J-S46041-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                :       IN THE SUPERIOR COURT OF
                                             :             PENNSYLVANIA
                    Appellee                 :
                                             :
             v.                              :
                                             :
GLENFORD THOMPSON,                           :
                                             :
                    Appellant                :           No. 2915 EDA 2014

          Appeal from the PCRA Order entered on September 8, 2014
              in the Court of Common Pleas of Chester County,
               Criminal Division, No. CP-15-CR-0004718-2000

BEFORE: MUNDY, OLSON and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.:                      FILED SEPTEMBER 17, 2015

        Glenford Thompson (“Thompson”), pro se, appeals from the Order

dismissing his second Petition filed pursuant to the Post Conviction Relief Act

(“PCRA”).1 We affirm.

        Thompson was involved in a large-scale organization that trafficked

large    amounts     of   marijuana   in   Chester   County   and   southeastern

Pennsylvania.      In 1999 and 2000, police investigated the organization by

conducting controlled buys and surveillance.          In September 2000, the

Commonwealth charged Thompson with corrupt organizations, criminal

conspiracy, aggravated assault, recklessly endangering another person

(“REAP”), criminal use of a communication facility, receiving stolen property,

possession of drug paraphernalia, as well as multiple counts of possession

with intent to deliver a controlled substance (“PWID”).

1
    See 42 Pa.C.S.A. §§ 9541-9546.
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         In April 2002, the matter proceeded to a jury trial, at the close of

which the jury found Thompson guilty of all charges. The trial court imposed

an aggregate sentence of 25 to 35 years in prison, plus over $250,000 in

fines.     Relevant to this appeal, the trial court imposed, on Thompson’s

numerous PWID convictions, mandatory minimum sentences (of between 2

to 5 years in prison, respectively), pursuant to 42 Pa.C.S.A. § 7508

(governing mandatory minimum sentences, and fines, for certain drug

trafficking offenses where the weight of the drug possessed exceeded a

certain amount).2      This Court affirmed Thompson’s judgment of sentence,

and our Supreme Court denied allowance of appeal. See Commonwealth

v. Thompson, 848 A.2d 1007 (Pa. Super. 2004), appeal denied, 860 A.2d

489 (Pa. 2004).

         Following Thompson’s filing of his first PCRA Petition, and this Court’s

affirmance of the PCRA court’s Order denying the same,3 Thompson filed the

instant pro se PCRA Petition on May 9, 2014. Shortly thereafter, Thompson

filed an Amended PCRA Petition, and a Supplemental Amended PCRA

Petition. In July 2014, the PCRA court gave Thompson Notice of its intention

to dismiss his Petition without a hearing, pursuant to Pa.R.Crim.P. 907.


2
  Section 7508 provides, in pertinent part, that “[p]rovisions of this section
shall not be an element of the crime[,]” and that, in order for any mandatory
minimum sentence under section 7508 to apply, the court must determine at
sentencing, by a preponderance of the evidence, that the requirements were
met. 42 Pa.C.S.A. § 7508(b).
3
  See Commonwealth v. Thompson, 909 A.2d 888 (Pa. Super. 2006)
(unpublished memorandum).

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Thompson filed a timely, pro se Response to the 907 Notice. On September

8, 2014, the PCRA court entered an Order dismissing Thompson’s second

PCRA Petition. Thompson timely filed a pro se Notice of Appeal, after which

the PCRA court ordered him to file a Pa.R.A.P. 1925(b) concise statement of

errors complained of on appeal. Thompson timely filed a Concise Statement.

     On appeal, Thompson presents the following issues for our review:

      I.   Whether the PCRA court erred as a matter of law and
           Constitution [sic] in dismissing [Thompson’s] PCRA
           [Petition] and illegal sentencing claim challenging the
           constitutionality of Pennsylvania’s mandatory minimum
           sentence under 42 Pa.C.S.A. § 9545(b)(1)(ii)[, i.e., the
           PCRA’s] newly discovered [facts] exception, concerning
           a] newspaper article and [Thompson’s] discovering that
           [the] Chester County Court of Common Pleas has
           declared        mandatory       sentencing       provisions
           unconstitutional following our United States Supreme
           Court’s holding in Alleyne v. United States, 133 S. Ct.
           2151 (2013)[,] and this honorable Court’s holding in
           Com[monwealth] v. Munday, 78 A.3d 661 (Pa. Super.
           2013)[,] and [the] recent decision in Com[monwealth]
           v. [] Newman, 99 A.3d 86 (Pa. Super. 2014) [(en
           banc)], where it noted in dicta, that [42 Pa.C.S.A.
           §] 9712.1[4] is no longer constitutionally sound in light of
           Alleyne?

     II.   Whether the PCRA court erred as a matter of law and
           Constitution [sic] in dismissing [Thompson’s] PCRA
           [Petition] and illegal sentencing claim challenging the
           constitutionality of Pennsylvania’s mandatory minimum
           sentence under 42 Pa.C.S.A. § 9712.1 as untimely
           without reviewing and addressing [Thompson’s] claim
           under a writ of habeas corpus?

    III.   Whether [Thompson’s] mandatory sentence is illegal?

4
  Thompson alleges that in the instant case, the trial court also imposed a
mandatory minimum sentence pursuant to 42 Pa.C.S.A. § 9712.1 (sentences
for certain drug offenses committed with firearms), based upon Thompson’s
having possessed a gun during the one or more of the drug transactions.

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Brief for Appellant at 4 (footnote added, capitalization omitted).     We will

address Thompson’s issues simultaneously, as they all concern whether his

mandatory minimum sentences are unconstitutional based upon Alleyne

and its progeny.

      In reviewing an order dismissing a PCRA Petition, we examine whether

the PCRA court’s determination is supported by the record and free of legal

error. Commonwealth v. Miller, 102 A.3d 988, 992 (Pa. Super. 2014).

      Under the PCRA, a defendant must file any PCRA petition within one

year of the date that the judgment of sentence became final. 42 Pa.C.S.A.

§ 9545(b)(1).      Thompson concedes that his PCRA Petition is facially

untimely, as it was filed approximately nine years late. Brief for Appellant at

10-11.

      However, Pennsylvania courts may consider an untimely PCRA petition

if the appellant can explicitly plead and prove one of the timeliness

exceptions: (i) the failure to raise the claim was the result of government

interference; (ii) the facts of the new claim were unknown to the petitioner

and could not have been discovered with due diligence; or (iii) the right

asserted is a constitutional right recognized by the United States Supreme

Court or the Pennsylvania Supreme Court after the time period provided in

the section and has been held to apply retroactively.             42 Pa.C.S.A.

§ 9545(b)(1)(i-iii) (collectively “the timeliness exceptions”).     Any PCRA




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petition invoking one of the timeliness exceptions must be filed within sixty

days of the date the claim could have been presented. Id. § 9545(b)(2).

     In his PCRA Petition and appellate brief, Thompson has invoked only

one of the timeliness exceptions: the newly discovered facts exception. The

new “facts” upon which Thompson relies are two local newspaper articles

discussing the impact that Alleyne had on certain mandatory minimum

sentencing statutes in Pennsylvania.5    See Brief for Appellant at 11-12

(relying upon Commonwealth v. Riviera, 939 A.2d 355 (Pa. Super. 2007)

(where the defendant was convicted for selling a large amount of cocaine to

an undercover detective, on direct appeal, this Court vacated the judgment

of sentence and remanded the case for an evidentiary hearing based on

after-discovered evidence – a newspaper article – showing that the police

chemist who had testified as to the weight of the cocaine and chain of

custody had been charged with stealing drugs from the police lab for her

personal use)).   In actuality, the timeliness exception that is relevant to

Thompson’s claims is the “newly recognized constitutional right” exception,




5
  Thompson asserts that he filed his instant PCRA Petition within sixty days
of the dates on which the newspaper articles were published. See Brief for
Appellant at 12; see also 42 Pa.C.S.A. § 9545(b)(2).

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set forth at section 9545(b)(1)(iii),6 and not the newly discovered facts

exception.7

        Thompson argues that he is entitled to a remand for resentencing

because “the mandatory sentences imposed upon him under 42 Pa.C.S.A.

§ 7508 and 42 Pa.C.S.A. § 9712.1” are illegal. Brief for Appellant at 16-17.

Thompson asserts that both of these statutes were rendered unconstitutional

by Alleyne, pointing out that they “allow for the sentencing judge to impose

a mandatory minimum sentence after finding[,] by a preponderance of the

evidence[,]” that the requirements of each respective statute are met. Id.

at 17 (citing Newman, 99 A.3d at 103 (holding that “Alleyne … renders 42

Pa.C.S.A. § 9712.1 unconstitutional”), and Commonwealth v. Watley, 81

A.3d 108, 117 n.4 (Pa. Super. 2013) (en banc) (observing that Alleyne

rendered 42 Pa.C.S.A. § 7508 “constitutionally infirm insofar as [it]



6
    The newly recognized constitutional right exception provides as follows:

       Any petition under this subchapter … shall be filed within one year
       of the date the judgment becomes final, unless the petition alleges
       and the petitioner proves that[] … the right asserted is a
       constitutional right that was recognized by the Supreme Court of
       the United States or the Supreme Court of Pennsylvania after the
       time period provided in this section and has been held by that court
       to apply retroactively.

42 Pa.C.S.A. § 9545(b)(1)(iii) (emphasis added).
7
  “Our Courts have expressly rejected the notion that judicial decisions can
be considered newly-discovered facts which would invoke the protections
afforded by section 9545(b)(1)(ii).” Commonwealth v. Cintora, 69 A.3d
759, 763 (Pa. Super. 2013). Therefore, Alleyne, a judicial decision, is not a
“fact” that satisfies section 9545(b)(1)(ii).

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permit[s] a judge to automatically increase a defendant’s sentence based on

a preponderance of the evidence standard.”)).

     Initially, contrary to Thompson’s assertion, there is no indication in the

record that the trial court imposed a mandatory minimum sentence under 42

Pa.C.S.A. § 9712.1.8   Indeed, the trial court stated in its Rule 907 Notice

that “[Thompson] was not subjected to any mandatory minimum sentences

for his use of a gun during the commission of any of the crimes of which he

was convicted.”9 Pa.R.A.P. 907 Notice, 7/23/14, at 2 n.1.

     Thompson     is   correct   that   Alleyne    rendered     section     7508

constitutionally infirm because the statute allows the sentencing court to

determine, by only a preponderance of the evidence, whether the mandatory

minimum sentence applies. See Commonwealth v. Fennell, 105 A.3d 13,

20 (Pa. Super. 2014) (relying upon this Court’s decision in Newman, and

holding   that   Alleyne    rendered    42    Pa.C.S.A.     §   7508      facially




8
  Neither the transcript of the sentencing hearing, nor the sentencing
Order/Guideline Sentencing Forms mentions section 9712.1. Furthermore,
in the Commonwealth’s Notice of Mandatory Sentencing, it gave notice
concerning only the provisions of 42 Pa.C.S.A. § 7508.
9
  We observe that, concerning Thompson’s conviction of REAP, the Guideline
Sentencing Form indicates that the sentence imposed on that conviction was
influenced by the deadly weapon enhancement, based upon Thompson’s
possession of a firearm during one or more of the drug transactions. See
Commonwealth v. Valentine, 101 A.3d 801, 813 (Pa. Super. 2014)
(Gantman, P.J., concurring) (stating that a trial court can apply a deadly
weapon enhancement to a defendant’s sentence without running afoul of
Alleyne and Newman). However, neither this form nor the record as a
whole indicates that Thompson was sentenced under 42 Pa.C.S.A. § 9712.1.

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unconstitutional); see also Watley, supra. Nevertheless, we conclude that

Alleyne is unavailing to Thompson.

      Presuming    that   Thompson    had   invoked   the    newly   recognized

constitutional right exception, he failed to do so in a timely manner.

Alleyne was decided on June 17, 2013. Thompson did not file the instant

PCRA Petition until May 9, 2014, well over sixty days after the date the claim

could have been presented; therefore, Thompson failed to meet the

timeliness requirement of 42 Pa.C.S.A. § 9545(b)(2). See Commonwealth

v. Boyd, 923 A.2d 513, 517 (Pa. Super. 2007) (stating that “[w]ith regard

to [a newly] recognized constitutional right, this Court has held that the

sixty-day period begins to run upon the date of the underlying judicial

decision.”).

      Moreover, this Court has held that even if Alleyne is interpreted as

enunciating a newly recognized constitutional right, such right is not

applicable retroactively to cases on PCRA review. See Miller, 102 A.3d at

995. Specifically, the Court in Miller held as follows:

      Even assuming that Alleyne did announce a new
      constitutional right, neither our Supreme Court, nor the
      United States Supreme Court has held that Alleyne is to
      be applied retroactively to cases in which the judgment of
      sentence had become final. … This Court has recognized that a
      new rule of constitutional law is applied retroactively to cases on
      collateral review only if the United States Supreme Court or our
      Supreme Court specifically holds it to be retroactively applicable
      to those cases.

Id. (emphasis in original, citations omitted).            We acknowledge that

Thompson’s claim concerning Alleyne goes to the legality of his sentence;

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nevertheless, this Court has held that “although illegal sentencing issues

cannot be waived, they still must be presented in a timely PCRA petition.”

Commonwealth v. Taylor, 65 A.3d 462, 465 (Pa. Super. 2013).

      Finally, Thompson has filed a pro se “Application for Stay and

Abeyance” with this Court, requesting a stay in light of our Pennsylvania

Supreme Court’s recent decision in Commonwealth v. Hopkins, 2015 Pa.

LEXIS 1282, *2 (Pa. 2015) (holding that “Alleyne renders [18 Pa.C.S.A.

§] 6317 [(setting forth a mandatory minimum sentence for certain drug

crimes committed in a school zone)] unconstitutional and, further, that, in

light of clear legislative intent, severance of the violative provisions from the

statute is not permissible.”).   Upon review, we conclude that Hopkins is

unavailing to Thompson, and, therefore, deny his Application for Stay and

Abeyance.

      Accordingly, because Alleyne is unavailing to Thompson, and he failed

to meet the newly recognized constitutional right exception, or any other

timeliness exception, none of Thompson’s issues entitle him to relief. 10 The




10
   To the extent that Thompson argues the PCRA court erred by denying him
habeas corpus relief, see Brief for Appellant at 21-22, it is well-established
that “[t]he PCRA … subsumes the remed[y] of habeas corpus” where, as
here, the PCRA provides a remedy for the claim. Commonwealth v.
Turner, 80 A.3d 754, 770 (Pa. 2013); see also 42 Pa.C.S.A. § 9542;
Commonwealth v. Peterkin, 722 A.2d 638, 641 (Pa. 1998) (holding that
because an untimely PCRA petition was premised on claims that were
cognizable under the PCRA, the statutory writ of habeas corpus was
unavailable). Because Thompson is not entitled to relief under the PCRA, his
claim in this regard lacks merit.

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PCRA court properly dismissed Thompson’s second PCRA Petition as

untimely.

     Order affirmed.      Thompson’s Application for Stay and Abeyance

denied.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 9/17/2015




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