J-S34037-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                        IN THE SUPERIOR COURT OF
                                                          PENNSYLVANIA
                            Appellee

                       v.

DONTAE ROBINSON

                            Appellant                   No. 1564 MDA 2014


                Appeal from the Order Entered July 29, 2014
              In the Court of Common Pleas of Dauphin County
Criminal Division at Nos: CP-22-CR-0000284-2012 and CP-22-CR-0001193-
                                   2012


BEFORE: BOWES, OTT, and STABILE, JJ.

MEMORANDUM BY STABILE, J.:                             FILED AUGUST 26, 2015

       Appellant, Dontae Robinson, appeals from the July 29, 2014 order

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

42 Pa.C.S.A. §§ 9541-46. We affirm.

       Appellant and two associates stole an ATM.           N.T. Guilty Plea and

Sentencing, 12/5/12, at 5.         For that incident, Appellant pled guilty to one

count of theft by unlawful taking1 and one count of conspiracy at docket

number 1193. On October 7, 2011, Appellant and several associates forced

four people into the back room of a jewelry store while they stole jewelry.

Id. at 4. For that incident, Appellant pled guilty to four counts of robbery,

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1
    18 Pa.C.S.A. § 3921.
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four counts of unlawful restraint, one count of conspiracy, and two violations

of the Uniform Firearms Act2 at docket number 284 of 2012. Id. at 4-5. On

September 19, 2011, Pursuant to the parties’ negotiated plea agreement,

the trial court imposed an aggregate ten to twenty years of incarceration

comprised of an aggregate five to ten year sentence and $50,000.00

restitution to the jeweler at docket number 284 and an aggregate five to ten

year sentence at docket number 1193. Id. at 8-10. Appellant did not file a

direct appeal and therefore his judgment of sentence became final on Friday,

January 4, 2013, or thirty days after the trial court imposed sentence.

Pa.R.A.P. 903(a).

       On November 29, 2013, Appellant filed this timely first PCRA petition.

After a hearing pursuant to Commonwealth v. Grazier, 713 A.2d 81 (Pa.

1998), the PCRA court permitted Appellant to proceed without counsel.

Appellant filed an amended petition on December 13, 2013.              Appellant

asserted in his petition that “all laws, codes and statutes stemming from the

1874 Constitution were […] repealed, and are void of any further force or

effect; and, that the prosecution had not existing Constitutional jurisdiction,

or authority to permit Pennsylvania to prosecute any criminal charges[.]”

PCRA Petition, 12/13/13, at 10.          Appellant did not respond, and the PCRA

court filed the order on appeal on July 29, 2014.

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2
    18 Pa.C.S.A. §§ 3701, 2902, 903, 6105 and 6106, respectively.



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     On June 11, 2014, the PCRA court filed its notice of intent to dismiss

the petition without a hearing pursuant to Pa.R.Crim.P. 907. Appellant filed

a timely pro se notice of appeal. Subsequently, at Appellant’s request, the

PCRA court appointed appellate counsel. Counsel sets forth two issues in his

appellate   brief.   First,   he   addresses   Appellant’s   assertion   that   the

Commonwealth lacked constitutional authority to prosecute him for any of

the aforementioned offenses.        Counsel concedes the lack of merit in this

issue, and therefore styles his argument as one arising under Anders v.

California, 386 U.S. 738 (1967) and Commonwealth v. Santiago, 978

A.2d 349 (Pa. 2009). In his second argument, counsel asserts that the trial

court imposed an illegal mandatory minimum at docket number 284

sentence pursuant to Alleyne v. United States, 123 S. Ct. 2131 (2013).

Since both of these issues present questions of law, our standard of review

is de novo.    Commonwealth v. Stultz, 114 A.3d 865, 872 (Pa. Super.

2015)

     We advise counsel that the Anders/Santiago procedure applies only

on direct appeal. Counsel seeking to withdraw representation in a collateral

proceeding must proceed pursuant to Commonwealth v. Turner, 544 A.2d

927 (Pa. 1988) and Commonwealth v. Finley, 550 A.2d 213 (Pa. Super.

1988) (en banc). See Commonwealth v. Widgins, 29 A.3d 816, 817 n.2

(Pa. Super. 2011). Neither procedure is appropriate where, as here, counsel

does not seek to withdraw.         Counsel representing a PCRA petitioner may


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choose from among three procedural options: (1) advocate on the

petitioner’s behalf, including the filing of an advocate’s brief with this court;

(2) file in the PCRA court a petition to withdraw and no merit letter pursuant

to Turner/Finley, or (3) file a Turner/Finley letter and petition to withdraw

in this Court. See Commonwealth v. Quail, 729 A.2d 571, 573 n.2 (Pa.

Super. 1999).

      Regardless of counsel’s error, the brief is sufficient to facilitate our

review of both issues. Appellant’s PCRA petition asserted, in essence, that

the Commonwealth lacked constitutional authority to prosecute him because

the 1968 Pennsylvania Constitution contains no savings clause and therefore

abrogated the 1874 Constitution and, with it, the Commonwealth’s authority

to prosecute the charged offenses.          We will assume arguendo that

Appellant’s constitutional argument presents a non-waivable challenge to the

legality of his sentence.   Recently, in Stultz, this Court rejected precisely

the argument Appellant makes in this case.            “The 1968 Constitution

amended the 1874 Constitution via a limited Constitutional Convention as

well as through other amendments.       Therefore, the 1874 Constitution was

never suspended or completely abrogated.”          Stultz, 114 A.3d at 875.

Moreover, the Stultz Court noted that the factual predicate for the

appellant’s argument was lacking because the Commonwealth prosecuted

him under statutes that post-dated the 1968 constitutional amendments.

Id. “[T]he enactment of the 1968 Constitution could not repeal the Crimes


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Code since that code did not exist until 1972, four years after the 1968

Constitution was adopted.” Id. The same is true here. All of the statutory

sections under which Appellant was prosecuted were enacted as part of the

1972 Crimes Code. Appellant’s first argument is devoid of merit.

      Next, Appellant argues the trial court imposed an illegal mandatory

minimum sentence pursuant to Alleyne, which held that imposition of a

mandatory minimum sentence based on judicial fact-finding violates a

defendant’s Sixth Amendment right to trial by jury. Alleyne, 133 S. Ct. at

Id. at 2155, 2162-63. This Court has held that 42 Pa.C.S.A. § 9712, which

provides   for    a   mandatory   minimum   sentence   where   the   defendant

brandishes a firearm during the commission of enumerated offenses, is

unconstitutional under Alleyne. Commonwealth v. Valentine, 101 A.3d

801, 812 (Pa. Super. 2014).

      Appellant acknowledges that he pled guilty and the trial court imposed

a ten to twenty year sentence in accord with the parties’ negotiated

agreement.       He argues, nonetheless, that he cannot agree to an illegal

sentence, and that Appellant’s failure to raise this issue prior to appeal does

not result in waiver.      This Court has held that a sentence imposed in




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violation of Alleyne is illegal and therefore the issue cannot be waived.

Commonwealth v. Wolfe, 106 A.3d 800, 801 (Pa. Super. 2014).3

       Given that the trial court did not rely on § 9712 and did not do any

fact-finding, Appellant’s sentence does not violate the Sixth Amendment

pursuant to Alleyne.        Indeed, the Alleyne holding protects a defendant’s

Sixth Amendment right to a jury trial, and Appellant chose to forego that

right here. In any event, this Court has held that Alleyne does not apply

retroactively.    Commonwealth v. Newman, 99 A.3d 86, 90 (Pa. Super.

2014). Rather, Alleyne applies only to cases pending on direct appeal as of

June 27, 2013, the date of the Alleyne decision.               Id.; see also

Commonwealth v. Riggle, 2015 Pa. Super. 147 (Pa. Super. July 7, 2015)

(confirming that Alleyne does not apply to cases on collateral review as of

the date of the Alleyne decision). As noted above, the trial court imposed

sentence on December 5, 2012, and since Appellant did not file a direct

appeal, his judgment of sentence was final as of January 4, 2013. Pursuant

to Newman and Riggle, Alleyne does not apply to this case.

       Order affirmed.




____________________________________________


3
  A challenge to the legality of a sentence is cognizable under the PCRA.
Commonwealth v. Jackson, 30 A.3d 516, 521 (Pa. Super. 2011), appeal
denied, 47 A.3d 845 (Pa. 2012).



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/26/2015




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