Com. v. Parker, D.

• Court: Superior Court of Pennsylvania
• Decided: January 28, 2016
• Docket: 2673 EDA 2015
• Status: Unpublished

Opinion

J-S12032-16

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellee : : v. : : DAMAR PARKER, : : Appellant : No. 2673 EDA 2015

Appeal from the PCRA Order August 12, 2015, in the Court of Common Pleas of Bucks County, Criminal Division, at No(s): CP-09-CR-0004420-2012

BEFORE: MUNDY, OLSON, and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.: FILED JANUARY 28, 2016

Damar Parker (Appellant) appeals from the order entered on August

12, 2015, which denied his petition filed pursuant to the Post Conviction

Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. We affirm.

The PCRA court summarized the relevant background underlying this

matter as follows.

On May 24, 2012, [Appellant] was arrested and charged with two [] counts of Manufacture, Delivery, or Possession with the Intent to Manufacture or Deliver a Controlled substance (“PWID”).

On September 28, 2012, [Appellant] entered a guilty plea to all charges. Sentencing was deferred for “mitigation evidence.”

On February 12, 2013, the Commonwealth filed a Notice of Mandatory Minimum Sentence of three [years of] incarceration on both counts pursuant to 18 Pa.C.S. § 7508 (“Drug trafficking sentences and penalties”) and 18 Pa.C.S. § 6317 (“Drug free school zones”).

*Retired Senior Judge assigned to the Superior Court. J-S12032-16

On February 13, 2013, [Appellant] was sentenced to not less than three [nor more than six years of] incarceration on both counts of PWID, to be served consecutively. [Appellant timely filed a motion for reconsideration of sentence, which the trial court denied on March 13, 2013. He did not pursue a direct appeal.]

PCRA Court Opinion, 8/12/2015, at 1-2.

On July 26, 2014, Appellant pro se timely filed his PCRA petition.

Counsel subsequently filed an amended PCRA petition. According to the

PCRA court,

[o]n June 29, 2015, [it] held a meeting with the District Attorney and [PCRA counsel]. At this meeting, the parties agreed that the sole issue presented in this PCRA was whether [Alleyne v. United States, 133 S.Ct. 2151 (2013)] applies retroactively to individuals proceeding upon collateral review. Accordingly, an evidentiary hearing was unnecessary[, and the court] ordered each party to submit a brief[.]

PCRA Court Opinion, 8/12/2015, at 2-3 (emphasis omitted).

After the parties submitted their briefs, the PCRA entered an order

denying Appellant’s petition. Appellant timely filed a notice of appeal. In his

brief to this Court, Appellant asks us to consider one question, namely, “Did

the [PCRA court] err in denying Appellant’s [PCRA petition] where Appellant

challenged the legality of his sentence pursuant to [Alleyne]?” Appellant’s

Brief at 4.

Our standard of review of the denial of a PCRA petition is limited to

examining whether the court’s rulings are supported by the evidence of

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record and free of legal error. Commonwealth v. Anderson, 995 A.2d

1184, 1189 (Pa. Super. 2010).

In Alleyne, “the United States Supreme Court [] held that any facts

leading to an increase in a mandatory minimum sentence are elements of

the crime and must be presented to a jury and proven beyond a reasonable

doubt.” Commonwealth v. Valentine, 101 A.3d 801, 809 (Pa. Super.

2014). This Court has determined that the holding in Alleyne renders

unconstitutional the statutes pursuant to which Appellant was sentenced.

See Commonwealth v. Pennybaker, 121 A.3d 530, 533-34 n.8 (Pa.

Super. 2015) (recognizing that Alleyne has rendered unconstitutional

several Pennsylvania sentencing statutes, including 18 Pa.C.S. § 7508 and

18 Pa.C.S. § 6317). Appellant nonetheless is not entitled to relief.

“[T]his Court [] recently declined to give Alleyne retroactive effect to

cases on timely collateral review when the defendant’s judgment of

sentence was finalized before Alleyne was decided.” Commonwealth v.

Ruiz, 2015 WL 9632089, at *3 (Pa. Super. 2015) (emphasis in original)

(citing Commonwealth v. Riggle, 119 A.3d 1058 (Pa. Super. 2015)). The

trial court denied Appellant’s motion for reconsideration of sentence on

March 13, 2013. Thus, Appellant had until April 12, 2013 to pursue a direct

appeal. Pa.R.Crim.P. 720(A)(2)(a). He did not do so; thus, his judgment of

sentence was finalized on April 12, 2013. See 42 Pa.C.S. § 9545(b)(3) (“For

purposes of [the PCRA], a judgment becomes final at the conclusion of direct

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review, including discretionary review in the Supreme Court of the United

States and the Supreme Court of Pennsylvania, or at the expiration of time

for seeking the review.”).

The United States Supreme Court decided Alleyne on June 17, 2013.

Because Appellant’s judgment of sentence was final before that date,

Alleyne is inapplicable to his judgment of sentence. Thus, the PCRA court

did not err by denying Appellant’s PCRA petition, and we affirm the court’s

order.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 1/28/2016

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