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

v.
STACEY LAMONT MOSLEY,

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

PENNSYLVANIA

No. 1423 MDA 2018 Appeal from the PCRA Order Entered August 15, 2018 i n 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 H abe as C orpus . We affirm. On April 16, 2009, following a jury trial, Mosley was found guilty of robbery, theft by unlawful taking, receiving sto len 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 , t his Court affirmed the judgment of sentence. See Commonwealth v.

_________________ __________ ______ ____ _______ 1 Mosley was sentenced pursuant to Pennsylvania’s “th ree - 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).J

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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 Super. 2010) (unpublished memorandum).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 Peti tion. 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 Super. 2012) (unpublished memorandum), appeal denied , 69 A.3d 243 (Pa. 2013).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 t he trial court ordered Mosley to file a Pa.R.A.P. 192 5(b) concise s tatement of matters complained of on appeal wit hin 25 days of the date of the O rder. On October 22, 2018, the trial court filed a Memorandum , indicating that Mosley had failed to file a 1925(b) concise statement.

_________________ __________ ______ ____ _______ 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 clai m “ is a sentencing issue that presents a legal question that is qualitatively distinct from the categories of illegal sen tences recognized by our courts[, in that i]t does not challenge the sentencing court ’ s authority or actions insomuch as it challenges the legislat ure’ s ostensible failure to provide adequate notice of the [challenged statute,]” it d oes not fall under the purview of the PCRA).

3 The trial court’s Order was docketed on September 12, 2018.J

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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 b asis 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 ar gues 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. Initiall y, o ur review of the record discloses that Mosley never filed a
court

- ordered Pa.R.A.P. 1925(b) concise s tatement. See Pa.R.A.P.
1 925(b)(2). Thus, Mosley’s claim is waived. See C ommonwealth v. Castillo , 888 A.2d 775, 780 (Pa. 2005) ( stating that “[a]ny i ssues 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 s tatement, 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

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- vagueness claim [raised in a habeasJ

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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