J-S54024-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v. JAMES STYEN Appellant No. 1925 WDA 2015

Appeal from the PCRA Order October 29, 2015 In the Court of Common Pleas of Allegheny County Criminal Division at No(s): CP-02-CR-0017244-2009
BEFORE: BENDER, P.J.E., OTT, J., and MUSMANNO, J. MEMORANDUM BY OTT, J.: FILED SEPTEMBER 08, 2016 James Styen appeals pro se from the order entered October 29, 2015, in the Court of Common Pleas of Allegheny County. 1 The PCRA court dismissed, as untimely, Styen’s pro se “Motion to Vacate Judgment of Illegal

____________________________________________ 1 We note that Styen’s notice of appeal is docketed as filed with this Court on December 7, 2015, in excess of the 30-day appeal period from the October 29, 2015 order dismissing Styen’s PCRA peti tion. See Pa.R.A.P. 903. The envelope attached to the notice of appeal reflects a postmark of December 3, 2015, which is also beyond the 30-day a ppeal period. Where, as here, the pro se appellant is incarcerated, we apply the “prisoner mailbox rule.” See Commonwealth v. Jones , 700 A.2d 423 (Pa. 1997) (appeal by a pro se prisoner is deemed filed on the date the prisoner deposits the appeal with prison authorities and/or places it in the prison mailbox, though the notice of appeal is actually received by the co urt after the deadline for filing the appeal). While we recognize our prerogat ive to remand for a hearing to determine Styen’s compliance with the pr isoner mailbox rule, given our disposition, we will not remand as it “wo uld be futile to do so.” See Commonwealth v. Chambers , 35 A.3d 34, 40 (Pa. Super. 2011).J-S54024-16

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Sentence, and or Motion to Set Aside, Vacate Mandat ory Minimum Sentences Pursuant to Alleyne v. United States [2] ; Hopkins v. Supreme Court of United States [3] ,” which the court treated as Styen’s second petiti on filed under Pennsylvania’s Post Conviction Relief Act (PC RA). 4 Based upon the following, we affirm. Styen was charged at four dockets with robbery and related offenses for incidents that occurred over several days with two accomplices. On September 9, 2010, Styen entered negotiated guilty pleas in three dockets, to three counts each of conspiracy, 5 robbery 6 and related offenses, and the Commonwealth withdrew all charges at the fourth doc ket. The court immediately sentenced Styen according to the terms of the plea agreement, to serve an aggregate term of seven to 14 years’ in carceration, which included a mandatory minimum five-year sentence, as provided in 42 Pa.C.S. § 9712 (“Sentences for offenses committed w ith firearms”), at this

____________________________________________ 2 Alleyne v. United States , 133 S.Ct. 2151 (June 17, 2013).

3 Styen is apparently referring to Commonwealth v. Hopkins , 117 A.3d 247 (Pa. June 15, 2015).

4 42 Pa.C.S. §§ 9541–9546.

5 18 Pa.C.S. § 903.

6 18 Pa.C.S. § 3701.J-S54024-16

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docket (Docket No. 17244-2009, Count 1, robbery). See N.T., 9/9/2010, at 30. On August 30, 2011, on direct appeal, this Court af firmed the judgment of sentence. On January 18, 2012, the Penn sylvania Supreme Court denied allowance of appeal. Commonwealth v. Styen , 32 A.3d 848 (Pa. Super. 2011) (unpublished memorandum), appeal denied , 37 A.3d 1195 (Pa. 2012). On November 30, 2012, Styen filed a pro se , timely PCRA petition. Counsel was appointed and filed an amended petition . Following a hearing, the PCRA court denied relief. On appeal, on March 17, 2015, this Court affirmed the order of the PCRA court, and the Penns ylvania Supreme Court denied allowance of appeal on July 30, 2015. Commonwealth v. Styen , 120 A.3d 1057 (Pa. Super. 2015) (unpublished memora ndum), appeal denied , 121 A.3d 496 (Pa. 2015). On October 1, 2015, Styen filed the instant pro se “Motion to Vacate Judgment of Illegal Sentence,” which the PCRA court treated as a PCRA petition. On October 13, 2015, the PCRA court issu ed notice of intent to dismiss, pursuant to Pennsylvania Rule of Criminal Procedure 907, finding that the petition was untimely. On October 28, 201 5, Styen filed objectionsJ-S54024-16

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to the PCRA court’s Rule 907 notice. On October 29 , 2015, the PCRA court denied relief, and this appeal followed. 7 On December 10, 2015, the PCRA court directed Styen to file a concise statement of errors complained of on appeal pursuan t to Pa.R.A.P. 1925(b) within 21 days. See Order, 12/10/2015. The docket reflects that the o rder was “mailed” to Styen on December 10, 2015. On Mar ch 10, 2016, the PCRA court issued an opinion, stating Styen had fai led to file a concise

____________________________________________ 7 Styen raises four issues in his pro se brief, which we reproduce verbatim:
I. WAS PETITIONER UNCONSTITUTIONALLY DENIED BY A STATE COURT, THE RETROACTIVE RELIEF AND APPLICATION OF U. S. SUPREME COURT DECISIONS, “UNITED STATES V. ALLEYNE, GREER, JOHNSON, SHAVERS, BOOKER; DENIED THE APPLICA TION OF MARBURY V. MADISON, TESTA V. KATT; THE HARPER RU LE PURSUANT TO ARTICLE VI. CLAUSE 2. “THE SUPREMACY CLAUSE,” NUNC PRO TUNC?
II. WHETHER THE STATE COURT BY ITS REFUSAL TO APPLY THE DECISIONS ALLEYNE-APPRENDI, VIA THE SUPREMACY CLAUS E TO [STYEN’S] CASE NUNC PRO TUNC, WAS TANTAMOUNT TO A S TATE COURT COMMITTING A[N] UNCONSTITUTIONAL STRUCTURAL DEFECT?
III. WHETHER APPELLANT’S SENTENCE IS ILLEGAL?
IV. WHETHER THE PCRA COURT ERRED WHEN IT ILLEGALLY FOUN D THAT ALLEYNE V. UNITED STATES, 133 S.CT. 2150, 2151 , 2160, 2162, 2163 (2013) DID NOT AFFORD THE APPELLANT RETROACTIVE APPLICATION OF NEW CONSTITUTIONAL RIGHT S AS NEW CONSTITUTIONAL RULE/OR LAW AS THE SUPREMACY CLAUSE/LAW OF THE LAND? Styen’s Brief, at 3.J-S54024-16

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statement as ordered, and the court was unable to d etermine errors alleged on appeal and could not file an opinion in response

. See PCRA Court Opinion, 3/10/2016. On March 24, 2016, Styen filed a “Statement of Matters to be Complained About on Appeal (Nunc Pro Tunc),” alleging that he never received the PCRA court’s Rule 1925(b) ord er. It is well settled that an appellant waives all iss ues on appeal if he was directed to file a Rule 1925(b) statement and faile d to do so. Commonwealth v. Lord , 719 A.2d 306, 309 (Pa. 1998). However, we will not find waiver for failure to file a Rule 1925(b) statement if an appellant fails to receive notice of the entry of the order r equiring the statement. Commonwealth v. Davis , 867 A.2d 585, 588 (Pa. Super. 2005) ( en banc ). Accepting Styen’s representation that he did not re ceive the PCRA court’s Rule 1925(b) order, we will address Styen’s claim t hat the PCRA court erred in dismissing his petition. “In reviewing the denial of PCRA relief, we examine whether the PCRA court’s determination ‘is supported by the record a nd free of legal error.’” Commonwealth v. Taylor , 67 A.3d 1245, 1248 (Pa. 2013) (citation omitted).J-S54024-16

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Here, Styen’s judgment of sentence became final on April 17, 2012. 8 Therefore, the instant petition, filed on October 1 , 2015, which was filed nearly three and one-half years after his judgment of sentence became final, is patently untimely. However, pursuant to 42 Pa.C.S. § 9545, an otherwis e untimely petition may be reviewed if a petitioner p leads and proves the applicability of one of three statutory exceptions: (i) the failure to raise the claim previously was the result of interference by government officials with the prese ntation of the claim in violation of the Constitution or laws of t his Commonwealth or the Constitution or laws of the Uni ted States; (ii) the facts upon which the claim is predicated were unknown to the petitioner and could not have been ascertain ed by the exercise of due diligence; or (iii) the right asserted is a constitutional right that was recognized by the Supreme Court of the United State s or the Supreme Court of Pennsylvania after the time period provided in this section and has been held by that court to app ly retroactively.

____________________________________________ 8 As this Court noted in Styen’s appeal from the den ial of relief on his first, timely PCRA petition: [Styen’s] judgment of sentence became final on Apri l 17, 2012, when the ninety-day period for filing a writ of certiorari with the United States Supreme Court expired. See Sup. Ct. R. 13; 1 Pa.C.S. § 1908; 42 Pa.C.S. § 9545(b)(3). [Styen] th en generally had one year, or until April 17, 2013, to file a PC RA petition. See 42 Pa.C.S. § 9545(b)(1). Commonwealth v. Styen , 120 A.3d 1057 (Pa. Super. 2015) (unpublished memorandum, at 3 n.5).J-S54024-16

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42 Pa.C.S. § 9545(b)(1)(i)-(iii). Any petition invo king one of these exceptions must be filed “within 60 days of the dat e the claim could have been presented.” Id. at § 9545(b)(2). Based on Alleyne , Styen invoked the PCRA’s exception for newlyrecognized constitutional right that applies retroa ctively. See 42 Pa.C.S. § 9545(b)(1)(iii), supra . In Alleyne , the United States Supreme Court held that any fact that, by law, increases the penalty f or 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 , 133 S. Ct. at 2163. Since Alleyne , the mandatory minimum sentencing provision applie d herein, as well as others, have been struck down as unconstitutional. See Commonwealth v. Valentine , 101 A.3d 801 (Pa. Super. 2014) (invalidating 42 Pa.C.S. §§ 9712 and 9713), appeal denied , 124 A.3d 309 (Pa. 2015); Commonwealth v. Newman , 99 A.3d 86, 98 (Pa. Super. 2014) ( en banc), appeal denied , 121 A.3d 496 (Pa. 2015); (invalidating 42 Pa.C.S. § 9712.1). Further, our courts have held th at the unconstitutional provisions of the mandatory minimum statutes are no t severable from the statute as a whole. Commonwealth v. Hopkins , 117 A.3d 247, 262 (Pa. 2015); Newman, supra , 99 A.3d at 101. We agree with the PCRA court’s assessment that Stye n’s argument based upon Alleyne is unavailing because “ Alleyne has been held not to beJ-S54024-16

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applicable retroactively and [Styen’s] case had bee n resolved long before the ruling in Alleyne .” PCRA Court Order, 10/29/2015. Recently, in Commonwealth v. Washington , ___ A.3d ___ [No. 37 EAP 2015] (Pa. July 19, 2016), the Pennsylvania Sup reme Court held that Alleyne does not apply retroactively to attacks upon manda tory minimum sentences advanced on collateral review. Under Washington , it is clear that Styen cannot satisfy the newly-recognized cons titutional right exception and attack the validity of his sentence on the basi s that it included imposition of a mandatory minimum sentence that has been rendered unconstitutional under Alleyne . Accordingly, we affirm the PCRA court’s denial of relief. Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 9/8/2016