Opinion
J-S94010-16 No. 868 MDA 2016
01-20-2017
COMMONWEALTH OF PENNSYLVANIA Appellee v. HIEP VAN DIEU Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the PCRA Order April 28, 2016
In the Court of Common Pleas of Cumberland County
Criminal Division at No(s): CP-21-CR-0001550-2012 BEFORE: LAZARUS, J., RANSOM, J., and FITZGERALD, J. JUDGMENT ORDER BY LAZARUS, J.:
Former Justice specially assigned to the Superior Court.
Hiep Van Dieu appeals from the order entered in the Court of Common Pleas of Cumberland County, dismissing his petition filed pursuant to the Post Conviction Relief Act ("PCRA"), 42 Pa.C.S.A. §§ 9541-9546. We affirm on the basis of the opinion authored by the Honorable Albert H. Masland.
On December 12, 2012, Dieu entered a negotiated plea of guilty to one count each of possession with intent to deliver ("PWID") and theft of services. The charges stemmed from a large-scale marijuana growing operation Dieu ran with his co-defendant, Hung Pham. Dieu received an agreed-upon mandatory minimum sentence of five years' imprisonment for PWID and an agreed-upon consecutive sentence of one to three years' imprisonment, plus restitution, for theft of services. Dieu did not appeal his judgment of sentence. On July 18, 2014, Dieu filed his first pro se PCRA petition, which was dismissed as untimely. This Court affirmed the denial of relief. Dieu filed a second PCRA petition, which was also dismissed. His appeal of that order was ultimately withdrawn.
The instant petition, Dieu's third, was filed on February 29, 2016. By order dated April 28, 2016, the PCRA court dismissed the petition as untimely. This appeal follows, in which Dieu asserts that he is entitled to relief under the U.S. Supreme Court's decision in Alleyne v. U.S., 133 S.Ct. 2151 (2013). Dieu claims that, pursuant to Montgomery v. Louisiana , 136 S.Ct. 758 (2016), the holding of Alleyne is retroactively applicable to cases on collateral review.
We have reviewed the briefs, the record, and the applicable law and conclude that Judge Masland's well-written opinion thoroughly, comprehensively, and correctly disposes of the Dieu's appellate claims. Specifically, we concur with the PCRA court that, under our Supreme Court's decision in Commonwealth v. Washington , 142 A.3d 810 (Pa. 2016), Alleyne does not apply to cases pending on collateral review and, as such, Dieu is entitled to no relief. Accordingly, we affirm based on Judge Masland's opinion and instruct the parties to attach a copy of that opinion in the event of further proceedings in this matter.
Order affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 1/20/2017
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