J

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

COMMONWEALTH OF PENNSYLVANIA

v.

MUSTAFA D. HOLDEN

Appellant :
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:
:
:
:
:
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: IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 786 EDA 2018 Appeal from the PCRA Order February 16, 2018 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP

- 51

- CR

- 0014582

- 2010

BEFORE: BENDER, P.J.E., BOWES, J., and NICHOLS, J.
MEMORANDUM BY NICHOLS, J.: FILED JANUARY 16, 2019
Appellant Mustafa D. Holden appeal s from the order dismissing his first
PCRA petition without a hearing. Appellant asserts that he was illegally
sentenced to a mandatory minimum sentence under Alleyne v. United

States , 570 U.S. 99 (2013), 1 following his conviction of person prohibited to
possess a firearm. 2 We affirm.
The factual background to this matter need not be stated in detail. We
note that on January 22, 2013, Appellant was convicted in absentia by a jury
of person pr ohibited to possess a firearm. Appellant previously had been

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1 In Alleyne , the United States Supreme Court held that “[a]ny fact that, by law, increases the penalty for a crime is an ‘element’ that must be submitted to the jury and found beyond a reasonable doubt.” Alleyne , 570 U.S. at 103.

2 18 Pa.C.S. § 6105(a)( 1).J

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convicted of possession with intent to deliver (PWID), 3 making his conviction
of person prohibited to possess a firearm a felony of the second degree. See
N.T., 1/18/13, at 176 ; 18 Pa.C.S. § 6105(a

. 1)(1). On January 14, 2014,
Appellant was sentenced to fi ve to ten years of imprisonment. 4 Appellant did
not file a direct appeal of his judgment of sentence.
On January 7, 2015, Appellant filed the instant timely PCRA petition.
Counsel was app ointed, and for reasons the record does not reveal, an
amended PCRA petition was not filed until May 9, 2017. On January 16, 2018,
the PCRA court issued a notice of intent to dismiss the amended PCRA petition

under Pa.R.Crim.P. 907 because the issues rais ed therein were without merit.

See Notice Pursuant to Pa.R.Crim.P. 907, 1/16/18. The PCRA court dismissed
Appellant’s petition on February 16, 2018.
This timely appeal followed. 5 Appellant raises the following issue for our

review:

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3 35 P.S. § 780

- 113(a)(30).

4 Ten years of imprisonment is the maximum term of incarceration for a felony of the second degree. 18 Pa.C.S. § 1103(2). We add that the United States Supreme Court decided Alleyne on June 17, 2013, before Appellant’s j udgment of sentence became final.

5 Thirty days from the date Appellant’s PCRA petition was dismissed fel l on March 18, 2018, a Sunday. See Pa.R.A.P. 903(a). Therefore, Appellant’s notice of appeal, filed Monday, March 19, 2018, was timely. See 1 Pa.C.S. § 1908.J

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Should [Appellant] b e remanded to the PCRA [c]ourt for an [e]videntiary [h]earing in that he was able to plead, and would have been able to prove, that he was sentenced illegally and that trial counsel was ineffective for having failed to object to the illegal sentence and fa iling to file a [m]otion for [r]econsideration of [s]entence? Appellant’s Brief at 3.
Appellant asserts that he was sentenced to an unconstitutional
mandatory minimum under Alleyne

. Id. at 6. Appellant argues that

[a]t the time that [Appellant] was sen tenced, counsel knew, or should have known, that [Appellant] was being sentenced to an illegal sentence. Counsel did not object. Thereafter, counsel could have filed a [m]otion for [r]econsideration of [s]entence, and should have filed same, given the fa ct that the sentence was illegal. Counsel failed to do that. Thus, and as a result of counsel’s ineffectiveness, [Appellant] was sentenced to an illegal sentence.

Id.

We note that [w] e review an order dismissing a petition under the PCRA in the light m ost favorable to the prevailing party at the PCRA level. This review is limited to the findings of the PCRA court and the evidence of record. We will not disturb a PCRA court ’ s ruling if it is supported by evidence of record and is free of legal error. This Court may affirm a PCRA court ’ s decision on any grounds if the record supports it. Further, we grant great deference to the

_________________ __________ ______ ____ _______ Additionally, we note that Appellant was ordered to file a Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal by April 13, 2018. Appellant filed his statement on April 24, 2018. Under Commonwealth v. Burton , 973 A.2d 428 (Pa. Super. 2009), the late filing of a rule 1925(b) statement is per se ineffectiveness of counsel in criminal cases

. Burton , 973 A.2d at 433; Pa.R.A.P. 1925(c)(3) ; see also Commonwealth v. Presley , 193 A.3d 436, 442 (Pa. S uper. 2018) (hol ding that a PCRA appeal is a “criminal case” for purposes of Pa.R.A.P. 1925(c)) . Nevertheless, a remand is not necessary here since “the trial court has filed an opinion addressing the issue presented in [Appellant’s] 1925(b) concise statement.” Burton , 973 A.2d at 433.J

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factual findings of the PCRA court and will not disturb those findings unless they have no support in the record

. However, we afford no such deference to its legal conclusions. Where the petitioner raises questions of law, our standard of review is de
novo and our scope of review plenary.

Com monwealth v. Ford , 44 A.3d 1190, 1194 ( Pa. Super. 2012) (citations
omitted) ; see also See Commonwealth v. DiMatteo , 177 A.3d 182, 192
(Pa. 2018) (holding that a PCRA petitioner may challenge the legality of a

sentence based on Alleyne where Alleyne was decided before the sentence
became final and the issue was raised in a timely PCRA petiti on)

. Instantly, Appellant was convicted of person prohibited to possess a

firearm under 18 Pa.C.S. § 6105. An element of the offense of person
prohibited to possess a firearm is the defendant’s prior conviction of at least

one enumerated offense. See Commonwealth v. Williams , 911 A.2d 548,
550 (Pa. Super. 2006) (abrogated on other grounds by Commonwealth v.

Dantzler , 135 A.3d 1109 (Pa. Super. 2016) ( en banc )) ; 18 Pa.C.S. §
6105(a)(1). D uring Appellant’s jury trial, the Commonwealth presented
evidence to the jury that Appellant had pr eviously been convicted of PWID in
addition to possessing a firearm. See N.T., 1/18/13, at 176. Accordingly, the
Commonwealth presented evidence of the ele ments of the crime, and the jury

convicted Appellant

. Thereafter, Appellant was sentenced to the maximum

sentence fo r a felony of the second degree

. See 18 Pa.C.S. § 1103(2).J

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Accordingly, Appellant was not sentenced to a mandatory minimum sentence,

and Alleyne does not apply. 6
Appellant also attempts to cast his receipt of a purportedly illegal
sentence as an ineffective assistance of counsel claim. However, since
Appellant’s sentence did not involve an illegal mandatory minimum sentence,

counsel was u nder no obligation to object to it , and Appellant’s claim lacks
arguable merit. See Ford , 44 A.3d at 1194

. For the foregoing reasons, the PCRA court’s decision to dismiss
Appellant’s petition without a hearing was supported by the record and free of
legal error. Id.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 1/16/19

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6 We note that even if Appellant’s prior conviction for PWID increased the grade of the offense, a prior conviction is an exception to the prohibition on judicial fact

- finding to increase the range of permissible sentences

. See Commonwealth v. Golson , 189 A.3d 994, 1002 ( Pa. Super. 2018) ( “Prior convictions are the remaining exception to Apprendi v. New Jersey , 530 U.S. 466

. . . [(2000)] and Alleyne

. . . insofar as a fact finder is not required to determine disputed convictions beyond a reasonable doubt to comport with the Sixth Amendment jury trial right.” (some citations omitted))

.