Com. v. Mosley, S. ( 2019 )

J-S12036-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
STACEY LAMONT MOSLEY, :
:
Appellant : No. 1423 MDA 2018
Appeal from the PCRA Order Entered August 15, 2018
in the Court of Common Pleas of Juniata County
Criminal Division at No(s): CP-34-CR-0000224-2008
BEFORE: BOWES, J., DUBOW, J., and MUSMANNO, J.
MEMORANDUM BY MUSMANNO, J.: FILED APRIL 16, 2019
Stacey Lamont Mosley (“Mosley”), pro se, appeals from the Order
denying his Petition for Writ of Habeas Corpus. We affirm.
On April 16, 2009, following a jury trial, Mosley was found guilty of
robbery, theft by unlawful taking, receiving stolen property, criminal
contempt, and two counts of criminal conspiracy, relative to his robbery of a
convenience store and attempted robbery of a bank. The trial court sentenced
Mosley to an aggregate term of 35 to 70 years in prison.1 On October 6, 2010,
this Court affirmed the judgment of sentence. See Commonwealth v.
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1 Mosley was sentenced pursuant to Pennsylvania’s “three-strikes” sentencing
statute, which requires that a defendant who had previously been convicted
of two or more crimes of violence, arising from separate criminal transactions,
be sentenced to a minimum of at least 25 years of total confinement. See 42
Pa.C.S.A. § 9714(a)(2); see also Commonwealth v. Smith, 866 A.2d 1138(Pa. Super. 2005) (recognizing Section 9714 as Pennsylvania’s “three strikes”
law).
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Mosley, 15 A.3d 518 (Pa. Super. 2010) (unpublished memorandum). Mosley
did not seek allowance of appeal with the Pennsylvania Supreme Court.
On March 9, 2011, Mosley, pro se, filed his first Petition pursuant to the
Post-Conviction Relief Act (“PCRA”). See 42 Pa.C.S.A. §§ 9541-9546. Mosley
was appointed counsel, who filed an Amended Petition. On March 5, 2012,
following a hearing, the PCRA court dismissed Mosley’s PCRA Petition. This
Court dismissed Mosley’s appeal, and the Pennsylvania Supreme Court denied
Mosley’s Petition for allowance of appeal. See Commonwealth v. Mosley,
64 A.3d 16 (Pa. Super. 2012) (unpublished memorandum), appeal denied,
69 A.3d 243 (Pa. 2013).
On April 11, 2018, Mosley, pro se, filed the instant Habeas Corpus
Petition. On August 3, 2018, the trial court denied Mosley’s Petition.2 Mosley
filed a timely Notice of Appeal. On September 5, 2018,3 the trial court ordered
Mosley to file a Pa.R.A.P. 1925(b) concise statement of matters complained of
on appeal within 25 days of the date of the Order. On October 22, 2018, the
trial court filed a Memorandum, indicating that Mosley had failed to file a
1925(b) concise statement.
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2 We note that Mosley’s claim is not cognizable under the PCRA. See
Commonwealth v. Rouse, 191 A.3d 1, 6-7 (stating that because a void-for-
vagueness claim “is a sentencing issue that presents a legal question that is
qualitatively distinct from the categories of illegal sentences recognized by our
courts[, in that i]t does not challenge the sentencing court’s authority or
actions insomuch as it challenges the legislature’s ostensible failure to provide
adequate notice of the [challenged statute,]” it does not fall under the purview
of the PCRA).
3 The trial court’s Order was docketed on September 12, 2018.
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On appeal, Mosley presents the following question for our review:
Whether [t]he [t]rial [c]ourt [m]isapplied the law, or exercised its
discretion in a manner lacking reason by dismissing [Mosley’s]
Petition for Habeas Corpus Relief[,] since his confinement if [sic]
illegal on the basis of the [a]pplication of a [m]andatory minimum
pursuant to 42 Pa.C.S.A. § 9714 that was unconstitutionally vague
and void at the time it was applied to [Mosley?]
Brief for Appellant at 3.
Mosley argues that Pennsylvania’s “three-strikes” statute, 42 Pa.C.S.A.
§ 9714(a)(2), violates his right to due process, and should be deemed void
for vagueness. Id. at 7-13. Mosley claims that his case should be remanded
to the trial court for resentencing, without application of Section 9714. Id. at
13.
Initially, our review of the record discloses that Mosley never filed a
court-ordered Pa.R.A.P. 1925(b) concise statement. See Pa.R.A.P.
1925(b)(2). Thus, Mosley’s claim is waived. See Commonwealth v.
Castillo, 888 A.2d 775, 780 (Pa. 2005) (stating that “[a]ny issues not raised
in a Pa.R.A.P. 1925(b) statement will be deemed waived.”); see also
Commonwealth v. Mason, 130 A.3d 601, 635-36 (Pa. 2015) (stating that
“[i]ssues not raised in the lower court are waived and cannot be raised for the
first time on appeal.”).
Nevertheless, even if Mosley had complied with the trial court’s Order
to file a Rule 1925(b) concise statement, his claim would be waived by failing
to raise it at his sentencing hearing or in a post-sentence motion. See Rouse,
191 A.3d at 6 (stating that a “void-for-vagueness claim [raised in a habeas
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corpus petition] … is subject to waiver,” where the defendant fails to raise the
claim at his sentencing hearing or in a post-sentence motion.”). Accordingly,
we deem Mosley’s claim waived and affirm the trial court’s Order dismissing
his Petition.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 04/16/2019
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