J-S94010-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

HIEP VAN DIEU

                            Appellant                  No. 868 MDA 2016


                   Appeal from the PCRA Order April 28, 2016
              In the Court of Common Pleas of Cumberland County
              Criminal Division at No(s): CP-21-CR-0001550-2012


BEFORE: LAZARUS, J., RANSOM, J., and FITZGERALD, J.*

JUDGMENT ORDER BY LAZARUS, J.:                     FILED JANUARY 20, 2017

        Hiep Van Dieu appeals from the order entered in the Court of Common

Pleas of Cumberland County, dismissing his petition filed pursuant to the

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

on the basis of the opinion authored by the Honorable Albert H. Masland.

        On December 12, 2012, Dieu entered a negotiated plea of guilty to

one count each of possession with intent to deliver (“PWID”) and theft of

services.     The charges stemmed from a large-scale marijuana growing

operation Dieu ran with his co-defendant, Hung Pham.           Dieu received an

agreed-upon mandatory minimum sentence of five years’ imprisonment for

PWID and an agreed-upon consecutive sentence of one to three years’

____________________________________________


*
    Former Justice specially assigned to the Superior Court.
J-S94010-16



imprisonment, plus restitution, for theft of services. Dieu did not appeal his

judgment of sentence.           On July 18, 2014, Dieu filed his first pro se PCRA

petition, which was dismissed as untimely. This Court affirmed the denial of

relief.    Dieu filed a second PCRA petition, which was also dismissed.        His

appeal of that order was ultimately withdrawn.

          The instant petition, Dieu’s third, was filed on February 29, 2016. By

order dated April 28, 2016, the PCRA court dismissed the petition as

untimely.      This appeal follows, in which Dieu asserts that he is entitled to

relief under the U.S. Supreme Court’s decision in Alleyne v. U.S., 133 S.Ct.

2151 (2013).          Dieu claims that, pursuant to Montgomery v. Louisiana,

136 S.Ct. 758 (2016), the holding of Alleyne is retroactively applicable to

cases on collateral review.

          We have reviewed the briefs, the record, and the applicable law and

conclude       that     Judge     Masland’s   well-written   opinion   thoroughly,

comprehensively, and correctly disposes of the Dieu’s appellate claims.

Specifically, we concur with the PCRA court that, under our Supreme Court’s

decision in Commonwealth v. Washington, 142 A.3d 810 (Pa. 2016),

Alleyne does not apply to cases pending on collateral review and, as such,

Dieu is entitled to no relief.          Accordingly, we affirm based on Judge

Masland’s opinion and instruct the parties to attach a copy of that opinion in

the event of further proceedings in this matter.

          Order affirmed.



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J-S94010-16




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/20/2017




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                                                                                 Circulated 12/30/2016 01:38 PM




     COMMONWEAL TH                                   IN THE COURT OF COMMON PLEAS OF
                                                     CUMBERLAND COUNTY, PENNSYLVANIA

            v.
     HIEP V. DIEU                                    CP-21-CR-1550-2012

                    IN RE: OPINION PURSUANT TO PENNSYLVANIA                   RULE

                                 OF APPELLATE PROCEDURE 1925

    Masland, J., September 9, 2016:--

           Petitioner, Hiep V. Dieu, appeals this court's order dismissing his third Post

    Conviction Relief Act (PCRA) petition after Petitioner failed to respond to our proposed

    dismissal order entered on April 6, 2016. The court ordered Petitioner to file a concise

    statement of errors as prescribed by Pa.R.A.P. 1925(b) and the court now files this

    opinion pursuant to Pa.R.A.P. 1925(a). For the following reasons, the Superior Court

    should deny Petitioner's appeal and affirm this court's order.

                                               Background

           Petitioner entered into a negotiated guilty plea to one count of possession with

    intent to deliver and one count of theft of services arising from his large-scale marijuana

    grow operation and the related illegal electricity connection used to power the operation.

    On the first count, he received an agreed upon mandatory minimum sentence of five

years of incarceration in a state correctional institution and a $15,000 fine; on the

second, he received an agreed upon consecutive sentence of one to three years of

incarceration in     a state   correctional institution and restitution to PP&L, the power

company, in the amount of $100,000, owed jointly and severally with his co-defendant,

Hung Pham.1



1
    In re: Guilty Pleas and Sentencing Proceedings, December 19, 2012 at 6.
     CP-21-CR-1550-2012


             Petitioner did not appeal the judgment of sentence. Instead, on July 18, 2014, he

    filed his first prose PCRA petition arguing that he was illegally sentenced to a

    mandatory minimum sentence in violation of the relatively recent Supreme Court of the

    United States decision in Alleyne v. United States, 133 S.Ct. 2151 (2013). As a result,

    the court appointed counsel, Jacob M. Jividen, Esquire, to represent Petitioner. After

    reviewing Petitioner's claims, counsel petitioned to withdraw his representation and filed

    a contemporaneous "No-Merit" letter pursuant to Commonwealth                 v. Finley,   550 A.2d

    213 (Pa. Super. 1988) and Commonwealth               v.    Turner, 544 A.2d 927 (Pa. Super. 1988).

            The court reviewed counsel's letter and, finding it persuasive, granted the petition

    to withdraw and served notice on the Petitioner of the court's intention to dismiss the

    PCRA without a hearing.2 Petitioner filed a prose response to the order trying to rebut

    the arguments detailed in counsel's "No-Merit" letter. The court was not persuaded and

    entered an order dismissing the PCRA petition as untimely. Petitioner appealed this

    order. The Superior Court reviewed Petitioner's original appeal and affirmed this court's

decision on September 25, 2015.3

           While his initial appeal was pending, Petitioner filed a second prose PCRA

petition on July 28, 2015. The court appointed counsel, Nathan Wolf, Esquire, to

represent Petitioner in this matter. On October 7, 2015, counsel Stacy Wolf, Esquire,

petitioned to withdraw her firm's representation of Petitioner and filed a "No-Merit" letter

pursuant to the Finley and Turner decisions. The court reviewed counsel's letter,

granted counsel's petition to withdraw, and notified Petitioner of the court's intention to




2
    Order of Court, October 29, 2014.
3
    Commonwealth v. oteu, 2015 Pa. Super. Unpub. LEXIS 3494.

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;•



     /,
              CP-21-CR-1550-2012


              dismiss his second PCRA petition.4 Petitioner was given twenty days to respond to this

              notice and, following his failure to do so, the court dismissed Petitioner's second PCRA

              petition.5 Petitioner filed an appeal of this decision; however he ultimately withdrew and

              discontinued this appeal on February 17, 2016.

                     Petitioner almost immediately filed a third PCRA petition on February 29, 2016.

              On March 7, 2016 the court ordered the Commonwealth to file an answer to this

          petition.6 The Commonwealth filed its answer on March 31, 2016. After reviewing

          Petitioner's third petition and the answer of the Commonwealth, the court found the

          petition to be untimely, frivolous, and devoid of merit, gave Petitioner notice of the

          court's intention to dismiss his petition, and granted him twenty days to respond to our

          proposed dlsmissal,"          Petitioner failed to respond and the court dismissed his third

          PCRA petition.8 This appeal followed.

                                                            Discussion

                     Generally, a PCRA petition must be filed within one year of the date the judgment

          of sentence becomes final. 42 Pa. C.S. §9545(b). This time limitation is subject to

          three exceptions. The petitioner must allege and prove one of the following:


                               (i) the failure to raise the claim previously was the result of
                              interference by government officials with the presentation of
                             the claim in violation of the Constitution or laws of this
                              Commonwealth or the Constitution or laws of the United
                              States;

                             (ii) the facts upon which the claim is predicated were
                             unknown to the petitioner and could not have been
                             ascertained by the exercise of due diligence; or

          4
            Order   of Court, October 12, 2015.
          5
            Order   of Court, November 3, 2015
          6
            Order   of Court, March 7, 2016.
          1
            Order   of Court, April 6, 2016.
          8
            Order   of Court, April 28, 2016.

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 CP-21-CR-1550-2012


               (iii) the right asserted is a constitutional right that was
               recognized by the Supreme Court of the United States or the
               Supreme Court of Pennsylvania after the time period
               provided in this section and has been held by that court to
               apply retroactively.

 42 Pa.C.S. § 9545(b)(1)(i)-(iii) (emphasis added).

       A petition invoking any of these exceptions to the one year limitation must be

filed within sixty days of the date that the claim could have been presented. 42 Pa.C.S.

§ 9545(b)(2). It is well settled that PCRA time restrictions are jurisdictional in nature

and bar the court's power to adjudicate controversies or extend filing periods.

· Commonwealth v. Robinson, 139 A.3d 178, 185 (Pa. 2016).

       Petitioner's conviction became final on January 18, 2013, giving him until

January 18, 2014 to file a PCRA petition. He failed to do so. Instead, he filed his first

PCRA petition on July 18, 2014 arguing that his sentence was rendered illegal by the

Alleyne decision. The Supreme Court decision in Alleyne was handed down on June

17, 2013, giving Petitioner until August 13, 2013 to file his PCRA petition. As such, this

PCRA petition was filed almost a year too late and our denial of his original, untimely,

PCRA petition was affirmed on appeal. The instant petition was filed on February 29,

2016, over two years after Petitioner's initial PCRA time bar and two and a half years

after the allowable period to file a PCRA petition following Alleyne.

       In this, his third PCRA petition, Petitioner attempts to overcome this timeliness

issue by claiming that the recent Supreme Court case of Montgomery v. Louisiana, 136

S. Ct. 718, (2016) (addressing mandatory life imprisonment without parole for juvenile

offenders) applies to his petition and falls under 42 Pa.C.S. § 9545(b)(1)(iii). He claims

that the holding in Montgomery demonstrates that Alleyne created a new and

retroactive constitutional right. As Montgomery was decided on January 25, 2016

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  CP-21-CR-1550-2012


  Petitioner had until March 25, 2016 to file a PCRA petition if Montgomery recognized an

  applicable constitutional right. Unfortunately for Petitioner, Montgomery does not

 address the holding in Alleyne and does not grant him additional time to file another

 PCRA petition.

          In Montgomery the Court held that "when a new substantive rule of constitutional

 law controls the outcome of a case, the Constitution requires state collateral review

 courts to give retroactive effect to that rule." Montgomery v. Louisiana, 136 S. Ct. 718,

 729 (2016) (emphasis added). It "is undisputed'' that there is required "retroactive

 application of new substantive and watershed procedural rules." Id. at 728. However,

 our Supreme Court has most recently specifically reaffirmed that Alleyne does not apply

 retroactively to cases pending on collateral review. Commonwealth           v.   Washington, No.

 37 EAP 2015, 2016 Pa. LEXIS 1536, at *23 (July 19, 2016). The rule announced by

Alleyne is procedural, not substantive, and it is not a "watershed rule" of criminal

procedure that would require retroactive application. United States         v.   Reyes, 755 F.3d

210, 212 (3d Cir. Pa. 2014); Commonwealth           v.   Riggle, 119 A.3d 1058, 1067 (Pa. Super.

2015). The Third Circuit has also clearly held, "Alleyne does not provide [the Petitioner]

with any basis for relief because the Supreme Court has not chosen to apply Alleyne's

new rule retroactively to cases on collateral review." Reyes, 755 F.3d at 213 (emphasis

added).

       The holding in Montgomery does not apply to the sentencing issues in Alleyne

and as 42 Pa.C.S. § 9545(b)(1)(iii) is inapplicable in the instant case, this court had no

jurisdiction to address this petition. As Petitioner has again failed to satisfy the




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CP-21-CR-1550-2012


requirements of 42 Pa.C.S. § 9545(b), this court did not err in dismissing his third

untimely PCRA petition without a hearing.

       For these reasons, this court's order dismissing the PCRA petition should be

affirmed by the Superior Court.

                                                    By the Court,


                                                  //~~~
                                                   Albert H. Masland, J.

Matthew P. Smith, Esquire
Office of the District Attorney

Hiep V. Dieu, KW6880
SCI Benner Township
301 Institution Drive
Bellefonte, PA 16823




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