J-S54024-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                            Appellee

                       v.

JAMES STYEN

                            Appellant              No. 1925 WDA 2015


                 Appeal from the PCRA Order October 29, 2015
              In the Court of Common Pleas of Allegheny County
              Criminal Division at No(s): CP-02-CR-0017244-2009


BEFORE: BENDER, P.J.E., OTT, J., and MUSMANNO, J.

MEMORANDUM BY OTT, J.:                         FILED SEPTEMBER 08, 2016

       James Styen appeals pro se from the order entered October 29, 2015,

in the Court of Common Pleas of Allegheny County.1          The PCRA court

dismissed, as untimely, Styen’s pro se “Motion to Vacate Judgment of Illegal
____________________________________________


1
   We note that Styen’s notice of appeal is docketed as filed with this Court
on December 7, 2015, in excess of the 30-day appeal period from the
October 29, 2015 order dismissing Styen’s PCRA petition. See Pa.R.A.P.
903. The envelope attached to the notice of appeal reflects a postmark of
December 3, 2015, which is also beyond the 30-day appeal period. Where,
as here, the pro se appellant is incarcerated, we apply the “prisoner mailbox
rule.” See Commonwealth v. Jones, 700 A.2d 423 (Pa. 1997) (appeal by
a pro se prisoner is deemed filed on the date the prisoner deposits the
appeal with prison authorities and/or places it in the prison mailbox, though
the notice of appeal is actually received by the court after the deadline for
filing the appeal). While we recognize our prerogative to remand for a
hearing to determine Styen’s compliance with the prisoner mailbox rule,
given our disposition, we will not remand as it “would be futile to do so.”
See Commonwealth v. Chambers, 35 A.3d 34, 40 (Pa. Super. 2011).
J-S54024-16




Sentence, and or Motion to Set Aside, Vacate Mandatory Minimum

Sentences Pursuant to Alleyne v. United States[2]; Hopkins v. Supreme Court

of United States[3],” which the court treated as Styen’s second petition filed

under Pennsylvania’s Post Conviction Relief Act (PCRA).4     Based upon the

following, we affirm.

        Styen was charged at four dockets with robbery and related offenses

for incidents that occurred over several days with two accomplices. On

September 9, 2010, Styen entered negotiated guilty pleas in three dockets,

to three counts each of conspiracy,5 robbery6 and related offenses, and the

Commonwealth withdrew all charges at the fourth docket. The court

immediately sentenced Styen according to the terms of the plea agreement,

to serve an aggregate term of seven to 14 years’ incarceration, which

included a mandatory minimum five-year sentence, as provided in 42

Pa.C.S. § 9712 (“Sentences for offenses committed with firearms”), at this
____________________________________________


2
    Alleyne v. United States, 133 S.Ct. 2151 (June 17, 2013).
3
  Styen is apparently referring to Commonwealth v. Hopkins, 117 A.3d
247 (Pa. June 15, 2015).
4
    42 Pa.C.S. §§ 9541–9546.
5
    18 Pa.C.S. § 903.
6
    18 Pa.C.S. § 3701.




                                           -2-
J-S54024-16




docket (Docket No. 17244-2009, Count 1, robbery). See N.T., 9/9/2010, at

30.

      On August 30, 2011, on direct appeal, this Court affirmed the

judgment of sentence. On January 18, 2012, the Pennsylvania Supreme

Court denied allowance of appeal. Commonwealth v. Styen, 32 A.3d 848

(Pa. Super. 2011) (unpublished memorandum), appeal denied, 37 A.3d

1195 (Pa. 2012).

      On November 30, 2012, Styen filed a pro se, timely PCRA petition.

Counsel was appointed and filed an amended petition. Following a hearing,

the PCRA court denied relief.   On appeal, on March 17, 2015, this Court

affirmed the order of the PCRA court, and the Pennsylvania Supreme Court

denied allowance of appeal on July 30, 2015. Commonwealth v. Styen,

120 A.3d 1057 (Pa. Super. 2015) (unpublished memorandum), appeal

denied, 121 A.3d 496 (Pa. 2015).

      On October 1, 2015, Styen filed the instant pro se “Motion to Vacate

Judgment of Illegal Sentence,” which the PCRA court treated as a PCRA

petition.   On October 13, 2015, the PCRA court issued notice of intent to

dismiss, pursuant to Pennsylvania Rule of Criminal Procedure 907, finding

that the petition was untimely. On October 28, 2015, Styen filed objections




                                    -3-
J-S54024-16




to the PCRA court’s Rule 907 notice. On October 29, 2015, the PCRA court

denied relief, and this appeal followed.7

           On December 10, 2015, the PCRA court directed Styen to file a concise

statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b)

within 21 days. See Order, 12/10/2015. The docket reflects that the order

was “mailed” to Styen on December 10, 2015.            On March 10, 2016, the

PCRA court issued an opinion, stating Styen had failed to file a concise
____________________________________________


7
    Styen raises four issues in his pro se brief, which we reproduce verbatim:

     I.      WAS PETITIONER UNCONSTITUTIONALLY DENIED BY A STATE
             COURT, THE RETROACTIVE RELIEF AND APPLICATION OF U.S.
             SUPREME COURT DECISIONS, “UNITED STATES V. ALLEYNE,
             GREER, JOHNSON, SHAVERS, BOOKER; DENIED THE APPLICATION
             OF MARBURY V. MADISON, TESTA V. KATT; THE HARPER RULE
             PURSUANT TO ARTICLE VI.    CLAUSE 2.    “THE SUPREMACY
             CLAUSE,” NUNC PRO TUNC?

     II.     WHETHER THE STATE COURT BY ITS REFUSAL TO APPLY THE
             DECISIONS ALLEYNE-APPRENDI, VIA THE SUPREMACY CLAUSE TO
             [STYEN’S] CASE NUNC PRO TUNC, WAS TANTAMOUNT TO A STATE
             COURT COMMITTING A[N] UNCONSTITUTIONAL STRUCTURAL
             DEFECT?

     III.    WHETHER APPELLANT’S SENTENCE IS ILLEGAL?

     IV.     WHETHER THE PCRA COURT ERRED WHEN IT ILLEGALLY FOUND
             THAT ALLEYNE V. UNITED STATES, 133 S.CT. 2150, 2151, 2160,
             2162, 2163 (2013) DID NOT AFFORD THE APPELLANT
             RETROACTIVE APPLICATION OF NEW CONSTITUTIONAL RIGHTS AS
             NEW CONSTITUTIONAL RULE/OR LAW AS THE SUPREMACY
             CLAUSE/LAW OF THE LAND?

Styen’s Brief, at 3.



                                           -4-
J-S54024-16




statement as ordered, and the court was unable to determine errors alleged

on appeal and could not file an opinion in response. See PCRA Court

Opinion, 3/10/2016.         On March 24, 2016, Styen filed a “Statement of

Matters to be Complained About on Appeal (Nunc Pro Tunc),” alleging that

he never received the PCRA court’s Rule 1925(b) order.

      It is well settled that an appellant waives all issues on appeal if he was

directed    to   file   a   Rule   1925(b)   statement   and   failed   to   do   so.

Commonwealth v. Lord, 719 A.2d 306, 309 (Pa. 1998). However, we will

not find waiver for failure to file a Rule 1925(b) statement if an appellant

fails to receive notice of the entry of the order requiring the statement.

Commonwealth v. Davis, 867 A.2d 585, 588 (Pa. Super. 2005) (en banc).

Accepting Styen’s representation that he did not receive the PCRA court’s

Rule 1925(b) order, we will address Styen’s claim that the PCRA court erred

in dismissing his petition.

      “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. Taylor, 67 A.3d 1245, 1248 (Pa. 2013) (citation

omitted).




                                        -5-
J-S54024-16




       Here, Styen’s judgment of sentence became final on April 17, 2012.8

Therefore, the instant petition, filed on October 1, 2015, which was filed

nearly three and one-half years after his judgment of sentence became final,

is patently untimely. However, pursuant to 42 Pa.C.S. § 9545, an otherwise

untimely petition may be reviewed if a petitioner pleads and proves the

applicability of one of three statutory exceptions:

       (i) the failure to raise the claim previously was the result of
       interference by government officials with the presentation of the
       claim in violation of the Constitution or laws of this
       Commonwealth or the Constitution or laws of the United States;

       (ii) the facts upon which the claim is predicated were unknown
       to the petitioner and could not have been ascertained by the
       exercise of due diligence; or

       (iii) 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.

____________________________________________


8
  As this Court noted in Styen’s appeal from the denial of relief on his first,
timely PCRA petition:

       [Styen’s] judgment of sentence became final on April 17, 2012,
       when the ninety-day period for filing a writ of certiorari with the
       United States Supreme Court expired. See Sup. Ct. R. 13; 1
       Pa.C.S. § 1908; 42 Pa.C.S. § 9545(b)(3). [Styen] then generally
       had one year, or until April 17, 2013, to file a PCRA petition. See
       42 Pa.C.S. § 9545(b)(1).

Commonwealth v. Styen, 120 A.3d 1057 (Pa. Super. 2015) (unpublished
memorandum, at 3 n.5).



                                           -6-
J-S54024-16




42 Pa.C.S. § 9545(b)(1)(i)-(iii). Any petition invoking one of these

exceptions must be filed “within 60 days of the date the claim could have

been presented.” Id. at § 9545(b)(2).

     Based on Alleyne, Styen invoked the PCRA’s exception for newly-

recognized constitutional right that applies retroactively. See 42 Pa.C.S. §

9545(b)(1)(iii), supra. In Alleyne, the United States Supreme Court 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, 133 S. Ct. at 2163.

     Since Alleyne, the mandatory minimum sentencing provision applied

herein, as well as others, have been struck down as unconstitutional. See

Commonwealth       v.   Valentine,   101   A.3d   801   (Pa.   Super.   2014)

(invalidating 42 Pa.C.S. §§ 9712 and 9713), appeal denied, 124 A.3d 309

(Pa. 2015); Commonwealth v. Newman, 99 A.3d 86, 98 (Pa. Super.

2014) (en banc), appeal denied, 121 A.3d 496 (Pa. 2015); (invalidating 42

Pa.C.S. § 9712.1). 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.

     We agree with the PCRA court’s assessment that Styen’s argument

based upon Alleyne is unavailing because “Alleyne has been held not to be




                                     -7-
J-S54024-16




applicable retroactively and [Styen’s] case had been resolved long before

the ruling in Alleyne.” PCRA Court Order, 10/29/2015.

      Recently, in Commonwealth v. Washington, ___ A.3d ___ [No. 37

EAP 2015] (Pa. July 19, 2016), the Pennsylvania Supreme Court held that

Alleyne does not apply retroactively to attacks upon mandatory minimum

sentences advanced on collateral review.    Under Washington, it is clear

that Styen cannot satisfy the newly-recognized constitutional right exception

and attack the validity of his sentence on the basis that it included

imposition of a mandatory minimum sentence that has been rendered

unconstitutional under Alleyne.    Accordingly, we affirm the PCRA court’s

denial of relief.

      Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/8/2016




                                    -8-
