J-S18030-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

JACEN ASIM KIRKLAND

                            Appellant                 No. 1516 MDA 2015


                 Appeal from the PCRA Order August 10, 2015
               In the Court of Common Pleas of Dauphin County
              Criminal Division at No(s): CP-22-CR-0000136-2014


BEFORE: BOWES, J., LAZARUS, J., and STRASSBURGER, J.*

JUDGMENT ORDER BY LAZARUS, J.:                    FILED FEBRUARY 19, 2016

        Jacen Asim Kirkland appeals from the order entered in the Court of

Common Pleas of Dauphin County denying his petition filed pursuant to the

Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546.           After

careful review, we affirm.

        On April 11, 2014, Kirkland entered a negotiated plea of guilty to one

count of sexual assault.       Following an evaluation by the Sexual Offenders

Assessment Board, Kirkland was found not to meet the criteria to be

classified as a sexually violent predator.       On July 14, 2014, the court

sentenced Kirkland to a term of three to six years’ incarceration, plus fines

and costs. Kirkland did not file an appeal of his judgment of sentence.

____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
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        On June 11, 2015, Kirkland filed a timely pro se PCRA petition in which

he alleged that he was serving an illegal sentence based on mandatory

sentencing schemes found to be unconstitutional in Alleyne v. United

States, 133 S.Ct. 2151 (2013).                 The PCRA court appointed William M.

Shreve, Esquire, to represent Kirkland. Upon review of the record, Attorney

Shreve determined that the sexual assault charge to which Kirkland pled

guilty did not implicate any mandatory minimum sentence provisions, and

sought to withdraw his representation pursuant to Commonwealth v.

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

213 (Pa. Super. 1988). On July 16, 2015, the PCRA court granted Attorney

Shreve’s motion to withdraw and issued a notice of intent to dismiss

pursuant to Pa.R.Crim.P. 907. Kirkland filed an objection to the court’s Rule

907 order and the PCRA court dismissed his petition by order dated August

10, 2015. This timely appeal follows, in which Kirkland claims that the PCRA

court erred “in not correcting an illegal sentence.”1 Brief of Appellant, at 1.

        Although Kirkland’s pro se brief is extremely jumbled and difficult to

follow, it appears that the gist of his claim is that his sentence is illegal

under    Alleyne.       Kirkland    states      that   he   “is   sentenced   under   the
____________________________________________


1
  The PCRA provides relief where a petitioner’s “sentence resulted from . . .
[t]he imposition of a sentence greater than the lawful maximum.” 42
Pa.C.S.A. § 9543(a)(2)(vii). Challenges to the legality of a judgment of
sentence cannot be waived. Commonwealth v. Jones, 932 A.2d 179, 182
(Pa. Super. 2007). Thus, the fact that Kirkland did not raise this claim on
direct appeal is of no moment here.



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Commonwealth enhancement provision, which jells [sic] a mandatory

minimum statute, that’s considered facially unconstitutional and void in their

[sic] entirety” under Alleyne. Kirkland is entitled to no relief.

      Here, Kirkland pled guilty to one count of sexual assault and received a

sentence of three to six years’ imprisonment. This sentence falls within the

standard range of the sentencing guidelines, given Kirkland’s prior record

score and the offense gravity score. No mandatory minimum sentence was

implicated in Kirkland’s case. Thus, the claim fails.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/19/2016




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