Com. v. Dieu, H. ( 2015 )


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  • J-S45011-15
    NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
    COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
    PENNSYLVANIA
    Appellee
    v.
    HIEP VAN DIEU,
    Appellant                No. 1962 MDA 2014
    Appeal from the PCRA Order October 29, 2014
    In the Court of Common Pleas of Cumberland County
    Criminal Division at No(s): CP-21-CR-0001550-2012
    BEFORE: BOWES, WECHT, AND FITZGERALD * JJ.
    MEMORANDUM BY BOWES, J:                         FILED SEPTEMBER 25, 2015
    Hiep Van Dieu appeals from the October 29, 2014 order dismissing his
    PCRA petition as untimely. We affirm.
    On December 19, 2012, Appellant pled guilty pursuant to a negotiated
    plea agreement to possession with intent to deliver (“PWID”) marijuana and
    theft of services.1         He was sentenced the same day to five years
    incarceration on the drug charge based on a mandatory minimum under 18
    Pa.C.S. § 7508(a)(1)(iii) (involving at least fifty pounds of marijuana or at
    least 51 live plants). On the theft charge, the court ordered him to make
    ____________________________________________
    1
    Appellant was charged with two counts of PWID, and one count each of
    conspiracy to commit PWID, conspiracy to violate § 911 (corrupt
    organizations), and theft of services.
    *
    Former Justice specially assigned to the Superior Court.
    J-S45011-15
    restitution and sentenced him to one to three years of imprisonment to run
    consecutive to the sentence imposed on the drug charge. Appellant did not
    file a direct appeal.
    On July 18, 2014, Appellant filed a pro se PCRA petition and counsel
    was appointed.       Counsel filed a thorough Turner/Finley no-merit letter2
    and sought permission to withdraw.             On September 17, 2014, the court
    granted counsel that right. The trial court dismissed the petition without a
    hearing on October 29, 2014, after serving notice of its intention to do so,
    and considering Appellant’s pro se response. Appellant timely appealed, was
    ordered to file a Pa.R.A.P. 1925(b) concise statement of errors complained of
    on appeal within twenty-one days, but filed that statement two months late.
    Appellant presents two issues for our review:
    [I.] Whether the imposition of consecutive sentences resulting in
    an aggregate sentence of not less than five nor more than five
    years was so manifestly excessive as to constitute an abuse of
    discretion?
    [II.] Whether the imposition of mandatory minimum sentence
    pursuant to 18 Pa.C.S.A. § 7508 were illegal and
    unconstitutional pursuant to Alleyne v. United States, 
    133 S. Ct. 2151
    , 
    186 L. Ed. 2d 314
    (2013)?
    Appellant’s brief at 4.
    ____________________________________________
    2
    Commonwealth v. Finley, 
    550 A.2d 213
    (Pa.Super.                        1988);
    Commonwealth v. Turner, 
    544 A.2d 927
    (Pa.Super. 1988).
    -2-
    J-S45011-15
    The PCRA court dismissed the within petition since it was not filed
    within one year of the date the judgment of sentence became final, and
    Appellant did not allege and prove the applicability of any of the three
    exceptions to the time bar. 42 Pa.C.S. § 9545(b). We agree that dismissal
    was proper on that basis, and thus, we do not reach the merits of
    Appellant’s claims.
    The Post-Conviction Relief Act, 42 Pa.C.S. § 9545(b)(1) provides that,
    “[a]ny petition . . . including a second or subsequent petition, shall be filed
    within one year of the date the judgment becomes final, unless the petition
    alleges and the petitioner proves one of the exceptions to the time-bar. The
    time limitations of the PCRA are jurisdictional.” Commonwealth v. Crews,
    
    863 A.2d 498
    (Pa. 2004).
    The three delineated exceptions to the one-year time-bar are set forth
    at 42 Pa.C.S. § 9545(b)(1)(i-iii): (1) that the claim was not previously raised
    due to governmental interference; (2) that the claim is based on facts that
    were not previously known to petitioner and which could not have been
    discovered through the exercise of due diligence; or (3) the petition asserts
    a new constitutional right that has been held to apply retroactively by either
    our state Supreme Court or the United States Supreme Court.         A petition
    invoking one of the statutory exceptions must also be filed within sixty days
    of the date the claim could have been presented. 42 Pa.C.S. § 9545(b)(2).
    -3-
    J-S45011-15
    Appellant’s judgment of sentence became final on January 18, 2013,
    thirty days after sentence was imposed and no direct appeal was filed.
    Thus, Appellant had until January 18, 2014 to file a timely PCRA petition.
    His petition, which was filed July 18, 2014, was facially untimely.
    Appellant    acknowledges   that   his   PCRA   petition   was   untimely.
    Appellant’s brief at 5.   Nonetheless, Appellant fails to invoke any of the
    timeliness exceptions as the basis for avoiding the PCRA time-bar on either
    of his claims. With regard to his second issue implicating Alleyne v. United
    States, 
    133 S. Ct. 2151
    (2013) (holding that any fact that increases a
    mandatory minimum sentence is an element of the crime that must be
    submitted to the fact-finder and proven beyond a reasonable doubt),
    Appellant argues that it is an illegal sentencing claim that is non-waivable on
    direct appeal. He seems to suggest that the nature of the claim circumvents
    the PCRA time-bar.
    We agree that a challenge to the imposition of a mandatory minimum
    sentence implicates legality of sentencing. However, Appellant is mistaken
    in his belief that he is on direct appeal. This is an appeal from the denial of
    PCRA relief, which is a collateral proceeding.     Even an illegal sentencing
    claim must be presented in a timely PCRA petition over which we have
    jurisdiction.     Commonwealth v. Fahy, 
    737 A.2d 214
    (Pa. 1999);
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    J-S45011-15
    Commonwealth v. Miller, 
    102 A.3d 988
    , 994 (Pa.Super. 2014) (en banc).3
    Having failed to plead and prove the applicability of one of the timeliness
    exceptions, Appellant’s PCRA petition was properly dismissed as untimely.
    Order affirmed.
    Justice Fitzgerald joins this memorandum.
    Judge Wecht concurs in the result.
    Judgment Entered.
    Joseph D. Seletyn, Esq.
    Prothonotary
    Date: 9/25/2015
    ____________________________________________
    3
    Appellant does not renew the timeliness argument he made below: that he
    filed his petition within sixty days of May 19, 2014, the date he first learned
    of the Alleyne decision (decided June 17, 2013), due to the fact that the
    computers in the prison library had not been updated.
    -5-