J-S11013-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA :                 IN THE SUPERIOR COURT OF
                             :                      PENNSYLVANIA
                             :
           v.                :
                             :
                             :
 ZAAKIR LEE                  :
                             :
              Appellant      :                 No. 1252 EDA 2017
                             :

                   Appeal from the PCRA Order April 7, 2017
             In the Court of Common Pleas of Philadelphia County
             Criminal Division at No(s): CP-51-CR-0009126-2007,
                            CP-51-CR-0009414-2007


BEFORE: OTT, J., STABILE, J., and MUSMANNO, J.

MEMORANDUM BY OTT, J.:                                  FILED MAY 02, 2018

       Zaakir Lee appeals from the order entered April 7, 2017, in the

Philadelphia County Court of Common Pleas, denying his first petition filed

pursuant to the Post Conviction Relief Act (“PCRA”).1 Lee seeks relief from

the judgment of sentence of an aggregate term of 20 to 40 years’

imprisonment, followed by 10 years’ probation, imposed after he entered a

guilty plea, in two separate cases, to charges of robbery (12 counts), criminal

conspiracy, carrying a firearm without a license (two counts), and possessing

an instrument of crime.2 On appeal, Lee argues prior counsel was ineffective

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1   See 42 Pa.C.S. §§ 9541-9546.

2 See 18 Pa.C.S. §§ 3701(a)(1)(ii), 903(a)(1), 6106(a)(1), and 907(a),
respectively.
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for failing to challenge the legality of his sentence. For the reasons below, we

affirm.

       The facts underlying Lee’s convictions are well-known to the parties, and

summarized in the decision affirming his judgment of sentence on direct

appeal. See Commonwealth v. Lee, 60 A.3d 569 [3623 & 3624 EDA 2009]

(Pa. Super. 2012) (unpublished memorandum at 2-4).3            In summary, on

February 9, 2007, at approximately 10:20 p.m., Lee and a co-conspirator

entered a tavern on Discher Street in Philadelphia and robbed 11 people at

gunpoint. Three days later, Lee committed another gunpoint robbery of a

victim who was walking his dog in the same general area. See id. Lee was

subsequently arrested and, as noted above, entered a guilty plea on

September 30, 2009, in both cases. On December 1, 2009, the trial court

sentenced Lee to an aggregate term of 20 to 40 years’ imprisonment, followed

by 10 years’ probation. Several of his sentences were mandatory minimum

terms imposed pursuant to 42 Pa.C.S. § 9712.

       Lee filed a direct appeal in which he challenged only the discretionary

aspects of his sentence. See Lee, supra. This Court affirmed on August 14,

2012, and Lee did not file a petition for allowance of appeal in the Pennsylvania




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3The separate appeals filed at each trial court docket – Docket No. 9126-2009
and Docket No. 9414-2009 - were consolidated by the panel for disposition
because Lee raised identical issues in both appeals. See Lee, supra, 60 A.3d
569 (unpublished memorandum at 2 n.6).


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Supreme Court. Therefore, his judgment of sentence was final thirty days

later, on September 13, 2012. See 42 Pa.C.S. § 9545(b)(3).

       On August 9, 2013, Lee filed a timely, pro se PCRA petition. No action

was taken on that petition, and Lee filed a second pro se petition on August

5, 2015. Counsel was subsequently appointed, and filed an amended petition

on October 19, 2016. On March 10, 2017, the PCRA court issued notice of its

intent to dismiss the petition without first conducting an evidentiary hearing

pursuant to Pa.R.Crim.P. 907. Counsel filed a timely objection to the court’s

Rule 907 notice, however, on April 7, 2017, the PCRA court dismissed Lee’s

petition. This timely appeal followed.4

       Lee’s sole claim on appeal asserts prior counsel’s ineffectiveness for

failing to challenge the legality of his sentence. He argues (1) the mandatory

minimum sentences imposed on his robbery convictions pursuant to Section

9712 have been declared unconstitutional under Alleyne v. United States,

570 U.S. 1 (2013); (2) a challenge to an illegal sentence cannot be waived;

and (3) “[c]ounsel was ineffective for failing to raise this issue before the

sentencing court or on direct appeal.” Lee’s Brief at 12-13, 18.      We agree

with the conclusion of the PCRA court that Lee is entitled to no relief.




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4On April 19, 2017, the PCRA court ordered Lee to file a concise statement of
errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). Counsel
complied with the court’s directive and filed a concise statement on May 5,
2017.


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      “In reviewing the denial of PCRA relief, we examine whether the PCRA

court’s determination is supported by the record and free of legal error.”

Commonwealth v. Mitchell, 141 A.3d 1277, 1283–1284 (Pa. 2016)

(internal punctuation and citation omitted).       Further, a PCRA court may

dismiss a petition “without an evidentiary hearing if there are no genuine

issues of material fact and the petitioner is not entitled to relief.” Id. at 1284

(citations omitted).

      Preliminarily, we must address the PCRA court’s assertion in its

Pa.R.A.P. 1925(a) opinion that Lee’s petition was untimely filed. See PCRA

Court Opinion, 7/5/2017, at 4.        The Pennsylvania Supreme Court has

explained that the timeliness of a PCRA petition is jurisdictional and an

appellate court may not reach the merits of any claim raised in an untimely

petition. See Commonwealth v. Taylor, 67 A.3d 1245, 1248 (Pa. 2013),

cert. denied, 134 S.Ct. 2695 (U.S. 2014).

      As noted above, Lee’s judgment of sentence was final on September 13,

2012, 30 days after this Court affirmed his sentence on direct appeal and Lee

failed to file a petition for review in the Pennsylvania Supreme Court. See 42

Pa.C.S. § 9545(b)(3). Therefore, Lee had until September 13, 2014, to file a

timely PCRA petition. See id. at § 9545(b)(1) (any PCRA petition must be

filed within one year of the date the judgment of sentence is final). The PCRA

court stated in its opinion that the present petition was filed on August 5,

2015, thereby making it untimely. See PCRA Court Opinion, 7/5/2017, at 4.

However, we conclude the petition filed in August of 2015 was an amendment

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to the initial petition Lee timely filed on August 9, 2013. The record reflects

no action was taken on Lee’s initial petition, and it remained dormant until Lee

filed the subsequent petition in August of 2015.       Thereafter, counsel was

appointed, and filed an amended petition on October 19, 2016. Accordingly,

we conclude the petition before us was timely filed.

      However, we agree with the PCRA court’s conclusion that Lee is entitled

to no relief pursuant to Alleyne and its progeny.      In Alleyne, the United

States Supreme Court held “[a]ny fact that, by law, increases the penalty for

a crime is an ‘element’ that must be submitted to the jury and found beyond

a reasonable doubt.” Alleyne, supra, 99 U.S. at 102. In interpreting that

decision, the courts of this Commonwealth have determined that most of our

mandatory minimum sentencing statutes, including 42 Pa.C.S. § 9712, are

unconstitutional because the language of those statutes “permits the trial

court, as opposed to the jury, to increase a defendant’s minimum sentence

based upon a preponderance of the evidence” standard. Commonwealth v.

Newman, 99 A.3d 86, 98 (Pa. Super. (Pa. Super. 2014) (en banc), appeal

denied, 121 A.3d 496 (Pa. 2015). See Commonwealth v. Valentine, 101

A3d 801, 812 (Pa. Super. 2014) (invalidating 42 Pa.C.S. §§ 9712 and 9713),

appeal denied, 124 A.3d 309 (Pa. 2015). Further, our courts have held that

the unconstitutional provisions of the mandatory minimum statutes are not

severable from the statute as a whole. Commonwealth v. Hopkins, 117

A.3d 247, 262 (Pa. 2015); Newman, supra, 99 A.3d at 101.




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       Nevertheless, Lee’s sentence was not unconstitutional either at the time

it was imposed, or while it was pending on direct appeal. Lee was sentenced

on December 1, 2009, and his judgment of sentence became final on

September 13, 2012. The Supreme Court filed the decision in Alleyne almost

nine months later, on June 7, 2013. Although Lee would have been entitled

to relief had his sentence been rendered illegal before it was final, 5 the

Pennsylvania Supreme Court, in Commonwealth v. Washington, 142 A.3d

810 (Pa. 2016), held “Alleyne does not apply retroactively to cases pending

on collateral review[.]” Id. at 820. Accordingly, Lee is not entitled to relief

under Alleyne.

       Lee, however, attempts to skirt the holding in Washington by framing

his issue as a challenge to prior counsel’s assistance.        Indeed, he insists

“counsel was ineffective for the failure to pursue the issues at trial and on

direct appeal.” Lee’s Brief at 15. This argument is unavailing. As explained

above, the decision in Alleyne was filed well after Lee was sentenced in

December of 2009. “The law is clear that counsel cannot be held ineffective

for failing to anticipate a change in the law.” Commonwealth v. Cox, 603

983 A.2d 666, 702 (Pa. 2009).           Therefore, counsel was not ineffective for

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5 See Commonwealth v. DiMatteo, 177 A.3d 182, 192 (Pa. 2018)
(defendant who presented Alleyne claim in a timely PCRA petition was
entitled to have illegal sentence remedied when Alleyne was decided before
defendant’s judgment of sentence was final).




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failing to challenge the mandatory minimum sentences at the sentencing

hearing.    Moreover, Lee fails to acknowledge that, following a Grazier6

hearing, he voluntarily waived his right to counsel on direct appeal, and

proceeded pro se. See Lee, supra, 60 A.3d 569 (unpublished memorandum

at 2 n.1). It is axiomatic that “a defendant who chooses to represent himself

cannot obtain post-conviction relief             by   raising a   claim of   his   own

ineffectiveness [.]” Commonwealth v. Blakeney, 108 A.3d 739, 756 (Pa.

2014). Therefore, Lee is entitled to no relief.

       Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/2/18




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6   See Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).

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