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J-S48010-18 (Pa. Super. Ct. Sep. 6, 2018)

J-S48010-18 No. 3235 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-0000302-2012 BEFORE: DUBOW, J., MURRAY, J., and PLATT, J. JUDGMENT ORDER BY DUBOW, J.:

Retired Senior Judge assigned to the Superior Court.

Appellant Dennis Boyer appeals from the Order denying the relief sought in his Petition filed pursuant to the Post Conviction Relief Act, 42 Pa.C.S. §§ 9541-9546. Appellant challenges the legality of his sentence based on Alleyne. Because Alleyne cannot apply retroactively on collateral review, we affirm.

Alleyne v. United States , 570 U.S. 99 (2013).

After a bench trial, the trial court found Appellant guilty of possessing a controlled substance with intent to deliver, possessing drug paraphernalia, and possessing a controlled substance. On July 31, 2012, the court sentenced him to an aggregate term of three to six years' incarceration followed by two years' probation. Appellant did not seek a direct appeal. His Judgment of Sentence became final on August 30, 2012. The U.S. Supreme Court decided Alleyne on June 17, 2013.

On July 29, 2013, Appellant filed a pro se PCRA Petition. After the appointment of counsel, he filed an amended Petition on February 9, 2017, challenging, inter alia, the legality of his sentence because of the application of a mandatory minimum sentence subsequently found to be unconstitutional. The court issued a Pa.R.Crim.P. 907 Notice on August 1, 2017, indicating its intent to dismiss the Petition without a hearing. On September 14, 2017, the PCRA court dismissed the Petition.

Appellant timely appealed. Both Appellant and the trial court complied with Pa.R.A.P. 1925. Appellant raises the following issue for our review: "Was [ ] Appellant's sentence unconstitutional as he was subject to a mandatory minimum sentence?" Appellant's Brief at 8.

Although not stated in his Statement of Questions Involved, Appellant argues in his Brief that trial counsel provided ineffective assistance of counsel for failing to raise the Alleyne claim at his sentencing or on direct appeal. He raised the same issue in his Rule 1925(b) Statement; it is, thus, not waived.

We review the denial of a PCRA Petition to determine whether the record supports the PCRA court's findings and whether its order is otherwise free of legal error. Commonwealth v. Fears , 86 A.3d 795, 803 (Pa. 2014). This Court grants great deference to the findings of the PCRA court if they are supported by the record. Commonwealth v. Boyd , 923 A.2d 513, 515 (Pa. Super. 2007). We give no such deference, however, to the court's legal conclusions. Commonwealth v. Ford , 44 A.3d 1190, 1194 (Pa. Super. 2012).

The PCRA court cogently and thoroughly reviewed the applicable case law. See Tr. Ct. Op., dated 1/16/18 at 3-5. In sum, in Commonwealth v. Gibson , 688 A.2d 1152, 1169 (Pa. 1997), the Court held that "trial counsel will not be deemed ineffective for failing to anticipate a change in [the] law." In Alleyne , the U.S. Supreme Court held that, other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory minimum must be submitted to a jury and proved beyond a reasonable doubt. Alleyne , 570 U.S. at 112-13. The Pennsylvania Supreme Court has held that Alleyne does not apply retroactively to cases pending on collateral review. Commonwealth v. Washington , 142 A.3d 810, 819-20 (Pa. 2016).

In the instant case, the court sentenced Appellant on July 31, 2012, after a bench trial nearly one year prior to the decision in Alleyne. Pursuant to Gibson , counsel cannot be deemed ineffective for failing to anticipate a change in the law. Further, as in Washington , supra , Appellant's case was no longer under direct review at the time the U.S. Supreme Court rendered Alleyne. Because Alleyne cannot apply retroactively, Appellant's issue merits no relief.

Appellant's claim for ineffective assistance of appellate counsel has no basis in fact since Appellant did not file a direct appeal and has not asserted that he had asked counsel to do so. --------

Order affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 9/6/18

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