Com. v. Guy, K.

• Court: Superior Court of Pennsylvania
• Decided: October 10, 2017
• Docket: 3879 EDA 2016
• Status: Unpublished

Opinion

J-S50028-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v.

KEVIN GUY

Appellant No. 3879 EDA 2016

Appeal from the PCRA Order November 30, 2016 In the Court of Common Pleas of Montgomery County Criminal Division at No(s): CP-46-CR-0003258-2011

BEFORE: PANELLA, J., MOULTON, J., and RANSOM, J.

MEMORANDUM BY MOULTON, J.: FILED OCTOBER 10, 2017

Kevin Guy appeals, pro se, from the November 30, 2016 order entered

in the Montgomery County Court of Common Pleas dismissing his petition

filed under the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-46.

We affirm.

On May 7, 2012, a jury convicted Guy of delivering a controlled

substance, possession with intent to deliver a controlled substance (“PWID”),

and two counts of possession of drug paraphernalia.1 On November 2,

2012, the trial court sentenced Guy to 5 to 15 years’ incarceration for

delivering a controlled substance, including a 2-year mandatory minimum

sentence under 18 Pa.C.S. § 6317(a) for delivery of a controlled substance

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1 35 P.S. §§ 780-113(a)(30), and (32), respectively. J-S50028-17

within 1,000 feet of a school zone, and a consecutive 3 to 15 years’

incarceration for PWID, including a 3-year mandatory minimum sentence

under 18 Pa.C.S. § 7508(a)(2)(i) for an offense involving 2-10 grams of

cocaine and a prior drug trafficking conviction. The trial court imposed no

further penalty for the drug paraphernalia convictions. On September 4,

2013, this Court affirmed Guy’s judgment of sentence. Guy filed a petition

for allowance of appeal, which our Supreme Court denied on March 25,

2014.

On August 26, 2014, Guy filed a motion to modify sentence, arguing

that his sentence was illegal under Alleyne v. United States, 133 S.Ct.

2151 (2013), because it contained mandatory minimum sentences. The trial

court treated Guy’s motion as a timely PCRA petition. Because the

Commonwealth did not oppose resentencing in light of Alleyne, the trial

court scheduled a new sentencing hearing. On December 2, 2014, following

a hearing, the trial court vacated Guy’s judgment of sentence and imposed

Guy’s original sentence without the mandatory minimum sentences.

On December 8, 2014, Guy filed a motion to reconsider and/or modify

his sentence. On March 4, 2015, following a hearing, the trial court vacated

the sentence imposed on December 2, 2014 and resentenced Guy to 5 to 10

years’ incarceration on the conviction for delivering a controlled substance

and a consecutive 3 to 10 years’ incarceration on the PWID conviction. That

same day, Guy filed another motion to reconsider and/or modify sentence,

which the trial court denied on March 11, 2015. On December 21, 2015,

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this Court affirmed Guy’s judgment of sentence. Guy did not file a petition

for allowance of appeal.

On August 9, 2016, Guy filed a pro se PCRA petition. On August 17,

2016, the PCRA court appointed counsel. On October 25, 2016, counsel filed

a motion to withdraw and a Turner/Finley2 “no-merit” letter. On October

27, 2016, the PCRA court granted counsel’s motion to withdraw and filed a

notice of intent to dismiss Guy’s PCRA petition without a hearing under

Pennsylvania Rule of Criminal Procedure 907. On November 15, 2016, Guy

filed a pro se amended PCRA petition. On November 29, 2016, the PCRA

court dismissed Guy’s PCRA petition. On December 14, 2016, Guy timely

filed a notice of appeal.

Guy raises two issues on appeal:

1) Whether the [PCRA] court erred in denying [Guy’s] PCRA petition due to the change in law as announced by Commonwealth v. Hopkins[, 117 A.3d 247 (Pa. 2015),] as newly stated constitutional law to have all factors which would increase his sentence proven beyond a reasonable doubt.

2) Whether the federal court’s action in similar cases have created a precedent that the state courts should follow, allow retroactive, or whether retroactive application was necessary when [Guy] filed a timely [PCRA] petition.

Guy’s Br. at 2 (full capitalization omitted).

Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); 2

Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc).

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In his “Argument” section,3 Guy argues that his PCRA petition meets

an exception to the PCRA time bar under 42 Pa.C.S. 9545(b)(1)(i)-(iii).

However, there is no question that Guy’s PCRA petition is timely. Guy’s

judgment of sentence became final on January 21, 2016, 30 days after this

Court affirmed his judgment of sentence. See Pa.R.A.P. 903(a). Guy filed

his PCRA petition on August 9, 2016, which is within one year of when his

judgment of sentence became final. See 42 Pa.C.S. § 9545(b)(1).

To the extent that Guy argues that his sentence is illegal because he

was sentenced to mandatory minimum sentences, the issue is meritless. At

sentencing, the trial court specifically stated that “mandatory sentences

[would] not be applied in this matter.” N.T., 3/4/15, at 3. Nor is there any

indication in the record that the trial court sentenced Guy to mandatory

minimum sentences. Therefore, not only are Hopkins and Alleyne

inapplicable, Guy is not eligible for PCRA relief. See 42 Pa.C.S. § 9543(a)(2)

(listing six bases for PCRA relief).

3 In his August 9, 2016 PCRA petition, Guy argued that counsel who represented him on his second appeal was ineffective for failing to file a petition for allowance of appeal to our Supreme Court. See PCRA Pet., 8/9/16, at 4. The PCRA court found that appellate counsel was not ineffective, because Guy’s second appeal raised a discretionary aspects of sentencing issue, which our Supreme Court is statutorily barred from reviewing. See Opinion, 1/23/17, at 5 (unpaginated); Commonwealth v. Perry, 32 A.3d 232, 236 n.10 (Pa. 2011) (noting that our Supreme Court is precluded from reviewing discretionary aspects of sentence under 42 Pa.C.S. § 9781(f)). In any event, Guy has not raised this issue in his appellate brief, so we need not consider it.

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Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 10/10/2017

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