[J-73-2016] [MO: Saylor, C.J.]
IN THE SUPREME COURT OF PENNSYLVANIA
EASTERN DISTRICT
COMMONWEALTH OF PENNSYLVANIA, : No. 37 EAP 2015
:
Appellee : Appeal from the Judgment of Superior
: Court entered on 05/12/15 at No. 532
: EDA 2011 reversing the order entered
v. : on 08/06/08 in the Court of Common
: Pleas Philadelphia County, Criminal
: Division, at Nos. CP-51-0711021,
TERRANCE WASHINGTON, : 0711141, and 1009712-1996 and CP-
: 51-CR-1107481, 1107621, 1107651
Appellant : and 1107671-1997
:
: SUBMITTED: April 7, 2016
CONCURRING OPINION
JUSTICE DOUGHERTY DECIDED: July 19, 2016
I join the Majority Opinion, writing only to emphasize two points.
First, on the question whether an “illegal” sentence is at issue here, I agree the
proper primary approach, when retroactive relief from an otherwise-final judgment is
sought under a new constitutional rule announced by the United States Supreme Court,
must be according to the Supreme Court’s developed jurisprudence on retroactivity —
i.e., Teague v. Lane, 489 U.S. 288 (1989) (plurality), and its progeny. I recognize there
is broad language in prior cases suggesting Apprendi-based1 claims implicate
Pennsylvania law respecting “illegal sentences,” and appellant invokes those cases
here in an attempt to secure greater retroactive application of the new federal rule
1
Apprendi v. New Jersey, 530 U.S. 466 (2000).
announced in Alleyne v. United States, ___ U.S. ___, 133 S.Ct. 2151 (2013).2 See
Majority Opinion, slip op. at 5-6.
Notably, the Court has candidly struggled with the proper contours of the concept
of sentencing illegality. A variety of expressions have highlighted the complexity, which
includes the fact that a sentencing legality claim “can be offered for a variety of
reasons.” Commonwealth v. Spruill, 80 A.3d 453, 460-61 (Pa. 2013). See
Commonwealth v. Aponte, 855 A.2d 800, 814-15 (Pa. 2004) (Castille, J., concurring)
(advocating treating illegal sentencing claims in “less monolithic fashion” because
doctrine may be offered for variety of reasons: to negate waiver on direct appeal, to
seek substantive review despite statutory restrictions, to seek extraordinary jurisdiction
nunc pro tunc, to avoid limitations upon retroactive application of new procedural rules,
and to secure collateral review of sentence despite PCRA restrictions) (citing cases).
This case presents a specific claim of sentencing legality: a sentence is
described as illegal to allow a new federal constitutional rule to have broader effect on
final judgments than required by the United States Supreme Court, which devised the
rule. I believe the Majority articulates a necessary limiting principle to the notion of what
comprises an “illegal” sentence in this instance: a finding of illegality, concerning an
already-final sentence, “may be premised on such a rule only to the degree that the new
rule applies retrospectively.” See Majority Opinion, slip op. at 7.
Second, I write to further stress the terms of the Post Conviction Relief Act
(PCRA), 42 Pa.C.S. §§9541-9546, under which appellant is proceeding, when
assessing both whether his claim implicates an “illegal” sentence and whether the Court
2
As the Majority notes, Alleyne derives from Apprendi.
[J-73-2016] [MO: Saylor, C.J.] - 2
should afford a broader retrospective application of Alleyne’s new rule. On the latter
point, appellant avails himself of the state law residual power recognized in Danforth v.
Minnesota, 552 U.S. 264 (2008), arguing for a state-level, broader Pennsylvania
retroactivity rule premised upon generalized policy notions of fairness. Id. at 282. Any
such argument must come to grips with the PCRA, a legislative expression of
Pennsylvania policy. In a case presenting a similar question, this Court stressed:
[L]itigants who may advocate broader retrospective extension of a new
federal constitutional rule would do best to try to persuade this Court both
that the new rule is resonate with Pennsylvanian norms and that there are
good grounds to consider the adoption of broader retroactivity doctrine
which would permit the rule’s application at the collateral review stage. In
the latter regard, the Court would benefit from recognition and treatment of
the strong interest in finality inherent in an orderly criminal justice system,
as well as the social policy and concomitant limitations on the courts’
jurisdiction and authority reflected in the Post Conviction Relief Act.
Commonwealth v. Cunningham, 81 A.3d 1, 9 (Pa. 2013) (footnote omitted) (emphasis
original).
The “eligibility for relief” provision of the PCRA does not speak of “illegal
sentences,” much less sentences argued to be illegal via retroactive operation of non-
retroactive, new federal constitutional rules. Rather, the PCRA deems cognizable a
claim that the petitioner is serving a sentence “greater than the lawful maximum.” 42
Pa.C.S. §9543(a)(2)(vii). Although appellant forwards an artful argument under the
statutory language, the argument ultimately fails because it depends upon an
assumption that Alleyne applies retroactively. Appellant’s Brief at 21-22.
The PCRA specifically addresses retroactivity in the context of new constitutional
rights, but only in delineating exceptions to the PCRA time-bar; the provision is
inapplicable as this petition was timely. See 42 Pa.C.S. §9545(b)(iii). In the time-bar
exception context, the General Assembly indicated its awareness that courts issue new
[J-73-2016] [MO: Saylor, C.J.] - 3
constitutional rules on occasion, and those rules may, or may not, affect final
judgments. As explained in a concurrence in Cunningham:
Section 9545(b) [of the PCRA] recognizes that new constitutional rights
(state or federal) may come into existence after a sentence is final, and
indeed, after a defendant’s right to PCRA review has been exhausted.
The statute allows new constitutional rights to be vindicated, but only after
the Court announcing the new right has also held that the right operates
retroactively: “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.” 42 Pa.C.S. §
9545(b)(1)(iii). This safety valve for vindication of new and retroactive
rights is logically limited to pronouncements from the two courts of last
resort that can recognize new rights and makes clear that the court of last
resort announcing the new right should also issue the holding on the
retroactivity of the new right. There is nothing irrational in the statute’s
accommodation of new constitutional rules in this manner. L
Id. at 12 (Castille, C.J., concurring).
Appellant plainly is not entitled to PCRA relief. If the United States Supreme
Court were someday to hold Alleyne to be retroactive, Section 9545 would exist to
vindicate that established right.
[J-73-2016] [MO: Saylor, C.J.] - 4