J-S65019-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                         IN THE SUPERIOR COURT OF
                                                            PENNSYLVANIA
                            Appellee

                       v.

HAMIN AZEEZ GRAY,

                            Appellant                     No. 1998 WDA 2015


              Appeal from the PCRA Order of November 16, 2015
               In the Court of Common Pleas of Allegheny County
              Criminal Division at No(s): CP-02-CR-0011686-2006


BEFORE: LAZARUS, OLSON AND PLATT,* JJ.

MEMORANDUM BY OLSON, J.:                                FILED OCTOBER 17, 2016

       Appellant, Hamin Azeez Gray, appeals from the order entered on

November 16, 2015, dismissing his first petition filed pursuant to the Post

Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. We affirm.

       We briefly summarize the facts and procedural history of this case as

follows. On October 17, 2007, following a bench trial, the trial court found

Appellant guilty of two counts of possession with intent to deliver (PWID),

two counts of possession of a controlled substance, receiving stolen

property, persons not to possess a firearm, and possession of a firearm with

an altered manufacturer’s number.1             On January 15, 2008, the trial court

____________________________________________


1
  35 P.S. §§ 780-113(a)(30) and 780-115(a)(second or subsequent offense),
35 P.S. § 780-113(a)(16), 18 Pa.C.S.A. §§ 3925, 6105, and 6110.2,
respectively.



*Retired Senior Judge assigned to the Superior Court.
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sentenced Appellant to a mandatory minimum sentence of five to ten years

of imprisonment pursuant to 42 Pa.C.S.A. § 9712.1 (sentences for certain

drug offenses committed with firearms), plus a consecutive term of five

years’ probation. On June 9, 2009, this Court affirmed Appellant’s judgment

of sentence.      Commonwealth v. Gray, 981 A.2d 312 (Pa. Super. 2009)

(unpublished memorandum).             On October 15, 2009, our Supreme Court

denied further review. Commonwealth v. Gray, 982 A.2d 64 (Pa. 2009).

          On November 3, 2014, Appellant filed a pro se PCRA petition.         On

November 14, 2014, the PCRA court appointed counsel to represent

Appellant.     PCRA counsel filed an amended PCRA petition on January 29,

2015. The PCRA court held an evidentiary hearing on June 23, 2015. By

order entered on November 16, 2015, the PCRA court denied Appellant

relief.     This timely appeal resulted.2        On appeal, Appellant presents the

following issues for our review:

    I.      Did the [PCRA] court err or abuse its discretion in
            dismissing the PCRA matter involving an unconstitutional
            and illegal, mandatory sentence imposed on Appellant,
            because Appellant is entitled to relief in the form of a new
            sentencing hearing not utilizing the mandatory minimums
            held to be illegal?

____________________________________________


2
  Appellant filed a notice of appeal on December 16, 2015. Upon review of
the record, it does not appear that the PCRA court entered an order directing
Appellant to file a concise statement of errors complained of on appeal
pursuant to Pa.R.A.P. 1925(b). Regardless, Appellant filed a Rule 1925(b)
concise statement on March 24, 2016. The PCRA court filed an opinion
pursuant to Pa.R.A.P. 1925(a) on April 7, 2016.



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  II.     Did the [PCRA] court err or abuse its discretion in
          dismissing the PCRA matter involving an illegal and
          mandatory sentence imposed on Appellant, because the
          rulings in Alleyne v. United States, 133 S. Ct. 2151
          (2013), Commonwealth v. Newman, 99 A.3d 801 (Pa.
          Super. 2014), and Commonwealth v. Ferguson, 107 A.3d
          206 (Pa. Super. 2015) constitute a substantive “watershed
          rule of criminal procedure implicating the fundamental
          fairness and accuracy of the criminal proceeding,” requiring
          a retroactive application of [Appellant’s] PCRA claim?

Appellant’s Brief at 4.

        Appellant’s claims are inter-related, so we will examine them together.

Appellant claims the PCRA court erred by dismissing his PCRA petition

because he received a statutory mandatory minimum sentence and the

United States Supreme Court decision in Alleyne v. United States, 133 S.

Ct. 2151 (2013) entitled him to a new sentencing hearing.            Id. at 9.

Appellant asserts the PCRA court had jurisdiction to entertain his untimely

petition and to examine the merits of his claims because they “involved the

legality of Appellant’s sentence and [] claim[s] involving the legality of a

sentence cannot be waived.”          Id. at 10.   In the alternative, Appellant

argues, “the holding in Alleyne is a watershed rule and as such must be

applied retroactively.” Id. at 11.

        We have determined:

          Our standard of review of a PCRA court's dismissal of a
          PCRA petition is limited to examining whether the PCRA
          court's determination is supported by the record evidence
          and free of legal error. Commonwealth v. Wilson, 824
          A.2d 331, 333 (Pa. Super. 2003) (en banc). Before
          addressing the merits of Appellant's claims, we must first
          determine whether we have jurisdiction to entertain the

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         underlying PCRA petition. See Commonwealth v.
         Hackett, 956 A.2d 978, 983 (Pa. 2008) (explaining that the
         timeliness of a PCRA petition is a jurisdictional requisite).

         The most recent amendments to the PCRA, effective
         January 19, 1996, provide that a PCRA petition, including a
         second or subsequent petition, shall be filed within one year
         of the date the underlying judgment becomes final. 42
         Pa.C.S.A. § 9545(b)(1). 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.” 42 Pa.C.S.A. § 9545(b)(3).

Commonwealth v. Whitehawk, 2016 WL 4473779, at *2 (Pa. Super.

2016).

     Here, our Supreme Court denied review of Appellant’s judgment of

sentence on October 15, 2009.        Thus, Appellant’s judgment of sentence

became final 90 days later, at the expiration of the time for review with the

United States Supreme Court, on January 13, 2010. See U.S. Sup.Ct. Rule

13. Appellant’s PCRA petition filed almost five years later on November 3,

2014 was, therefore, patently untimely under the PCRA.

     Appellant asserts, however, that his claim implicates the legality of

sentence and cannot be waived. However, we recently reiterated:

         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). However, a legality of sentencing issue must
         be raised in a timely filed PCRA petition. See 42 Pa.C.S.A.
         § 9545(b)(2); Commonwealth v. Fahy, 737 A.2d 214,
         223 (Pa. 1999) (holding that “[a]lthough a legality of
         sentence is always subject to review within the PCRA,
         claims must still first satisfy the PCRA's time limits or one of
         the exceptions thereto”). Thus, an appellant must present

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        an illegal sentencing claim in a timely PCRA petition over
        which this Court has jurisdiction. See Fahy supra, and
        Commonwealth v. Miller, 102 A.3d 988, 994 (Pa. Super.
        2014) (observing Alleyne does not invalidate a mandatory
        minimum sentence challenged in an untimely PCRA
        petition).

Whitehawk, supra at *3.

      There are very limited exceptions under which the late filing of a

petition will be excused. 42 Pa.C.S.A. § 9545(b)(1). In his PCRA petition,

Appellant asserted “a constitutional right that was recognized by the

Supreme Court of Pennsylvania […] and has been held by that court to apply

retroactively.”   PCRA Petition, 11/3/2014, at 3, citing 42 Pa.C.S.A.

§ 9545(b)(1)(iii). However, we recently stated

        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,
        and 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
        the Pennsylvania 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, 42 A.3d 1059 (Pa. 2012). To the contrary, our
        Supreme Court recently filed an opinion in Commonwealth
        v. Washington, ––– A.3d ––––, 2016 WL 3909088 (Pa.
        July 19, 2016) wherein it addressed the retroactive effect of
        Alleyne and held “that Alleyne [v. United States, –––
        U.S. ––––, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013),] does
        not apply retroactively to cases pending on collateral
        review. ...” Id. at *8.

Whitehawk, supra at *4.

      Based upon all of the foregoing, Appellant’s PCRA petition was

untimely and not subject to exception. Our Supreme Court has concluded

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Alleyne does not apply retroactively.      The PCRA court, therefore, lacked

jurisdiction to entertain Appellant’s claims. As such, we discern no abuse of

discretion or error of law in dismissing Appellant’s PCRA petition.

      Order affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/17/2016




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