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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 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 petition. 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 appeal 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 court after the deadline for 

filing the appeal). While we recognize our prerogative to remand for a 

hearing to determine Styen’s compliance with the prisoner mailbox rule, 

given our disposition, we will not remand as it “would be futile to do so.” 

See Commonwealth v. Chambers, 35 A.3d 34, 40 (Pa. Super. 2011).
J-S54024-16 

- 2 - 

Sentence, and or Motion to Set Aside, Vacate Mandatory 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 petition filed 

under Pennsylvania’s Post Conviction Relief Act (PCRA).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,5robbery6and related offenses, and the 

Commonwealth withdrew all charges at the fourth docket. The court 

immediately sentenced Styen according to the terms of the plea agreement, 

to serve an aggregate term of seven to 14 years’ incarceration, which 

included a mandatory minimum five-year sentence, as provided in 42 

Pa.C.S. § 9712 (“Sentences for offenses committed with 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 

- 3 - 

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 affirmed the 

judgment of sentence. On January 18, 2012, the Pennsylvania 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 Pennsylvania Supreme Court 

denied allowance of appeal on July 30, 2015. Commonwealth v. Styen, 

120 A.3d 1057 (Pa. Super. 2015) (unpublished memorandum), 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 issued notice of intent to 

dismiss, pursuant to Pennsylvania Rule of Criminal Procedure 907, finding 

that the petition was untimely. On October 28, 2015, Styen filed objections 
J-S54024-16 

- 4 - 

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 pursuant to Pa.R.A.P. 1925(b) 

within 21 days. See Order, 12/10/2015. The docket reflects that the order 

was “mailed” to Styen on December 10, 2015. On March 10, 2016, the 

PCRA court issued an opinion, stating Styen had failed 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 APPLICATION 

OF MARBURY V. MADISON, TESTA V. KATT; THE HARPER RULE 

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 CLAUSE TO 

[STYEN’S] CASE NUNC PRO TUNC, WAS TANTAMOUNT TO A STATE 

COURT COMMITTING A[N] UNCONSTITUTIONAL STRUCTURAL 

DEFECT? 

III. WHETHER APPELLANT’S SENTENCE IS ILLEGAL? 

IV. WHETHER THE PCRA COURT ERRED WHEN IT ILLEGALLY FOUND 

THAT ALLEYNE V. UNITED STATES, 133 S.CT. 2150, 2151, 2160, 

2162, 2163 (2013) DID NOT AFFORD THE APPELLANT 

RETROACTIVE APPLICATION OF NEW CONSTITUTIONAL RIGHTS AS 

NEW CONSTITUTIONAL RULE/OR LAW AS THE SUPREMACY 

CLAUSE/LAW OF THE LAND? 

Styen’s Brief, at 3. 
J-S54024-16 

- 5 - 

statement as ordered, and the court was unable to determine 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) order. 

It is well settled that an appellant waives all issues on appeal if he was 

directed to file a Rule 1925(b) statement and failed 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 requiring the statement. 

Commonwealth v. Davis, 867 A.2d 585, 588 (Pa. Super. 2005) (en banc). 

Accepting Styen’s representation that he did not receive the PCRA court’s 

Rule 1925(b) order, we will address Styen’s claim that 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 and free of legal error.’” 

Commonwealth v. Taylor, 67 A.3d 1245, 1248 (Pa. 2013) (citation 

omitted). 
J-S54024-16 

- 6 - 

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 otherwise 

untimely petition may be reviewed if a petitioner pleads 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 presentation of the 

claim in violation of the Constitution or laws of this 

Commonwealth or the Constitution or laws of the United States; 

(ii) the facts upon which the claim is predicated were unknown 

to the petitioner and could not have been ascertained 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 States or the 

Supreme Court of Pennsylvania after the time period provided in 

this section and has been held by that court to apply 

retroactively. 

____________________________________________ 

8

 As this Court noted in Styen’s appeal from the denial of relief on his first, 

timely PCRA petition: 

[Styen’s] judgment of sentence became final on April 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] then generally 

had one year, or until April 17, 2013, to file a PCRA 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 

- 7 - 

42 Pa.C.S. § 9545(b)(1)(i)-(iii). Any petition invoking one of these 

exceptions must be filed “within 60 days of the date 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 retroactively. 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 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, 133 S. Ct. at 2163. 

Since Alleyne, the mandatory minimum sentencing provision applied 

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 that the unconstitutional 

provisions of the mandatory minimum statutes are not 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 Styen’s argument 

based upon Alleyne is unavailing because “Alleyne has been held not to be 
J-S54024-16 

- 8 - 

applicable retroactively and [Styen’s] case had been 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 Supreme Court held that 

Alleyne does not apply retroactively to attacks upon mandatory minimum 

sentences advanced on collateral review. Under Washington, it is clear 

that Styen cannot satisfy the newly-recognized constitutional right exception 

and attack the validity of his sentence on the basis 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