J-S09036-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

ANTOINE MAURICE BLACK

                            Appellant                No. 965 MDA 2015


                   Appeal from the PCRA Order April 28, 2015
               in the Court of Common Pleas of Dauphin County
              Criminal Division at No(s): CP-22-CR-0003493-2010


BEFORE: PANELLA, J., LAZARUS, J., and JENKINS, J.

MEMORANDUM BY JENKINS, J.:                      FILED FEBRUARY 02, 2016

        Antoine Maurice Black (“Appellant”) appeals from the order dismissing

his petition filed pursuant to the Post Conviction Relief Act (“PCRA”), 42

Pa.C.S. §§ 9541-9546. After careful review, we affirm.

        On December 4, 2012, a jury convicted Appellant of possession of a

controlled substance with intent to deliver (“PWID”),1 possession of drug

paraphernalia,2 and related offenses.3 On January 17, 2013, the trial court

sentenced Appellant to an aggregate prison term of 3 to 6 years, followed by

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1
    35 P.S. § 780-113(a)(30).
2
    35 P.S. § 780-113(a)(32).
3
  Appellant was also convicted two summary offenses: (1) driving while
operating privilege suspended or revoked, 75 Pa.C.S. § 1543(a), and (2)
turning movements and required signals, 75 Pa.C.S § 3334(a).
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one year of probation. This Court affirmed Appellant’s judgment of sentence

on November 15, 2013.           Appellant did not file a petition for allowance of

appeal with the Supreme Court of Pennsylvania.

       Appellant filed a timely PCRA petition on November 23, 2013 (“first

PCRA      petition”).    The    PCRA    court    appointed   counsel,   who    filed   a

Turner4/Finley5 no-merit letter.           The PCRA court then filed a notice of

intent to dismiss the first PCRA petition without a hearing pursuant to

Pa.R.Crim.P. 907 and denied the petition on January 22, 2014.                 Appellant

filed a notice of appeal on February 18, 2014.6              This Court affirmed the

dismissal of Appellant’s first PCRA petition on November 18, 2014, and

Appellant did not file a petition for allowance of appeal to the Supreme

Court.7


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4
    Commonwealth v. Turner, 544 A.2d 927 (Pa.1988).
5
    Commonwealth v. Finley, 550 A.2d 213 (Pa.Super.1988).
6
  The underlying docket indicates that Appellant was “appealing [u]nknown
[d]ate of an unknown order.” Court of Common Pleas of Dauphin County,
Docket No. CP-22-CR-0003493-2010, p. 15. The docket continues to note
that, despite the lack of an appealable order, the Dauphin County
prothonotary transmitted the record to the Superior Court per the order of
the PCRA judge.
7
  Appellant filed a second PCRA petition on September 4, 2014, during the
pendency of the appeal of the first PCRA petition. As a result, on November
24, 2014, the PCRA court dismissed the second PCRA petition for lack of
jurisdiction.




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        On December 14, 2014,8 Appellant filed the instant PCRA petition, his

third, claiming the trial court’s application of a mandatory minimum

sentence rendered his sentence illegal. The PCRA court appointed counsel,

who filed a Turner/Finley no-merit letter on March 25, 2015.          The PCRA

court dismissed Appellant’s third PCRA petition on April 28, 2015.          This

timely appeal followed.9

        On appeal, Appellant presents the following issue for our review:

        1.  WHETHER THE TRIAL COURT ERRED IN SENTENCING
        APPELLANT TO AN ILLEGAL SENTENCE WHERE IT SENTENCE[D]
        PURSUANT TO Pa.C.S.[] § 7508(a)(3)([i])[?]

Appellant’s Brief, p. 4.

        Our well-settled standard of review for orders denying PCRA relief is

“to determine whether the determination of the PCRA court is supported by

the evidence of record and is free of legal error. The PCRA court’s findings

will not be disturbed unless there is no support for the findings in the




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8
  The Dauphin County Clerk of Courts time stamped Appellant’s third PCRA
petition on December 24, 2014. Appellant, however, dated the petition’s
certificate of service on December 14, 2014. As Appellant is incarcerated,
he receives the benefit of the prisoner mailbox rule for timeliness purposes.
Commonwealth v. Patterson, 931 A.2d 710, 714 (Pa.Super.2007)
(“Pursuant to the prisoner mailbox rule, we deem a document filed on the
day it is placed in the hands of prison authorities for mailing”). Accordingly,
we find his third PCRA petition timely filed.
9
    Both Appellant and the PCRA court complied with Pa.R.A.P. 1925.



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certified record.”      Commonwealth v. Barndt, 74 A.3d 185, 191-192

(Pa.Super.2013) (internal quotations and citations omitted).

       In essence, Appellant argues that Alleyne v. United States, __ U.S.

__, 133 S.Ct. 2151 (2013), applies retroactively to cases on collateral

review. See Appellant’s Brief, p. 8. This argument is unconvincing.

       A new rule of constitutional law announced by the Supreme Court of

the United States is not made retroactive to cases on collateral review unless

the Supreme Court of the United States or the Pennsylvania Supreme Court

has held it to apply retroactively. Commonwealth v. Abdul-Salaam, 812

A.2d 497, 502 (Pa.2002).          Further, our Supreme Court has held that “[a]

retroactivity determination must exist at the time the petition is filed.” Id.

       In Alleyne, the Supreme Court of the United States did not address

whether the holding would apply to cases on collateral review.        Moreover,

the Supreme Court of the United States has not issued a decision giving

Alleyne retroactive effect; nor has the Pennsylvania Supreme Court. This

Court has ruled that Alleyne is not to be applied retroactively to cases in

which the judgment of sentence has become final. See Commonwealth v.

Miller, 102 A.3d 988, 995 (Pa.Super.2014).             Likewise, federal circuit

courts10 that have addressed the issue have determined that Alleyne does
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10
  The holdings of federal circuit courts are not binding on this Court, but
may serve as persuasive authority. Commonwealth v. Haskins, 60 A.3d
538, 548 n.9 (Pa.Super.2012).




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not apply retroactively to cases on collateral review. See United States v.

Reyes, 755 F.3d 210 (3d Cir. 2014), United States v. Winkleman, et al.,

746 F.3d 134 (3d Cir. 2014), In re Payne, 733 F.3d 1027 (10th Cir. 2013),

In re Kemper, 735 F.3d 211 (5th Cir. 2013) (all holding Alleyne is not

retroactively applicable to cases on collateral review); see also Simpson v.

United States, 721 F.3d 875 (7th Cir. 2013) (noting that Alleyne is an

extension of the case law established by Apprendi v. New Jersey, 530

U.S. 466, 468, 120 S. Ct. 2348, 2351 (2000),11 which the Supreme Court

has not applied retroactively to cases on collateral appeal).

       As a result, we find no legal error in the PCRA court’s dismissal of

Appellant’s third PCRA petition because Alleyne does not apply to cases on

collateral review. See 1925(a) Opinion, p. 4.

       Even if Alleyne were properly applied retroactively to collateral

appeals, the result would not change because Alleyne is inapplicable to the

instant petition.     The fact of a prior conviction is an exception to the

prohibition against judicial fact finding at the time of sentencing.    See

Commonwealth v. Watley, 81 A.3d 108, 117 (Pa.Super.2013) (discussing,

inter alia, Alleyne, Apprendi, and Commonwealth v. Aponte, 855 A.2d
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11
   In Apprendi, the Supreme Court of the United States determined that
“[o]ther than the fact of a prior conviction, any fact that increases the
penalty for a crime beyond the prescribed statutory maximum must be
submitted to a jury, and proved beyond a reasonable doubt.” Apprendi, 466
U.S. at 490 (emphasis provided).




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800 (Pa.2004)12).       Appellant faced a mandatory minimum sentence based

solely on a prior conviction.       Therefore, his mandatory minimum sentence

does not implicate Alleyne.

       Accordingly, we affirm the PCRA court’s order dismissing Appellant’s

PCRA petition.

       Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/2/2016




____________________________________________


12
   In Aponte, the Pennsylvania Supreme Court explained, “[w]here . . . the
judicial finding is a fact of a prior conviction, submission to a jury is
unnecessary, since the prior conviction is an objective fact that was initially
cloaked in all the constitutional safeguards and is now a matter of public
record.” Aponte, 855 A.2d at 811. The Court observed that “[t]he fact of a
prior conviction stands alone; it does not require a presumption—it either
exists as a matter of public record or it does not.” Id.



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