J-E01011-16
2016 PA Super 149
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
SEAN JOSEPH CICCONE,
Appellant No. 3114 EDA 2014
Appeal from the PCRA Order Entered October 7, 2014
In the Court of Common Pleas of Bucks County
Criminal Division at No(s): CP-09-CR-0003231-2011
BEFORE: FORD ELLIOTT, P.J.E., BENDER, P.J.E., BOWES, SHOGAN,
LAZARUS, MUNDY, OLSON, OTT, AND STABILE, JJ.
OPINION BY BENDER, P.J.E.: FILED JULY 12, 2016
Appellant, Sean Ciccone, appeals from the post-conviction court’s
October 7, 2014 order denying his timely petition filed under the Post
Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. The sole question
before this Court is: whether Appellant is entitled to relief when he raises, in
a timely PCRA petition, a claim that his sentence is illegal pursuant to
Alleyne v. United States, 133 S.Ct. 2151 (2013), and Commonwealth v.
Newman, 99 A.3d 86 (Pa. Super. 2014) (en banc). After careful review, we
conclude that relief is warranted.
On September 2, 2011, Appellant pled guilty to two felony charges
under the Controlled Substance, Drug, Device and Cosmetic Act; specifically,
Appellant pled guilty to two violations of 35 P.S. § 780-113(a)(30) (“Except
as authorized by this act, the manufacture, delivery, or possession with
J-E01011-16
intent to manufacture or deliver, a controlled substance by a person not
registered under this act, or a practitioner not registered or licensed by the
appropriate State board, or knowingly creating, delivering or possessing with
intent to deliver, a counterfeit controlled substance.”). Appellant also pled
guilty to conspiracy to commit these offenses, 18 Pa.C.S. § 903, as well as
to one count of possession of drug paraphernalia, 35 P.S. § 780-113(a)(32).
Appellant’s plea stemmed from his and his co-conspirator’s possession of
more than 50 marijuana plants.1
At Appellant’s plea hearing, the Commonwealth invoked the three-year
mandatory minimum sentence prescribed by 18 Pa.C.S. § 7508(a)(1)(ii).
N.T., 9/9/11, at 2-3. At the time of Appellant’s sentencing, that provision
provided that:
(1) A person who is convicted of violating section 13(a)(14),
(30) or (37) of the act of April 14, 1972 (P.L. 233, No. 64),
known as The Controlled Substance, Drug, Device and Cosmetic
Act,1 where the controlled substance is marijuana shall, upon
conviction, be sentenced to a mandatory minimum term of
imprisonment and a fine as set forth in this subsection:
…
(ii) when the amount of marijuana involved is at least ten
pounds, but less than 50 pounds, or at least 21 live plants
but less than 51 live plants; three years in prison and a
fine of $15,000 or such larger amount as is sufficient to
exhaust the assets utilized in and the proceeds from the
illegal activity; …
1
The collective weight of the plants, discovered in Appellant’s and his co-
conspirator’s home, totaled 13 pounds. N.T., 9/9/11, at 5. Police also
discovered indicia of distribution, including bins for drying and packaging
marijuana, ‘owe’ sheets, and multiple firearms. Id. Additionally, Appellant
admitted that he both grew and sold marijuana. Id.
-2-
J-E01011-16
18 Pa.C.S. § 7508(a)(1)(ii).
Pursuant to Appellant’s negotiated plea agreement, and in compliance
with Section 7508(a)(1)(ii), the trial court sentenced Appellant to 3½-5
years’ (42-60 months’) incarceration, and to a fine of $15,000. N.T.,
9/9/11, at 10-11. Appellant did not file any post-sentence motions or a
direct appeal. Accordingly, his conviction became ‘final’ on October 10,
2011.2
On April 9, 2012, Appellant filed a timely, pro se PCRA petition,
alleging, inter alia, the ineffectiveness of his trial counsel. The PCRA court
appointed counsel to represent him, and evidentiary hearings were
conducted in April and June of 2014. However, none of those matters are
before us today. As is pertinent to the instant appeal, Appellant
subsequently filed a counseled, amended PCRA petition on June 18, 2014,
alleging that his sentence is unconstitutional and, therefore, illegal pursuant
to Alleyne. See Amended Motion for Post Conviction Collateral Relief,
6/18/14, at 1. The trial court denied Appellant’s PCRA petition on October 7,
2014. Appellant filed a timely appeal, and a timely, court-order Pa.R.A.P.
1925(b) statement. The PCRA court issued its Rule 1925(a) opinion on
December 23, 2014.
2
“[A] judgment becomes final at the conclusion of direct review, including
discretionary review in the Supreme Court of the United States and the
Supreme Court of Pennsylvania, or at the expiration of time for seeking the
review.” 42 Pa.C.S. § 9545(b)(3) (emphasis added). “If the defendant does
not file a timely post-sentence motion, the defendant's notice of appeal shall
be filed within 30 days of imposition of sentence….” Pa.R.Crim.P. 720(a)(3).
-3-
J-E01011-16
Appellant filed a timely brief on April 6, 2015, and the Commonwealth
filed its brief on May 6, 2015. On October, 26, 2015, this Court issued an
order, sua sponte, certifying this case for en banc review, along with several
other cases raising identical questions. Order, 10/26/15, at 1. The order
directed Appellant and the Commonwealth to address the following question:
“Whether the PCRA petitioner is entitled to relief when he raises, in a timely
PCRA petition, a claim that his sentence is illegal pursuant to Alleyne v.
United States, 133 S.Ct. 2151 (2013), and Commonwealth v. Newman,
99 A.3d 86 (Pa. Super. 2014) (en banc)?” Id. Pursuant to that Order,
Appellant filed a supplemental brief on November 16, 2015, and the
Commonwealth filed a substituted brief on December 7, 2015. Oral
argument was conducted on this issue on February 23, 2016.3 This matter
constitutes Appellant’s only claim for relief.
***
We now endeavor to answer the question certified for en banc review
in this case. We begin with the applicable standard and scope of review.
We review an order dismissing a petition under the PCRA in the
light most favorable to the prevailing party at the PCRA level.
Commonwealth v. Burkett, 5 A.3d 1260, 1267 (Pa. Super.
2010). This review is limited to the findings of the PCRA court
and the evidence of record. Id. We will not disturb a PCRA
court's ruling if it is supported by evidence of record and is free
of legal error. Id. This Court may affirm a PCRA court's decision
3
Appellant’s counsel did not appear at oral argument, as he submitted this
matter for consideration on the briefs. However, oral argument was
presented by counsel for other similarly situated appellants and the
respective District Attorneys.
-4-
J-E01011-16
on any grounds if the record supports it. Id. Further, we grant
great deference to the factual findings of the PCRA court and will
not disturb those findings unless they have no support in the
record. Commonwealth v. Carter, 21 A.3d 680, 682 (Pa.
Super. 2011). However, we afford no such deference to its legal
conclusions. Commonwealth v. Paddy, 609 Pa. 272, 15 A.3d
431, 442 (2011); Commonwealth v. Reaves, 592 Pa. 134,
923 A.2d 1119, 1124 (2007). Where the petitioner raises
questions of law, our standard of review is de novo and our
scope of review plenary. Commonwealth v. Colavita, 606 Pa.
1, 993 A.2d 874, 886 (2010).
Commonwealth v. Ford, 44 A.3d 1190, 1194 (Pa. Super. 2012).
Instantly, our decision concerns only questions of law. Thus, our “standard
of review is de novo and our scope of review plenary.” Id.
In order to properly assess the scope and nature of the issue at hand,
a summary of the important developments in Alleyne-related Pennsylvania
case law is in order. In Alleyne, the Supreme Court of the United States
held that facts that give rise to mandatory minimum sentences (aside from
prior convictions) must be proven to a jury beyond a reasonable doubt.
Alleyne was itself an extension of the principle announced in Apprendi v.
New Jersey, 530 U.S. 466 (2000) (holding that any fact that increases
penalty for crime beyond prescribed statutory maximum, other than the fact
of a prior conviction, must be submitted to jury, and proven beyond
reasonable doubt). However, prior to Alleyne, Pennsylvania courts
routinely upheld Apprendi-based challenges to mandatory minimum
sentences in Pennsylvania. See e.g. Commonwealth v. Nguyen, 834
A.2d 1205, 1208 (Pa. Super. 2003) (“Appellate case law has routinely held
that the sentencing trigger is not an element of the offense but rather only a
-5-
J-E01011-16
factor that does not improperly deny the jury the right to make relevant
factual determinations.”).
Alleyne has proved to be cataclysmic to Pennsylvania’s common
statutory scheme for imposing mandatory minimum sentences. As this
Court first acknowledged in Commonwealth v. Watley, 81 A.3d 108 (Pa.
Super. 2013), “[t]he Alleyne decision … renders those Pennsylvania
mandatory minimum sentencing statutes that do not pertain to prior
convictions constitutionally infirm insofar as they permit a judge to
automatically increase a defendant's sentence based on a preponderance of
the evidence standard.” Id. at 117. Importantly, the Watley Court also
recognized that Alleyne “necessarily implicated Pennsylvania's legality of
sentencing construct” and, as such, Alleyne-based claims “are not waivable
and may be raised sua sponte by this Court.” Id. at 117-18.
In Watley, the defendant was subjected to a mandatory minimum
sentence based on his possession of a firearm during the commission of a
violation of 35 P.S. § 780-113(a)(30) (pertaining to “the manufacture,
delivery, or possession with intent to manufacture or deliver, a controlled
substance”). See 42 Pa.C.S. § 9712.1 (held unconstitutional in Newman).
The Watley Court conducted, sua sponte, an ad hoc Alleyne analysis,
ultimately concluding that the appellant’s sentence did not violate Alleyne
because “the jury's finding on the two firearms charges … directly aligned
with the [mandatory sentencing provision’s] requirement … that the
defendant possess a gun[.]” Watley, 81 A.3d at 120-21.
-6-
J-E01011-16
Subsequently, in Commonwealth v. Thompson, 93 A.3d 478 (Pa.
Super. 2014), this Court vacated, sua sponte, a mandatory minimum
sentence imposed pursuant to 18 Pa.C.S. § 7508 (Drug trafficking
sentencing and penalties) as unconstitutional under Alleyne. Contrary to
the result in Watley, the Thompson court found it was “apparent from the
record that the facts that permitted application of that mandatory sentence
were not determined by the fact-finder nor proven beyond a reasonable
doubt.” Thompson, 93 A.3d at 493. Implicit in the Thompson decision
was the suggestion that application of Section 7508 would run afoul of
Alleyne in all but the rarest of circumstances, such as in Watley, where the
facts triggering the mandatory sentence at issue had been proven vis a vis
the elements of a simultaneous conviction.
Case-by-case analyses of Alleyne issues, as conducted in Watley and
Thompson, were short-lived. In Newman, an en banc panel of this Court
held that Alleyne rendered the mandatory sentencing statute at issue in
Watley unconstitutional in its entirety. Notably, the Newman Court
considered, but ultimately rejected, the Commonwealth’s argument that the
Alleyne-offending provision4 (hereinafter “proof at sentencing provision”) of
Section 9712.1 was severable from the statute as a whole.
4
Subsection (c) of Section 9712.1 read as follows:
(c) Proof at sentencing.--Provisions of this section shall not be
an element of the crime, and notice thereof to the defendant
shall not be required prior to conviction, but reasonable notice of
the Commonwealth's intention to proceed under this section
shall be provided after conviction and before sentencing. The
-7-
J-E01011-16
The proof at sentencing provision at issue in Newman proved to be
the Achilles heel of nearly all of Pennsylvania’s mandatory minimum
sentencing statutes. Mandatory minimum sentences set forth in 42 Pa.C.S.
§§ 9712 and 9713 were held unconstitutional in Commonwealth v.
Valentine, 101 A.3d 801 (Pa. Super. 2014) (applying Newman and
Alleyne).5 In Commonwealth v. Fennell, 105 A.3d 13 (Pa. Super. 2014),
applicability of this section shall be determined at sentencing.
The court shall consider any evidence presented at trial and shall
afford the Commonwealth and the defendant an opportunity to
present any necessary additional evidence and shall determine,
by a preponderance of the evidence, if this section is applicable.
42 Pa.C.S. § 9712.1(c). As recognized by the Watley Court, this provision
clearly violated Alleyne in several respects.
5
Interestingly, in Valentine, the trial court had sought to circumvent the
Alleyne-violating proof at sentencing provision set forth in those statutes by
placing the mandatory sentence triggering facts on the verdict slip, and
instructing the jury “to determine beyond a reasonable doubt whether” those
facts had been proven by the Commonwealth. Valentine, 101 A.3d at 811.
The Valentine Court rejected this approach, reasoning:
By asking the jury to determine whether the factual
prerequisites set forth in § 9712(a) and § 9713(a) had been
met, the trial court effectively determined that the
unconstitutional provisions of § 9712(c) and § 9713(c) were
severable. Our decision in Newman[,] however[,] holds that
the unconstitutional provisions of § 9712(c) and § 9713(c) are
not severable but “essentially and inseparably connected” and
that the statutes are therefore unconstitutional as a whole. …
Moreover, Newman makes clear that “it is manifestly the
province of the General Assembly to determine what new
procedures must be created in order to impose mandatory
minimum sentences in Pennsylvania following Alleyne.”
Newman[, 99 A.3d] at 102. Therefore, the trial court lacked
the authority to allow the jury to determine the factual
predicates of §§ 9712 and 9713. [Id.] at 102–03 (recognizing
-8-
J-E01011-16
appeal denied, 121 A.3d 494 (Pa. 2015), we granted relief based on Section
7508’s unconstitutionality, despite the fact that the defendant had stipulated
to the facts which triggered the mandatory minimum sentence. The Fennell
Court saw
no meaningful difference, for the purposes of Newman and
Valentine[,] between submitting the element to the jury and
accepting a stipulation from a defendant. They both have the
purpose of finding a method to impose a mandatory minimum
sentence outside the statutory framework, but consistent with
Alleyne. However, both Newman and Valentine unequivocally
state that creating a new procedure in an effort to impose a
mandatory minimum sentence is solely within the province of the
legislature.
Fennell, 105 A.3d at 20. Thus, Newman and Valentine not only stand for
the proposition that Pennsylvania’s typical mandatory minimum sentencing
statutes are unconstitutional in light of Alleyne, but they reject, as violative
of separation of powers principles, any attempts to impose those mandatory
sentences by means that conceptually adhere to the dictates of Alleyne, but
which circumvent the unconstitutional statutory schemes that codify those
penalties. This theory also served to render unconstitutional several other
mandatory minimum sentences. See Commonwealth v. Bizzel, 107 A.3d
102, 103 (Pa. Super. 2014), appeal denied, 126 A.3d 1281 (Pa. 2015)
(holding 18 Pa.C.S. § 6317 (Drug-free school zones) unconstitutional in light
that several trial courts of this Commonwealth have found
Section 9712.1 as a whole to be no longer workable without
legislative guidance).
Valentine, 101 A.3d at 812.
-9-
J-E01011-16
of Newman and Valentine); Commonwealth v. Wolfe, 106 A.3d 800
(Pa. Super. 2014), appeal granted, 121 A.3d 433 (Pa. 2015) (holding 42
Pa.C.S. § 9718 (Sentences for offenses against infant persons)
unconstitutional in light of Newman and Valentine); but see
Commonwealth v. Reid, 117 A.3d 777, 784 (Pa. Super. 2015) (rejecting
an Alleyne-based challenge to 42 Pa.C.S. § 9714(a), which also contains a
version of the problematic proof at sentencing provision, because “Alleyne
did not overturn prior precedent that prior convictions are sentencing factors
and not elements of offenses”).
Our Supreme Court ultimately endorsed the Newman/Valentine
approach in Commonwealth v. Hopkins, 117 A.3d 247 (Pa. 2015). In
considering the constitutionality of 18 Pa.C.S. § 6317, and in particular the
argument that the Alleyne-offending proof of sentencing provision was
severable from that statute, our Supreme Court stated:
[W]e hold … that numerous provisions of Section 6317 are
constitutionally infirm under Alleyne. Moreover, the remaining
provisions of Section 6317, standing alone, are incomplete and
are incapable of being vindicated in accord with the intent of the
General Assembly. 1 Pa.C.S. § 1925. Because of the significant
provisions found to violate the Constitution, which clearly
express the intent of the legislature that Section 6317 is a
mandatory minimum sentencing statute, and not a substantive
offense, we find the remaining unoffending provisions of Section
6317 are incapable of being severed, and we will not judicially
usurp the legislative function and rewrite Section 6317 or create
a substantive offense which the General Assembly clearly did not
desire. Rather, we leave it to our sister branch for an
appropriate statutory response to the United States Supreme
Court's decision in Alleyne.
Hopkins, 117 A.3d at 262. No such response has yet arrived.
- 10 -
J-E01011-16
The separation of powers theory was not the only basis on which this
Court has rejected attempts to circumvent the statutory scheme by reliance
on defense stipulations to facts which trigger mandatory minimum
sentences. Another basis to reject the stipulation argument arose in
Commonwealth v. Vargas, 108 A.3d 858 (Pa. Super. 2014) (en banc),
appeal denied, 121 A.3d 496 (Pa. 2015), a case which involved a
defendant’s stipulation to a weight of heroin that triggered a mandatory
minimum sentence under Section 7508. The Majority opinion in Vargas
dutifully applied the rationale of the Fennell decision, supra, to reject the
theory that the defendant’s pre-Alleyne stipulation could ever satisfy
Alleyne by circumventing the unconstitutional aspects of Section 7508’s
proof at sentencing provision. However, in Part II of P.J.E. Bender’s
concurring and dissenting opinion in Vargas, which was joined by a majority
of the Vargas Court en banc panel judges, this Court also ruled it was “a
grave injustice” to consider a pre-Alleyne stipulation as having
demonstrated proof beyond a reasonable doubt of such facts when “such
pre-Alleyne stipulations only had the practical effect of conceding that the
Commonwealth could prove the weight of the drugs by a preponderance of
the evidence at sentencing.” Vargas, 108 A.3d at 882 (P.J.E. Bender
concurring and dissenting).6
6
P.J.E. Bender’s concurring and dissenting opinion was joined outright by
Judges Donahue and Lazarus, and Part II of his opinion was joined by P.J.E.
Ford Elliot in the second footnote of her concurring statement; P.J.E. Ford
Elliot’s concurring statement was joined, in turn, by Judges Panella,
Donahue, and Lazarus. Thus, a majority of this Court agreed with the
- 11 -
J-E01011-16
Notably, Alleyne, and its Pennsylvania progeny, most importantly
Newman, were routinely raised sua sponte by this Court, and/or addressed
despite a defendant’s failure (or inability) to raise the claim in the lower
court, to invalidate sentences under the auspices of Pennsylvania’s legality
of sentencing construct. As we recognized in Watley:
Ordinarily, new rulings pertaining to cases on direct appeal are
entitled to retroactive effect so long as the applicable issue is
preserved. Commonwealth v. Lofton, 57 A.3d 1270, 1276
(Pa. Super. 2012). Appellant did not preserve any challenge to
his mandatory minimum sentence, his jury trial rights, or the
constitutionality of § 9712.1, likely because similar challenges
had been rejected based on prior United States Supreme Court
decisions. The constitutionality of a statute can be waived. See
Commonwealth v. Hartz, 367 Pa.Super. 267, 532 A.2d 1139,
1142–1143 (1987) (en banc) (Cirillo, P.J. concurring) (collecting
cases); see also Commonwealth v. Bavusa, 574 Pa. 620, 832
A.2d 1042 (2003); Commonwealth v. Wallace, 368 Pa.Super.
255, 533 A.2d 1051 (1987).
Nonetheless, while we are cognizant that Alleyne was a Sixth
Amendment jury trial rights case, it necessarily implicated
Pennsylvania's legality of sentencing construct since it held that
it is improper to sentence a person to a mandatory minimum
sentence absent a jury's finding of facts that support the
mandatory sentence. Application of a mandatory minimum
sentence gives rise to illegal sentence concerns, even where the
sentence is within the statutory limits. See Commonwealth v.
Foster, 960 A.2d 160 (Pa. Super. 2008), affirmed, 609 Pa. 502,
17 A.3d 332 (2011) (OAJC); [Commonwealth v.] Hopkins,
[67 A.3d 817,] 821 [(Pa. Super. 2013)]. Legality of sentence
questions are not waivable and may be raised sua sponte by this
reasoning set forth in Part II of P.J.E. Bender’s concurring and dissenting
opinion as presenting additional grounds upon which to reject the argument
that pre-Alleyne stipulations to mandatory sentencing triggering facts could
satisfy Alleyne, independent of the unconstitutionality of Section 7508 and
the derivative separation of powers issue articulated in Newman,
Valentine, and Hopkins.
- 12 -
J-E01011-16
Court. See Hopkins, supra; Commonwealth v. Infante, 63
A.3d 358 (Pa. Super. 2013).
Watley, 81 A.3d at 117-18 (footnotes omitted).
Needless to say, Alleyne has wreaked havoc on mandatory minimum
sentencing in Pennsylvania, given that the unconstitutional proof at
sentencing provision common to most mandatory sentencing statutes is
neither severable nor subject to circumvention. See Newman; Valentine;
Vargas. Today, we confront yet another wave of claims that arise in
Alleyne’s wake, of which the current case is fairly representative. Appellant
was sentenced to a mandatory minimum sentence pursuant to a statute
rendered unconstitutional in light of Alleyne, 18 Pa.C.S. § 7508. However,
Alleyne was not decided until after Appellant filed his timely PCRA petition
and, as such, Appellant’s conviction had become ‘final’ by the time Alleyne
was issued. See footnote 2, supra. Relatedly, Section 7508 was not
deemed unconstitutional until Fennell. The question, therefore, remains: is
Appellant, and those similarly situated, entitled to have his illegal sentence
vacated via a timely PCRA petition, despite the finality of his conviction?
Recently, in Commonwealth v. Riggle, 119 A.3d 1058 (Pa. Super.
2015), a panel of this Court decided that such petitioners are not entitled to
relief. In that case, the appellant was sentenced to a mandatory minimum
sentence under 42 Pa.C.S. § 9718. After an unsuccessful direct appeal, the
appellant filed a timely PCRA petition on December 18, 2012, six months’
prior to the decision in Alleyne, raising multiple ineffective assistance of
counsel claims. PCRA counsel was appointed but ultimately filed a petition
- 13 -
J-E01011-16
to withdraw and a no-merit letter. Subsequently, “[t]he PCRA court found
that none of [the a]ppellant's issues had merit, allowed counsel to withdraw,
and sent notice of its intent to dismiss the PCRA petition without a hearing.
In response to the notice, [the a]ppellant claimed that his sentence was
illegal under Alleyne[].” Riggle, 119 A.3d at 1062. The appellant renewed
that claim, inter alia, in his subsequent appeal from the denial of his PCRA
petition.
The Riggle Court acknowledged that the appellant’s sentence was
illegal under Alleyne, but held that he wasn’t entitled to retroactive
application of that decision, or Newman, on collateral review. In reaching
that conclusion, the Riggle Court applied the retroactivity analysis set forth
in Teague v. Lane, 489 U.S. 288 (1989) (plurality), which our own
Supreme Court has utilized in considering the retroactive effect of new
United States Supreme Court cases in collateral proceedings. See e.g.
Commonwealth v. Blystone, 725 A.2d 1197, 1203 (Pa. 1999) (considering
the retroactive effect of Morgan v. Illinois, 504 U.S. 719 (1992) (holding
that during voir dire for a capital offense, a state trial court may not refuse
inquiry into whether a potential juror would automatically impose the death
penalty)). “Under the Teague framework, an old rule applies both on direct
and collateral review, but a new rule is generally applicable only to cases
that are still on direct review. A new rule applies retroactively in a [federal]
collateral proceeding only if (1) the rule is substantive or (2) the rule is a
‘watershed rule of criminal procedure’ implicating the fundamental fairness
- 14 -
J-E01011-16
and accuracy of the criminal proceeding.” Whorton v. Bockting, 549 U.S.
406, 416 (2007) (internal citations omitted).
Using the Teague framework, the Riggle Court held:
[T]he Alleyne ruling does not prohibit punishment for a class of
offenders nor does it decriminalize conduct. Rather, Alleyne
procedurally mandates the inclusion of facts in an indictment or
information, which will increase a mandatory minimum sentence,
and a determination by a factfinder of those facts beyond a
reasonable doubt. Alleyne, therefore, is not substantive. Nor
does Alleyne constitute a watershed procedural rule.
Riggle, 119 A.3d at 1067.
The Riggle Court appears to have narrowly considered Alleyne under
Teague without due consideration of the unique and profound impact
Alleyne has had in Pennsylvania. As documented above, Pennsylvania’s
common mandatory minimum sentencing scheme has been eviscerated by
Alleyne, particularly in light of the Newman line of decisions. Thus, even if
Alleyne is not a new substantive rule as the Riggle Court concluded, it is
not clear from the Riggle Court’s analysis why Alleyne, in light of Newman
and its progeny, is not, or has not resulted in, a watershed procedural
change in Pennsylvania.7
7
The Riggle Court’s limited “watershed procedural rule” analysis contains
some obvious defects resulting from its framing of the issue without
consideration of that case’s distinctive effects on Pennsylvania law. In
rejecting Alleyne as constituting a watershed procedural rule, the Riggle
Court relied on a pre-Alleyne case, Schriro v. Summerlin, 542 U.S. 348
(2004),
and its discussion of Ring v. Arizona, 536 U.S. 584, 122 S.Ct.
2428, 153 L.Ed.2d 556 (2002)…. Preliminarily, Ring involved a
successful Apprendi challenge to a death penalty statute.
Alleyne, it should be remembered, relied on the Apprendi
- 15 -
J-E01011-16
Nevertheless, whether the Riggle Court’s retroactivity analysis under
Teague is correct is not dispositive of our decision in this case. There is an
rationale. The High Court, in considering whether Ring applied
retroactively, ruled that whether a judge or jury determined the
facts essential to the increased punishment beyond a reasonable
doubt was not material to the fundamental fairness or accuracy
of capital sentencing. See Schriro, supra. Therefore, the
distinction between whether a judge or jury determines the facts
at issue does not result in the procedure announced in Alleyne
being a watershed rule. Although submission to a jury of certain
facts may lead to more acquittals of the now “aggravated crime,”
it does not undermine the underlying conviction or sentence of
the “lesser crime.” This is because, in Pennsylvania, absent the
jury finding the applicable facts, the defendant could receive the
identical sentence for the “lesser crime.” Hence, the
fundamental fairness of the trial or sentencing is not seriously
undermined, and Alleyne is not entitled to retroactive effect in
this PCRA setting.
Riggle, 119 A.3d at 1067. This analysis ignores issues related to the
consensus reached by this Court in Part II of P.J.E. Bender’s concurring and
dissenting opinion in Vargas, discussed supra. See Footnote 6. Under the
pre-Alleyne framework, defendants may have conceded or stipulated to
mandatory minimum triggering facts because, at that time, such facts were
subject only to a preponderance of the evidence standard, a relatively easy
burden for the Commonwealth to overcome when compared to the beyond a
reasonable doubt standard. The Riggle Court states that this does not
“seriously undermine[]” the fairness of pre-Alleyne sentencing proceedings,
a carefully measured statement that exposes a tacit admission that at least
some degree of unfairness is evident. Riggle, 119 A.3d at 1067 (emphasis
added). Moreover, to say that a defendant “could” receive an identical
sentence for a lesser crime also disregards the practical reality that, even in
the absence a mandatory sentencing scheme, judges could have reasonably
exercised their discretion to use the same mandatory triggering facts to
justify more severe sentences. Clearly, the fundamental fairness of pre-
Alleyne sentencing proceedings in Pennsylvania are implicated by Alleyne,
because Pennsylvania’s now-unconstitutional approach to mandatory
minimum sentences had previously dictated not just sentencing procedures,
but also practical elements of criminal trial practice and strategy.
- 16 -
J-E01011-16
applicable state-based remedy to Appellant’s illegal sentence that does not
require a finding of retroactivity under Teague. It must be acknowledged
that
the Teague rule of nonretroactivity was fashioned to achieve the
goals of federal habeas while minimizing federal intrusion into
state criminal proceedings. It was intended to limit the authority
of federal courts to overturn state convictions—not to limit a
state court's authority to grant relief for violations of new rules
of constitutional law when reviewing its own State's convictions.
Danforth v. Minnesota, 552 U.S. 264, 280-81 (2008) (emphasis added).
Thus, Teague dictates whether a decision must be applied retroactively as a
federal constitutional matter. It does not purport to be the last word on
whether other remedies exist under Pennsylvania law for the correction of
illegal sentences. Indeed, as Danforth suggests, when Teague does not
demand retroactive application of new constitutional rules, Pennsylvania is
still free to provide a remedy above and beyond what is provided by federal
constitutional jurisprudence. And it does.
A Pennsylvania state court’s authority to grant relief on collateral
review is dictated by the PCRA statute. See 42 Pa.C.S. § 9542 (“The action
established in this subchapter shall be the sole means of obtaining collateral
relief and encompasses all other common law and statutory remedies for the
same purpose that exist when this subchapter takes effect ….”). Moreover,
the PCRA statute expressly states that it “provides for an action by which
persons convicted of crimes they did not commit and persons serving illegal
sentences may obtain collateral relief.” Id. (emphasis added).
- 17 -
J-E01011-16
Notably, Section 9542 does not delineate between sentences which
were illegal when issued and sentences which became illegal at a later time.
Indeed, the use of the term “serving” suggests that no such distinction was
intended. This is not to say that the legislature did not contemplate
retroactivity concerns; certainly, the legislature contemplated the retroactive
effect of newly recognized constitutional rights when setting forth the criteria
for consideration of untimely PCRA petitions. See 42 Pa.C.S. §
9545(b)(1)(iii) (permitting consideration of an untimely PCRA petition where
“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”). Indeed, it is precisely because the PCRA statute
specifically addresses retroactivity concerns with regard to untimely PCRA
petitions that its failure to address the matter with regard to timely PCRA
petitions strongly suggests that the legislature was open to providing a
remedy in situations such as the one before this Court today.
Here, Appellant’s sentence was the result of the application of an
unconstitutional statute. See Fennell, supra. It is axiomatic that “[i]f no
statutory authorization exists for a particular sentence, that sentence is
illegal and subject to correction.” Commonwealth v. Leverette, 911 A.2d
998, 1001 (Pa. Super. 2006). Furthermore, “an unconstitutional statute is
ineffective for any purpose, … ‘[i]t is as if it were never enacted.’” Glen-
Gery Corp. v. Zoning Hearing Bd. of Dover Twp., 907 A.2d 1033, 1043
- 18 -
J-E01011-16
(Pa. 2006) (internal citations omitted). Moreover, our Supreme Court has
stated that “[t]rial courts never relinquish their jurisdiction to correct an
illegal sentence.” Commonwealth v. Vasquez, 744 A.2d 1280, 1284 (Pa.
2000) (emphasis added).
There is no doubt that the mandatory minimum sentence statute in
question, 18 Pa.C.S. § 7508, was unconstitutional when it was applied to
Appellant. See Glen-Gery Corp., 907 A.2d at 1037-39 (discussing the ab
initio doctrine and its origins in Marbury v. Madison, 5 U.S. 137 (1803)).
Alleyne did not serve to amend the United States Constitution. Alleyne
merely recognized what had been previously unrecognized, or which had
been previously overlooked or misapprehended: that the Sixth Amendment
of the United States Constitution provides a defendant with the right to have
any facts that increase the mandatory minimum sentence to which he or she
is exposed be determined by a jury beyond a reasonable doubt. Thus,
Section 7508, through its proof at sentencing provision, routinely caused
Pennsylvania Courts to violate defendants’ Sixth Amendment rights until its
unconstitutionality was finally recognized.
Nevertheless, whether illegal when issued, or rendered illegal as a
result of intervening authorities, it should be undisputed that Appellant is
currently “serving” an illegal sentence. Pennsylvania case law emphatically
supports the proposition that illegal sentences must be corrected by
Pennsylvania Courts when jurisdiction is not in doubt, and the PCRA statute
explicitly states that it exists to provide a remedy for illegal sentences,
- 19 -
J-E01011-16
without any retroactivity qualifications in the context of timely PCRA
petitions.
The Commonwealth argues that Commonwealth v. Cunningham, 81
A.3d 1 (Pa. 2013), prohibits relief in this matter.8 We disagree. In
Cunningham, our Supreme Court concluded, erroneously, that the ‘new’
constitutional rule announced in Miller v. Alabama, 132 S.Ct. 2455 (2012)
(holding that mandatory life imprisonment without parole for those under
the age of 18 at the time of their crimes violates the Eighth Amendment),
was a new procedural rule, not a new substantive constitutional rule entitled
to retroactive effect under Teague. Not only has the holding in
Cunningham been effectively overruled,9 that case also did not speak
directly to whether the express terms of the PCRA statute permit the
correction of illegal sentences in timely-filed PCRA petitions. Instead, the
Cunningham decision only sought to answer whether retroactive application
of Miller was required under Teague, as the Court expressed in
characterizing the claim under consideration.10 Simply put, the matter
8
The Commonwealth’s Brief misidentifies this case as “Commonwealth v.
Campbell,” Commonwealth’s Brief at 10-11, but otherwise provides
citations to Cunningham.
9
In Montgomery v. Louisiana, 136 S.Ct. 718 (2016), the United States
Supreme Court held that Miller constituted a new substantive constitutional
rule that was entitled to retroactive effect under Teague. Thus,
Montgomery effectively overruled the holding in Cunningham.
10
The Cunningham Court stated/characterized the appellant’s claim as
follows:
- 20 -
J-E01011-16
before us was not before the Court in Cunningham and, therefore, that
case cannot be read to prohibit a remedy it never considered.
The statute under which Appellant was sentenced has been held to be
unconstitutional in its entirety; thus, Appellant is currently serving an illegal
sentence. Because Appellant filed a timely PCRA petition, this Court has
jurisdiction to correct that illegal sentence, as did the PCRA court below.
Accordingly, we hold that when an unconstitutional mandatory minimum
sentencing statute results in an illegal sentence, that illegal sentence can be
corrected via a timely PCRA petition, irrespective of whether retroactive
application of the underlying constitutional ruling is required under the
It is [the a]ppellant's position that the holding in Miller applies
retroactively to prisoners, such as [a]ppellant, serving
mandatory life-without-parole sentences for crimes committed
as juveniles, even where they have exhausted their direct appeal
rights and are proceeding under the Post Conviction Relief Act,
42 Pa.C.S. §§ 9541–9546. According to [the a]ppellant, the
United States Supreme Court unambiguously sanctioned
retroactive application in Miller, since it reversed the order of a
state appellate court affirming the dismissal of a post-conviction
petition in the Jackson case. See Miller, ––– U.S. at ––––,
132 S.Ct. at 2475. In this respect, [the a]ppellant invokes the
admonishment that, “once a new rule is applied to the defendant
in the case announcing the rule, evenhanded justice requires
that it be applied retroactively to all who are similarly situated.”
Teague[.]
Cunningham, 81 A.3d at 5. Clearly, the issue before the court in
Cunningham was whether federal retroactivity principles, as delineated in
Teague, required retroactive application of Miller, not whether independent
state grounds permit the correction of illegal sentences pursuant
Pennsylvania’s illegal sentencing construct and the statutory authority of the
PCRA.
- 21 -
J-E01011-16
Teague framework.11 Thus, we reverse the PCRA court’s denial of
Appellant’s PCRA petition and remand for resentencing. To the extent that
Riggle can be read to prohibit this specific form of relief, it is hereby
overruled.
Order reversed. Case remanded for resentencing. Jurisdiction
relinquished.
President Judge Emeritus Ford Elliott and Judges Shogan, Lazarus and
Ott join this opinion.
Judge Mundy files a concurring opinion in which Judge Lazarus joins.
Judge Bowes files a dissenting opinion in which Judges Olson and
Stabile join.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/12/2016
11
We emphasize that our decision does not imply that retroactivity concerns
are immaterial to issues raised in timely PCRA petitions. To the contrary,
our decision is limited exclusively to illegal sentencing claims, as they fall
explicitly within the scope of the PCRA statute with regard to timely-filed
PCRA petitions, and because of our coexisting case law permitting the
correction of illegal sentences at any time by a court that possesses
jurisdiction to do so. The Teague analysis remains the primary framework
for determining whether new constitutional decisions, which do not
specifically implicate the legality of a sentence, apply retroactively on
collateral review.
- 22 -