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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

JOSEPH ROBERT MANN, JR.

                            Appellant                 No. 196 EDA 2014


               Appeal from the PCRA Order November 22, 2013
                In the Court of Common Pleas of Chester County
              Criminal Division at No(s): CP-15-CR-0003611-2005


BEFORE: LAZARUS, J., MUNDY, J., and STRASSBURGER, J.*

MEMORANDUM BY LAZARUS, J.:                      FILED NOVEMBER 25, 2014

        Joseph R. Mann, Jr., appeals from the order of the Court of Common

Pleas of Chester County dismissing his petition filed pursuant to the Post

Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546.      Upon review,

we affirm.

        On June 7, 2007, a jury convicted Mann of eight counts of rape and

numerous other charges related to sexual abuse he perpetrated over a

several-year period against his daughter, his niece and his daughter’s friend,

all minors. Mann was sentenced to an aggregate term of 31½ to 63 years’

incarceration.     His judgment of sentence was affirmed by this Court on



____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
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August 28, 2008 and he did not file a petition for allowance of appeal with

our Supreme Court.

         On August 3, 2009, Mann filed a pro se PCRA petition. The PCRA court

appointed Robert P. Brendza, Esquire, to represent Mann. Attorney Brendza

filed a Turner/Finley no-merit letter and a petition to withdraw on October

14, 2009.      On November 5, 2009, Mann filed a pro se petition for new

counsel. On December 14, 2009, the PCRA court issued a Pa.R.Crim.P. 907

notice of intent to dismiss.         He also dismissed Mann’s petition for new

counsel and authorized Attorney Brendza to withdraw his representation.

On December 31, 2009, Mann filed a pro se objection to the PCRA court’s

Rule 907 notice.      Neverthless, by order dated January 7, 2010, the PCRA

court dismissed Mann’s PCRA petition. Mann filed a timely appeal with this

Court, in which he alleged that he had wished to raise an allegation of

witness recantation/perjury1 in his PCRA petition, but counsel failed to

consult with him. By memorandum decision dated November 15, 2010, this

Court reversed and remanded to the PCRA court, directing the court to

appoint new counsel for the purpose of filing an amended petition raising the

witness recantation claim and ordering the court to hold a hearing on the

issue.


____________________________________________


1
  Mann alleged that his daughter and her mother contacted him and alleged
that the police detective and district attorney pressured them into fabricating
the allegations against him.



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       In accordance with the directive of this Court, on January 11, 2011,

the PCRA court appointed Thomas Wagner, Esquire, to represent Mann.

However, on June 3, 2011, Mann filed a pro se petition for new counsel. On

January 12, 2012, the court appointed David Clark, Esquire, to represent

Mann. Subsequently, on October 22, 2012, Mann filed yet another pro se

petition for new counsel, and Ed Gallen, Esquire, was appointed. Although

Mann filed another petition for new counsel, on July 1, 2013, Attorney Gallen

filed a PCRA petition on Mann’s behalf, raising the issue of the victim’s

alleged recantation. The PCRA court held a hearing on September 26, 2013,

at which time Mann’s daughter testified that she did not recant her trial

testimony. On October 25, 2013, Attorney Gallen filed for leave to withdraw

his representation.       The PCRA court dismissed Mann’s petition by order

dated November 22, 2013 and, on December 11, 2013, granted Attorney

Gallen’s petition to withdraw.

       This timely pro se appeal follows, in which Mann raises the following

questions, verbatim, for our review:2

       1.     Was initial PCRA counsel ineffective?

       2.     Whether or not [Mann’s] sentence is illegal in light of
              Alleyne and where he was resentenced without a hearing?


____________________________________________


2
  Mann presented a third issue, regarding the existence of recantation
testimony. However, in the argument portion of his brief, he “concedes that
this claim is free of legal error” and provides no argument thereon.
Accordingly, we need not address this claim.



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Brief of Appellant, at 3.

      On appeal from the denial of PCRA relief, our scope and standard of

review are well-settled.    We are limited to examining whether the PCRA

court’s findings of fact are supported by the record and whether its legal

conclusions are free of error.   Commonwealth v. Haskins, 60 A.3d 538,

546 (Pa. Super. 2012).

      Mann first claims that his original PCRA counsel was ineffective for

failing to consult with him and, as a result, Mann claims he was denied his

right to raise a claim regarding his daughter’s alleged recantation of her trial

testimony. Although initial PCRA counsel did not raise this claim, on appeal

from the denial of Mann’s first PCRA petition, this Court concluded that,

because Mann had raised the issue in his pro se response to the PCRA

court’s Pa.R.Crim.P. 907 notice, he should have been granted leave to file an

amended PCRA petition raising the issue. Accordingly, we remanded for the

appointment of new counsel and the filing of an amended petition raising the

claim.

      On remand, Attorney Gallen did, in fact, file an amended petition in

which he raised the issue of recantation. The PCRA court held a hearing on

this claim, at which time Mann’s daughter testified that her trial testimony

had been true. The PCRA court credited that testimony and denied relief on

the claim. Moreover, the PCRA court specifically and repeatedly asked Mann

whether there were any other issues he wished to raise, and Mann stated

that there were not.

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       Accordingly, because Mann was given the opportunity to, and did,

raise this claim in a subsequent counseled petition, his claim regarding initial

PCRA counsel’s failure to raise this claim is moot.

       Mann’s second and final claim is that his sentence is illegal in light of

the U.S. Supreme Court’s decision in Alleyne v. United States, 133 S.Ct.

2151 (2013).3 In Alleyne, the Supreme Court held that any facts leading to

an increase in a sentencing floor are elements of the crime and must be

presented to the fact-finder and proven beyond a reasonable doubt. Here,

Mann was convicted of twenty counts each carrying a mandatory minimum

of five years imprisonment pursuant to 42 Pa.C.S.A. § 9718, which imposes

mandatory minimums on certain crimes based on the tender age of the

victim.      Under     Alleyne,     section    9718,    as    written,   was   rendered

constitutionally infirm because it allowed the sentencing court to determine

whether     the    mandatory      minimum        applies,    and   required    that   the

Commonwealth prove the section’s applicability by only a preponderance of

the evidence.

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3
  Mann did not raise this claim in his PCRA petition. Generally, failure to do
so would result in waiver of the claim on appeal. However, this Court has
held that Alleyne claims can present a legality of sentence issue. See
Commonwealth v. Watley, 81 A.3d 108 (Pa. Super. 2013) (en banc).
Accordingly, we may address the claim. Additionally, we note that Mann
also asserts that he was improperly resentenced without being present in
court. However, a review of the record and the lower court docket does not
reveal that Mann was ever resentenced after sentence was imposed on June
22, 2007. Accordingly, we will not address this issue.



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     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. Miller, 2014 Pa. Super.

LEXIS 3410, *11-12 (Pa. Super. 2014), citing Commonwealth v. Phillips,

31 A.3d 317, 320 (Pa. Super. 2011). 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.

Id. at *11. Accordingly, Mann is entitled to no relief under Alleyne.

     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/25/2014




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