J-S19030-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                          IN THE SUPERIOR COURT OF
                                                            PENNSYLVANIA
                             Appellee

                        v.

DONTAY RAYSHAW BREWER

                             Appellant                      No. 2437 EDA 2014


                   Appeal from the PCRA Order July 31, 2014
             In the Court of Common Pleas of Montgomery County
              Criminal Division at No(s): CP-46-CR-0009340-2009


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

MEMORANDUM BY JENKINS, J.:                                   FILED APRIL 28, 2015

        Dontay Brewer appeals from an order dismissing his petition under the

Post Conviction Relief Act, 42 Pa.C.S. § 9651 et seq. Brewer argues that his

attorney    rendered     ineffective     assistance   by   failing   to   file   a   timely

suppression motion, and that his sentence is unconstitutional under Alleyne

v. United States, -- U.S. --, 133 S.Ct. 2151 (2013). We affirm.

        Brewer, the head of a significant and sophisticated cocaine trafficking

ring in Norristown, Pennsylvania, was charged with corrupt organizations,1

conspiracy to engage in corrupt organizations,2 possession with intent to


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1
    18 Pa.C.S. § 911.
2
    18 Pa.C.S. § 903.
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deliver controlled substances,3 criminal use of communications,4 delivery of

controlled substances5 and possession of drug paraphernalia.6 Prior to trial,

he filed a motion to suppress evidence that police officers seized pursuant to

a search warrant at several locations, including 1015 Beech Street in

Norristown. Following a hearing on January 21, 2011, the trial court denied

the motion to suppress. In the course of its ruling, the trial court stated on

the record that the affidavit of probable cause underlying the search warrant

provided probable cause to search 1015 Beech Street in Norristown. N.T.,

1/21/11, pp. 22-26.

        On January 27, 2011, after a five-day trial, a jury found Brewer guilty

of multiple counts of corrupt organizations, conspiracy to deliver cocaine,

possession with intent to deliver, delivery of controlled substances, criminal

use of communications and possession of drug paraphernalia.

        On March 7, 2011, the Commonwealth filed a Notice of Intent to Seek

Mandatory Sentence pursuant to 18 Pa.C.S. § 7508 on five counts of

conviction.    On March 28, 2011, the trial court sentenced Brewer to a

lengthy term of imprisonment, including five mandatory minimum terms
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3
    35 P.S. § 780-113(a)(30).
4
    18 Pa.C.S. § 7512.
5
    35 P.S. § 780-113(a)(30).
6
    35 P.S. § 780-113(a)(33).




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imposed pursuant to section 7508.7 Brewer filed a timely direct appeal. On

May 24, 2012, this Court affirmed his judgment of sentence, and on January

13, 2013, the Supreme Court denied his petition for allowance of appeal.

       On December 3, 2013, Appellant filed a timely pro se PCRA petition.

The court appointed the Public Defender to assist Brewer with his petition,

and PCRA counsel subsequently filed an amended PCRA petition. Neither the

original nor the amended PCRA petition raised Alleyne.8 On July 9, 2014,

the court issued a notice of intent to dismiss the amended PCRA petition

without a hearing. Brewer did not file a response. On July 30, 2014, the

court dismissed Brewer’s amended PCRA petition.       On August 25, 2014,
____________________________________________


7
   The trial court sentenced Brewer to (i) 2-10 years’ imprisonment for
corrupt organizations; (ii) a concurrent term of 2-10 years’ imprisonment for
conspiracy to commit corrupt organizations; (iii) a consecutive mandatory
minimum term of 7-20 years’ imprisonment for delivery of cocaine on
October 11, 2009; (iv) a concurrent mandatory minimum term of 7-20
years’ imprisonment for delivery of a controlled substance on October 19,
2009; (v) a concurrent mandatory minimum term of 5-10 years’
imprisonment for possession with intent to deliver on October 25-26, 2009;
(vi) a consecutive mandatory minimum term of 7-20 years’ imprisonment for
possession with intent to deliver on October 26, 2009; (vii) a concurrent
mandatory minimum term of 5-10 years’ imprisonment for possession with
intent to deliver on October 26-27, 2009; (viii) a concurrent term of 5-10
years’ imprisonment for conspiracy to violate the Drug Act; and (ix) 5
concurrent terms of 1-7 years’ imprisonment for 5 convictions for criminal
use of a communications facility.
8
  Brewer’s amended PCRA petition claimed that counsel on direct appeal was
ineffective for failing to challenge the mandatory minimum sentences
imposed on certain counts because there was an insufficient factual basis for
finding that Brewer delivered over 100 grams of cocaine. Amended PCRA
Petition, p. 9. The amended PCRA petition did not claim that any mandatory
minimum sentences were unconstitutional under Alleyne.



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Brewer filed a timely notice of appeal. On September 16, 2014, counsel for

Brewer filed a Pa.R.A.P. 1925(b) statement raising Alleyne for the first

time. The PCRA court issued an opinion reasoning, inter alia, that Alleyne

did not apply retroactively to cases on collateral review.

      Brewer raises two issues on appeal in his counseled brief:

         1. Did the PCRA court err in dismissing [] Brewer’s
            amended [PCRA] petition without a hearing where
            trial counsel was ineffective in failing to timely file a
            meritorious motion to suppress physical evidence
            seized from 1015 Beech Street?

         2. Do each of the five (5) mandatory minimum
            sentences imposed upon [] Brewer pursuant to [18
            Pa.C.S. §] 7508 constitute an illegal sentence
            pursuant to the United States Supreme Court’s
            decision in Alleyne []?

      This Court reviews the PCRA court’s findings of fact to determine

whether they are supported by the record, and reviews its conclusions of law

to determine whether they are free from legal error. Commonwealth v.

Charleston, 94 A.3d 1012, 1019 (Pa.Super.2014). Our scope of review is

limited to the findings of the PCRA court and the evidence of record, viewed

in the light most favorable to the prevailing party at the trial level. Id.

      Brewer’s first argument alleges ineffective assistance of trial counsel

for failing to file a timely motion to suppress evidence seized from 1015

Beech Street.     To obtain relief on a claim of ineffectiveness, a PCRA

petitioner must satisfy the performance and prejudice test set forth in

Strickland v. Washington, 466 U.S. 668, 687 (1984).             Specifically, the


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petitioner must establish that: (1) the underlying claim has arguable merit;

(2) no reasonable basis existed for counsel’s actions or failure to act; and

(3) the petitioner suffered prejudice as a result of counsel’s error, with

prejudice measured by whether there is a reasonable probability that the

result of the proceeding would have been different.        Commonwealth v.

Pierce, 527 A.2d 973, 975 (Pa.1987).          Counsel is presumed effective.

Charleston, 94 A.3d at 1019.     A court need not analyze the elements of an

ineffectiveness claim in any particular order of priority; if a claim fails any

necessary element of the Strickland test, the court may proceed to that

element first. Commonwealth v. Albrecht, 720 A.2d 693, 701 (Pa.1998).

Additionally, counsel cannot be deemed ineffective for failing to raise a

meritless claim. Commonwealth v. Jones, 912 A.2d 268, 278 (Pa.2006).

      Here, the PCRA court held that Brewer suffered no prejudice from the

tardy filing of the motion to suppress evidence seized at 1015 Beech Street,

because the trial court not only permitted defense counsel to present

argument on this issue despite the motion’s tardiness but then resolved this

issue on the merits. The trial court stated on the record:

            Now, the warrant for Beech Street, in particular,
            does set forth two affiants very, very experienced in
            narcotics investigations, including wiretapping. And
            the Affidavit describes, in some great detail – 100
            pages or so - an ongoing drug delivery criminal
            enterprise with Mr. Brewer being a central figure in
            that. That Affidavit also describes various locations in
            which the drug activity comes forth and is carried on,
            also describing the use of multiple telephones and
            multiple vehicle, things not registered in his name;

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          quite clearly, extensive steps were being taken by
          him to avoid detection and to keep the operation
          from being discovered. All this is set forth in the
          Affidavit. There are numerous controlled buys set
          forth. There is information from confidential
          informants and information dictating reliability there.
          The Affidavit does, furthermore, set forth various
          intercepted phone calls from the participants,
          demonstrating the large-scale and ongoing nature of
          this operation. Clearly the Affidavit establishes
          probable cause the defendant used Beech Street and
          multiple houses and apartments to store his drugs
          and carry out his operations. The Beech Street
          location is identified later in the development of this
          case.

          The Affidavit sets forth probable cause to believe
          that this secretive location is yet another storage or
          stash location for Mr. Brewer to hide his drugs. Yes, I
          find that the Affidavit does set forth sufficient
          probable cause to search that location for evidence
          connected to this crime.

          The Affidavit clearly establishes that anywhere that
          this defendant spent considerable time in the
          Norristown area was a location used to further the
          operation, to try to keep it a secret, and tried to
          keep it camouflaged from police scrutiny and
          investigations. Now, if you look at the language that
          Mr. McElroy refers to as just an additional page -
          that comes in at Page 100 - it talks about recent
          surveillance showed Mr. Brewer using the outer door.
          That’s a three-story unit with 11 apartments.
          Intercepted conversations had Mr. Brewer using this
          to both sleep and take shower. Electronic and
          physical surveillance out him at that location on
          several occasions throughout the wiretap. PECO told
          them that utilities were registered to Mr. Solomon.
          That’s also the person’s car that he was driving at
          the time of his arrest. And the interceptions show
          that Solomon was an associate of Brewer in this
          operation. This is consistent with everything he’s
          been doing during the course of his ongoing drug
          activity.

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            Furthermore, the Affidavit sets forth complaints from
            neighbors about loud noises coming early in the
            morning hours from that apartment, and a neighbor
            described a heavyset black male as entering and
            exiting the apartment on infrequent occasions, being
            consistent with Mr. Brewer, who, when taken into
            custody, was found to be in possession of cocaine at
            the time of his arrest, driving that vehicle registered
            to Solomon, and he had some keys that were
            brought in and fit the door to the apartment, the way
            I read the Affidavit.

            So, once again, I find that Judge Steven T. O’Neill,
            Court of Common Pleas of Montgomery County, had
            substantial basis for finding probable cause and
            issuing this warrant and I agree with his assessment,
            even after hearing the arguments of Mr. McElroy and
            viewing, at a later time - and probably given more
            time than Judge O’Neill had to review it. The
            determination of the issuing authority is entitled to
            great deference; but notwithstanding that, I
            independently find a sufficient and fundamental basis
            of probable cause for this warrant to search the
            Beech Street address. The suppression motions are
            denied, not only as untimely, but also as lacking
            merit.

N.T. 1/21/11, pp. 22-26.

      Having reviewed the record, we agree with the PCRA court that Brewer

fails the prejudice prong of the Strickland test, because the trial court

decided the suppression issue pertaining to 1015 Beech Street on the merits

despite defense counsel’s tardy suppression motion. Moreover, we conclude

that Brewer’s argument lacks arguable merit for the reasons articulated by

the trial court in the explanation recited above. N.T., 1/21/11, pp. 22-26.




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      In his second argument, Brewer contends that his five mandatory

minimum sentences are unconstitutional under Alleyne. Alleyne held that,

other than the fact of a prior conviction, any fact that increases the penalty

for a crime beyond the prescribed statutory minimum must be submitted to

a jury and proved beyond a reasonable doubt. Id., 131 S.Ct. at 2160-61.

Brewer argues his sentences are unconstitutional because the trial court

imposed these sentences without a jury and under a preponderance of the

evidence standard.

      Brewer failed to raise Alleyne in his original or amended PCRA petition

and has raised it for the first time in his present appeal, more than one year

after his judgment of sentence became final.       This issue is not waived,

because challenges to the legality of a sentence cannot be waived.

Commonwealth v. Miller, 102 A.3d 988, 996 (Pa.Super.2014) (Alleyne

challenge to legality of sentence is “not technically waivable”). On the other

hand, this issue is untimely, because Brewer raised it for the first time more

than one year after his judgment of sentence became final. As a result, we

lack jurisdiction to review it under the PCRA’s statute of limitations, 42

Pa.C.S. § 9545(b).

      Section 9545    provides that a petition “including a second or

subsequent petition, shall be filed within one year of the date the judgment

becomes final.” 42 Pa.C.S. § 9545(b)(1); accord Commonwealth v.

Bretz, 830 A.2d 1273, 1275 (Pa.Super.2003). No court has jurisdiction to


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hear an untimely PCRA petition.       Commonwealth v. Monaco, 996 A.2d

1076, 1079 (Pa.Super.2010) (citing Commonwealth v. Robinson, 837

A.2d 1157, 1161 (Pa.2003)). A judgment is 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 time

for seeking the review.” 42 Pa.C.S. § 9545(b)(3).

      Three exceptions to the PCRA’s time-bar provide for very limited

circumstances under which a court may excuse the late filing of a PCRA

petition. 42 Pa.C.S. § 9545(b)(1); Monaco, 996 A.2d at 1079.               The late

filing of a petition will be excused if a petitioner alleges and proves:

            (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.

42 Pa.C.S. § 9545(b)(1)(i)-(iii).    A petition invoking an exception to the

PCRA time bar must “be filed within 60 days of the date the claim could have

been presented.” 42 Pa.C.S. § 9545(b)(2).




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         In our view, these jurisdictional precepts apply when, as here, (1) the

petitioner timely files a PCRA petition, (2) neglects to raise a particular issue

(e.g., Alleyne) in the PCRA court, but then (3) raises that issue for the first

time on appeal, more than one year after his judgment of sentence becomes

final.    To entertain an issue on appeal under these circumstances would

circumvent the strict jurisdictional time limitations embodied in section

9545.     See Commonwealth v. Edmiston, 851 A.2d 883, 889 (Pa.2004)

(citing Pa.R.A.P. 302(a) & Commonwealth v. Bond, 819 A.2d 33, 52

(2002)) (“[p]ermitting a PCRA petitioner to append new claims to the appeal

already on review would wrongly subvert the time limitation and serial

petition restrictions of the PCRA”)9.

         With these principles in mind, we observe that Brewer’s judgment of

sentence became final on April 15, 2013, the last day for filing a petition for

writ of certiorari in the United States Supreme Court.10 Thus, Brewer had

until April 15, 2014 to raise Alleyne in a PCRA petition. Brewer did not raise

Alleyne until September 16, 2014, following his appeal, when he cited




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9
  In addition, “the proper vehicle for raising new claims is not on PCRA
appeal, but rather in a subsequent PCRA petition.” Edmiston, 851 A.2d at
889.
10
  The ninetieth day after January 13, 2013, the date our Supreme Court
denied Brewer’s petition for allowance of appeal, fell on Saturday, April 13,
2013, thus extending the deadline to Monday, April 15, 2013.



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Alleyne in his Pa.R.A.P. 1925(b) statement.        Thus, his attempt to raise

Alleyne is untimely on its face.

      Nor do any of the exceptions in section 9545(b)(i-iii) apply to this

case. Brewer suggests in his brief that Alleyne applies retroactively under

section 9545(b)(iii), because challenges to the illegality of his sentence are

never waived.    We disagree, based on our analysis of the same issue in

Miller.   Miller held that the PCRA court lacked jurisdiction to consider an

Alleyne argument presented in a second PCRA petition filed five years after

the petitioner’s judgment of sentence became final, reasoning:

            Subsection (iii) of Section 9545 [(b)(1)] has two
            requirements. First, it provides 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
            provided in this section. Second, it provides that the
            right ‘has been held’ by ‘that court’ to apply
            retroactively. Thus, a petitioner must prove that
            there is a ‘new’ constitutional right and that the right
            ‘has been held’ by that court to apply retroactively.
            The language ‘has been held’ is in the past tense.
            These words mean that the action has already
            occurred, i.e., ‘that court’ has already held the new
            constitutional right to be retroactive to cases on
            collateral review. By employing the past tense in
            writing this provision, the legislature clearly intended
            that the right was already recognized at the time the
            petition was filed.

                                    …

            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.

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          This is fatal to Appellant’s argument regarding the
          PCRA time-bar. 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.
          Commonwealth v. Phillips, 31 A.3d 317, 320
          (Pa.Super.2011), appeal denied, 615 Pa. 784, 42
          A.3d 1059 (2012), citing Tyler v. Cain, 533 U.S.
          656, 663, 121 S.Ct. 2478, 150 L.Ed.2d 632 (2001);
          see also, e.g., Commonwealth v. Taylor, 933
          A.2d 1035, 1042 (Pa.Super.2007) (stating, ‘for
          purposes of subsection (iii), the language ‘has been
          held by that court to apply retroactively’ means the
          court announcing the rule must have also ruled on
          the retroactivity of the new constitutional right,
          before the petitioner can assert retroactive
          application of the right in a PCRA petition[ ]’), appeal
          denied, 597 Pa. 715, 951 A.2d 1163 (2008).
          Therefore, Appellant has failed to satisfy the new
          constitutional right exception to the time-bar.

                                  …

          We are aware that an issue pertaining to Alleyne
          goes to the legality of the sentence. See
          Commonwealth v. Newman, 99 A.3d 86, 90
          (Pa.Super.2014) (en banc) (stating, ‘a challenge to a
          sentence premised upon Alleyne likewise implicates
          the legality of the sentence and cannot be waived on
          appeal[ ]’). It is generally true that ‘this Court is
          endowed with the ability to consider an issue of
          illegality of sentence sua sponte.’ Commonwealth
          v. Orellana, 86 A.3d 877, 883 n. 7 (Pa.Super.2014)
          (citation omitted). However, in order for this Court to
          review a legality of sentence claim, there must be a
          basis for our jurisdiction to engage in such review.
          See Commonwealth v. Borovichka, 18 A.3d 1242,
          1254 (Pa.Super.2011) (stating, ‘[a] challenge to the
          legality of a sentence ... may be entertained as long
          as the reviewing court has jurisdiction[ ]’) (citation
          omitted). As this Court recently noted, ‘[t]hough not
          technically waivable, a legality [of sentence] claim
          may nevertheless be lost should it be raised ... in an

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            untimely PCRA petition for which no time-bar
            exception applies, thus depriving the court of
            jurisdiction over the claim.’ [Commonwealth v.]
            Seskey, [86 A.3d 237,] 242 [(Pa.Super.2014)]. As a
            result, the PCRA court lacked jurisdiction to consider
            the merits of Appellant’s second PCRA petition, as it
            was untimely filed and no exception was proven…

Id. at 994, 995, 996 (emphasis added; certain citations omitted).     Miller

squarely applies to this case.   Like the petitioner in Miller, Brewer raised

Alleyne more than one year after his judgment of sentence became final.

Moreover, even if Alleyne announced a new constitutional right, neither the

United States Supreme Court nor the Pennsylvania Supreme Court has held

that this right applies retroactively. Thus, although Alleyne implicates the

legality of Brewer’s sentence, we lack jurisdiction to address this issue.

Miller, 102 A.3d at 995, 996.

     Brewer’s Alleyne argument suffers from an additional jurisdictional

defect not present in Miller.      Whereas the petitioner in Miller raised

Alleyne in a PCRA petition within sixty days after Alleyne’s issuance,

Brewer did not raise Alleyne until fifteen months after its issuance.

Consequently, Brewer’s Alleyne claim is untimely under the sixty-day

deadline in section 9545(b)(2) for filing exceptions to the PCRA’s one-year

time bar.

     Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/28/2015




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