J-S72012-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    THERION WATSON                             :
                                               :
                       Appellant               :   No. 820 MDA 2018

                  Appeal from the PCRA Order June 25, 2018
     In the Court of Common Pleas of Dauphin County Criminal Division at
                       No(s): CP-22-CR-0004265-2011


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

MEMORANDUM BY BOWES, J.:                                FILED MARCH 05, 2019

       Therion Watson appeals from the order dismissing his petition filed

pursuant to the Post Conviction Relief Act (“PCRA”). We affirm.

       In 2013, Appellant was convicted of robbery, burglary, conspiracy (to

commit robbery), conspiracy (to commit burglary), and possession of firearm

prohibited. On February 14, 2014, Appellant was sentenced to an aggregate

prison term of ten to twenty years.1 This Court affirmed Appellant’s judgment



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1 Appellant was sentenced to ten to twenty years incarceration for the robbery
conviction, with his remaining sentences to run concurrently with that
sentence. As robbery is a felony of the first degree, see 18 Pa.C.S. § 3701,
it is punishable by up to twenty years incarceration. See 18 Pa.C.S.
§ 1103(1). Appellant’s remaining sentences also fell within the applicable
statutory limits. See PCRA Court Opinion, 4/6/18, at 4-5.
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of sentence, and our Supreme Court denied allowance of appeal on December

28, 2016.     Commonwealth v. Watson, 140 A.3d 696 (Pa.Super. 2016),

appeal denied, 164 A.3d 480 (Pa. 2016).

       On January 10, 2018, Appellant filed a timely pro se PCRA petition.2

Therein, he averred that the mandatory minimum sentence that he received

was illegal under Alleyne v. U.S., 570 U.S. 99 (2013).        The PCRA court

appointed counsel, and directed counsel to file an amended petition. Counsel

subsequently filed a motion to withdraw along with a “no merit” letter

pursuant to Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and

Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc). In his

no merit letter, counsel expressed his reasons for concluding that the Alleyne

illegal sentencing issue that Appellant wished to raise lacked merit.3 The PCRA

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2 Under the PCRA, any petition “shall be filed within one year of the date the
judgment becomes final[.]” 42 Pa.C.S. § 9545(b)(1). A judgment of sentence
becomes final “at the conclusion of direct review, including discretionary
review in the Supreme Court of the United States and the Supreme Court of
Pennsylvania, or at the expiration of time for seeking the review.” Id.
§ 9545(b)(3); see also U.S.Sup.Ct.R. 13.1 (providing ninety days for filing of
petition for writ of certiorari). It does not appear from the record that
Appellant sought review in the Supreme Court of the United States.
Accordingly, Appellant’s judgment of sentence became final on March 30,
2017, which was ninety days after the Pennsylvania Supreme Court denied
Appellant’s petition for allowance of appeal and Appellant’s time for filing a
petition for writ of certiorari to the United States Supreme Court expired. He
therefore had until March 30, 2018 to file the instant petition.

3 Notably, in counsel’s motion to withdraw as well as in the PCRA court’s
Pa.R.A.P. 1925(a) opinion, it is indicated without discussion or analysis that
Appellant raised two other issues in his pro se PCRA petition, namely: (1) that



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court agreed and, on April 6, 2018, entered an order granting counsel’s motion

to withdraw and providing notice of its intention to dismiss the petition without

a hearing pursuant to Pa.R.Crim.P. 907. The Rule 907 notice indicated that

Appellant had thirty days in which to file a response to the order. Appellant

did not respond to the Rule 907 order; instead, on April 27, 2018, he filed a

notice of appeal.4       The PCRA court ordered Appellant to file a concise

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

and Appellant complied. In his concise statement, Appellant raised various

claims of ineffective assistance of trial and PCRA counsel. On June 25, 2018,

the PCRA court entered a final order dismissing Appellant’s petition.5

       Appellant raises one issue for our review: “Was appointed [trial] counsel

. . . ineffective for filing multiple continuances without her client’s informed



____________________________________________


government officials improperly obstructed his right of appeal; and (2) the
sentence imposed was greater than the lawful maximum. However, our
review of Appellant’s pro se petition discloses no issue other than the Alleyne
illegal sentencing issue.

4 Appellant incorrectly indicated in his notice of appeal that he is appealing
from the PCRA court’s April 9, 2018 order. Based on our review of the docket,
the only order entered on that date was an order denying Appellant’s petition
to proceed pro se.

5 Here, although Appellant’s pro se notice of appeal was filed prematurely, it
was treated as timely filed on June 25, 2018, when the PCRA court entered
an order dismissing the petition. See Pa.R.A.P. 905(a)(5) (providing that “[a]
notice of appeal filed after the announcement of a determination but before
the entry of an appealable order shall be treated as filed after such entry and
on the day thereof”). We have therefore changed the caption to reflect the
proper order from which this appeal lies.

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consent, while knowing the client’s objective was a speedy trial?” Appellant’s

brief at unnumbered 8.

       Initially, we must determine whether Appellant has preserved his issue

for our review. The Pennsylvania Rules of Appellate Procedure provide that

issues not raised by an appellant in the trial court are waived and cannot be

raised for the first time on appeal. See Pa.R.A.P. 302(a). The issue Appellant

now presents of trial counsel’s ineffectiveness was not raised before the PCRA

court in his pro se petition, in counsel’s no merit letter, or in response to the

PCRA court’s Rule 907 notice. Accordingly, he has waived the issue. See

Pa.R.A.P. 302(a); see also Commonwealth v. Roney, 79 A.3d 595, 611

(Pa. 2013) (holding that PCRA petitioner waived his issues for failing to

present them to the PCRA court); Pa.R.Crim.P. 902(B) (stating that “[e]ach

ground relied upon in support of the relief requested shall be stated in the

[PCRA] petition. Failure to state such a ground in the petition shall preclude

the defendant from raising that ground in any proceeding for post-conviction

collateral relief.”).6

       Order affirmed.


____________________________________________


6 In his pro se PCRA petition, Appellant claimed that his sentence was illegal
under Alleyne. Unlike other issues, an illegal sentencing claim is not subject
to the traditional waiver doctrine. See Commonwealth v. Wolfe, 140 A.3d
651, 660 (Pa. 2016). Thus, even though Appellant did not raise this issue on
appeal, we may address it sua sponte. See Commonwealth v. Melvin, 103
A.3d 1, 52 (Pa.Super. 2014). Based on our review, we are satisfied that
Appellant’s sentence does not implicate Alleyne. See PCRA Court Opinion,
4/6/18, at 5-6.

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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 03/05/2019




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