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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
DEVIN NATHANIEL BYES-SANDERS :
:
Appellant :
: No. 1593 WDA 2015
Appeal from the PCRA Order September 14, 2015
in the Court of Common Pleas of Erie County Criminal Division
at No(s): CP-25-CR-0002258-2012
BEFORE: BENDER, P.J.E., PANELLA, and FITZGERALD,* JJ.
MEMORANDUM BY FITZGERALD, J.: FILED MAY 11, 2016
Appellant, Devin Nathaniel Byes-Sanders, appeals pro se from the
order of the Erie County Court of Common Pleas denying his pro se “Petition
to Vacate Illegal Sentence” and his counseled “Supplement to Motion for
Post-Conviction Collateral Relief.” Appellant challenges the constitutionality
of his sentence pursuant to Alleyne v. United States, 133 S. Ct. 2151
(2013). We conclude Appellant’s pro se motion constitutes a first Post
Conviction Relief Act1 (“PCRA”) petition, reverse the order dismissing the
petition, vacate Appellant’s judgment of sentence, and remand for
resentencing.
*
Former Justice specially assigned to the Superior Court.
1
42 Pa.C.S. §§ 9541-9546.
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This Court previously set forth the factual circumstances underlying
Appellant’s convictions, after a non-jury trial, for possession of a controlled
substance,2 possession with intent to deliver,3 and possession of drug
paraphernalia.4 See Commonwealth v. Bynes-Sanders, 1544 WDA 2013
(Pa. Super. Aug. 21, 2014) (unpublished memorandum). For the present
purposes, it suffices to note that the trial court, on August 29, 2013,
sentenced Appellant to a mandatory minimum sentence of forty-eight
months to ninety-six months’ imprisonment pursuant to 18 Pa.C.S. §
7508(a)(3)(iii) (“Drug trafficking sentencing and penalties”).
Appellant filed a direct appeal and this Court affirmed his judgment of
sentence on August 21, 2014. Appellant did not petition for allowance of
appeal and therefore his judgment of sentence became final on September
20, 2014. On May 8, 2015 Appellant filed the instant pro se “Petition to
Vacate an Illegal Sentence” wherein he argues that his mandatory minimum
sentence is illegal under Alleyne, which was decided June 17, 2013, prior to
his sentencing. The PCRA court properly treated Appellant’s petition as a
2
35 P.S. § 780-113(a)(16).
3
35 P.S. § 780-113(a)(30).
4
35 P.S. § 780-113(a)(32).
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PCRA petition5 and appointed William R. Hathaway, Esquire as PCRA counsel.
Subsequently, on June 10, 2015, Appellant filed the instant, counseled
supplement to his PCRA petition, which reiterated the claims initially set
forth in his pro se filing.
On August 11, 2015, the PCRA court issued a notice of intent to
dismiss Appellant’s PCRA petition pursuant to Pa.R.Crim.P. 907, which found
Appellant’s Alleyne claim to be waived for failure to raise it prior to
collateral review and even if not waived, such claim would fail because
Alleyne would not be available on collateral review. PCRA Court’s Rule 907
Notice, 8/11/15, at 3. On September 15, 2015, the PCRA court dismissed
Appellant’s PCRA petition. Appellant filed a timely notice of appeal and
court-ordered Pa.R.A.P. 1925(b) statement. The PCRA court issued a
responsive Rule 1925(a) opinion incorporating the reasoning set forth in the
court’s Rule 907 Notice.
On appeal, Appellant raises the following single issue for our review.
Whether the lower 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.
Preliminarily, we note:
5
A motion filed after a judgment of sentence is final and that challenges the
legality of sentence must be construed as a PCRA petition. Commonwealth
v. Taylor, 65 A.3d 462, 466 (Pa. Super. 2013).
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Our standard of review of an order denying PCRA relief is
whether the record supports the PCRA court’s
determination and whether the PCRA court’s decision is
free of legal error. The PCRA court’s findings will not be
disturbed unless there is no support for the finding in the
certified record.
Commonwealth v. Lawson, 90 A.3d 1, 4 (Pa. Super. 2014) (citations
omitted).
Further, our Court has held that an Alleyne claim presents “a non-
waivable challenge to the legality of sentence [and] such a claim may be
raised on direct appeal, or in a timely filed PCRA petition.” Commonwealth
v. Ruiz, 131 A.3d 54, 60 (Pa. Super. 2015). Indeed, pursuant to Ruiz, an
Alleyne claim may be raised in a timely PCRA petition when a petitioner’s
judgment of sentence was not yet final when Alleyne was decided. Id. at
59-60.
“In Alleyne, the United States Supreme Court held any fact that, by
law, increases the penalty for a crime is an ‘element’ that must be submitted
to the jury and found beyond a reasonable doubt.” Ruiz, 131 A.3d at 57
(citation and some punctuation omitted). This Court has specifically held
that the holding in Alleyne renders 18 Pa.C.S. § 7508, in its entirety,
unconstitutional because the statute permits the trial court to make factual
determinations at sentencing under a relaxed preponderance of the evidence
standard. See Commonwealth v. Vargas, 108 A.3d 858, 876-77 (Pa.
Super. 2014) (en banc), appeal denied, 121 A.3d 496 (Pa. 2015).
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In the case sub judice, Alleyne was decided prior to Appellant’s
sentencing. Thus, Appellant’s Alleyne claim remains cognizable under his
instant timely PCRA petition as his judgment of sentence was not yet final
when Alleyne was issued. See Ruiz, 131 A.3d at 60. Therefore, because
this Court has specifically ruled that the statute pursuant to which Appellant
was sentenced, 18 Pa.C.S. § 7508, is unconstitutional under Alleyne, we
conclude that Appellant is entitled to be resentenced. Accordingly, we
reverse the order denying PCRA relief, vacate the judgment of sentence, and
remand for resentencing.
Order reversed. Judgment of sentence vacated. Case remanded for
proceedings consistent with this memorandum. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/11/2016
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