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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JORDAN MICHAEL MOFFETT,
Appellant No. 204 WDA 2015
Appeal from the PCRA Order of January 15, 2015
In the Court of Common Pleas of Erie County
Criminal Division at No(s): CP-25-CR-0001618-2013
BEFORE: SHOGAN, OLSON and WECHT, JJ.
MEMORANDUM BY OLSON, J.: FILED DECEMBER 14, 2015
Appellant, Jordan Michael Moffett, appeals from the order entered on
January 15, 2015, dismissing his first petition pursuant to the Post
Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. Upon review, we
reverse, vacate Appellant’s judgment of sentence, and remand for
resentencing.
We briefly summarize the facts and procedural history of this case as
follows. On November 1, 2013, Appellant pled guilty to robbery pursuant to
18 Pa.C.S.A. § 3701(a)(ii). On December 17, 2013, the trial court imposed
a mandatory term of five to ten years of imprisonment pursuant to 42
Pa.C.S.A. § 9712, based upon the court’s determination at sentencing that
Appellant committed the robbery with a firearm. Because Appellant did not
request reconsideration or file a direct appeal, his judgment of sentence
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became final on January 16, 2013. See Pa.R.Crim.P. 720; Pa.R.A.P. 903
(providing thirty days to file appeal under both rules). On September 12,
2014, Appellant filed a pro se PCRA petition. The PCRA court appointed
counsel who filed an amended PCRA petition, on October 31, 3014, alleging
Appellant’s sentence was illegal. On December 24, 2014, the PCRA court
sent Appellant notice of its intent to dismiss the PCRA petition without a
hearing pursuant to Pa.R.Crim.P. 907, along with an accompanying opinion.
By order entered on January 15, 2015, the PCRA court denied relief. The
PCRA court, in its December 24, 2014 opinion, concluded that the United
States Supreme Court’s decision in Alleyne1 did not apply to Appellant’s
case because he entered a guilty plea and Alleyne does not apply
retroactively in the context of a PCRA petition. This timely appeal followed.
On appeal, Appellant presents the following issue for our review:
[1.] Whether the [trial] court erred in failing to find that
the mandatory minimum sentence imposed in the
instant case constituted an illegal sentence under
Alleyne?
Appellant’s Brief at 2.
Appellant asserts his sentence is illegal under Alleyne because the
trial court imposed his mandatory sentence based upon an unconstitutional
statute. Id. at 4. Appellant’s sentence became final after the decision was
rendered in Alleyne, on June 17, 2013, but before our Court interpreted and
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1
Alleyne v. United States, -- U.S. --, 133 S. Ct. 2151 (2013).
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applied Alleyne in Commonwealth v. Newman, 99 A.3d 86 (Pa. Super.
2014) and Commonwealth v. Valentine, 101 A.3d 801 (Pa. Super. 2014).
Thus, Appellant argues, in effect, that his case does not involve retroactive
application of the rule announced in Alleyne even though he is presently
proceeding on collateral review. Id. Accordingly, Appellant argues that his
sentence is illegal, regardless of whether he pled guilty or was convicted
following trial. Id.
Our scope and standard of review is well-settled:
In PCRA appeals, our scope of review is limited to the
findings of the PCRA court and the evidence on the record of
the PCRA court's hearing, viewed in the light most favorable
to the prevailing party. Because most PCRA appeals involve
questions of fact and law, we employ a mixed standard of
review. We defer to the PCRA court's factual findings and
credibility determinations supported by the record. In
contrast, we review the PCRA court's legal conclusions de
novo.
Commonwealth v. Reyes-Rodriguez, 111 A.3d 775, 779 (Pa. Super.
2015) (internal citations and quotations omitted).
Here, the trial court imposed a five-year mandatory minimum
sentence, pursuant to 42 Pa.C.S.A. § 9712, based upon its finding that
Appellant brandished a firearm during the commission of a robbery. The
PCRA court subsequently denied Appellant’s requested relief under Alleyne
on two grounds. First, the PCRA court determined that Alleyne and its
progeny are “not applicable in the [guilty] plea setting because the
defendant concedes the factual predicates that implicate the mandatory
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minimum sentence.” PCRA Court Opinion, 12/24/2014, at 3. Second, the
PCRA court determined that Appellant was not entitled to retroactive
application of Alleyne. Id.
This Court has held Section 9712 to be unconstitutional, in its entirety,
in light of Alleyne. Commonwealth v. Valentine, 101 A.3d at 812; see
also Commonwealth v. Hopkins, 117 A.3d 247, 262 (Pa. 2015) (holding a
statute is unconstitutional in its entirety when the remaining unoffending
provisions of that statute are incapable of severance). Because Section
9712 is unconstitutional in its entirety, any sentence imposed pursuant to
that section is illegal and must be vacated, as no statutory authority for such
a penalty exists. Commonwealth v. Fennell, 105 A.3d 13, 15-20 (Pa.
Super. 2014) (emphasis added) (explaining “if no statutory authorization
exists for a particular sentence, that sentence is illegal and subject to
correction” and holding a defendant’s stipulation to the fact that resulted in
the imposition of a mandatory minimum sentence did not satisfy the dictates
of Alleyne).
In view of these principles, we reject the PCRA court’s conclusion that
Alleyne “is not applicable in the plea setting because the defendant
concedes the factual predicates that implicate the mandatory minimum
sentence.” PCRA Court Opinion, 12/24/2014, at 3; see Fennell, supra
(because mandatory minimum sentencing statute is unconstitutional in its
entirety, the court rejected stipulations of fact regarding the weight of
narcotics recovered as grounds for distinguishing Alleyne); see also
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Commonwealth v. Vargas, 108 A.3d 858, 877 (Pa. Super. 2014) (en
banc) (same). Any sentence, regardless of the result of a plea or a trial,
imposed pursuant to Section 9712 is illegal in the wake of Alleyne.
We now consider whether Appellant’s challenge to the legality of
sentence under Alleyne, under the specific circumstances presented here,
implicates the policy against retroactive application of that decision. In
Commonwealth v. Newman, 99 A.3d 86, 90 (Pa. Super. 2014) (en banc),
we held that Alleyne does not apply retroactively to all cases, but does
apply to cases that were pending on direct appeal when the United States
Supreme Court announced its decision on June 27, 2013. Id.; see also
Commonwealth v. Cunningham, 81 A.3d 1, 6 (Pa. 2013) (Miller does not
apply retroactively to a case in which defendant's judgment of sentence for
murder became final more than six years prior to Alleyne);
Commonwealth v. Riggle, 2015 WL 4094427, *5-7 (Pa. Super. 2015)
(neither the Pennsylvania Supreme Court nor the United States Supreme
Court has declared that Alleyne should be applied retroactively on collateral
review to cases wherein the judgment of sentence become final prior to
Alleyne); Commonwealth v. Miller, 102 A.3d 988, 995 (Pa. Super. 2014)
(same). We infer from these holdings that collateral relief is available only
where a defendant’s judgment of sentence was not final at the time Alleyne
was decided.
In this case, Appellant pled guilty on November 1, 2013. The trial
court sentenced Appellant on December 17, 2013. Thus, because Alleyne
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became the law on June 27, 2013, before Appellant pled guilty and received
his sentence, we see no impediment to applying Alleyne under the present
circumstances before us.
The PCRA “provides for an action by which persons convicted of crimes
they did not commit and persons serving illegal sentences may obtain
collateral relief.” 42 Pa.C.S.A. § 9542 (emphasis added). A sentence
imposed in violation of Alleyne is illegal and the issue cannot be waived.
Commonwealth v. Wolfe, 106 A.3d 800, 801 (Pa. Super. 2014). “A
challenge to the legality of a sentence ... may be entertained as long as the
reviewing court has jurisdiction.” Id. A challenge to the legality of sentence
is cognizable under the PCRA. Commonwealth v. Jackson, 30 A.3d 516,
521 (Pa. Super. 2011). The PCRA court has jurisdiction to hear PCRA
petitions filed within one year of the date the judgment becomes final. 2 42
Pa.C.S.A. § 9545.
In this case, the PCRA court erred as a matter of law in denying
Appellant relief. Appellant presented a legality of sentence claim in a timely
PCRA petition. Alleyne was controlling at the time Appellant entered his
plea and received his sentence. Thus, we are constrained to reverse the
PCRA court’s order, vacate the judgment of sentence, and remand for a new
sentence in accordance with Alleyne and Valentine.
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2
There is no dispute that Appellant filed a timely PCRA petition.
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Order reversed. Judgment of sentence vacated. Case remanded for
resentencing consistent with this memorandum. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/14/2015
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