David Manning STODGHILL, Appellant v. PENNSYLVANIA DEPARTMENT OF CORRECTIONS, Appellee
No. 3 MAP 2017
Supreme Court of Pennsylvania.
Decided: January 18, 2018
182 A.3d 182
PER CURIAM
AND NOW, this 18th day of January, 2018, the Order of the Commonwealth Court is hereby AFFIRMED.
COMMONWEALTH of Pennsylvania, Appellant v. Phillip DIMATTEO, Appellee
No. 10 MAP 2017
Supreme Court of Pennsylvania.
Submitted June 16, 2017. Decided January 18, 2018
182 A.3d 183
OPINION
JUSTICE MUNDY
We granted review in this case to assess what relief, if any, a criminal defendant is entitled to when he raises an illegal sentencing challenge premised on Alleyne v. United States, 570 U.S. 99, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013) in a timely petition filed pursuant to the Post Conviction Relief Act,
I.
On November 20, 2012, Appellee, Phillip DiMatteo, entered into an open guilty plea to 56 counts1 of possession with intent to deliver (PWID) and one count each of criminal conspiracy and corrupt organizations.2 The charges stemmed from a drug operation in which DiMatteo and fourteen other individuals were involved in trafficking cocaine. Relevant to the issue, the Commonwealth sought imposition of the mandatory minimum sentence under
Nicholas J. Casenta Jr., Esq., Thomas P. Hogan Jr., Esq., Chester County District Attorney‘s Office, for Commonwealth of Pennsylvania, Appellant.
Phillip DiMatteo, Pro Se.
DiMatteo timely sought reconsideration of his sentence from the sentencing court. The court denied his motion on June 12, 2013. Five days following the sentencing court‘s denial of DiMatteo‘s motion for reconsideration, on June 17, 2013, the Unitеd States Supreme Court issued its decision in Alleyne. Alleyne held that any fact which, by law, increases the mandatory minimum sentence for a crime must be: (1) treated as an element of the offense, as opposed to a sentencing factor; (2) submitted to the jury; and (3) found beyond a reasonable doubt. Alleyne, 133 S.Ct. at 2163.
DiMatteo did not file a notice of appeal to the Superior Court. On May 22, 2014, DiMatteo filed a timely, pro se PCRA petition in which he argued post-sentence counsel5 was ineffective for failure to investigate a change in the law which prohibits the imposition of the mandatory minimum sentences under which he was sentenced and for counsel‘s failure to file a direct appeal.6 DiMatteo‘s PCRA Pet., 5/22/14, at 3. Counsel was appointed; however, he believed that the issues raised were without merit and filed a petition to withdraw.7 The PCRA court determined the allegation that post-sentence counsel failed to file a direct appeal presented a genuine issue of material fact and held a hearing on May 12, 2015. On August 25, 2015, the PCRA court denied the petition.
DiMatteo appealed the denial of his petition to the Superior Court challenging the PCRA court‘s denial of both of his issues. In an unpublished memorandum opinion, the Superior Court vacated DiMatteo‘s judgment of sentence and remanded for resentencing. The intermediate court limited its discussion to whether DiMatteo was
We granted the Commonwealth‘s petition for аllowance of appeal to consider if the Superior Court‘s decision is in conflict with this Court‘s decision in Washington, and, in the event DiMatteo is entitled to relief, whether the Superior Court ordered the appropriate remedy. See Commonwealth v. DiMatteo, 166 A.3d 1229 (Pa. 2017) (per curiam). Our scope of review over the legal questions presented is plenary. Washington, 142 A.3d at 814.
We find it beneficial to engage in a brief recitation of the jurisprudential landscape informing this decision. As noted, the Supreme Court rendered the Alleyne decision on June 17, 2013, and held that sentencing schemes which predicated the imposition of a mandatory minimum sentence on a fact found by the sentencing court, by a preponderance of the evidence, were unconstitutional. The decision was an extension of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), which held any fact that increases the punishment for a crime beyond the statutorily prescribed maximum must be submitted to the jury and found beyond a reasonable doubt. Apprendi, 530 U.S. at 490. Initially, the United States Supreme Court declined to extend the logic of Apprendi and upheld the constitutionality of mandatory minimum sentencing statutes that mandated a judge to find the operative sentencing fact by a preponderance of the evidence. See Harris v. United States, 536 U.S. 545, 567-68, 122 S.Ct. 2406, 153 L.Ed.2d 524 (2002) (explaining that Apprendi only prohibited judicial power to extend the mandatory maximum sentence beyond what was authorized by statute and reaffirming its pre-Apprendi decision, McMillan v. Pennsylvania, 477 U.S. 79, 106 S.Ct. 2411, 91 L.Ed.2d 67 (1986)). However, in Alleyne, the Supreme Court reconsidered and expressly overruled its decision in Harris. See Alleyne, 133 S.Ct. at 2163. The effect of the decision in this Commonwealth was the invalidation of a number of similarly-patterned mandatory minimum sentencing statutes as unconstitutional, which were challenged on direct appeal. See, e.g. Commonwealth v. Newman, 99 A.3d 86, 98-102 (Pa. Super 2014) (en banc) (declaring
Although this Court definitively concluded that mandatory sentencing statutes patterned in this manner were unconstitutional, questions lingered over whether such challenges should be regarded as illegal sentencing claims subject to sua sponte correction on direct appeal by the courts notwithstanding a failure to raise and/or preserve the claim. In Commonwealth v. Barnes, 637 Pa. 493, 151 A.3d 121 (2016), this Court squarely addressed the issue. Barnes was sentenced to a mandatory minimum term of five years’ imprisonment pursuant to
As that sentencing provision has now been rendered unconstitutional on its face by Hopkins and Wolfe, it is as if that statutory authority never existed. See Wolfe, 140 A.3d at 661 (quoting 16 C.J.S. Constitutional Law § 265 (2016)) (“[A]n unconstitutional, non-severable statute is ‘not a law, has no existence, is a nullity, or has no force or effect or is inoperative.’ “). Accordingly, we hereby adopt the lead opinion in Commonwealth v. Foster, 609 Pa. 502, 17 A.3d 332 (2011) (plurality) and definitively hold that where the mandatory minimum sentencing authority on which the sentencing court relied is rendered void on its face, and no separate mandatory authority supported the sentence, any sentence entered under such purported authority is an illegal sentence for issue preservation purposes on direct appeal. Thus, Appellant is entitled to resentencing notwithstanding his failure to preserve his issue prior to seeking our review.
Barnes, 151 A.3d at 127. The Barnes Court made a point to note that this case involved only the question of whether a defendant is entitled to relief on direct appeal from an unconstitutional sentence under Alleyne notwithstanding his or her failure to raise the issue and not a scenario where Alleyne relief is sought via collateral attack. See id. at 127, n. 6 (observing the Commonwealth conceded Alleyne announced a new rule of constitutional law that should be applied on direct appeal if it was preserved or a non-waivable claim, but explaining “retroactive application of Alleyne on direct appeal differs from its application during collateral review, as we recently explained in” Washington.).
In a concurrence in which this author joined, Chief Justice Saylor agreed with the “specific holding that sentences violative of Alleyne ... are illegal sentences, alleviating the requirement for issue preservation.” Id. at 127 (Saylor, C.J., concurring). However, Chief Justiсe Saylor did not support expressly adopting the test advanced in Foster, voicing concerns that such an approach is over-broad. See id. Like the majority, the concurrence made a point to differentiate the availability of relief based on when, procedurally-speaking, the relief was sought. See id., n. 1 (“this understanding does not apply to cases that have reached the post-conviction stage, since the determination of whether final judgments of sentence are illegal depends upon whether Alleyne is retroactive to cases pending on post-conviction review” and according to this Court‘s decision in Washington, it is not retroactive).
As alluded, while the courts were addressing the effect of Alleyne on sentences, challenged or not, on direct appeal, defendants sought to have Alleyne afford them relief via this Commonwealth‘s sole means of obtaining collateral relief, filing a petition under the PCRA. See
We note the Newman Court instructed that Alleyne applied only to cases pending on direct review as of June 17,
Even assuming Alleyne did announce a new constitutional right, neither our Supreme Court, nor the United States Supreme Court has held that Alleyne is to be applied retroactively to cases in which the judgment of sentence had become final. This is fatal to Appellant‘s argument regarding the PCRA time-bar. This Court has recognized that a new rule of constitutional law is applied retroactively to cases on collateral review only if the United States Supreme Court or our Supreme Court specifically holds it to be retroactively applicable to those cases.
Id. at 995 (citations omitted) (emphasis supplied). Furthermore, this Court also recently declined to give Alleyne retroactive effect to cases on timely cоllateral review when the defendant‘s judgment of sentence was finalized before Alleyne was decided. See Commonwealth v. Riggle, 119 A.3d 1058 (Pa. Super. 2015). Ruiz, 131 A.3d at 58-59. The court found the procedural posture of the case critical to its decision to apply Alleyne to Ruiz. See id. at 59. Specifically, unlike Miller in which the petitioner filed an untimely petition, and unlike Riggle, in which the petitioner filed a timely petition but whose judgment of sentence was final as of June 17, 2013, Ruiz‘s judgment of sentence was not yet final at the time the decision in Alleyne was rendered and he presented his claim in a timely petition for post conviction relief. Id. Highlighting that Newman regarded Alleyne challenges as non-waivable challenges to the legality of the sentence,10 the court concluded that such a claim may be raised in either a direct appeal or a timely PCRA petition. Id. at 60. Accordingly, the court concluded Ruiz was entitled to resentencing.
Several months after the Superior Court rendered that exception, this Court decided Washington. Washington was sentenced to numerous mandatory minimum terms of imprisonment under the authority of
This Court addressed the applicability of Alleyne relief in the context of a timely PCRA petition where defendant‘s judgment of sentence was final prior to the decision in Alleyne. The appropriate framework under which courts consider retroactive application of new constitutional rules to final judgments of sentence is derived from the United States Supreme Court plurality opinion in Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989). Under Teague, retroactive ap-
We explained that Alleyne аnnounced a new rule of federal constitutional law, but that does not necessarily “render final, pre-existing sentences illegal.” Washington, 142 A.3d at 811. We concluded that the rule in Alleyne could not be deemed substantive because it “neither alters the range of conduct or the class of persons punishable by law.” Washington, 142 A.3d at 818 (citing Montgomery v. Louisiana, 136 S.Ct. 718, 729-30, 193 L.Ed.2d 599 (2016)). We further determined that it was not a “watershed” rule of procedure, as it remains lawful, following Alleyne, for judges to increase sentences, in the exercise of their discretion, “based on facts that they find by a preponderance of the evidence.” Id. at 819. Declining to adopt a state-level rule for retroactivity analysis in Washington, we observed that Teague remained the default approach to the issue of retrospective application of new rules of constitutional law in the collateral attack posture. See id. at 819. Thus, we held that Washington was not entitled to relief based on Alleyne. Id. at 820.
II.
With the above background in mind, we turn to the question of whether DiMatteo was entitled to relief under Alleyne, or whether, as the Commonwealth contends, such relief is barred by our decision in Washington.
The Commonwealth begins its argument by highlighting that the United States Suprеme Court did not initially invalidate mandatory minimum sentences based on an extension of its decision in Apprendi, by noting that it expressly permitted such schemes to stand in Harris. Commonwealth‘s Brief at 13. It then argues Alleyne is not retroactive to cases on collateral review, and cites to a number of federal cases to support that proposition. Id. at 14-15.11 In particular, it quotes the reasoning in United States v. Reyes, 755 F.3d 210 (3d Cir. 2014), in which the Third Circuit concluded that Alleyne announced neither a substantive rule nor a watershed rule of criminal procedure; therefore it did not provide “Reyes with any basis for relief because the Supreme Court has not chosen to apply Alleyne‘s new rule retroactively to cases on collateral review.” See Commonwealth‘s Brief at 14 (citing Reyes, 755 F.3d at 212-13).
The Commonwealth continues that the Superior Court has held that Alleyne is not retroactive to cases on collateral review in Miller and Riggle. Commonwealth‘s Brief at 16. The Commonwealth next acknowledges that this Court held in Barnes that mandatory minimum sentences imposed under the procedure found unconstitutional under Alleyne, are illegal and not subject to traditional waiver principles. However, it emphasizes that the
Briefly, Ciccone was sentenced to a mandatory minimum pursuant to
The Commonwealth posits, based on the reasoning of Ciccone, that there is no Alleyne issue in the instant case because at the time of DiMatteo‘s sentencing, Alleyne had not been decided and “for a period of time thereafter, the Superior Court and other authority” upheld certain mandatory minimum sentences. See Commonwealth‘s Brief at 21-26. It concludes that it was not until Newman, decided on August 20, 2014, did an appellate court rule that the mandatory minimum sentencing schemes were unconstitutional under Alleyne, and further, that it was not until Hopkins, decided on June 15, 2015, “that the ultimate effect of Alleyne on certain Pennsylvania mandatory minimums was finally determined.”12 Id. at 26.
In advocating for affirmance, DiMatteo first notes that unconstitutionality of Section 7508 is not disputed by the Commonwealth. He continues that under the PCRA, courts have jurisdiction to afford relief to non-waivable sentencing claims raised in a timely-filed PCRA petition. DiMatteo‘s Brief at 9 (citing Commonwealth v. Fahy, 558 Pa. 313, 737 A.2d 214 (1999)). Acknowledging this Court‘s decision in Washington, DiMatteo argues his case is legally distinguishable. DiMatteo posits that pursuant to Teague and its progeny, a defendant is entitled to application of the new law if, at the time it is announced, his or her judgment of sentence is not yet final. Concomitantly, the retroactivity analysis under Teague, is only necessary when assessing whether to retroactively apply new rules of constitutional laws to defendants whose judgments of sentence were
DiMatteo also observes that it is well-established that judgments of sentence are not considered final until appellate proceedings have been exhausted or the time for taking an appeal has expired. DiMatteo‘s Brief at 12. He reiterates that in his case, his motion for modification of sentence was denied on June 12, 2013; five days later, the Supreme Court issued Alleyne; and his judgment of sentence was not final until the expiration of time for filing a direct appeal, i.e., July 12, 2013. Id.; accord
III.
It is uncontested that Section 7508 is an unconstitutional and illegal sentencing statute in light of Alleyne and its Pennsylvania progeny. See Wolfe, 140 A.3d at 660-61; Barnes, 151 A.3d at 126-27. The question we granted allocatur to consider is whether our decision in Washington bars one serving an illegal sentence from relief when such relief is sought in a timely PCRA petition and the judgment of sentence was not final when Alleyne was announced. We hold it does not.
First, Washington addressed the retroactivity of Alleyne in the context of an already-final judgment of sentence. Indeed, in Teague, the question before the Court was whether the petitioner could receive the benefit of the Court‘s decision in Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986) (holding the Equal Protection Clause forbids the prosecution from striking jurors based solely on race), which had been decided during the pendency of his collateral challenge.13 Teague, 489 U.S. at 1066-67. Before delineating the framework that subsequently became the default test for determining whether a rule applies to final judgments on collateral attack, the Teague Court explained Justice Harlan‘s basic view on applying new rules of law in a collateral proceeding.
Given the “broad scope of constitutional issues cognizable on habeas,” Justice Harlan argues that it is “sounder, in adjudicating habeas petitioners, generally to apply the law prevailing at the time a conviction became final than it is to seek to dispose of [habeas] cases on the basis of intervening changes in constitutional interpretations.” [Mackey v. U.S., 401 U.S. 667, 682-83 [91 S.Ct. 1160, 28 L.Ed.2d 404] (1971), (Harlan, J. concurring and dissenting) ].
Teague, 489 U.S. at 306. The High Court most recently reiterated that “[u]nder Teague, as a general matter, ‘new constitutional rules of criminal procedure will not be applicable to those cases which have become final before the new rules are announced.’ ” Welch v. United States, — U.S. —, 136 S.Ct. 1257, 1264, 194 L.Ed.2d 387 (2016) (emphasis added). Moreover, the cases cited by the Commonwealth holding that Alleyne does not apply retroactively to petitioners on collateral review, see infra n. 10, involve the application of Alleyne to judgments of sentence that were final as of June 17, 2013. Although Washington may be read to suggest that it forecloses Alleyne-based relief on collateral attack, see Washington, 142 A.3d at 820 (”Alleyne does not apply retro-
The Commonwealth‘s attempt to support its argument with the reasoning in Ciccone, is misplaced. The Commonwealth reasons that because DiMatteo was sentenced prior to Alleyne and the appellate court decisions of this Commonwealth interpreting it, his sentence could not be illegal. However, Ciccone does not stand for such a proposition. Indeed, although Ciccone declined to conclude that the mandatory minimum statutes were void ab initio, it clearly noted that the illegality of these sentences as a result of the Alleyne decision is recognized as of the date Alleyne was decided. See Ciccone, 152 A.3d at 1009.
Turning to the statute under which DiMatteo seeks relief, we observe the courts of this Commonwealth are endowed with authority to grant relief on collateral review pursuant to the PCRA statute.
This subchapter provides for an action by which persons convicted of crimes they did not commit and persons serving illegal sentences may obtain collateral relief. 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, including habeas corpus and coram nobis. This subchapter is not intended to limit the availability of remedies in the trial court or on direct appeal from the judgment of sentence, to provide a means for raising issues waived in prior proceedings or to provide relief from collateral consequences of a criminal conviction. Except as specifically provided otherwise, all provisions of this subсhapter shall apply to capital and non-capital cases.
We are cognizant that Section 9543 specifically delineates the availability of relief and includes relief from “[t]he imposition of a sentence greater than the lawful maximum[;]” or “[a] proceeding in a tribunal without jurisdiction.”
IV.
Having concluded DiMatteo is entitled to PCRA relief from his illegal sentence, we turn now to what remedy is warranted under the circumstances. The Commonwealth contends that notwithstanding the fact that there was no agreement as to
The participation of a defendant in the negotiation of a plea bargain successfully terminates trial proceedings that would otherwise determine the issue of guilt or innocence on all charges. Such action by the defendant, “is deemed to be a deliberate election on his part to forgo his valued right to have his guilt or innocence determined before the trier of fact.” [U.S. v. Scott, 437 U.S. 82, 93, 98 S.Ct. 2187, 57 L.Ed.2d 65 (1978)]. This decision is made to avoid the potentially more severe consequences of going to trial. When thе defendant‘s own action prevents adjudication of the greater charges, it is absurd to suggest that, in the event the defendant reneges on his plea agreement, the government has relinquished its right to prosecute on those charges. The government simply has made a bargain which it is obligated to keep so long as the defendant is willing to abide by its terms. When a defendant abrogates a plea agreement, he resumes his preagreement status, and the government may proceed on the original charges as if the agreement had never existed. * * * A “mutuality of advantage” to be defendants and prosecutors flow from the ratification of the bargain. Brady v. United States, 397 U.S. 742, 752, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970). When a defendant withdraws or successfully challenges his plea, the bargain is abrogated and he must be prepared to accept all of the consequences, which the plea originally sought to avoid.
The Commonwealth also reproduces its own reasoning in Commonwealth v. Jarosz, 152 A.3d 344 (Pa. Super. 2016). Jarosz, however, involved a defendant who initially pleaded guilty and as a term of his plea, negotiated concurrent sentences on two unrelated cases. Jarosz, 152 A.3d at 348-49. Jarosz successfully withdrew his рlea. He proceeded to trial, was found guilty by a jury of a number of charges, and sentenced to a term of imprisonment of four to fifteen years. Id. His judgment of sentence was affirmed, and Jarosz sought post conviction relief, arguing, inter alia, that his sentence following his jury conviction violated the terms of his prior plea agreement. Id. at 353. He contended that trial counsel was ineffective for failing to raise and argue that the terms of his new sentence differed from those of his plea agreement. Citing to Ward in its analysis, the
The Commonwealth next contends that in Commonwealth v. Melendez-Negron, 123 A.3d 1087 (Pa. Super. 2016), the Superior Court concluded that the appropriate relief to afford a PCRA petitioner who successfully challenges his sentence under Alleyne is to “restore the parties to their pre-plea agreement status.” Commonwealth‘s Brief at 33. Accordingly, it posits the same relief is due here. We disagree.
On November 15, 2013, Melendez-Negron entered into a negotiated guilty plea to PWID and other possessory drug offenses. Based on his possession of a firearm during commission of the offenses, the Commonwealth sought imposition on the now constitutionally infirm mandatory minimum at
On appeal, the Commonwealth initially argued that the PCRA court erred when it found counsel ineffective for permitting Melendez-Negron to enter into an illegal plea. Id. at 1090. Instead of affording relief based on the illegality of Melendez-Negron‘s sentence outright, the Superior Court analyzed the claim under the established framework for assessing whether counsel was constitutionally ineffective. See id. (observing that to prevail on an ineffectiveness claim under the PCRA a petitioner must demonstrate the underlying claim has arguable merit; counsel had no reasonable basis for his or her action or omission; and petitioner suffered prejudice). Concluding petitioner met his burden, the Superior Court affirmed the determination that counsel was ineffective.
The Commonwealth next argued that the PCRA court should have returned the case to the “status quo” prior to the negotiated plea agreement rather than vacate the judgment of sentence because, on reliance of the imposition of the mandatory minimum sentence, the Commonwealth “gave up” seeking sentences on the lesser charges. See id. at 1090. The Superior Court agreed with the Commonwealth, drawing supрort from Commonwealth v. Hodges, 789 A.2d 764 (Pa. Super. 2002) and Commonwealth v. Lenhoff, 796 A.2d 338 (Pa. Super. 2002). In each case, the respective defendant‘s plea negotiations were tainted at the outset because of a shared misunderstanding of the possible penalty that could be imposed under law. See Hodges, 789 A.2d at 767 (Superior Court reversed the trial court‘s denial of motion to withdraw guilty plea explaining “the entire process of plea negotiations” was affected by the erroneous understanding that Hodges could face the death penalty when, in fact, because he was fifteen at the time of the offenses, the plea was “based on a maximum sentence that the court had no authority to impose“); Lenhoff, 796 A.2d at 342-43 (Superior Court reversed trial court‘s denial of Lenhoff‘s
The Melendez-Negron court concluded that the case “is fundamentally akin to Hodges and Lenhoff” differing only in the respect that in the case of Melendez-Negron, it was the Commonwealth and not the defendant who was “deprived the benefit of its bargain.” Melendez-Negron, 123 A.3d at 1093. The court thus concluded that the parties’ negotiations began from an “erroneous prеmise and therefore were fundamentally skewed from the beginning.” Id. at 1094. Consistent with the dispositions in Hodges and Lenhoff, the Superior Court vacated the guilty plea and remanded. Id.
The Commonwealth concludes its argument by reiterating that the parties to a plea are entitled to the benefit of their bargain. Commonwealth‘s Brief at 33. Moreover, if “either party to a negotiated plea agreement” believed that the opposing side could “have the sentence unilaterally altered” neither party “would be willing to enter into such agreement.” Id. at 34.
DiMatteo contends the relief he received from the Superior Court is consistent with the relief ordered in other cases where the defendant was adjudged to receive illegal sentences under Alleyne. Commonwealth‘s Brief at 20 (citing Wolfe, 140 A.3d at 654, 663 (affirming Superior Court disposition ordering resentencing); Barnes, 151 A.3d at 127 (same)). He argues the Commonwealth waived its position for failure to file a cross-appeal to the Superior Court, and in the alternative, that it is meritless. Specifically, he posits that vacating his guilty plea would “violate double jeopardy rights” and due process. See id. at 21-22. Further, DiMatteo asserts that the Commonwealth‘s argument lacks any support in thе record because he was not party to a negotiated guilty plea; rather, he entered into an open guilty plea without any agreement on sentencing. See id. at 22-23. Moreover, he was advised on his written guilty plea colloquy and at sentencing, that he could challenge the legality of his sentence. See id. at 23-24. DiMatteo emphasizes that the Commonwealth initially offered him a plea deal of twenty to forty years’ imprisonment, but that he rejected the offer and elected to proceed to an open guilty plea. Id. at 25; see N.T., 2/6/13, at 27. Further, the Commonwealth‘s claim that it dropped certain charges in exchange for a plea is not supported by the record, as the Commonwealth was not pursuing certain charges due to the unavailability of a necessary witness. Id. (citing N.T., 2/6/13, at 23-26). DiMatteo concludes that the Commonwealth had opportunity to challenge the sentence earlier and it elected not to do so; therefore, “[i]t may not now use defendant‘s permissible challenge to the illegal mandatory minimum sentencе as a fundamentally unfair springboard to vacate his guilty plea, obtain a trial on all charges, and a possible increase in overall sentence.” Id. at 26.
We agree with the Superior Court that the appropriate remedy in this case is vacating the judgment of sentence and remanding without consideration of the mandatory minimum sentence. We reach this conclusion based on the particular circumstances and timing of the entry of DiMatteo‘s plea. Although both this case and Melendez-Negron arise in the context of seeking collateral relief under the PCRA, the remedies are specific to the unique procedural posture of the case. First, we note that the Superior Court in Melendez-Negron analyzed the claim under the ineffectiveness paradigm. A finding that plea
In the instant case, at the time DiMatteo entered into his open guilty plea, there was no “shared misapprehension” regarding the legality of the sentences that could be imposed, and there was no agreement or bargain between the Commonwealth and DiMatteo as to sentencing at all. The sentencing court did not impose its sentence under a misconception over what sentence it could impose under law. See Melendez-Negron, 123 A.3d at 1093. Rather, following sentencing, Alleyne was decided, rendering the mandatory minimum schemes with the defective judicial fact-finding procedure illegal. This is not an occasion where a defendant and the Commonwealth bargained for a term of imprisonment, and the defendant reneged. DiMatteo pleaded guilty to a number of counts, with no agreement or contract with the Commonwealth and then challenged the legality of his sentence. But cf. Commonwealth v. Martinez, 637 Pa. 208, 147 A.3d 517, 532-33 (2016) (“the convicted criminal is entitled to the benefit of his bargain through specific performance of the terms of the plea agreement.“). The remedy is a correction of the illegal sentenсe. See Commonwealth v. Vasquez, 560 Pa. 381, 744 A.2d 1280, 1284 (2000).
Accordingly, the order of the Superior Court is affirmed.
Chief Justice Saylor and Justices Donohue, Dougherty and Wecht join the opinion.
Justice Baer files a concurring opinion in which Justices Todd and Wecht join.
CONCURRING OPINION
JUSTICE BAER
The aggregate sentence received by Appellee Phillip DiMatteo (“DiMatteo“) included mandatory minimum terms of imprisonment pursuant to
This Court granted allowancе of appeal to examine several aspects of DiMatteo‘s sentencing claim and its relationship to the PCRA. The Majority affirms the Superior Court‘s judgment. I agree with the Majority Opinion to the extent that it holds that: (1) a claim challenging the legality of a sentence is cognizable under the PCRA; (2) Alleyne renders Section 7508 unconstitutional; (3) because DiMatteo had not exhausted his right to appeal his judgment of sentence when the Supreme Court decided Alleyne, that change in the law is available to DiMatteo and renders his sentence illegal; and (4) the appropriate relief for DiMatteo‘s illegal sentence is for the trial court to resentence him without application of Section 7508. I write separately because, inter alia, I believe the Court should address, even if only briefly, why Alleyne renders Section 7508 unconstitutional and because the manner in which I would have disposed of this matter differs from that of the Majority, particularly with regard to the relief due to DiMatteo. I set forth my reasoning as follows.
As to the first holding noted above, under
As the Majority seems to suggest, when the Legislature enacted the PCRA, DiMatteo‘s sentencing claim did not exist, and the traditional understanding of an illegal sentence was one that exceeded the lawful maximum. Majority Opinion at 192. Indeed, as the Majority points out, this Court only recently held that, when a defendant attacks the propriety of his mandatory minimum sentence based upon Alleyne, he presents a non-waiveable challenge to the legality of his sentеnce. See Commonwealth v. Barnes, 637 Pa. 493, 151 A.3d 121 (2016). When this evolution in the law is coupled with the facts that: (1) this Court has long held that the legality of a sentence falls under the purview of the PCRA, Majority Opinion at 192 (quoting Commonwealth v. Fahy, 558 Pa. 313, 737 A.2d 214, 223 (1999)); and (2) the PCRA represents the sole means by which to obtain collateral relief in this Commonwealth,
I next turn my attention to Alleyne‘s impact on Section 7508. In Alleyne, the United States Supreme Court established a new constitutional rule of law consistent
Next, the question remains whether DiMatteo can benefit from Alleyne given that, in Commonwealth v. Washington, 636 Pa. 301, 142 A.3d 810, 820 (2016), this Court held that ”Alleyne does not apply retroactively to cases pending on collateral review[.]” I agree with the Majority that Washington does not apply to DiMatteo‘s circumstances because, unlike the situation at issue in Washington, DiMatteo is not seeking to apply Alleyne retroactively by way of collateral review. Instead, he is seeking PCRA relief for a sentencing claim that was available to him on direct review.1
More specifically, it is a well-settled principle of criminal law that “a judgment is not final until the availability of appeal has been exhausted, and any judicial changes in the law are applicable to a case prior to final judgment.” Commonwealth v. Lee, 470 Pa. 401, 368 A.2d 690, 692 (1977). Here, the Supreme Court decided Alleyne on June 17, 2013, and DiMatteo‘s “judgment” did not become final until July 12, 2013, i.e., 30 days after the trial court denied his timely-filed post-sentence motion. Pa.R.Crim.P. 720(A)(2)(a). Because a direct appeal of DiMatteo‘s judgment of sentence still was available to him when the High Court decided Alleyne, that change in the law is applicable to DiMatteo‘s case. Accordingly, Alleyne renders illegal the sentences DiMatteo received pursuant to 42 Pa.C.S. § 7508.
Lastly, this appeal requires the Court to consider what form of relief DiMatteo should receive to remedy his illegal sentences.2 It is useful to review Wolfe briefly for guidance as to the appropriate relief in this case. Wolfe appealed his judgment of sentence to the Superior Court. Commonwealth v. Wolfe, 106 A.3d 800 (Pa. Super. 2014). His sentence included a mandatory minimum term of imprisonment pursuant to
In the present matter, the Superior Court provided DiMatteo with the same relief that it afforded Wolfe; yet, the Commonwealth argues that such relief is inappropriate in this case. According to the Commonwealth, DiMatteo and the Commonwealth entered into a plea agreement. The Commonwealth concedes that the parties did not negotiate a particularized sentence. However, the Commonwealth states that, as part of the agreement, it withdrew 349 counts with which DiMatteo had been charged. The Commonwealth asserts, “This decision and agreement was premised in part on the mandatory sentences that applied to the counts to which [DiMatteo] pled guilty.” Commonwealth‘s Brief at 27. The Commonwealth takes the position that, if this Court concludes that DiMatteo‘s sentence is illegal, then the Commonwealth will be deprived of the benefit of its bargain. The Commonwealth suggests that the appropriate remedy for DiMatteo‘s illegal sentences is “to vacate the entire plea and remand for trial on all the original charges.” Id. at 34. Notably, the Commonwealth fails to cite to any portion of the certified record to support its position that there existed a quid pro quo regarding the Commonwealth‘s withdrawal of charges in exchange for DiMatteo pleading guilty to the remaining counts mandating a minimum period of incarceration.
DiMatteo argues, inter alia, that the Commonwealth‘s position is not supported by the record. DiMatteo‘s Brief at 22. As a general matter, DiMatteo posits that there was no plea agreement in this case. Rather, according to DiMatteo, he entered an open plea of guilty, which was approved by the trial court. Id. at 23 (citing Pa. R.Crim.P. 590(A) (explaining that a defendant may plead guilty with the consent of the judge and that the judge can accept the plea after determining, on the record, that the plea is being tendered voluntarily and understandingly)). DiMatteo also points out that his written plea colloquy: (1) specifically advised him that he could challenge the legality оf his sentence on appeal; and (2) indicated that the parties did not enter a plea agreement. Similarly, he maintains that, during his sentencing hearing, the court informed him that he could challenge his sentence on appeal. Id. (citing N.T., 2/6/2013, at 55).
DiMatteo further contends that the record does not support the Commonwealth‘s suggestion that “the on the record guilty plea was in reality premised in part on an unstated agreement to receive mandatory sentences (that could not be challenged on appeal), with the Commonwealth also agreeing to drop some charges.” Id. at 24. DiMatteo insists that “[t]here is no evidence that any charges were dropped as part of an agreement.” Id. at 25 (emphasis in original). For these reasons, DiMatteo advocates that this Court should affirm the Superior Court‘s disposition of this matter and remand the case for resentencing without consideration of Section 7508.
DiMatteo‘s account of the record is accurate. DiMatteo‘s written guilty plea colloquy confirms that the parties did not enter a plea agreement; rather, DiMatteo tendered an open plea of guilty. Guilty Plea Colloquy, 11/20/2012, at 3. Moreover, that written colloquy contemplated that DiMat-
For all of these reasons, like the Majority, I conclude that the Court should affirm the Superior Court‘s judgment, which reversed the PCRA court‘s order, vacated DiMatteo‘s judgment of sentence, and remanded for resentencing without consideration of Section 7508.
Justices Todd and Wecht join this concurring opinion.
David BAATZ, Appellant v. COMMONWEALTH of Pennsylvania, Board of Probation and Parole, Appellee
No. 27 MAP 2017
Supreme Court of Pennsylvania.
Decided: January 18, 2018
182 A.3d 200
ORDER
PER CURIAM
AND NOW, this 18th day of January, 2018, the Order of the Commonwealth Court is hereby AFFIRMED.
Alton D. BROWN, Appellant v. John E. WETZEL, Appellee
No. 125 MAP 2016
Supreme Court of Pennsylvania.
Decided: January 18, 2018
182 A.3d 200
ORDER
PER CURIAM
AND NOW, this 18th day of January, 2018, the Order of the Commonwealth Court is hereby AFFIRMED.