Com. v. Ciccone, S.

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.

DISSENTING OPINION BY BOWES, J.: FILED JULY 12, 2016

I respectfully disagree with the majority’s conclusion that Appellant’s

sentence is illegal under Alleyne v. United States, 133 S.Ct. 2151 (2013),

and cases applying that decision in Pennsylvania.

Police charged Appellant with three counts of possession with intent to

deliver (“PWID”), conspiracy to commit PWID, and possession of drug

paraphernalia, and Appellant entered a negotiated guilty plea on September

2, 2011. The facts underlying the plea were as follows. Police executed a

search warrant at Appellant’s residence on July 6, 2010. On the upper floors

of the home, police saw a rifle, two shotguns, marijuana, and drug

paraphernalia. In the basement, police found over fifty live marijuana plants

weighing approximately thirteen pounds.
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Prior to sentencing, the Commonwealth notified Appellant that it would

seek a three-year mandatory minimum sentence pursuant to 18 Pa.C.S. §

7508(a)(1)(ii), based on the weight of the marijuana and the number of

plants recovered. In accordance with the negotiated plea, on September 9,

2011, Appellant received a three and one-half to five year term of

imprisonment,1 with eligibility for the Risk Recidivism Reduction Incentive

program.

While Appellant did not file a direct appeal, he filed a timely pro se

PCRA. The PCRA court appointed counsel and held three evidentiary

hearings. Before the final hearing, counsel filed an amended PCRA petition

wherein Appellant averred that his sentence was illegal based on Alleyne.2

The PCRA court denied relief on October 7, 2014, concluding that Alleyne

could not be retroactively applied in this matter since Appellant’s judgment

____________________________________________

1
Pursuant to 42 Pa.C.S. § 9756, a defendant’s minimum sentence is
ordinarily required to be no more than one-half the maximum sentence the
court imposed. This precept, however, did not apply where mandatory
minimum sentences were at issue. Commonwealth v. Bell, 645 A.2d 211
(Pa. 1994); Commonwealth v. Hockenberry, 689 A.2d 283, 289
(Pa.Super. 1997).
2
Although Appellant did waive all but two PCRA claims, which solely
involved plea counsel’s ineffectiveness, at the final PCRA hearing, his
Alleyne challenge cannot be considered waived as it relates to the legality
of Appellant’s sentence. Commonwealth v. Newman, 99 A.3d 86, 90
(Pa.Super. 2014) (en banc) (“challenge to a sentence premised upon
Alleyne . . . implicates the legality of the sentence,” and such a challenge
cannot be waived).

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of sentence became final on October 9, 2011, before the Alleyne decision

was disseminated.

This timely appeal ensued. On appeal, Appellant raises the single

contention: “Did the lower court err in denying Appellant’s Post-Conviction

Relief Act petition, where Appellant challenged the legality of his sentence

pursuant to the decision of the United States Supreme Court in Alleyne v.

United States, 133 S.Ct. 2151 (2013), in a timely filed Post-Conviction

Relief Act petition?” Appellant’s brief at 4.

Before one can reach a reasoned examination of whether Alleyne

applies herein, it is necessary to examine the case upon which it is

premised, Apprendi v. New Jersey, 530 U.S. 466 (2000). Apprendi

involves the Sixth Amendment right to have an impartial jury determine

each element of a crime beyond a reasonable doubt. Apprendi fired bullets

into the home of an African-American family who recently moved into an all-

white enclave. He pled guilty in connection with that crime and other

shootings. When the plea was entered, the prosecutor reserved the right to

invoke a New Jersey hate crime statute while Apprendi retained the ability to

contest its application. Under that provision, the maximum sentence that

Apprendi could receive pursuant to the plea increased if a trial court found,

under a preponderance-of-the-evidence standard, that the defendant

committed a crime to intimidate an individual or group based upon the

victim’s race, color, gender, handicap, religion, sexual orientation, or

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ethnicity. A hearing was held on the applicability of the hate crime statute

to the shooting that involved the African-American family, and the parties

presented countervailing evidence regarding Apprendi’s motivation for the

crime. The trial court concluded that the offense was racially motivated and

sentenced the defendant to an enhanced term of imprisonment by applying

the hate crime law.

The Apprendi Court concluded that Apprendi had a Sixth Amendment

right, applicable to New Jersey by virtue of the due process clause of the

Fourteenth Amendment, to have a jury determine beyond a reasonable

doubt whether the crime was racially motivated. It premised that holding on

the fact that the issue of the motivation for his crime increased the

maximum sentence that Apprendi faced under the hate crime law.

Apprendi’s specific and oft-repeated holding is, “[A]ny fact (other than

prior conviction) that increases the maximum penalty for a crime must be

charged in an indictment, submitted to a jury, and proven beyond a

reasonable doubt.” Id. at 476 (quoting Jones v. United States, 526 U.S.

227, 243, n. 6 (1999)).

It is of key importance in the present case to note that Apprendi’s

holding was, prior to Alleyne, never applicable to a fact that increased a

minimum sentence, including a fact that triggered a mandatory minimum

sentence. The United States Supreme Court’s decision in McMillan v.

Pennsylvania, 477 U.S. 79 (1986), involved Pennsylvania’s mandatory

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minimum sentencing statute 42 Pa.C.S. § 9712, which required imposition of

a mandatory minimum sentence of five years if a defendant committed

certain offenses while visibly possessing a firearm. Under § 9712, after a

defendant was adjudicated guilty of the underlying offense, the sentencing

court would determine by a preponderance of the evidence whether the

defendant visibly possessed a firearm. If the defendant did, then the

mandatory minimum sentence of five years had to be imposed.

The defendants in McMillan maintained that having a sentencing court

decide the visible-possession issue offended their Sixth Amendment right to

a jury trial. Their position was that “visible possession of a firearm” was

actually an element of any of the crimes that invoked § 9712, and thus, had

to be submitted to a jury and proven beyond a reasonable doubt. The

United States Supreme Court rejected that argument. The McMillan Court

upheld the constitutionality of § 9712 because it did not increase the

statutory maximum penalty for any offense committed, failed to create a

separate crime calling for an additional penalty, and was inapplicable until a

defendant was convicted of the particular crime for which he was to be

sentenced.

Apprendi was filed subsequent to McMillan. Thereafter, in Harris v.

United States, 536 U.S. 545 (2002), the nation’s High Court re-visited

McMillan and its viability under Apprendi. The statute at issue in Harris

provided for an increase in the minimum sentence if a sentencing court

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determined that the defendant brandished a firearm during the commission

of the underlying crime. The Harris Court rejected a challenge to the

holding of McMillan based on the Apprendi decision. Under Harris,

mandatory minimum sentences that were imposed within the maximum

ceiling set by a jury verdict did not violate a defendant's Sixth Amendment

right to a jury trial.

Alleyne applied the holding of Apprendi in the mandatory minimum

sentencing context. Alleyne and his accomplices committed an armed

robbery of a store manager who was driving the business’s deposits to a

bank, and he was charged with various federal offenses. An applicable

federal law provided for an increase in the mandatory minimum sentence by

two years if a firearm was brandished during the crime. The jury did not

indicate on its verdict slip that the gun in question was visible, but the

sentencing court applied the enhanced sentence of two years. Alleyne

objected and maintained that raising his mandatory minimum sentence

based on the sentencing court’s finding that he displayed the firearm

violated his Sixth Amendment right to a jury trial. The trial court, applying

Harris, dismissed Alleyne’s complaint. After the federal appeals court

affirmed, the United States Supreme Court reversed and overruled Harris.

The Alleyne Court observed that Harris distinguished between facts

that increased a statutory maximum and those that increased a mandatory

minimum sentence. It concluded that this differentiation was incompatible

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with the rationale of Apprendi since mandatory minimum sentences pertain

to the permissible ranges of penalties that can be imposed upon a conviction

for a crime. The United States Supreme Court reasoned that since

“[m]andatory minimum sentences increase the penalty for a crime,” it

“follows, then, that any fact that increases the mandatory minimum is an

‘element’ that must be submitted to the jury.” Alleyne, supra at 2155. The

Court continued that

Apprendi's definition of ‘elements’ necessarily includes not only
facts that increase the ceiling, but also those that increase the
floor. Both kinds of facts alter the prescribed range of sentences
to which a defendant is exposed and do so in a manner that
aggravates the punishment. . . . Facts that increase the
mandatory minimum sentence are therefore elements and must
be submitted to the jury and found beyond a reasonable doubt.

Id. at 2158. Thus, Alleyne, as did Apprendi, reallocated from the

sentencing court to the jury the task of determining the existence of any fact

that triggers application of a mandatory minimum sentence, and both cases

altered the burden of proof to the beyond-a-reasonable-doubt standard.

Pursuant to Alleyne, a host of Pennsylvania mandatory minimum

statutes, including the one applied herein, have been ruled unconstitutional

in their entirety if the statute in question assigned the task of determining

application of the mandatory minimum to a sentencing court under a

preponderance-of-the-evidence rubric. Commonwealth v. Hopkins, 117

A.3d 247 (Pa. 2015); Commonwealth v. Vargas, 108 A.3d 858 (Pa.Super.

2014) (en banc); Commonwealth v. Newman, 99 A.3d 86 (Pa.Super.

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2014) (en banc); Commonwealth v. Cardwell, 105 A.3d 748 (Pa.Super.

2014); Commonwealth v. Fennell, 105 A.3d 13 (Pa.Super. 2014);

Commonwealth v. Thompson, 93 A.3d 478 (Pa.Super. 2014). All of these

cases striking imposition of a mandatory minimum sentence under a statute

rendered infirm by Alleyne were pending on direct appeal when Alleyne

was disseminated. See Schriro v. Summerlin, 542 U.S. 348, 351 (2004)

(“When a decision of this Court results in a ‘new rule,’ that rule applies to all

criminal cases still pending on direct review.”).

This Court is tasked with deciding whether Alleyne, and,

concomitantly, the cases issued pursuant to that decision, should be applied

retroactively in the post-conviction setting to a sentence that was legally

final before Alleyne was decided. In my view, the retroactivity test that is

applied by the United States Supreme Court and our Supreme Court compels

a negative answer to that inquiry.

I begin with the applicable federal standard. “The normal framework

for determining whether a new rule applies to cases on collateral review

stems from the plurality opinion in Teague v. Lane, 489 U.S. 288, 109

S.Ct. 1060, 103 L.Ed.2d 334 (1989).” Welch v. United States, 136 S. Ct.

1257, 1264 (2016).3 Pursuant to Teague, the general rule is that “new

____________________________________________

3
Welch examined the retroactivity of the holding of Johnson v. United
States, 135 S.Ct. 2551 (2015), wherein the United States Supreme Court
(Footnote Continued Next Page)

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constitutional rules of criminal procedure will not be applicable to those

cases which have become final before the new rules are announced.” Id.

(emphasis added) (quoting Teague, supra at 310). There are “two

categories of decisions that fall outside this general bar[.]” Welch, supra at

1264. First, “new substantive rules generally apply retroactively.” Id.

(emphasis in original) (quoting Schriro, supra at 351). “Second, new

watershed rules of criminal procedure, which are procedural rules implicating

the fundamental fairness and accuracy of the criminal proceeding, will also

have retroactive effect.” Welch, supra at 1264 (citation and quotation

marks omitted).

“A rule is substantive rather than procedural if it alters the
range of conduct or the class of persons that the law punishes.”
Schriro, 542 U.S., at 353, 124 S.Ct. 2519. “This includes
decisions that narrow the scope of a criminal statute by
interpreting its terms, as well as constitutional determinations
_______________________
(Footnote Continued)

struck down a portion of a federal law as unconstitutionally void for
vagueness. Due to Johnson, the substantive reach of the federal act was
changed, and Johnson altered a range of conduct or class of persons that
the statute punished. In Welch, Johnson was characterized as a
substantive rule. Similarly, in Montgomery v. Louisiana, 136 S.Ct. 718
(2016), the Supreme Court examined whether Miller v. Alabama, 132 S.
Ct. 2455 (2012), was retroactive. Miller ruled that juvenile homicide
offenders cannot be given a mandatory term of life imprisonment without
the possibility of parole. Since Miller prohibited a category of punishment,
mandatory life without parole, for a class of people, juvenile homicide
offenders, it likewise was considered a substantive rule. As noted by the
majority, our Supreme Court’s application of the federal retroactivity
analysis with respect to Miller was incorrect. See Commonwealth v.
Cunningham, 81 A.3d 1 (Pa. 2013).

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that place particular conduct or persons covered by the statute
beyond the State's power to punish.” Id., at 351–352, 124 S.Ct.
2519 (citation omitted) . . . . Procedural rules, by contrast,
“regulate only the manner of determining the defendant's
culpability.” Schriro, 542 U.S., at 353, 124 S.Ct. 2519. Such
rules alter “the range of permissible methods for determining
whether a defendant's conduct is punishable.” Ibid. “They do
not produce a class of persons convicted of conduct the law does
not make criminal, but merely raise the possibility that someone
convicted with use of the invalidated procedure might have been
acquitted otherwise.” Id., at 352, 124 S.Ct. 2519.

Welch, supra at 1264-65 (emphasis in original). In Montgomery v.

Louisiana, 136 S.Ct. 718 (2016), which is examined in footnote three,

supra, the United States Supreme Court held that the analysis employed in

Teague must to be used by the state courts when the new rule is

substantive.

This test first requires an analysis of whether a decision is a new rule

of constitutional law. It is beyond cavil that Alleyne is a new rule of

constitutional law. Prior to Alleyne, the defendant did not have a Sixth

Amendment right to have an impartial jury decide the existence, beyond a

reasonable doubt, of any fact that triggered application of mandatory

minimum sentence. Harris, supra; McMillan, supra. The next inquiry is

whether Alleyne announced a substantive rule or a watershed procedural

rule. If Alleyne announced neither a substantive rule nor a watershed

procedural rule, then the general rule applies, and Alleyne is not retroactive

to cases where a defendant’s sentence was final prior to Alleyne’s issuance.

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As the Court in Montgomery observed, “Substantive rules . . . set

forth categorical constitutional guarantees that place certain criminal laws

and punishments altogether beyond the State’s power to impose.”

Montgomery, supra at 729. Whereas, procedural rules change the

allowable method for determining whether a defendant's conduct can be

punished. Procedural rules simply raise the possibility that someone

convicted with use of the invalid procedure otherwise might have been

acquitted.

Pursuant to the Teague framework, Alleyne is a procedural rather

than substantive rule, which the majority appears to concede. Majority

opinion at 15. Alleyne regulates the manner of determining the level of a

defendant’s punishment--the permissible method for determining the

amount of punishment that a defendant is to receive for his conduct. The

Alleyne ruling does not prohibit the mandatory minimum punishments for a

class of offenders nor does it decriminalize conduct. The range of a

sentence remains the same. Alleyne procedurally mandates that a jury

determine facts triggering a minimum sentence beyond a reasonable doubt.

It raises the possibility that a person sentenced to a minimum by the

sentencing court may have been found not subject to the enhanced sentence

by a jury.

As every federal circuit court has concluded, I believe that Alleyne is

not entitled to retroactive effect under Teague. Butterworth v. United

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States, 775 F.3d 459 (1st Cir. 2015), certiorari denied, 135 S.Ct. 1517

(2015); United States v. Redd, 735 F.3d 88 (2nd Cir. 2013); United

States v. Reyes, 755 F.3d 210 (3rd Cir. 2014), certiorari denied, 135 S.Ct.

695 (2014) ; United States v. Stewart, 540 F. App'x 171, 172 n.1 (4th Cir.

2013); United States v. Olvera, 775 F.3d 726 (5th Cir. 2015); In re

Mazzio, 756 F.3d 487 (6th Cir. 2014); Crayton v. United States, 799 F.3d

623 (7th Cir. 2015), certiorari denied, 136 S.Ct. 424 (2015); Walker v.

United States, 810 F.3d 568 (8th Cir. 2016), certiorari denied, 2016 WL

1545540 (May 16, 2016); Hughes v. United States, 770 F.3d 814 (9th Cir.

2014); In re Payne, 733 F.3d 1027 (10th Cir. 2013); Jeanty v. Warden,

FCI-Miami, 757 F.3d 1283 (11th Cir. 2014).

In my view, Alleyne also does not involve a watershed procedural

rule. The most recent decision addressing Alleyne’s retroactivity was

issued by the Eighth Circuit Court of Appeals, which provides this insightful

analysis as to why Alleyne does not fall within the parameters of a

watershed procedural rule:

The Supreme Court “gives retroactive effect to only a small
set of ‘watershed rules of criminal procedure implicating the
fundamental fairness and accuracy of the criminal proceeding.’”
Schriro v. Summerlin, 542 U.S. 348, 352, 124 S.Ct. 2519, 159
L.Ed.2d 442 (2004) (quoting Saffle v. Parks, 494 U.S. 484,
495, 110 S.Ct. 1257, 108 L.Ed.2d 415 (1990)). “To qualify as
watershed, a rule must be necessary to prevent ‘an
impermissibly large risk’ of an inaccurate” outcome and “must
‘alter our understanding of the bedrock procedural elements
essential to the fairness of a proceeding.’” [Whorton v.
Bockting, 549 U.S. 406, 418 (2007)] (quoting Schriro, 542

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U.S. at 352, 124 S.Ct. 2519). Explaining the exception is
“extremely narrow” and observing “it is unlikely that any such
rules have yet to emerge,” the Supreme Court has, “in the years
since Teague, rejected every claim that a new rule satisfied the
requirements for watershed status.” Id. at 417–18, 127 S.Ct.
1173 (quoting Schriro, 542 U.S. at 352, 124 S.Ct. 2519)
(internal marks omitted).

....

Although the circumstances and analysis have varied, the
circuit courts have agreed that even if Alleyne announced a new
rule, the decision is not the rare exception that announced a
watershed rule of criminal procedure that “‘altered our
understanding of the bedrock procedural elements' of the
adjudicatory process.” United States v. Winkelman, 746 F.3d
134, 136 (3rd Cir. 2014) (quoting Teague, 489 U.S. at 311, 109
S.Ct. 1060); accord Hughes v. United States, 770 F.3d 814,
818–19 (9th Cir. 2014).

Walker v. United States, supra at 574 (footnote omitted).

The fact that a jurist rather than a jury renders a decision does not

pertain to the fundamental fairness of a proceeding. Jury proceedings and

trial judge proceedings both carry factors rendering them more or less

accurate. A hearing before a trial judge rather than a jury contains no

increased potential for unfairness.

Herein, it is vastly significant that Apprendi, of which Alleyne is

merely an extension, has never been held to apply retroactively. E.g.

United States v. Swinton, 333 F.3d 481 (3rd Cir. 2003), certiorari denied,

540 U.S. 977 (2003). That fact has informed the decisions of the circuit

courts that Alleyne likewise is not retroactive. Simply put: “If Apprendi

does not apply retroactively, then a case extending Apprendi should not

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apply retroactively.” Walker, supra at 575 (quoting Hughes, supra at

818).

The United States Supreme Court decision in Schriro, supra, and its

discussion of Ring v. Arizona, 536 U.S. 584 (2002), is highly instructive.

Ring involved a successful Apprendi challenge to a death penalty statute,

just as Alleyne was a fruitful Apprendi claim. In Schriro, the United

States Supreme Court analyzed whether Ring applied retroactively and

concluded that Ring did not involve a watershed procedural rule. It found

that judicial fact-finding, as opposed to that of a jury, did not so seriously

diminish accuracy as to present a large risk of punishing conduct more

severely. The Schriro Court observed that “for every argument why juries

are more accurate factfinders, there is another why they are less accurate.”

Schriro, supra at 356. The High Court ruled that it was “implausible that

judicial factfinding so ‘seriously diminishes’ accuracy as to produce an

‘impermissibly large risk’ of injustice.” Id. (emphasis in original). Indeed, in

DeStefano v. Woods, 392 U.S. 631 (1968) (per curiam), the United States

Supreme Court actually refused to accord retroactivity to Duncan v.

Louisiana, 391 U.S. 145 (1968). Duncan applied the Sixth Amendment's

right to a jury trial for serious offenses during the guilt-phase

adjudicatory process to the states under the Fourteenth Amendment.

Hence, whether a judge or jury determines the facts essential to an

increased punishment is not material to the fundamental fairness or

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accuracy of application of a mandatory minimum sentence. The distinction

between whether a judge or jury determines the facts triggering a

mandatory minimum does not result in the procedure announced in Alleyne

becoming a watershed rule.

In my view, contrary to the majority’s analysis, mandatory minimum

sentences do not enjoy a type of unique status in Pennsylvania’s sentencing

scheme so as to elevate Alleyne to a watershed procedural rule. The

majority maintains that Alleyne is a watershed procedural rule because it

has been “cataclysmic to” Pennsylvania’s sentencing scheme, has “wreaked

havoc on mandatory minimum sentencing to Pennsylvania,” and has a

“unique and profound impact” in this Commonwealth. Majority opinion at 6,

13, 15. A mandatory minimum sentence sets the least amount of time that

a defendant will spend in jail. Mandatory minimums are no more inimitable

in Pennsylvania than in any other state; they have the same effect

everywhere. Alleyne impacts mandatory minimum sentencing statutes no

differently here than in any other jurisdiction.

If the majority is suggesting that Pennsylvania previously employed

more mandatory minimum sentencing provisions than other states, this

position is unsupported by citation. The number of statutes that a new

procedural rule affects is irrelevant to the determination of whether the rule

is watershed. It is categorically not part of the analysis of whether a

procedural rule is watershed. Indeed, the Eighth Circuit expressly rejected

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the position that Alleyne becomes watershed merely due to the “frequency

with which such minimums might apply[.]” Walker, supra at 575.

The majority emphasizes that we are free to find, under state law, that

a new constitutional rule of law is retroactive, even when the federal

constitution does not require it to be so. Significantly, however, the majority

neither sets forth the applicable precedent nor applies it. As we observed in

Commonwealth v. McCormick, 519 A.2d 442 (Pa.Super. 1986),

Pennsylvania courts have utilized differing methods of deciding whether a

new rule should apply retroactively. In McCormick, a direct appeal case,

this Court recognized that Pennsylvania courts have applied common law,

modified common law, and selective retroactivity approaches. “The common

law approach set forth in U.S. v. Schooner Peggy, 5 U.S. (1 Cranch) 103,

2 L.Ed. 49 (1801) is that an appellate court must apply the law as it exists at

the time of its decision.” Id. at 447. In this situation, constitutional rules

always are applied retroactively whether on direct or collateral review. This

method was premised on the natural rights view underlying the foundation

of early American constitutional thought that the source of a new rule is the

Constitution itself, not any judicial power to create new rules of law.

Accordingly, “the underlying right necessarily pre-exists . . . articulation of

the new rule.” Danforth v. Minnesota, 552 U.S. 264, 272 (2008). This

approach is no longer utilized by either the United States Supreme Court or

the Pennsylvania Supreme Court in deciding collateral review cases.

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The modified common law retroactivity test applied a new ruling to

cases pending on direct appeal, see United States v. Johnson, 457 U.S.

537 (1982), which, as observed, is the law in Pennsylvania, so long as the

issue is preserved or is a claim that cannot be waived.

The selective retroactivity approach examines “1) the purpose to be

served by the new standard; 2) the extent of reliance by law enforcement

authorities on the old standard; and 3) the effect on the administration of

justice.” McCormick, supra at 447 (citing Stovall v. Denno, 388 U.S. 293

(1967)). This latter test encompassed cases on collateral review. See

Johnson v. New Jersey, 384 U.S. 719 (1966). In McCormick, we

described this construct as whether “the purpose of the new standard affects

the truth finding function, thereby raising serious questions about the

accuracy of prior guilty verdicts[.]” McCormick, supra at 447. Thus, it is

indistinguishable from the watershed-procedural-rule analysis employed by

the federal courts.

The McCormick Court pointed out that each of these approaches has

been used to varying degrees in Pennsylvania. It further noted that the

Pennsylvania Supreme Court in Commonwealth v. Cabeza, 469 A.2d 146

(Pa. 1983), a direct appeal case, held:

where an appellate decision overrules prior law and announces a
new principle, unless the decision specifically declares the ruling
to be prospective only, the new rule is to be applied retroactively
to cases where the issue in question is properly preserved at all
stages of adjudication up to and including any direct appeal.

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McCormick, supra at 447-448 (quoting Cabeza, supra at 148).

McCormick was decided prior to Teague, which attempted to

synthesize the United States Supreme Court’s various retroactivity

approaches. Before the Teague decision, Pennsylvania courts also

discussed retroactivity in Commonwealth v. Gillespie, 516 A.2d 1180,

1183 (Pa. 1986) (OAJC). In Gillespie, the Pennsylvania High Court was

faced with determining whether its prior ruling in Commonwealth v.

Tarver, 426 A.2d 569 (Pa. 1981), itself a collateral review case was

retroactive. The Tarver Court had ruled that a sentence for both felony

murder and robbery illegally violated double jeopardy where the underlying

felony was the robbery.

Despite the fact that Tarver involved a collateral review matter, the

Gillespie Court concluded that a new constitutional rule does not apply

retroactively “to any case on collateral review unless that decision was

handed down during the pendency of appellant’s direct appeal and it was

properly preserved there, or . . . was nonwaivable.” Gillespie, supra at

1183. The Court added that, although the legality of sentence issue in

Gillespie was non-waivable, it would not be retroactively applied because

the Tarver decision occurred after the finality of Gillespie’s judgment of

sentence. It is evident that under any of the retroactivity tests used in

Pennsylvania, aside from the no longer applicable common law approach,

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see Lemon v. Kurtzman, 411 U.S. 192 (1973); Commonwealth v.

Geschwendt, 454 A.2d 991, 999 (Pa. 1982), Appellant’s Alleyne challenge

does not apply retroactively during PCRA review under state law.

At its essence, the majority’s approach rests largely upon tautology.

Since the statute is unconstitutional, it was void when passed, rendering

Appellant’s sentence illegal. The majority overlooks the singularly critical

fact that, when that statute was enacted as well as when Appellant was

sentenced, the statute in question was, in fact, constitutional. McMillan;

supra; Harris, supra. Hence, the statute was neither void when passed

nor void from its inception.

Alleyne overruled Harris and McMillan and rendered a constitutional

statute unconstitutional as of the date that Alleyne was disseminated. It is

entitled to effect only to cases pending on direct review when it was issued.

Pennsylvania’s mandatory minimum statutes cannot be considered

unconstitutionally void ab initio as the United States Supreme Court initially

upheld the identical sentencing paradigm in passing on the constitutionality

of 42 Pa.C.S. § 9712. McMillan, supra; see also Commonwealth v.

Stokes, 38 A.3d 846 (Pa.Super. 2011) (upholding 42 Pa.C.S. § 9712, but

opining that the statute would fail if Harris and McMillan were overturned).

In Commonwealth v. Derhammer, 2016 Pa Super 34 n. 10, __

A.3d __ , n.10 (Pa.Super. 2016) (emphasis added), we set forth:

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There are exceptions to the [Ex parte] Siebold, [100 U.S. 371
(1879)] pronouncement that an unconstitutional law is void from
the outset. That is, where there are actions taken in
justifiable reliance upon a judicial ruling that the statute
was constitutional at one point in time, the statute is not
always considered a nullity and as if it never existed. See
46 Am.Jur. 2d Constitutional Law § 196; Heilig Estate, 13 Pa.
D. & C.3d 1, *8; see also Lemon v. Kurtzman, 411 U.S. 192,
199 (1973) (limiting its decision in Norton v. Shelby County,
118 U.S. 425, 442 (1886), which reiterated the constitutionally
void ab initio doctrine espoused in Siebold by stating, “However
appealing the logic of Norton may have been in the abstract, its
abandonment reflected our recognition that statutory or even
judge-made rules of law are hard facts on which people must
rely in making decisions and in shaping their conduct.”); see
also Thomas Raeburn White, Commentaries on the Constitution
of Pennsylvania, 27-28 (1907) (discussing exceptions to
unconstitutionally void ab initio doctrine).

Appellant’s sentence was not illegal when imposed, he was sentenced

under the statute in justifiable reliance upon United States Supreme Court

precedent that it was constitutional, and the statute is not a nullity.

Appellant’s sentence can be considered illegal now only if Alleyne is held to

apply retroactively. As my above analysis demonstrates, Alleyne is not

retroactive under either the federal retroactivity test or the state one.

Hence, this dissent.

Judge Olson and Judge Stabile Join this Dissenting Opinion.

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