J-S60043-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                             Appellee

                        v.

EDWIN ALONZA RHOADES

                             Appellant               No. 625 MDA 2014


                  Appeal from the PCRA Order March 26, 2014
                In the Court of Common Pleas of Centre County
              Criminal Division at No(s): CP-14-CR-0002265-2009


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

MEMORANDUM BY JENKINS, J.:                     FILED DECEMBER 22, 2014

        Edwin Rhoades (“Appellant”) appeals from the order dismissing his

petition filed pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.

§§ 9541-9546. After careful review, we affirm.

        Following a jury trial, Appellant was convicted of six counts of

possession of a controlled substance with intent to deliver (“PWID”),1 one

count of criminal conspiracy,2 and one count of criminal use of a

communication facility.3 On May 17, 2011, the trial court sentenced him to


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1
    35 P.S. § 780-113(a)(30).
2
    18 Pa.C.S. § 903.
3
    18 Pa.C.S. § 7512.
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an aggregate sentence of seven to fourteen years’ incarceration.4 After the

trial court denied his post-sentence motions, Appellant timely appealed.

       This Court affirmed Appellant’s judgment of sentence on October 10,

2012. The Supreme Court of Pennsylvania denied his Petition for Allowance

of Appeal on April 10, 2013.

       Appellant filed a timely pro se PCRA petition on July 22, 2013.

Appointed counsel filed an amended PCRA petition on December 10, 2013,

alleging that Alleyne v. United States, __ U.S. __, 133 S.Ct. 2151

(2013),5 applies retroactively to his case. The PCRA court filed a notice of

intent to dismiss the PCRA petition without a hearing on March 4, 2014, and

dismissed the PCRA petition on March 26, 2014. Appellant timely appealed

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4
  The trial court sentenced Appellant to 5 to 10 years’ incarceration on five of
the six PWID convictions, and a concurrent sentence of 3 to 6 years’
incarceration on the remaining PWID conviction. The trial court further
sentenced Appellant to a consecutive 2 to 4 years’ incarceration on the
conspiracy conviction and a concurrent 1 to 2 years’ incarceration on the
criminal use of a communication facility conviction. Although the sentencing
order does not explicitly note that the 5 to 10 year sentences were the
relevant mandatory minimums, the trial court stated at sentencing that “the
court is persuaded that the adequate weight was established through the
course of the trial, . . . concerning the weight of the cocaine involved such
that the mandatories as set forth in the presentence investigative report are
appropriate.” N.T. 5/17/2011. The court then sentenced Appellant to the
corresponding mandatory minimums on the PWID convictions. See N.T.
5/17/2011, pp. 33-39.
5
  In Alleyne, the Supreme Court of the United States held that “[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, 133
S.Ct. at 2155.



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J-S60043-14



and complied with Pa.R.A.P. 1925(b).             The PCRA court complied with

Pa.R.A.P. 1925(a) on June 4, 2014.6

       On appeal, Appellant presents the following issue for our review:

       I. Did the trial court err in dismissing PCRA Petitioner’s request
       for a new sentencing trial due to the imposing of mandatory
       minimum sentence under 18 [Pa.C.S.] § 7508 [] where:

          i. [Appellant] did not waive his right to a jury trial on the
          issue of whether the cocaine he possessed was between 10
          grams and 100 grams so as to require the trial court to
          impose the mandatory minimum 3 year sentence on Count
          5 and the mandatory 5 year sentence on Counts 6 through
          11;

          ii. These facts were established by the trial court by a
          preponderance of the evidence rather than by proof
          beyond a reasonable doubt; and

          iii. The lack of a jury determination beyond a reasonable
          doubt or a knowing and intelligent waiver of that right
          contravenes the rule announced in Apprendi v. New
          Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435
          (2000) as explained in Alleyne v. United States, 133 S.
          Ct. 2151, 186 L. Ed. 314 (2013)?

Appellant’s Brief, p. 4.

       In reviewing an order denying PCRA relief, our well-settled standard of

review is “to determine whether the determination of the PCRA court is
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6
 To explain its denial of Appellant’s PCRA petition, the PCRA court’s 1925(a)
opinion adopted the reasoning of its February 25, 2014 opinion. The
February 25, 2014 opinion purported to deny the PCRA petition. This
opinion, however, preceded the PCRA court’s March 4, 2014 Pa.R.Crim.P.
907 notice of intent to dismiss and the March 26, 2014 order that dismissed
Appellant’s PCRA petition. Although this sequence is somewhat unorthodox,
we find it acceptable because the PCRA court afforded Appellant the
protections of Rule 907.



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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. Barndt, 74 A.3d 185,

191-192 (Pa.Super.2013) (internal quotations and citations omitted).

       In essence, Appellant argues that Alleyne applies retroactively to

cases on collateral review. See Appellant’s Brief, pp. 12-15. This argument

is unconvincing.

       A new rule of constitutional law announced by the Supreme Court of

the United States is not made retroactive to cases on collateral review unless

the Supreme Court of the United States or the Pennsylvania Supreme Court

has held it to be retroactive. Commonwealth v. Abdul-Salaam, 812 A.2d

497, 502 (Pa.2002).          Further, our Supreme Court has held that “[a]

retroactivity determination must exist at the time the petition is filed.” Id.

       In Alleyne, the Supreme Court of the United States did not address

whether the holding would apply to cases on collateral review.       Moreover,

the Supreme Court of the United States has not issued a decision giving

Alleyne retroactive effect; nor has the Pennsylvania Supreme Court.

Federal circuit courts7 that have addressed the issue have determined that

Alleyne does not apply retroactively to cases on collateral review.         See
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7
 The holdings of federal circuit courts are not binding on this Court, but may
serve as persuasive authority. Commonwealth v. Haskins, 60 A.3d 538,
548 n.9 (Pa.Super.2012).




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United States v. Reyes, 755 F.3d 210 (3d Cir. 2014), United States v.

Winkleman, et al., 746 F.3d 134 (3d Cir. 2014), In re Payne, 733 F.3d

1027 (10th Cir. 2013), In re Kemper, 735 F.3d 211 (5th Cir. 2013) (all

holding Alleyne is not retroactively applicable to cases on collateral review);

see also Simpson v. United States, 721 F.3d 875 (7th Cir. 2013) (noting

that Alleyne is an extension of the case law established by Apprendi, which

the Supreme Court has not applied retroactively to cases on collateral

appeal).

      Ultimately, the PCRA court dismissed Appellant’s PCRA petition

because Alleyne does not apply to cases on collateral review. See Opinion

and Order, February 25, 2014, p. 3.         We find no legal error in this

determination.   Accordingly, we affirm the PCRA court’s order dismissing

Appellant’s PCRA petition.

      Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/22/2014




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