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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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,
____________________________________________
1 18 Pa.C.S.A. § 3921. J-S34037-14
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1874 Constitution were […] repealed, and are void of any further force or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.
2 18 Pa.C.S.A. §§ 3701, 2902, 903, 6105 and 6106, respectively.
-2- J-S34037-14
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
-3- J-S34037-14
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
-4- J-S34037-14
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
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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,
____________________________________________
1 18 Pa.C.S.A. § 3921. J-S34037-14
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.
2 18 Pa.C.S.A. §§ 3701, 2902, 903, 6105 and 6106, respectively.
-2- J-S34037-14
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
-3- J-S34037-14
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
-4- J-S34037-14
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
-5- J-S34037-14
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).
-6- J-S34037-14
Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 8/26/2015
-7-