J-S13031-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :         PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    CHRISTOPHER WILLIAM LATZ,                  :
                                               :
                       Appellant               :      No. 1257 WDA 2017

                  Appeal from the PCRA Order August 10, 2017
                in the Court of Common Pleas of Cambria County
              Criminal Division at No(s): CP-11-CR-0002034-2013

BEFORE: GANTMAN, P.J., SHOGAN, J., and MUSMANNO, J.

MEMORANDUM BY MUSMANNO, J.:                               FILED MAY 30, 2018

        Christopher William Latz (“Latz”) appeals from the Order denying his

“Motion to Vacate Judgment of Sentence, and/or in the Alternative[,] Petition

to Set Aside his Mandatory Minimum Sentence Pursuant to Alleyne v. United

States[1] Nunc Pro Tunc,” which the PCRA court treated as a Petition filed

pursuant to the Post Conviction Relief Act.2 See 42 Pa.C.S.A. §§ 9541-9546.

We affirm.

        On February 3, 2015, Latz entered an open guilty plea to persons not to

possess firearms.       See 18 Pa.C.S.A. § 6105.        The trial court deferred


____________________________________________


1   570 U.S. 99 (2013).

2 See Commonwealth v. Jackson, 30 A.3d 516, 521 (Pa. Super. 2011)
(stating that this Court has “repeatedly held that any petition filed after the
judgment of sentence becomes final will be treated as a PCRA petition.”)
(citation and ellipses omitted).
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sentencing and ordered a pre-sentence investigation report. The trial court

subsequently sentenced Latz to a term of 30 to 84 months in prison. Latz did

not file a direct appeal.

       On March 23, 2016, Latz, pro se, filed the instant Motion to Vacate. The

PCRA court subsequently issued an Order, stating that Latz’s Motion to Vacate

would be treated as a PCRA Petition, and appointing Latz PCRA counsel. PCRA

counsel filed an Amended PCRA Petition on Latz’s behalf.         The PCRA court

conducted a hearing on the matter, and on August 10, 2017, the PCRA court

denied Latz’s Petition. Latz filed a timely Notice of Appeal and a Pa.R.A.P.

1925(b) Concise Statement of matters complained of on appeal.

       Latz now raises the following claim for our review:       “[Whether t]he

[PCRA] court erred in denying [Latz’s] PCRA Petition in that the trial court

imposed an improper and/or illegal sentence which should have been

modified, especially in light of the United States Supreme Court’s holding in

Alleyne…[?]”3 Brief for Appellant at 4 (some capitalization omitted).

              On appeal from the denial of PCRA relief, our standard of
       review calls for us to determine whether the ruling of the PCRA
       court is supported by the record and free of legal error. The PCRA
       court’s findings will not be disturbed unless there is no support for
       the findings in the certified record.

Commonwealth v. Nero, 58 A.3d 802, 805 (Pa. Super. 2012) (citations and

quotation marks omitted).

____________________________________________


3 In Alleyne, the United States Supreme Court held that “any fact that
increases the penalty for a crime is an ‘element’ that must be submitted to
the jury” and found beyond a reasonable doubt. Alleyne, 570 U.S. at 103.

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       Latz asserts that his sentence is illegal based on “the spirit of Alleyne.”

Brief for Appellant at 8-10.         Latz concedes that his conviction under 18

Pa.C.S.A. § 6105 does not carry a mandatory minimum sentence, but argues

that “the [c]ourt is still compelled under the Pennsylvania Sentencing

Guidelines to impose a minimum sentence….” Id. at 9.

       As Latz correctly points out, his conviction of persons not to possess

firearms does not require the imposition of a mandatory minimum sentence.

See 18 Pa.C.S.A. § 6105(a.1)(1) (stating that, regarding the penalty to be

imposed for conviction under section 6105, “a person convicted of a felony

enumerated under subsection (b) or a felony under … The Controlled

Substance, Drug, Device and Cosmetic Act, or any equivalent Federal statute

or equivalent statute of any other state, who violates subsection (a) commits

a felony of the second degree.”). Thus, Latz’s sentence is not illegal under

Alleyne.4 We therefore affirm the PCRA court’s Order denying Latz’s Petition.

       Order affirmed.




____________________________________________


4 We additionally note that during the guilty plea hearing, Latz specifically pled
guilty to the offense of persons not to possess firearms, graded as a felony of
the second degree.        See N.T., 2/3/15, at 2; see also 18 Pa.C.S.A.
§ 6105(a.1)(1). Thus, as the PCRA court stated in its Opinion, by entering a
guilty plea, Latz agreed to all facts necessary to support a finding of guilt,
including those facts necessary to establish the grading of the offense. See
PCRA Court Opinion, 10/23/17, at 3. Moreover, Latz’s sentence is below the
statutory maximum. See 18 Pa.C.S.A. § 1103(2) (providing that a person
may be sentenced, “[i]n the case of a felony of the second degree, for a term
which shall be fixed by the court at not more than ten years.”).

                                           -3-
J-S13031-18


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/30/2018




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