal holiday, such day shall be omitted from the computation.);
Commonwealth v. Green, 862 A.2d 613, 618 (Pa. Super. 2004).



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raise a meritless claim.”). Thus, Appellant is entitled to no relief on his claim

that the PCRA court erred in failing to grant relief where trial counsel failed to

raise the issue of an illegal mandatory minimum sentence.

       In his second issue, Appellant asserts that the PCRA court erred in

“failing to grant discovery or an evidentiary hearing.”4 Appellant’s Brief at 18.

Appellant attempts to intertwine with this argument his argument related to

counsel’s ineffectiveness regarding the testing of the firearm and shell casings.

As noted in footnote four, the issue of counsel’s ineffectiveness in this context

has been waived. Thus, to the extent that Appellant argues that the PCRA

court should have granted a discovery hearing related to counsel’s

ineffectiveness on this issue, we find that argument also is waived. To the

extent that Appellant’s claim challenges the PCRA court’s failure to conduct a

hearing prior to dismissing his PCRA petition, we conclude that this claim fails.

“The right to an evidentiary hearing on a post-conviction petition is not

absolute.” Commonwealth v. Walls, 993 A.2d 289, 295 (Pa. Super. 2010).

“It is within the PCRA court’s discretion to decline to hold a hearing if the


____________________________________________


4   We note that in the argument section of his brief, Appellant presents
discussion under the heading “Counsel was ineffective for failing to have the
firearm and shell casings recovered tested for fingerprint evidence and the
Lower Court erred in failing to grant discovery or an evidentiary hearing.”
Appellant’s Brief at 18. To the extent that Appellant attempts to argue
counsel’s ineffectiveness regarding testing of the firearm and shell casings,
we find that issue waived because Appellant did not include that issue in his
statement of questions presented. Pa.R.A.P. 2116(a). Assuming arguendo
that the issue was not waived, we would affirm on the basis of the PCRA court
opinion. PCRA Court Opinion, 3/9/18, at 4-8.

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petitioner’s claim is patently frivolous and has no support either in the record

or other evidence.” Id. “A reviewing court on appeal must examine each of

the issues raised in the PCRA petition in light of the record in order to

determine whether the PCRA court erred in concluding that there were no

genuine issues of material fact and in denying relief without an evidentiary

hearing.”   Commonwealth v. Jordan, 772 A.2d 1011, 1014 (Pa. Super.

2001).   Here, Appellant has failed to demonstrate that any of the claims

presented to the PCRA court raised a genuine issue concerning any material

fact. Accordingly, we discern no error by the PCRA court in dismissing the

amended petition without a hearing.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/15/18




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