J-A05041-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF                            :   IN THE SUPERIOR COURT OF
    PENNSYLVANIA                               :        PENNSYLVANIA
                                               :
                                               :
                v.                             :
                                               :
                                               :
    ARIUS HAYNES                               :
                                               :   No. 1958 EDA 2017
                       Appellant

                   Appeal from the PCRA Order June 14, 2017
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                       No(s): CP-51-CR-0014275-2010


BEFORE:      DUBOW, J., MURRAY, J., and STEVENS*, P.J.E.

MEMORANDUM BY STEVENS, P.J.E.:                           FILED MARCH 12, 2018

        Appellant, Arius Haynes, appeals from the June 14, 2017, order entered

in the Court of Common Pleas of Philadelphia County dismissing his first

petition filed under the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§

9541-9546, without an evidentiary hearing. After a careful review, we affirm.

        The relevant facts and procedural history are as follows: On April 7,

2011, a jury convicted Appellant, who was represented by counsel, on the

charges of possession with the intent to deliver a controlled substance

(“PWID”) and criminal conspiracy.1 On June 2, 2011, the trial court sentenced



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1   35 P.S. § 780-113(a)(30); 18 Pa.C.S.A. § 903, respectively.



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* Former Justice specially assigned to the Superior Court.
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Appellant to three and one-half years to seven years in prison for PWID, to be

followed by five years of probation for conspiracy.    Appellant filed a direct

appeal to this Court, and on September 14, 2012, we affirmed his judgment

of sentence.2       See Commonwealth v. Haynes, No. 1552 EDA 2011

(Pa.Super. filed 9/14/12) (unpublished memorandum). Appellant did not file

a petition for allowance of appeal with our Supreme Court.

       On November 29, 2012, Appellant filed a timely pro se PCRA petition,

and thereafter, on November 19, 2014, he filed an amended pro se petition.

On January 27, 2016, the PCRA court appointed J. Matthew Wolfe, Esquire, to

represent Appellant,3 and on February 7, 2017, counsel filed an amended

PCRA petition on behalf of Appellant. The Commonwealth filed a motion to

dismiss Appellant’s PCRA petition, and on May 2, 2017, the PCRA court

provided Appellant with notice of its intent to dismiss the petition without an

evidentiary hearing. See Pa.R.Crim.P. 907. Appellant did not respond to the

PCRA court’s notice, and by order filed on June 14, 2017, the PCRA court

dismissed Appellant’s PCRA petition on the basis it lacked merit. This timely,

counseled appeal followed. All Pa.R.A.P. 1925 requirements have been met.


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2 On appeal, Appellant contended the trial court erred in failing to suppress
the physical evidence seized by the police, and we found no error.

3 The record does not provide a reason for the delay in the appointment of
counsel.




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       On appeal, Appellant contends the trial court imposed an illegal

mandatory minimum sentence in violation of Alleyne v. United States, 570

U.S. 99, 133 S.Ct. 2151 (2013), and Commonwealth v. Hopkins, 632 Pa.

36, 117 A.3d 247 (2015). Further, he contends his trial/direct appeal counsel4

was ineffective in failing to object and/or raise the issue regarding the

imposition of the illegal sentence.

             When reviewing the denial of a PCRA petition, we must
       determine whether the PCRA court’s order is supported by the
       record and free of legal error. Generally, we are bound by a PCRA
       court’s credibility determinations. However, with regard to a
       court’s legal conclusions, we apply a de novo standard.

Commonwealth v. Johnson, 635 Pa. 665, 139 A.3d 1257, 1272 (2016)

(quotation marks and quotations omitted). As long as this Court has

jurisdiction over a matter, a legality of sentencing issue is reviewable and

cannot be waived. Commonwealth v. Jones, 932 A.2d 179, 182 (Pa.Super.

2007).

              In 2013, the Supreme Court of the United States issued its
       Alleyne decision, overruling its prior precedent. Alleyne held
       that any fact that, by law, increases the penalty for a crime must
       be treated as an element of the offense, submitted to a jury,
       rather than a judge, and found beyond a reasonable doubt. See
       Alleyne, 570 U.S. at 116, 133 S.Ct. at 2163.[5] The effect was to
       invalidate a range of Pennsylvania sentencing statutes predicating
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4Louis Francis D’Onofrio, Esquire, represented Appellant in the trial court and
on direct appeal.

5 Alleyne is an extension of Apprendi v. New Jersey, 530 U.S. 466, 120
S.Ct. 2348 (2000), which held that any fact that increases the punishment for
a crime beyond the statutorily prescribed maximum must be submitted to the
jury and found beyond a reasonable doubt.

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       mandatory minimum penalties upon non-elemental facts and
       requiring such facts to be determined by a preponderance of the
       evidence at sentencing. See, e.g., Hopkins, [supra] (holding
       that Section 6317 of the Crimes Code, 18 Pa.C.S. § 6317-which
       predicates a mandatory minimum sentence upon a fact to be
       determined      by     a   preponderance   at   sentencing-was
       constitutionally infirm, under Alleyne).

Commonwealth v. Washington, 636 Pa. 301, 142 A.3d 810, 812 (2016)

(footnote added).

       However, our appellate courts have held that Alleyne does not apply

retroactively to cases on collateral review where the petitioner’s judgment of

sentence became final before Alleyne was decided.         See Washington,

supra; Commonwealth v. Weimer, 167 A.3d 78 (Pa.Super. 2017).

Recently, in Commonwealth v. DiMatteo, No. 10 MAP 2017, 2018 WL

459340 (Pa. filed 1/18/18), our Supreme Court reaffirmed its holding in

Washington.6

       Here, assuming, arguendo, the trial court imposed a mandatory

minimum sentence,7 Appellant is not entitled to the retroactive application of

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6  In DiMatteo, our Supreme Court held that a PCRA petitioner serving an
illegal sentence under Alleyne is not barred from relief when relief is sought
in a timely PCRA petition and the judgment of sentence was not final at the
time the Alleyne decision was filed. However, our Supreme Court in
DiMatteo also reaffirmed its holding in Washington that, where the
petitioner’s judgment of sentence became final before Alleyne was decided,
the petitioner is not entitled to collateral relief based on Alleyne. See
DiMatteo, supra.

7The Commonwealth argues Appellant did not receive a mandatory minimum
sentence.



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Alleyne. Appellant’s sentence was imposed on June 2, 2011, and we affirmed

his judgment of sentence on September 14, 2012. Appellant did not file a

petition for allowance of appeal.          Accordingly, his judgment of sentence

became final thirty days thereafter, on Monday, October 15, 2012.8 See 42

Pa.C.S.A. § 9545(b)(3) (indicating a judgment is deemed final “at the

conclusion of direct review, including discretionary review in the Supreme

Court of the United States and the Supreme Court of Pennsylvania, or at the

expiration of the time for seeking review.”); Pa.R.A.P. 1113 (indicating a

petition for allowance of appeal to the Supreme Court shall be filed within 30

days after entry of the order of the Superior Court). Alleyne was decided

thereafter on June 17, 2013. Thus, since Appellant's judgment of sentence

became final prior to the filing of Alleyne, he is not entitled to retroactive

application of Alleyne in this PCRA matter. See DiMatteo, supra;

Washington, supra.           Accordingly, the PCRA court properly found that

Appellant was not entitled to relief on his legality of sentencing claim.

       Appellant next claims that his trial/direct appeal counsel was ineffective

in failing preserve his sentencing issue in the lower court and on direct appeal.

             It is well-established that counsel is presumed effective, and
       to rebut that presumption, the PCRA petitioner must demonstrate
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8We note that because the thirtieth day fell on a Sunday, Appellant had until
Monday, October 15, 2012, to file his petition for allowance of appeal. See 1
Pa.C.S. § 1908 (stating that, for computations of time, whenever the last day
of any such period shall fall on Saturday or Sunday, or a legal holiday, such
day shall be omitted from the computation).



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      that counsel’s performance was deficient and that such deficiency
      prejudiced him. To prevail on an ineffectiveness claim, the
      petitioner has the burden to prove that (1) the underlying
      substantive claim has arguable merit; (2) counsel whose
      effectiveness is being challenged did not have a reasonable basis
      for his or her actions or failure to act; and (3) the petitioner
      suffered prejudice as a result of counsel’s deficient performance.
      The failure to satisfy any one of the prongs will cause the entire
      claim to fail.

Commonwealth v. Benner, 147 A.3d 915, 919–20 (Pa.Super. 2016)

(quotation marks, quotations, and citations omitted).

      To the extent Appellant premises his ineffectiveness claim on the theory

that Alleyne rendered the sentencing statute at issue unconstitutional “from

the time of its enactment,” he is incorrect. This Court has rejected such a

theory. Commonwealth v. Ciccone, 152 A.3d 1004 (Pa.Super. 2016) (en

banc) (holding that, while a mandatory sentencing statute was rendered illegal

by Alleyne, it was not rendered void ab initio, and thus the defendant’s

sentence was not illegal when imposed and Alleyne did not apply

retroactively).

      To the extent Appellant premises his ineffectiveness claim on the theory

that his trial/direct appeal counsel should have anticipated the change in the

law, our Supreme Court has held that “counsel will not be deemed ineffective

for failing to anticipate a change in the law.” Commonwealth v. Cox, 581

Pa. 107, 863 A.2d 536, 554 (2004) (citation omitted).          Consequently,

trial/direct appeal counsel was not ineffective for failing to predict the new

rule of law announced in Alleyne or its progeny.


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     For all of the foregoing reasons, we affirm.

     Affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/12/18




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