J-S47039-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

KHAILI RAHZAAN ROWE

                            Appellant                No. 2137 MDA 2015


                 Appeal from the PCRA Order November 3, 2015
               In the Court of Common Pleas of Lancaster County
              Criminal Division at No(s): CP-36-CR-0003175-2010


BEFORE: SHOGAN, J., LAZARUS, J., and JENKINS, J.

MEMORANDUM BY LAZARUS, J.:                             FILED JUNE 21, 2016

        Khaili R. Rowe appeals, pro se, from the trial court’s order dismissing

his Post Conviction Relief Act (PCRA) petition, 42 Pa.C.S. §§ 9541-9546.1

We affirm.

        On July 21, 2011, a jury found Rowe guilty of possession of a

controlled substance with intent to deliver (crack cocaine; more than 100

grams);2 he was sentenced to 7½ to 20 years of imprisonment.               The

sentencing guideline sheet indicates that Rowe was sentenced to a
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1
 The standard of review of an order denying a PCRA petition is whether that
determination is supported by the evidence of record and is free of legal
error. The PCRA court’s findings will not be disturbed unless there is no
support for the findings in the certified record.    Commonwealth v.
Johnston, 42 A.3d 1120, 1126 (Pa. Super. 2012).
2
    35 P.S. 780-113(a)(30).
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mandatory minimum sentence pursuant to 18 Pa.C.S. § 7508(a)(3)(iii).3

Rowe filed a direct appeal and our Court affirmed his judgment of sentence.

Commonwealth v. Rowe, 2004 MDA 2011 (Pa. Super. filed Dec. 19,

2012).     Rowe filed a petition for allowance of appeal which the Supreme

Court denied on June 6, 2013. Rowe filed his first PCRA petition on March

28, 2014. PCRA counsel was appointed and an amended petition was filed.

On August 19, 2014, the court dismissed the petition without a hearing.

        On February 26, 2015, Rowe filed a Petition for Writ of Habeas Corpus

which the trial court treated as a second PCRA petition. 4      In this petition,



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3
    Section 7508(a)(3)(iii) states:

        [W]hen the aggregate weight of the compound or mixture of the
        substance involved is at least 100 grams [a defendant shall be
        sentenced to a mandatory minimum term of imprisonment of]
        four years in prison and a fine of $ 25,000 or such larger amount
        as is sufficient to exhaust the assets utilized in and the proceeds
        from the illegal activity; however, if at the time of sentencing
        the defendant has been convicted of another drug
        trafficking offense [the defendant shall be sentenced to a
        mandatory minimum sentence of] seven years in prison
        and $ 50,000 or such larger amount as is sufficient to
        exhaust the assets utilized in and the proceeds from the
        illegal activity.

18 Pa.C.S. § 7508(a)(3)(iii) (emphasis added).
4
  See Commonwealth v. Deaner, 779 A.2d 578 (Pa. Super. 2001)
(collateral petition that raises issue that PCRA statute could remedy is to be
considered PCRA petition).




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Rowe alleged that his sentence was illegal based on the holding of Alleyne5

and the application of an unconstitutional mandatory minimum statute. The

court ultimately dismissed the petition as untimely on November 3, 2015.

This appeal follows.

       On appeal, Rowe presents the following issues for our consideration:

       (1)    Whether the case of Alleyne v. United States, 133 S. Ct.
              2151[,] can be applied to the Appellant’s case based on
              recent court decisions.

       (2)    Whether the Appellant is serving an illegal sentence.

       (3)    Whether the Appellant had ineffective PCRA counsel.

       Before we address the merits of Rowe’s claims on appeal, we must

first determine whether the court, in fact, applied a mandatory minimum

statute to his sentence.

       Typically, the text of a sentencing order and not the statements a trial

court makes about a defendant’s sentence is determinative of the court’s

sentencing intentions and the sentence imposed. See Commonwealth v.

Borrin, 12 A.3d 466 (Pa. Super. 2011) (en banc). Instantly, in its Pa.R.A.P.

1925 opinion (which incorporates by reference the court’s Pa.R.Crim.P. 907

notice of intent to dismiss), the trial court states that Rowe “did not receive

a mandatory minimum sentence.” Pa.R.Crim.P. 907 Notice, 9/21/15, at 2.

Moreover, at sentencing the Commonwealth sought the statutory maximum
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5
  In Alleyne, the Supreme Court held that “facts that increase mandatory
minimum sentences must be submitted to the jury” and must be found
beyond a reasonable doubt. Id. 133 S. Ct. at 2163.



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10-20 year sentence for Rowe, not the mandatory minimum, indicating that

the 7-year mandatory minimum was not sufficient where this was Rowe’s

fourth drug conviction, he was a “career drug dealer” and “the mandatory

minimum only factors in on the second offense.” N.T. Sentencing, 10/4/11,

at 3, 6. Finally, at sentencing the court noted that it intended to impose a

sentence “at the top end of the standard range.” Id. at 7.

     Pursuant to 18 Pa.C.S. § 7508(b):

     Notice of the applicability of this section to the defendant shall
     not be required prior to conviction, but reasonable notice of
     the Commonwealth’s intention to proceed under this
     section shall be provided after conviction and before
     sentencing. The applicability of this section shall be
     determined at sentencing. The court shall consider
     evidence     presented       at    trial,   shall   afford    the
     Commonwealth and the defendant an opportunity to
     present     necessary      additional     evidence    and   shall
     determine, by a preponderance of the evidence, if this
     section is applicable.

Id. (emphasis added). Instantly, the Commonwealth clearly expressed its

intention not to seek the mandatory minimum, but rather the statutory

maximum.      Moreover, the trial court mirrored the Commonwealth’s

sentiment, indicating that Rowe “probably deserves . . .10 to 20,” but that

sentencing at the top of the standard range (7½ years), which was above

the seven-year mandatory minimum, was applicable.            N.T. Sentencing,

10/4/11, at 7. Under such circumstances, we find that the court did not, in

fact, impose a mandatory minimum sentence upon Rowe.             See Borrin,

supra at 473-74 (“If the trial court's intention to impose a certain sentence



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on [the defendant] was obvious on the face of the sentencing transcript, but

its written order did not conform to its clearly stated sentencing intention,

then it could exercise its inherent power to correct what constituted a clear

clerical error [in the original sentencing order].”).   Therefore, his claim is

moot.

        Order affirmed.6

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/21/2016
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6
  However, even if we were to find that the court applied the mandatory
minimum, Rowe would not be entitled to relief as his petition was neither
timely filed, 42 Pa.C.S.A. § 9545 (b)(3); Sup. Ct. R. 13., nor did it meet a
section 9545(b)(1) exception. See 42 Pa.C.S. § 9545(b)(3); see also
Commonwealth v. Alcorn, 703 A.2d 1054 (Pa. Super. 1997); 42 Pa.C.S. §
9543(a)(2)(vii) (while legality of sentence is always subject to review within
PCRA, claims must still first satisfy PCRA's time limits or one of the
exceptions thereto.). Despite the fact that section 7508 has been declared
unconstitutional, Rowe is not entitled to relief in his untimely PCRA petition.
See Commonwealth v. Miller, 102 A.3d 988 (Pa. Super. 2014).
Therefore, the trial court properly concluded that Rowe’s untimely PCRA
petition should be dismissed. Johnston, supra.
       Moreover, having found no merit to Rowe’s underlying claim that his
sentence is illegal under Alleyne, we cannot deem counsel ineffective.
Commonwealth v. Spotz, 47 A.3d 63, 76 (Pa. 2012) (to prevail on
ineffectiveness claim, petitioner must plead and prove, by a preponderance
of the evidence, among other elements, that underlying legal claim has
arguable merit).



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