J-A05041-18

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* Former Justice specially assigned to the Superior Court.

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF 

PENNSYLVANIA

v.

ARIUS HAYNES 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1958 EDA 2017

Appeal from the PCRA Order June 14, 2017

In the Court of Common Pleas of Philadelphia County Criminal Division at 

No(s): CP-51-CR-0014275-2010

BEFORE: DUBOW, J., MURRAY, J., and STEVENS*, P.J.E.

MEMORANDUM BY STEVENS, P.J.E.: FILED MARCH 12, 2018

Appellant, Arius Haynes, appeals from the June 14, 2017, order entered 

in the Court of Common Pleas of Philadelphia County dismissing his first 

petition filed under the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 

9541-9546, without an evidentiary hearing. After a careful review, we affirm.

The relevant facts and procedural history are as follows: On April 7, 

2011, a jury convicted Appellant, who was represented by counsel, on the 

charges of possession with the intent to deliver a controlled substance 

(“PWID”) and criminal conspiracy.1 On June 2, 2011, the trial court sentenced 

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1 35 P.S. § 780-113(a)(30); 18 Pa.C.S.A. § 903, respectively. 
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Appellant to three and one-half years to seven years in prison for PWID, to be 

followed by five years of probation for conspiracy. Appellant filed a direct 

appeal to this Court, and on September 14, 2012, we affirmed his judgment 

of sentence.2 See Commonwealth v. Haynes, No. 1552 EDA 2011 

(Pa.Super. filed 9/14/12) (unpublished memorandum). Appellant did not file 

a petition for allowance of appeal with our Supreme Court.

On November 29, 2012, Appellant filed a timely pro se PCRA petition, 

and thereafter, on November 19, 2014, he filed an amended pro se petition. 

On January 27, 2016, the PCRA court appointed J. Matthew Wolfe, Esquire, to 

represent Appellant,3 and on February 7, 2017, counsel filed an amended 

PCRA petition on behalf of Appellant. The Commonwealth filed a motion to 

dismiss Appellant’s PCRA petition, and on May 2, 2017, the PCRA court 

provided Appellant with notice of its intent to dismiss the petition without an 

evidentiary hearing. See Pa.R.Crim.P. 907. Appellant did not respond to the 

PCRA court’s notice, and by order filed on June 14, 2017, the PCRA court 

dismissed Appellant’s PCRA petition on the basis it lacked merit. This timely, 

counseled appeal followed. All Pa.R.A.P. 1925 requirements have been met.

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2 On appeal, Appellant contended the trial court erred in failing to suppress 

the physical evidence seized by the police, and we found no error. 

3 The record does not provide a reason for the delay in the appointment of 

counsel. 
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On appeal, Appellant contends the trial court imposed an illegal 

mandatory minimum sentence in violation of Alleyne v. United States, 570 

U.S. 99, 133 S.Ct. 2151 (2013), and Commonwealth v. Hopkins, 632 Pa. 

36, 117 A.3d 247 (2015). Further, he contends his trial/direct appeal counsel4

was ineffective in failing to object and/or raise the issue regarding the 

imposition of the illegal sentence. 

When reviewing the denial of a PCRA petition, we must 

determine whether the PCRA court’s order is supported by the 

record and free of legal error. Generally, we are bound by a PCRA 

court’s credibility determinations. However, with regard to a 

court’s legal conclusions, we apply a de novo standard.

Commonwealth v. Johnson, 635 Pa. 665, 139 A.3d 1257, 1272 (2016)

(quotation marks and quotations omitted). As long as this Court has 

jurisdiction over a matter, a legality of sentencing issue is reviewable and 

cannot be waived. Commonwealth v. Jones, 932 A.2d 179, 182 (Pa.Super.

2007). 

In 2013, the Supreme Court of the United States issued its 

Alleyne decision, overruling its prior precedent. Alleyne held 

that any fact that, by law, increases the penalty for a crime must 

be treated as an element of the offense, submitted to a jury, 

rather than a judge, and found beyond a reasonable doubt. See 

Alleyne, 570 U.S. at 116, 133 S.Ct. at 2163.[5] The effect was to 

invalidate a range of Pennsylvania sentencing statutes predicating 

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4 Louis Francis D’Onofrio, Esquire, represented Appellant in the trial court and 

on direct appeal. 

5 Alleyne is an extension of Apprendi v. New Jersey, 530 U.S. 466, 120 

S.Ct. 2348 (2000), which held that any fact that increases the punishment for 

a crime beyond the statutorily prescribed maximum must be submitted to the 

jury and found beyond a reasonable doubt. 
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mandatory minimum penalties upon non-elemental facts and 

requiring such facts to be determined by a preponderance of the 

evidence at sentencing. See, e.g., Hopkins, [supra] (holding 

that Section 6317 of the Crimes Code, 18 Pa.C.S. § 6317-which 

predicates a mandatory minimum sentence upon a fact to be 

determined by a preponderance at sentencing-was 

constitutionally infirm, under Alleyne).

Commonwealth v. Washington, 636 Pa. 301, 142 A.3d 810, 812 (2016)

(footnote added). 

However, our appellate courts have held that Alleyne does not apply 

retroactively to cases on collateral review where the petitioner’s judgment of 

sentence became final before Alleyne was decided. See Washington, 

supra; Commonwealth v. Weimer, 167 A.3d 78 (Pa.Super. 2017). 

Recently, in Commonwealth v. DiMatteo, No. 10 MAP 2017, 2018 WL 

459340 (Pa. filed 1/18/18), our Supreme Court reaffirmed its holding in

Washington.

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Here, assuming, arguendo, the trial court imposed a mandatory 

minimum sentence,7 Appellant is not entitled to the retroactive application of 

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In DiMatteo, our Supreme Court held that a PCRA petitioner serving an 

illegal sentence under Alleyne is not barred from relief when relief is sought 

in a timely PCRA petition and the judgment of sentence was not final at the 

time the Alleyne decision was filed. However, our Supreme Court in 

DiMatteo also reaffirmed its holding in Washington that, where the 

petitioner’s judgment of sentence became final before Alleyne was decided, 

the petitioner is not entitled to collateral relief based on Alleyne. See 

DiMatteo, supra.

7 The Commonwealth argues Appellant did not receive a mandatory minimum 

sentence. 
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Alleyne. Appellant’s sentence was imposed on June 2, 2011, and we affirmed 

his judgment of sentence on September 14, 2012. Appellant did not file a 

petition for allowance of appeal. Accordingly, his judgment of sentence 

became final thirty days thereafter, on Monday, October 15, 2012.8 See 42 

Pa.C.S.A. § 9545(b)(3) (indicating a judgment is deemed final “at the 

conclusion of direct review, including discretionary review in the Supreme 

Court of the United States and the Supreme Court of Pennsylvania, or at the 

expiration of the time for seeking review.”); Pa.R.A.P. 1113 (indicating a 

petition for allowance of appeal to the Supreme Court shall be filed within 30 

days after entry of the order of the Superior Court). Alleyne was decided

thereafter on June 17, 2013. Thus, since Appellant's judgment of sentence 

became final prior to the filing of Alleyne, he is not entitled to retroactive 

application of Alleyne in this PCRA matter. See DiMatteo, supra; 

Washington, supra. Accordingly, the PCRA court properly found that 

Appellant was not entitled to relief on his legality of sentencing claim.

Appellant next claims that his trial/direct appeal counsel was ineffective 

in failing preserve his sentencing issue in the lower court and on direct appeal.

It is well-established that counsel is presumed effective, and 

to rebut that presumption, the PCRA petitioner must demonstrate 

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8 We note that because the thirtieth day fell on a Sunday, Appellant had until 

Monday, October 15, 2012, to file his petition for allowance of appeal. See 1 

Pa.C.S. § 1908 (stating that, for computations of time, whenever the last day 

of any such period shall fall on Saturday or Sunday, or a legal holiday, such 

day shall be omitted from the computation).
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that counsel’s performance was deficient and that such deficiency 

prejudiced him. To prevail on an ineffectiveness claim, the 

petitioner has the burden to prove that (1) the underlying 

substantive claim has arguable merit; (2) counsel whose 

effectiveness is being challenged did not have a reasonable basis 

for his or her actions or failure to act; and (3) the petitioner 

suffered prejudice as a result of counsel’s deficient performance. 

The failure to satisfy any one of the prongs will cause the entire 

claim to fail.

Commonwealth v. Benner, 147 A.3d 915, 919–20 (Pa.Super. 2016)

(quotation marks, quotations, and citations omitted).

To the extent Appellant premises his ineffectiveness claim on the theory 

that Alleyne rendered the sentencing statute at issue unconstitutional “from 

the time of its enactment,” he is incorrect. This Court has rejected such a 

theory. Commonwealth v. Ciccone, 152 A.3d 1004 (Pa.Super. 2016) (en 

banc) (holding that, while a mandatory sentencing statute was rendered illegal 

by Alleyne, it was not rendered void ab initio, and thus the defendant’s 

sentence was not illegal when imposed and Alleyne did not apply 

retroactively). 

To the extent Appellant premises his ineffectiveness claim on the theory 

that his trial/direct appeal counsel should have anticipated the change in the 

law, our Supreme Court has held that “counsel will not be deemed ineffective 

for failing to anticipate a change in the law.” Commonwealth v. Cox, 581 

Pa. 107, 863 A.2d 536, 554 (2004) (citation omitted). Consequently, 

trial/direct appeal counsel was not ineffective for failing to predict the new 

rule of law announced in Alleyne or its progeny. 
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For all of the foregoing reasons, we affirm.

Affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 3/12/18