J-S46034-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                                          :
              v.                          :
                                          :
                                          :
 BRYAN MILLER                             :
                                          :
                    Appellant             :   No. 3215 EDA 2017


             Appeal from the PCRA Order, September 14, 2017,
           in the Court of Common Pleas of Philadelphia County,
           Criminal Division at No(s): CP-51-CR-0605031-2006.


BEFORE: BOWES, J., SHOGAN, J., and KUNSELMAN, J.

MEMORANDUM BY KUNSELMAN, J.:                      FILED OCTOBER 10, 2018

      Bryan Miller appeals from the order denying his first petition for relief

pursuant to the Post Conviction Relief Act (“PCRA”). 42 Pa.C.S.A. §§ 9541-

9546. We affirm.

      The pertinent facts and procedural history are as follows: On May 29,

2009, Miller entered a nolo contendere plea to one count of possession of a

controlled substance (cocaine) with intent to deliver.    That same day, the

parties stipulated that the weight of the drug was 61 grams. Pursuant to 18

Pa.C.S.A. § 7508(a)(3)(i), the trial court imposed a mandatory term of five to

ten years of imprisonment. Miller did not file a direct appeal.

      On March 4, 2010, Miller filed a pro se PCRA petition. The PCRA court

appointed counsel, who subsequently filed an amended petition on May 9,
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2012. No action was taken on the amended petition for the next five years.1

On June 13, 2017, new counsel for Miller filed a second amended petition,

without leave of court, in which he alleged that the trial court sentenced Miller

to a mandatory minimum sentence in violation of Alleyne v. United States,

570 U.S. 99 (2013). On July 25, 2017, the PCRA court issued Pa.R.Crim.P.

907 notice of its intent to dismiss Miller’s PCRA petition without a hearing.

Miller did not file a response. By order entered September 14, 2017, the PCRA

court denied Miller’s petition. This appeal follows. Both Miller and the PCRA

court have complied with Pa.R.A.P. 1925.

       Miller raises the following issue:

          1. Was counsel ineffective for failing to raise the issue of
             [Miller’s] being subject to an illegal mandatory minimum
             sentence?

Milller’s Brief at 3.

       Our scope and standard of review is well settled:

          In PCRA appeals, our scope of review is limited to the
          findings of the PCRA court and the evidence on the record
          of the PCRA court's hearing, viewed in the light most
          favorable to the prevailing party. Because most PCRA
          appeals involve questions of fact and law, we employ a
          mixed standard of review. We defer to the PCRA court's
          factual findings and credibility determinations supported by

____________________________________________


1The certified record does not reveal clearly the reasons for this lengthy delay,
although several requests for continuance were filed by defense counsel, and
counsel had changed more than once. See PCRA Court Opinion, 2/7/18, at
2-3.



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         the record. In contrast, we review the PCRA court's legal
         conclusions de novo.

Commonwealth v. Reyes-Rodriguez, 111 A.3d 775, 779 (Pa. Super. 2015)

(en banc) (citations omitted).

      Miller raises a claim of ineffective assistance of counsel. To obtain relief

under the PCRA premised on a claim that counsel was ineffective, a petitioner

must establish, by a preponderance of the evidence, that counsel's

ineffectiveness so undermined the truth-determining process that no reliable

adjudication of guilt or innocence could have taken place. Commonwealth

v. Johnson, 966 A.2d 523, 532 (Pa. 2009).                 “Generally, counsel’s

performance is presumed to be constitutionally adequate, and counsel will

only be deemed ineffective upon a sufficient showing by the petitioner.” Id.

This requires the petitioner to demonstrate that: (1) the underlying claim is

of arguable merit; (2) counsel had no reasonable strategic basis for his or her

action or inaction; and (3) counsel’s act or omission prejudiced the petitioner.

Id. at 533.

      As to the first prong, “[a] claim has arguable merit where the factual

averments, if accurate, could establish cause for relief.” Commonwealth v.

Stewart, 84 A.3d 701, 707 (Pa. Super. 2013) (en banc). “Whether the facts

rise to the level of arguable merit is a legal determination.’”       Id. (citing

Commonwealth v. Saranchak, 866 A.2d 292, 304 n.14 (Pa. 2005).

      Miller claims that trial “counsel failed to raise the illegal sentence issue

on direct appeal. This was ineffective.” Miller’s Brief at 16. Additionally, he



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is “challenging counsel’s ineffectiveness rather than the illegal sentence itself.”

Id.   According to Miller, “[t]he Apprendi/Alleyne principles had been

announced by the U.S. Supreme Court prior to the judgment of sentence in

this matter.” Id. Thus, Miller claims that he is “entitled to a determination

as to whether counsel was ineffective for failure to pursue the issue at trial

and on direct appeal.” Id.

      The PCRA court found no merit to Miller’s claim. It concluded that it

“was perfectly justified in dismissing the claim without a hearing because it

was patently clear from a glance at the record that the underlying claim [of

ineffectiveness] lacked merit.” PCRA Court Opinion, 2/20/18, at 2. The PCRA

court recognized that, essentially, Miller’s argument “was that [Miller’s] trial

counsel should have objected to or moved to have his sentence vacated and

to be resentenced because the court sentenced him pursuant to a mandatory

sentencing statute which counsel should have anticipated would be deemed

to be rendered unconstitutional pursuant to the decisions in Apprendi v. New

Jersey, [530 U.S. 466 (2000)], Alleyne v. United States, [570 U.S. 1

(2013)], and Commonwealth v. Hopkins, 632 Pa. 36, 117 A.2d 247

(2015).”   PCRA Court Opinion, 2/20/18, at 2. The PCRA court then discussed

these decisions, and concluded that, even though Section 7508 had

subsequently been declared unconstitutional, Miller is not entitled to relief,

because his illegal sentence claim was first presented “long after his judgment

of sentence became final.” Id. at 7.


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      The PCRA court further concluded that Miller’s argument “that trial

counsel should have drawn the conclusion himself that the statute was

unconstitutional fails,” because trial counsel cannot be deemed to have

rendered ineffective assistance for failing to anticipate a change in the law.

See PCRA Court Opinion, 2/20/18, at 12 (citing Commonwealth v.

Santiago, 855 A.2d 682 (Pa. 2004)).

      Finally, the PCRA court cited our Supreme Court’s decision in

Commonwealth v. Washington, 142 A.2d 810, 812 (Pa. 2016), for the

proposition that “a new rule of law does not automatically render final, pre-

existing sentences illegal.” As noted by the PCRA court, our Supreme Court

in Washington conducted a retroactivity analysis, and then held that

“Alleyne does not apply retroactively to cases pending on collateral review,

and that [Washington’s] judgment of sentence, therefore, is not illegal on

account of Alleyne.” Id.

      Here, the PCRA court concluded that Miller “commenced the proceeding

timely, but he didn’t raise an illegal sentencing issue. His counsel sua sponte

inserted it just shy of eight years after his judgment [of sentence] became

final.” PCRA Court Opinion, 2/20/18, at 9. Our review of the record reveals

that the PCRA court has correctly outlined the relevant case law and properly

concluded    that   Miller’s   sentence    was   not   rendered    illegal   by

Apprendi/Alleyne.




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       Miller argues that his case is similar to our Supreme Court’s more recent

decision in Commonwealth v. DiMatteo, 177 A.3d 182 (Pa. 2018). He is

mistaken. In DiMatteo, our Supreme Court clarified that Alleyne applies

only to cases where the judgment of sentence was final prior to the Alleyne

decision. DiMatteo, 177 A.3d at 192. In DiMatteo, the trial court denied

DiMatteo’s post-sentence motion only five days before the Alleyne decision.

Thus, on appeal our Supreme Court held that “[b]ecause DiMatteo’s sentence

was rendered illegal before his judgment of sentence became final and

he presented his claim in a timely petition for post conviction relief, he is

entitled to have his illegal sentence remedied.” Id. (emphasis added).

       Although Miller’s timely PCRA petition was still pending when the United

States Supreme Court decided Alleyne in 2013, Miller’s judgment of sentence

became final in 2009, approximately four years before the Alleyne decision.

See Commonwealth v. Ciccone, 152 A.2d 1004 (Pa. Super. 2016) (en banc)

(rejecting a similar illegal sentence claim when Ciccone’s judgment of

sentence became final before Alleyne was decided).         Thus, Miller’s illegal

sentence claim is controlled by Washington, supra, and, his derivative

ineffective assistance of counsel claim fails.2 See Commonwealth v. Loner,


____________________________________________


2 To the extent Miller claims trial counsel should have relied on Apprendi,
supra, to raise the illegal sentence claim, we note that Apprendi has never
been held to apply retroactively. See Washington, 142 A.3d at 814, 815
n.5; see also Ciccone, supra.



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836 A.2d 125, 132 (Pa. Super. 2003) (en banc) (holding counsel cannot be

deemed ineffective for failing to pursue a meritless claim).

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/10/18




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