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2016 PA Super 283
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
SEAN JOSEPH CICCONE
Appellant No. 3114 EDA 2014
Appeal from the PCRA Order 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 BOWES, J.: FILED DECEMBER 13, 2016
Sean Ciccone appeals from the order entered on October 7, 2014,
denying his Post-Conviction Relief Act (“PCRA”) petition. After careful
review, we affirm.
Police charged Appellant with three counts of possession with intent to
deliver (“PWID”), conspiracy to commit PWID, and possession of drug
paraphernalia on January 6, 2011. Appellant entered a negotiated guilty
plea on September 2, 2011, to two counts of PWID, and one count each of
conspiracy to commit PWID and possession of drug paraphernalia. The facts
underlying the plea were that police executed a search warrant at his
residence on July 6, 2010. Upon entering the home, police saw a .22 rifle
and marijuana in both the first floor bedroom and a back bedroom. Police
also observed a double-barreled shotgun in the first floor bedroom and
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another shotgun in a separate bedroom. The first floor bedroom also
contained bins for drying and packaging marijuana. In the basement of the
home, police found over fifty marijuana plants, potting soil, and growing
chemicals. The weight of the plants was approximately thirteen pounds.
Prior to sentencing, the Commonwealth provided notice that it would
seek a three-year mandatory minimum sentence, under 18 Pa.C.S. §
7508(a)(1)(ii), based on the weight of the marijuana and the number of
plants recovered. This aspect of the sentence was negotiated based on a
five-year mandatory minimum sentence applying due to the proximity of the
drugs to firearms. Per the negotiated plea, the court imposed a sentence of
three and one-half to five years incarceration on one count of PWID on
September 9, 2011.1 The court thereafter amended that sentence on
December 16, 2011, to indicate that Appellant was eligible for the Risk
Recidivism Reduction Incentive (“RRRI”) program, which permitted Appellant
to be paroled after serving thirty-five months of his sentence.
Appellant did not file a direct appeal, but presented a timely pro se
PCRA petition on April 9, 2012. The PCRA court appointed counsel on
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1
Pursuant to 42 Pa.C.S. § 9756, a defendant’s minimum sentence shall not
exceed one-half the maximum sentence the court imposed. This, 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 (Pa.Super. 1997).
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October 25, 2012.2 The court conducted evidentiary hearings on August 15,
2013, April 21, 2014, and June 27, 2014. At the August 15, 2013 hearing,
Appellant agreed to waive all but two claims. Specifically, he asked the
PCRA court to find plea counsel ineffective for declining to challenge the
weight of the marijuana and in failing to contest the number of marijuana
plants recovered.
Following the original two hearings, but prior to the last hearing,
counsel filed an amended petition on June 18, 2014. In that petition,
Appellant averred that his sentence was illegal based on Alleyne v. United
States, 133 S.Ct. 2151 (2013). The PCRA court, at the conclusion of the
evidentiary hearings, directed Appellant to file a brief within thirty days
regarding his claims and provided that the Commonwealth would have an
additional twenty days to file a response. The PCRA court denied relief on
October 7, 2014.
This timely appeal ensued.3 The PCRA court directed Appellant to file
and serve a Pa.R.A.P. 1925(b) concise statement of errors complained of on
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2
Appellant filed a pro se notice to amend his PCRA petition on February 20,
2013, as well as a request to proceed pro se. The notice to amend filing is a
nullity as he was represented by counsel. Commonwealth v. Ali, 10 A.3d
282 (Pa. 2010). Appellant also did not object to being represented by PCRA
counsel during the PCRA evidentiary hearings.
3
Appellant filed a pro se notice of appeal on October 20, 2014 that the
Bucks County Clerk of Courts docketed and forwarded to counsel. See
(Footnote Continued Next Page)
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appeal. Appellant complied, raising a single issue: whether he was illegally
sentenced under Apprendi v. New Jersey, 530 U.S. 466 (2000), wherein
the Court ruled that, under the Sixth Amendment, any fact, other than a
prior conviction, that increases a defendant’s maximum sentence must be
submitted to a jury and proven beyond a reasonable doubt. The PCRA court
recognized that Appellant’s position was based on arguing for the retroactive
treatment of Alleyne, which applied Apprendi to mandatory minimum
sentences. See Alleyne, supra at 2163 (“facts[, other than a prior
conviction,] that increase mandatory minimum sentences must be submitted
to the jury” and found beyond a reasonable doubt). Since Appellant was
sentenced under a mandatory minimum sentencing provision, the PCRA
court treated the issue as raising an Alleyne claim rather than one under
the earlier Apprendi case, and it denied relief based upon a finding that
4
Alleyne did not apply retroactively in the PCRA setting.
_______________________
(Footnote Continued)
Pa.R.Crim.P. 576(A)(4) (When a “defendant is represented by an attorney”
and files a document not executed by the lawyer, “the clerk of courts shall
accept it for filing, time stamp it with the date of receipt and make a docket
entry reflecting the date of receipt, and place the document in the criminal
case file. A copy of the time stamped document shall be forwarded to the
defendant's attorney and the attorney for the Commonwealth within 10 days
of receipt.”). Counsel thereafter filed another, timely notice of appeal on
October 30, 2014.
4
This author filed a dissent joined by Judge Olson and Judge Stabile. Judge
(now Justice) Mundy filed a concurrence joined by Judge Lazarus.
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The appeal was submitted to a three-judge panel, but this Court sua
sponte granted en banc review. The present en banc panel consisting of
P.J.E. Ford Elliott, P.J.E. Bender, J. Bowes, J. Shogan, J. Lazarus, J. (now
Justice) Mundy, J. Olson, J. Ott, and J. Stabile, concluded that Alleyne
applied retroactively, and granted Appellant relief. However, that decision
was withdrawn after our Supreme Court disseminated Commonwealth v.
Washington, 142 A.3d 810, 811 (Pa. 2016), wherein the Court held that
Alleyne does not apply retroactively “to attacks upon mandatory minimum
sentences advanced on collateral review.” We now re-visit Appellant’s
position.
Appellant claims that his sentence is illegal under Alleyne and that he
should be granted relief since this legality-of-sentence issue, which is
cognizable under the PCRA, was presented in a timely PCRA petition.
Appellant’s brief at 4. We first note that, in the PCRA context, appellate
review is confined to a determination of “whether the PCRA court's rulings
are supported by the record and are free of legal error.” Commonwealth
v. Bardo, 105 A.3d 678, 685 (Pa. 2014)
Appellant asserts that Alleyne and this Court’s decision in
Commonwealth v. Newman, 99 A.3d 86 (Pa.Super. 2014) (en banc),
renders his sentence illegal and that he should have been granted relief
since he filed a timely PCRA petition and his contention is cognizable. In
Newman, we struck down as unconstitutional the mandatory minimum
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sentencing provision of 42 Pa.C.S. § 9712.1, which applied when drugs were
found in proximity to guns, because that statute allocated to the sentencing
court the decision, under a preponderance-of-the-evidence standard, as to
whether the facts supported imposition of the mandatory sentence. Accord
Commonwealth v. Wolfe, 140 A.3d 651 (Pa. 2016) (ruling that mandatory
sentencing provision in 42 Pa.C.S. § 9718 was unconstitutional under
Alleyne as it provided sentencing court was to determine its applicability at
sentencing by a preponderance of the evidence and refusing to sever portion
of statute that violated Alleyne); Commonwealth v. Hopkins, 117 A.3d
247 (Pa. 2015) (same reasoning applied to statute that provided for
mandatory minimum sentence when drugs were sold near to schools, 18
Pa.C.S. § 6317). Significantly, these three decisions were all issued during a
defendant’s direct appeal.
We recognize that, in a host of direct appeal cases, we have addressed
Alleyne sentencing claims under the illegal sentencing paradigm and held
that Alleyne issues present non-waivable legality of sentencing claims.5 We
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5
See, e.g., Commonwealth v. Vargas, 108 A.3d 858 (Pa.Super. 2014)
(en banc); Commonwealth v. Newman, 99 A.3d 86 (Pa.Super. 2014) (en
banc); Commonwealth v. Watley, 81 A.3d 108 (Pa.Super. 2013) (en
banc). However, in Commonwealth v. Barnes, 122 A.3d 1034, 1035 (Pa.
2015), our Supreme Court granted allowance of appeal to address whether
“a challenge to a sentence pursuant to Alleyne v. United States, ––– U.S.
––––, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013), implicates the legality of the
sentence and is therefore non-waivable.”
(Footnote Continued Next Page)
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have invalidated many mandatory minimum sentencing statutes. Indeed, in
Commonwealth v. Mosley, 114 A.3d 1072 (Pa.Super. 2015), a direct
appeal, this Court has expressly struck down the mandatory minimum
sentencing provision implicated in the present case, 18 Pa.C.S. § 7508,
which increased a sentence based upon the weight of the drugs, as
determined at sentencing by the court under the preponderance of the
evidence burden of proof.
However, Appellant conflates the concept of illegal sentences with
whether Alleyne can be applied retroactively in the collateral review
context. The Washington Court clearly articulated that the fact that
Alleyne may raise a legality-of-sentence issue does not obviate the need for
a retroactivity analysis as to whether Alleyne can be applied to a collateral
attack on a judgment of sentence. Additionally, our Supreme Court squarely
laid to rest the latter question by ruling that Alleyne is not retroactive under
United States Supreme Court test for ascertaining retroactivity 6 and by
refusing to find Alleyne retroactive on independent state grounds. It held
that “Alleyne does not apply retroactively to cases pending on collateral
review” so that the appellant’s sentence “is not illegal on account of
_______________________
(Footnote Continued)
6
“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).
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Alleyne.” Washington, supra at 820. Thus, Appellant’s sentence is not
illegal under Alleyne because Alleyne is inapplicable in this collateral
proceeding.
While the Supreme Court did not address this concept, we likewise
reject the position that a mandatory sentencing statute rendered illegal by
Alleyne is void ab initio thereby rendering any sentence imposed
thereunder invalid. This conclusion flows from the progression of the law on
the subject. Before one can reach a reasoned examination of whether
Alleyne renders a mandatory minimum sentencing statute void ab initio, it
is necessary to examine the case upon which it is premised, Apprendi v.
New Jersey, supra. 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 the hate crime provision, the maximum sentence that Apprendi could
receive pursuant to the plea increased if a trial court found that, under a
preponderance-of-the-evidence standard, the defendant committed the
crime to intimidate an individual or group based upon, inter alia, the victim’s
race or color. A hearing was held on the applicability of the hate crime
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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. 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
minimum sentencing statute 42 Pa.C.S. § 9712, which required imposition of
a mandatory minimum sentence of five years if a defendant committed
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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), this 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
determined that the defendant brandished a firearm during the commission
of the underlying crime. The Harris Court rejected a challenge to the
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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
with the rationale of Apprendi since mandatory minimum sentences pertain
to the permissible ranges of penalties that can be imposed upon a conviction
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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 clearly abrogated existing law. Accord
Washington, supra (observing that Alleyne created a new rule of law);
Wolfe, supra at 653 (“During Appellee's trial and prior to sentencing, the
Supreme Court of the United States issued its Alleyne decision, overruling
its own prior precedent and establishing a new constitutional rule of law[.]”).
Thus, when the statute as issue herein was enacted, as well as when
the sentence thereunder was imposed, it was, in fact, constitutional, and
cannot be considered void from inception. McMillan; supra; Harris,
supra. Alleyne overruled Harris and McMillan and rendered a
constitutional statute unconstitutional as of the date that Alleyne was
disseminated. 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
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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, 134 A.3d 1066, 1077 n.10
(Pa.Super. 2016) (emphasis added), we set forth:
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 existing 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. Our Supreme Court has clearly ruled in Washington
that such is not the case.
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Accordingly, the trial court did not commit an error of law or an abuse
of discretion in concluding that Alleyne did not render Appellant’s sentence
illegal. We thus affirm the denial of PCRA relief.
Order affirmed.
President Judge Emeritus Ford Elliott, Judge Shogan, Judge Lazarus,
Judge Olson, Judge Ott and Judge Stabile Join this Opinion.
President Judge Emeritus Bender files a Dissenting Opinion.
Judge Mundy did not participate in the consideration or decision of this
case.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/13/2016
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