J-S69027-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    KAREEM AHMED HENSON                        :
                                               :
                       Appellant               :   No. 2718 EDA 2018


             Appeal from the PCRA Order Entered August 23, 2018,
              in the Court of Common Pleas of Delaware County,
             Criminal Division at No(s): CP-23-CR-0000914-2009.

BEFORE:      SHOGAN, J., KUNSELMAN, J., and COLINS, J.*

MEMORANDUM BY KUNSELMAN, J.:                        FILED FEBRUARY 06, 2020

        Kareem Ahmed Henson appeals from the order dismissing his petition

filed pursuant to the Post Conviction Relief Act (“PCRA”).1 42 Pa.C.S.A §§

9541-46. We affirm in part and reverse in part the PCRA court’s order, and

remand for further proceedings.

        The relevant factual and procedural history can be summarized as

follows.2   Henson, the maintenance man at an apartment complex, stored



____________________________________________


*   Retired Senior Judge assigned to the Superior Court.

1   See 42 Pa.C.S.A. § 9541-9546.

2For a more detailed recitation of the factual and procedural history underlying
this appeal, see Commonwealth v. Henson, 37 A.3d 1234 (Pa. Super.
2011) (unpublished memorandum).
J-S69027-19


drugs and other items in the apartment of one of the tenants, with her

consent. Police obtained a warrant to search the apartment, and found the

stored items, which included 917 grams of cocaine, drug paraphernalia, two

cell phones and cash. Henson was arrested and charged with possession of a

controlled substance with intent to deliver (“PWID”) and related offenses. In

2010, a jury convicted him of PWID and conspiracy.3 On May 14, 2010, the

trial court sentenced him to seven to twenty years for PWID, which included

a mandatory minimum sentence imposed pursuant to 18 Pa.C.S.A. § 7508,

because Henson was a repeat offender, and he possessed over 100 grams of

cocaine.4 The trial court additionally imposed a consecutive prison term of

one to ten years for conspiracy. This Court affirmed the judgment of sentence

on October      18, 2011.         See Henson, 37    A.3d 1234    (unpublished

memorandum). Henson did not seek allowance of appeal with our Supreme

Court.

        On October 24, 2012, Henson filed a pro se PCRA petition raising six

claims of trial counsel ineffectiveness. The PCRA court appointed counsel, who

filed an amended PCRA petition in 2013 asserting the ineffectiveness of direct



____________________________________________


3   35 P.S. § 780-113(a)(30), 18 Pa.C.S.A. § 903.

4Pursuant to 18 Pa.C.S.A. § 7508(3)(iii), a person convicted of PWID involving
cocaine shall be sentenced to a mandatory minimum term of seven years of
imprisonment “when the aggregate weight of the compound or mixture of the
substance involved is at least 100 grams,” and “at the time of sentencing the
defendant has been convicted of another drug trafficking offense.”

                                           -2-
J-S69027-19


appeal counsel for failing to seek allowance of appeal in the Pennsylvania

Supreme Court. The PCRA court conducted an evidentiary hearing on January

21, 2015, solely on the issue of direct appeal counsel’s ineffectiveness. On

August 23, 2018, the PCRA court dismissed the petition. Henson filed a timely

pro se notice of appeal.5       Both Henson and the PCRA court complied with

Pa.R.A.P. 1925.

       Henson raises the following issues for our review:

       1. Whether the mandatory minimum sentence levied pursuant to
          18 Pa.C.S.A. § 7508 on the [PWID] charge is illegal because
          that statute is unconstitutional pursuant to Commonwealth
          v. DiMatteo, 644 Pa. 463, 177 A.3d 182 (2018)?

       2. Whether the [PCRA] court erred in denying Henson’s [PCRA]
          petition and in not granting him leave to file a nunc pro tunc
          petition for allowance of appeal to the Pennsylvania Supreme
          Court, where prior counsel was constitutionally ineffective in
          not timely informing him of the Superior Court’s decision on
          direct appeal after sending that decision using an incorrect
          inmate number and, as such, it was not received by . . . Henson
          in time to file a timely petition for allowance of appeal to the
          Pennsylvania Supreme Court?

       3. Whether the [PCRA] court erred in denying . . . Henson’s
          [PCRA] petition without hearing evidence on or resolving all the
          claims he raised in it?

Henson’s Brief at 5 (some capitalization omitted).


____________________________________________


5 By this time, Henson had retained private PCRA counsel. His private PCRA
counsel also filed a notice of appeal and a petition to withdraw from
representation. The PCRA court held a hearing on October 22, 2018, to
address the dual notices of appeal, and counsel’s petition. The PCRA court
granted private PCRA counsel’s petition to withdraw, and appointed new PCRA
appellate counsel for Henson.


                                           -3-
J-S69027-19


       In his first issue, Henson challenges the mandatory minimum sentence

of seven years imposed pursuant to § 7508 for PWID. This claim was not

presented to or addressed by either the trial court or the PCRA court. See

Pa.R.A.P. 302(a) (providing that issues not raised in the lower court are

waived and cannot be raised for the first time on appeal).            However, a

challenge to the imposition of a mandatory minimum sentence constitutes a

challenge to the legality of the sentence. See Commonwealth v. Foster,

17 A.2d 332, 345 (Pa. 2011). A challenge to the legality of a sentence is

never waived so long as a court has jurisdiction to address the claim. See

Commonwealth v. Berry, 877 A.2d 479, 482 (Pa. Super. 2005).6                   The

question of whether a claim implicates the legality of a sentence presents a

pure question of law. Foster, 17 A.3d at 340 n.13. Issues relating to the

legality of a sentence are reviewed de novo, and our scope of review is

plenary. Commonwealth v. Infante, 63 A.3d 358, 363 (Pa. Super. 2013).

       Henson contends that, subsequent to his conviction and sentencing, the

Pennsylvania Supreme Court in DiMatteo, supra, declared the mandatory

minimum sentence set forth § 7508 unconstitutional pursuant to Alleyne v.

United States, 133 S. Ct. 2151 (2013). On this basis, Henson argues that

his mandatory minimum sentence for PWID is illegal, and should be vacated.



____________________________________________


6 As Henson filed a timely PCRA petition, and a timely notice of appeal from
the dismissal of that petition, this Court has jurisdiction to address his legality
of sentencing claim.

                                           -4-
J-S69027-19


       We briefly review the developments in this area of the law. On June 17,

2013, the United States Supreme Court held in Alleyne that sentencing

schemes, which predicated the imposition of a mandatory minimum sentence

on a fact found by the sentencing court by a preponderance of the evidence,

rather than by a jury beyond a reasonable doubt, were unconstitutional. The

effect of Alleyne in this Commonwealth was the invalidation of a number of

similarly-patterned       mandatory        minimum   sentencing   statutes   as

unconstitutional, which were challenged on direct appeal.7

       Importantly, the Newman Court held that Alleyne applied only to

cases pending on direct review as of June 17, 2013, which is the date it was

decided. Newman, 99 A.3d at 90. Furthermore, this Court has declined to

give Alleyne retroactive effect to cases on timely collateral review when the

petitioner’s judgment of sentence was finalized before Alleyne was decided.

DiMatteo, 177 A.3d at 188 (citing Commonwealth v. Riggle, 119 A.3d 1058

(Pa. Super. 2015)).


____________________________________________


7 See, e.g. Commonwealth v. Hopkins, 117 A.3d 247 (Pa. 2015) (holding
18 Pa.C.S.A. § 6317 unconstitutional because it allowed a judge to increase a
sentence for conviction of drug offenses based on the occurrence of the
offense within 1,000 feet of a school and that such legislatively mandated fact-
finding could not be severed); Commonwealth v. Newman, 99 A.3d 86, 98-
102 (Pa. Super. 2014) (en banc) (declaring the mandatory minimum sentence
under 42 Pa.C.S.A. § 9712.1 unconstitutional because it increased the penalty
for certain drug offenses when a judge finds, by a preponderance of the
evidence, that at the time of the offense, the offender was in possession of a
firearm).



                                           -5-
J-S69027-19


       Here, although Henson filed a timely PCRA petition, his judgment of

sentence became final in 2011,8 and was no longer pending on direct review

when Alleyne was decided in 2013. Thus, because Henson’s judgment of

sentence was finalized before Alleyne was decided, his Alleyne challenge to

his mandatory minimum sentence under § 7508 warrants no relief.

       In his second issue, Henson contends that the PCRA court erred in

dismissing his claim that direct appeal counsel was ineffective. Our standard

of review of the PCRA court’s order is well-settled:

              We review an order dismissing a PCRA petition in the light
       most favorable to the prevailing party at the PCRA level. This
       review is limited to the findings of the PCRA court and the evidence
       of record. We will not disturb a PCRA court’s ruling if it is
       supported by evidence of record and is free of legal error. This
       Court may affirm a PCRA court’s decision on any grounds if the
       record supports it. Further, we grant great deference to the
       factual findings of the PCRA court and will not disturb those
       findings unless they have no support in the record. However, we
       afford no such deference to its legal conclusions. Where the
       petitioner raises questions of law, our standard of review is de
       novo and our scope of review plenary.

Commonwealth v. Ford, 44 A.3d 1190, 1194 (Pa. Super. 2012) (citations

omitted).

       Additionally, when a petitioner alleges trial counsel’s ineffectiveness in

a PCRA petition, the petitioner must plead and prove:


____________________________________________


8 As noted above, Henson’s direct appeal to this Court was denied by
memorandum opinion on October 18, 2011. As no petition for allowance of
appeal was filed in our Supreme Court, Henson’s judgment of sentence
became final thirty days later, when the appeal period expired on November
17, 2011.

                                           -6-
J-S69027-19


      (1) that the underlying claim has arguable merit; (2) that no
      reasonable basis existed for counsel’s actions or failure to act; and
      (3) that the petitioner suffered prejudice as a result of counsel’s
      error.    To prove that counsel’s chosen strategy lacked a
      reasonable basis, a petitioner must prove that an alternative not
      chosen offered a potential for success substantially greater than
      the course actually pursued. Regarding the prejudice prong, a
      petitioner must demonstrate that there is a reasonable probability
      that the outcome of the proceedings would have been different
      but for counsel’s action or inaction. Counsel is presumed to be
      effective; accordingly, to succeed on a claim of ineffectiveness[,]
      the petitioner must advance sufficient evidence to overcome this
      presumption.

Commonwealth v. Johnson, 139 A.3d 1257, 1272 (Pa. 2016) (internal

citations and quotation marks omitted).

      Here, Henson argues that the PCRA court erred in dismissing his claim

that direct appeal counsel was ineffective.      Henson argues that he sent

multiple letters to counsel inquiring of the status of his direct appeal, and

requesting that counsel file a petition for allowance of appeal in our Supreme

Court.   Henson maintains that he received no response to his inquiries.

Henson further asserts that he did not learn of this Court’s denial of his direct

appeal until after the period in which to file a petition for allowance of appeal

in our Supreme Court had expired. Henson indicates that his direct appeal

counsel purported to send correspondence to him, but used an incorrect

inmate number.

      Notably, Henson does not acknowledge, let alone discuss, the three

prongs of the test for ineffectiveness. When an appellant fails to set forth all

three prongs of the ineffectiveness test and to meaningfully discuss them, he



                                      -7-
J-S69027-19


is not entitled to relief, and we are constrained to find such claims waived for

lack of development. See Commonwealth v. Steele, 961 A.2d 786, 797

(Pa. 2008).     Accordingly, Henson’s claim of ineffective assistance of direct

appeal counsel is waived for lack of development. Id.

       In his final issue, Henson contends that the PCRA court erred in

dismissing his petition without addressing, or hearing evidence on, the issues

he raised in his pro se PCRA petition. He claims that, although the PCRA court

conducted an evidentiary hearing on January 21, 2015, the sole issue

addressed at that hearing was whether direct appeal counsel notified Henson

of his appellate filing deadlines.

       Here, the record reflects that Henson filed a pro se PCRA petition in

which he raised six claims of trial counsel’s ineffectiveness.9   Pro Se PCRA

Petition, 10/24/12, at 3. His appointed counsel then filed an amended PCRA

petition raising the additional claim that direct appeal counsel was ineffective

for failing to file a petition for allowance of appeal in the Supreme Court.

Amended PCRA Petition, 10/2/15, at ¶¶ 1-22. In the amended PCRA petition,

counsel specifically requested that, should the PCRA court decline to reinstate

Henson’s right to seek allowance of appeal in our Supreme Court nunc pro


____________________________________________


9 Henson claimed, inter alia, that trial counsel failed to request a curative
instruction, and failed to object to prosecutorial misconduct, an improper jury
charge, a “surprise witness,” and hearsay testimony. Pro Se PCRA Petition,
10/24/12, at 3.



                                           -8-
J-S69027-19


tunc, that he be granted “additional time to file a second amended petition

. . . with respect to any other issues raised by [Henson] in his pro se [PCRA]

petition.” Id. at ¶¶ 25, 26.10 At that January 21, 2015, evidentiary hearing,

the prosecutor confirmed with defense counsel that the only issue to be

addressed at the hearing was the alleged ineffectiveness of direct appeal

counsel, and that “should there be the need for additional testimony or

presentation[,] that would occur on a different day.” N.T. PCRA Hearing,

1/21/15, at 3.11

       Based on the record before us, we conclude that the parties intended

that the PCRA court first decide whether direct appeal counsel was ineffective,

and that, in the event that claim was unsuccessful, the parties would then

address Henson’s remaining pro se claims of trial counsel ineffectiveness. The

Commonwealth         agrees     that    this   was   the   parties’   understanding.

Commonwealth Brief at 19. Nevertheless, upon deciding the singular issue of



____________________________________________


10 The docket reflects that Henson subsequently retained private counsel who
substituted his appearance on December 4, 2014, and filed a second amended
PCRA petition on January 8, 2015. The PCRA court also references these
docket entries. See PCRA Court Opinion, 2/8/19, at 10. However, the
certified record does not contain either the substitution of appearance by
private counsel, or the second amended PCRA petition. Nonetheless, these
omissions in the record do not affect our disposition.

11 Logically, this agreement would conserve time and judicial resources, as a
ruling that direct appeal counsel was in fact ineffective, such that Henson’s
direct appeal rights should be reinstated, would obviate the need to pursue
any further PCRA claims, including Henson’s pro se claims of trial counsel
ineffectiveness.

                                           -9-
J-S69027-19


direct appeal counsel’s ineffectiveness, the PCRA court dismissed Henson’s

PCRA petition in its entirety, without permitting him to develop his remaining

claims. The Commonwealth concedes that the case should be remanded to

permit Henson to develop his remaining claims. Id. Accordingly, we remand

this matter to the PCRA court for another hearing to permit Henson to develop

the additional claims raised in his pro se petition and in the second amended

petition.

      PCRA Order affirmed in part, and reversed in part. Case remanded for

further proceedings. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/6/20




                                    - 10 -
