J-S13033-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                :     IN THE SUPERIOR COURT OF
                                            :          PENNSYLVANIA
                                            :
                    v.                      :
                                            :
THOMAS MICHAEL BRYAN                        :
                                            :
                          Appellant         :
                                            :     No. 1048 WDA 2015

                   Appeal from the PCRA Order June 10, 2015
         in the Court of Common Pleas of Blair County Criminal Division
                      at No(s): CP-07-CR-0001596-2010
                                 CP-07-CR-0001597-2010
                                 CP-07-CR-0001598-2010
                                 CP-07-CR-0001599-2010
                                 CP-07-CR-0001600-2010

BEFORE: LAZARUS, STABILE, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.:                       FILED AUGUST 18, 2016

        Appellant, Thomas Michael Bryan, appeals from the order of the Blair

County Court of Common Pleas denying his Post Conviction Relief Act1

(“PCRA”) petitions. Appellant contends the trial court erred as a matter of

law when it failed to find that he was statutorily eligible for a RRRI2

minimum sentence. We affirm.




*
    Former Justice specially assigned to the Superior Court.
1
    42 Pa.C.S. §§ 9541-9546.
2
    Recidivism Risk Reduction Incentive. 61 Pa.C.S. §§ 4501-4512.
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      The PCRA court summarized the procedural posture of this case as

follows:

           On June 3, 2011, [Appellant] entered guilty pleas pursuant
           to a plea agreement to seven counts of Possession with
           Intent to Deliver (“PWID”), 35 P.S. § 780-113(a)(30); and
           one count of Criminal Conspiracy to commit PWID, 35 P.S.
           § 780-113(a)(30) and 18 P.S. [sic] § 903.[3] This [c]ourt
           sentenced [Appellant] on June 3, 2011 to a period of
           incarceration of 7-14 years in a state correctional
           institution with 10 years of probation. No direct appeal
           was filed.

              On July 2, 2012, [Appellant] filed a timely pro se
           [PCRA] petition raising ineffectiveness of his sentencing
           counsel, . . . , throughout the plea and sentencing.
           Although [Appellant] had indicated that he was in the
           process of retaining counsel at the time of his PCRA, this
           [c]ourt subsequently appointed [ ] PCRA counsel on
           October 29, 2012.        [Appellant’s] current counsel was
           retained on March 2, 2013; counsel filed an Amended
           PCRA on April 5, 2013 and a Second Amended PCRA
           Petition on July 2, 2014. After a PCRA Hearing on October
           13, 2014, . . . this [c]ourt provided counsel additional time
           to submit any legal memorandum they wished the [c]ourt
           to consider.

PCRA Ct. Op., 1-2, 6/15/15.     On June 10, 2015, the PCRA court “denied and

dismissed” the PCRA petitions. Order, 6/10/15. This timely appeal followed.

Appellant filed a court-ordered Pa.R.A.P. 1925(b) statement of errors

complained of on appeal.




3
  We note that Appellant pleaded guilty to multiple counts on five criminal
dockets. See R.R. at 83a, 95a, 107a, 120a, 134a. For convenience, we
refer to the reproduced record where applicable.




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      Appellant raised the following issue for our review:        “Did the Trial

Court err as a matter of law when it failed to provide [Appellant] with a RRRI

minimum sentence when he was otherwise statutorily eligible for RRRI?”4

Appellant’s Brief at 5. Appellant argues that because he did not receive a

criminal sentence pursuant to 42 Pa.C.S. § 9712.1,5 he is statutorily eligible

for RRRI. Id. at 15.


4
  We note that this is the sole issue raised in Appellant’s Rule 1925(b)
statement.
5
  Contrary to Appellant’s claim, the trial court did sentence Appellant based
upon the weapons enhancement under Section 9712.1. See R.R. at 41a,
76a. “[I]n Alleyne [v. United States, 133 S. Ct. 2151 (2013)], the United
States Supreme Court finally repudiated the . . . maximum
sentence/minimum sentence dichotomy. Plainly, Section 9712.1 can no
longer pass constitutional muster.” Commonwealth v. Newman, 99 A.3d
86, 98 (Pa Super. 2014), (en banc), appeal denied, 121 A.3d 496 (Pa.
2015). We note that “[l]egality of sentence questions are not waivable and
may be raised sua sponte by this Court.” Commonwealth v. Watley, 81
A.3d 108, 118 (Pa. Super. 2013). “This Court has recognized that a new
rule of constitutional law is applied retroactively to cases on collateral review
only if the United States Supreme Court or our Supreme Court specifically
holds it to be retroactively applicable to those cases.” Commonwealth v.
Miller, 102 A.3d 988, 995 (Pa. Super. 2014) (citation omitted).                 In
Commonwealth v. Washington, ___ A.3d ___, 37 EAP 2015 (Pa. July 19,
2016), the Pennsylvania Supreme Court addressed the issue of “whether the
Supreme Court of the United States’ decision in Alleyne [ ] applies
retroactively to attacks upon mandatory minimum sentences advanced on
collateral review.” Id. at ___, 37 EAP 2015 at 1. The Washington Court
held that “Alleyne does not apply retroactively to cases pending on
collateral review . . . .” Id. at ___, 37 EAP 2015 at 16.

       In the case at bar, Appellant was sentenced on June 3, 2011. He did
not file a direct appeal. Therefore, his judgment of sentence became final
on July 5, 2011. See 42 Pa.C.S. § 9545(b)(3) (providing “[f]or purposes of
this subchapter, a judgment becomes final at the conclusion of direct review,
including discretionary review in the Supreme Court of the United States and



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     Our review is governed by the following principles.

        This Court has held that an attack upon the power of a
        court to impose a given sentence is a challenge to the
        legality of a sentence. Commonwealth v. Lipinski, 841
        A.2d 537, 539 (Pa.             Super.   2004);    see also
        Commonwealth v. Hansley, 994 A.2d 1150 (Pa. Super.
        2010) (challenge to trial court’s imposition of RRRI
        sentence with mandatory minimum sentence constitutes
        challenge to trial court’s sentencing authority).

Commonwealth v. Robinson, 7 A.3d 868, 870 (Pa. Super. 2010).

Appellant challenges the legality of his sentence.    See id. at 871.    “Our

standard of review over such questions is de novo and our scope of review is

plenary.”   Commonwealth v. Brougher, 978 A.2d 373, 377 (Pa. Super.

2009) (citation omitted).

     An RRRI eligible offender is statutorily defined as follows:

        “Eligible offender.” A defendant or inmate convicted of a
        criminal offense who will be committed to the custody of
        the department and who meets all of the following
        eligibility requirements:

                                 *    *    *

            (2) Has not been subject to a sentence the calculation
            of which includes an enhancement for the use of a
            deadly weapon as defined under law or the sentencing
            guidelines   promulgated    by    the    Pennsylvania

the Supreme Court of Pennsylvania, or at the expiration of time for seeking
the review.”); see also 1 Pa.C.S. § 1908 (providing that when the last day
of any period of time referred to in any statute falls on Saturday, Sunday, or
legal holiday, such day shall be omitted from computation). Instantly,
Appellant’s judgment of sentence became final before Alleyne was decided.
Therefore, he is not entitled to any relief based upon Alleyne. See
Washington, at ___, 37 EAP 2015 at 16.




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                Commission on Sentencing or the attorney for the
                Commonwealth has not demonstrated that the
                defendant has been found guilty of or was convicted of
                an offense involving a deadly weapon or offense under
                18 Pa.C.S. Ch. 61 (relating to firearms and other
                dangerous articles) or the equivalent offense under the
                laws of the United States or one of its territories or
                possessions, another state, the District of Columbia, the
                Commonwealth of Puerto Rico or a foreign nation.

61 Pa.C.S. § 4503(2). Pursuant to statute, “[a]t the time of sentencing, the

court shall make a determination whether the defendant is an eligible

offender.” Id. § 4505(a).

      At the guilty plea hearing, the Commonwealth averred that “the total

of the plea would be a plea agreement whereby [Appellant] would be

sentenced to a State Correctional Institution for seven (7) to fourteen (14)

years, followed by ten (10) years’ probation, and that he would not be RRRI

eligible.”    R.R. at 3a.   In support of its contention that Appellant was not

RRRI eligible, the Commonwealth stated to the court:

                Your Honor, the weapons enhancement would be found
             at Title 42 Pa.C.S.A. Sec, 9712.1. . . . I have a series of
             approximately fourteen (14) photographs that I would like
             to admit into the record. . . . Essentially, Your Honor, it is
             the Commonwealth’s position that they depict the
             presence of four (4) firearms in the Master Bedroom where
             drug paraphernalia was located and to which the deposit
             belonged where the cocaine was found, as well as three
             (3) firearms in an office next to a safe wherein the other
             two controlled substances, Methadone and Oxycontin was
             found along with the $1,100 in buy-money from the day
             before it.    So, based on 9712.1 . . . and these
             photographs, the Commonwealth believes that not only is
             that weapons enhancement is [sic] applicable, but that
             clearly would be a bar to this [Appellant] . . . from
             receiving RRRI.


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Id. at 26-27a.

     In the June 3rd Order, the trial court stated: “The parties had come to

a plea agreement and presented it to this [c]ourt which it accepts with an

issue as to [Appellant’s] eligibility for the RRRI Program which will be

discussed later.”   Id. at 34a.    The court concluded that “prior to the

weapons enhancement presentation by the Commonwealth, this

[c]ourt did believe that RRRI was appropriate. However, with the weapons

enhancement, it agrees with the Commonwealth” that Appellant was not

eligible for the RRRI Program. Id. at 41a (emphasis added).

     The PCRA court opined:

          In the instant matter, the Commonwealth entered 14
        photographs of firearms into the record at the Guilty Plea
        Hearing:

                               *    *     *

           This [c]ourt found that the weapon enhancement was
        proper as reflected in the sentencing Order dated June 3,
        2011:
                               *    *   *

        [Appellant] was sentenced in accordance with 42 Pa.C.S. §
        9712.1 which consequently rendered him RRRI-ineligible
        pursuant to 61 Pa.C.S. § 4503(4).

PCRA Ct. Op. at 7-8.

     In the case sub judice, Appellant was sentenced pursuant to the

weapons enhancement.      See 61 Pa.C.S. § 4503(2).    Therefore, Appellant

was not RRRI eligible.   See id.   We discern no error of law by the PCRA



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court.     See Robinson, 7 A.3d at 870; Brougher, 978 A.2d at 377.

Therefore, we affirm the order of the PCRA court.

         Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 8/18/2016




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