*1 liti- heightened confusion and increased respectfully I dissent. gation. Pennsylvania
COMMONWEALTH Joseph CICCONE
Sean EDA 2014
No. 3114
Superior Pennsylvania. February
Submitted
FILED DECEMBER Defender, Dunleavy,
Christra S. Public Defender, King, and Christina A. Public Doylestown, appellant. Heckler, At-
David Assistant District W. Commonwealth, torney, Doylestown, for appellee. *2 P.J.E., ELLIOTT, weight marijuana of the and the
BEFORE: FORD number of SHOGAN, BENDER, P.J.E., BOWES, aspect This plants recovered. of the sen- OLSON, LAZARUS, MUNDY, OTT AND negotiated tence based on a five-year STABILE, JJ. mandatory minimum applying sentence drugs to of the to proximity
due fire- negotiated plea, arms. Per the BOWES, court BY J.: OPINION imposed a of three and one-half sentence from the appeals Sean Ciccone order years to five incarceration on one count of 7, 2014, his denying on October entered 9, September on 2011.1 The court PWID (“PCRA”) peti- Act Post-Conviction Relief on De- thereafter amended review, we tion. After careful affirm. 16, 2011, Appellant cember to indicate that eligible for the Risk Re- Recidivism Appellant three charged Police with (“RRRI”) program, duction Incentive possession with intent to counts deliver permitted Appellant paroled to PWID, (“PWID”), commit conspiracy to serving thirty-five after months of his sen- on possession drug paraphernalia and 6, a tence. January Appellant nego- 2011. entered 2, 2011, guilty plea September
tiated
on
to
Appellant
appeal,
not file a
direct
PWID,
two counts of
and one count each
timely pro
se PCRA
presented
peti-
but
conspiracy
posses-
to commit PWID and
9,
April
tion on
2012. The PCRA court
drug paraphernalia.
sion of
The facts un-
25,
appointed counsel on October
2012.2
derlying
police
plea
executed
hearings
evidentiary
The
conducted
July
at
on
search
his residence
warrant
15, 2013,
21, 2014,
August
April
on
and
home,
6,
entering
police
Upon
2010.
27,
15,
August
2014. At
June
marijuana
a .22
saw
rifle and
both
hearing, Appellant agreed to
all
waive
but
a back
first floor bedroom and
bedroom.
Specifically, he asked the
two claims.
Police also
double-barreled
observed
plea
court to find
counsel ineffective
PCRA
shotgun in
floor
the first
bedroom and
declining
challenge
weight
shotgun
separate
another
in a
bedroom.
marijuana
to contest
failing
and in
The first floor bedroom also contained bins
marijuana plants
number of
recovered.
marijuana. In
drying
and packaging
home, police
the basement of the
found
hearings,
Following
original
but
two
soil,
marijuana plants, potting
fifty
over
hearing,
to the last
counsel filed an
weight
The
growing
chemicals.
18, 2014. In that
petition
amended
on June
plants
approximately
pounds.
thirteen
petition, Appellant
that his sen
averred
v. Unit
tence was
based
Prior to
sentencing,
Commonwealth
— U.S. -,
States,
2151,
ed
provided notice that it would seek a.three-
(2013).
court,
sentence,
The PCRA
jury
proven beyond
and
a reasonable
granted
legality-of-sen
relief since this
recognized
doubt. The PCRA court
that
issue,
cognizable
tence
which
under the
Appellant’s position
arguing
based on
PCRA,
presented in
timely
a
PCRA
Alleyne,
the retroactive treatment
petition. Appellant’s brief at 4.
firstWe
Apprendi
applied
which
to mandatory
that,
context,
note
in the
appellate
PCRA
Alleyne, supra
minimum sentences. See
review is confined to
a determination
(“facts[,
at 2163
other than a
con-
rulings
“whether the PCRA court’s
are
viction,]
mandatory
that
increase
mini-
supported by the record and are free of
mum sentences must be
submitted
Bardo,
legal error.” Commonwealth v.
jury”
beyond
and found
a reasonable
(2014).
629 Pa.
105 A.3d
doubt).
Appellant
Since
was sentenced
mandatory
under
sentencing
minimum
Alleyne
Appellant asserts that
and this
provision, the PCRA
the is-
court treated
Court’s
decision
Alleyne
raising
sue as
an
claim rather
2014) (en
Newman,
(Pa.Super.
A.3d
Apprendi
than one under
the earlier
banc),
renders his sentence
and
case,
upon
and it
relief
denied
granted
based
that he should have been
finding
not apply
retro-
timely
since he filed
PCRA
and
actively
setting.
Newman,
in the
cognizable.
PCRA
his contention
pro
appeal
attorney
filed a
se notice of
3.
forwarded to the
defendant’s
and
County
October
2014 that the Bucks
Clerk
attorney for the Commonwealth
within
of Courts docketed and forwarded
counsel.
days
receipt.”).
Counsel thereafter filed an-
576(A)(4) (When
See
"defen-
Pa.R.Crim.P.
other,
timely
appeal
notice of
on October
by
attorney"
represented
dant is
and files a
2014.
lawyer,
document not executed
"the
accept
filing,
clerk of courts shall
it for
time
joined by Judge
This author filed a
dissent
stamp
receipt
the date of
make
with
(now Justice)
Judge
Judge
Olson and
Stabile.
entry reflecting
receipt,
the date of
docket
Mundy
joined by Judge
filed a concurrence
place the document in the criminal case file.
copy
stamped
A
time
document shall be
Lazarus.
upon
weight
drugs,
as
we struck
unconstitutional
based
down
as
mandatory
sentencing provision
sentencing by
determined
the court un-
9712.1,
applied
preponderance
Pa.C.S.
der
the evidence
drugs
proximity
found
proof.
burden
guns,
because
statute allocated
However, Appellant conflates the con-
decision,
cept of illegal sentences with whether Al-
standard,
preponderance-of-the-evidence
leyne
applied retroactively
can.be
supported imposi
as to
the facts
whether
Washington
collateral
context.
review
mandatory
tion
sentence. Accord
clearly
that the
articulated
fact that
Wolfe, 140
Commonwealth v.
A.3d
Alleyne may,
legality-of-sentence
raise a
(Pa. 2016) (ruling
sentenc
the need for a
issue does
obviate
retro-
ing provision in 42
un
9718 was
activity analysis as to whether
can
*4
Alleyne
provid
as it
constitutional under
judg-
to a collateral attack on a
applied
sentencing
ed
to determine its
Additionally,
ment of sentence.
our Su-
sentencing by
applicability
preponder
a
preme
squarely
Court
laid to
the lat-
rest
refusing
ance of
evidence and
to sever
Alleyne
question
ruling
ter
not
that
is
Alleyne);
portion
statute
violated
that
Supreme
retroactive under
States
United
Hopkins,
A.3d 247
Commonwealth v.
117
ascertaining
Court test for
retroactivity6
(Pa. 2015) (same reasoning applied to stat
Alleyne
by refusing
to
retroactive
find
provided
mandatory
ute that
minimum
independent
grounds.
on.
It held that
state
drugs
near to
sentence
sold
“Alleyne
apply retroactively
to
does
6317).
schools,
§
Significantly,
18 Pa.C.S.
pending
so that
cases
on collateral review”
these three
were all
dur
decisions
issued
appellant’s
illegal
sentence “is not
ing
appeal.
a defendant’s direct
Alleyne.” Washington, supra
account
that,
recognize
in a host of
We
direct
Thus,
is
Appellant’s
at 820.
sentence
Alleyne
cases,
appeal
we have addressed
Alleyne
Alleyne
because
sentencing
sen-
claims under
inapplicable
proceeding.
this collateral
Alleyne
tencing paradigm and held that
present
legality
sen-
Court did not
issues
non-waivable
While
concept,
tencing
many
reject
claims.5
have invalidated
we likewise
We
address this
mandatory
sentencing
mandatory sentencing
minimum
position
statutes.
Indeed,
Mosley,
illegal by
v.
is void
Commonwealth
114 statute rendered
ab initio
2015),
ap-
thereby rendering any
sentence
(Pa.Super.
A.3d 1072
direct
peal,
expressly
has
struck down
This conclu
imposed
thereunder
invalid.
provi-
progression
from the
of the law
sentencing
minimum
sion flows
mandatory
case,
subject.
one can reach a
implicated
sion
in the
18
Before
present
7508,
examination of whether
Pa.C.S.
which increased
sentence
reasoned
See, e.g.,
Vargas,
legality
and is there
108
cates the
Commonwealth
2014)
banc))
(en
(Pa.Super.
A.3d 858
Com
fore non-waivable.”
Newman,
(Pa.Su
A.3d 86
monwealth v.
99
2014) (en banc);
per.
v. Wat
determining
6. “The normal framework
2013)
banc).
(en
ley,
(Pa.Super.
American and the imposed. had to be countervailing regarding ed Ap- evidence prendi’s motivation for the The trial crime. The defendants McMillan maintained court concluded that ra- the offense was that having sentencing a court decide the cially motivated and sentenced the defen- visible-possession issue offended their imprisonment to an term of dant enhanced right jury Sixth Amendment to a trial. by applying the hate crime law. position possession Their that “visible of a actually firearm” was an element of Apprendi
The Court concluded that Ap- any that crimes invoked and prendi right, had a ap- Sixth Amendment thus, to jury had be submitted to a and plicable Jersey by to New virtue the due proven beyond a reasonable doubt. The process clause of the Fourteenth Amend- rejected United States ment, jury beyond to a have determine argument. that up- The McMillan Court reasonable doubt whether the crime was constitutionality held the be- racially premised motivated. It that hold- cause it statutory did not increase the ing on the fact that the issue the motiva- penalty any maximum tion for his offense commit- crime increased the maximum ted, to Apprendi’s separate failed create crime call- Apprendi sentence that faced. specific is, ing penalty, for an oft-repeated holding “[A]ny inap- additional and was (other conviction) plicable fact in- until a than that defendant was convicted of penalty particular creases the maximum for a to crime crime which he was be indictment, charged must in an submit- sentenced. to
Apprendi subsequent It concluded that this filed differentiation was Thereafter, Appren- in Hams v. Unit- incompatible McMillan. with the rationale States, mandatory di since minimum ed U.S. sentences (2002), High pertain permissible nation’s to the ranges penal- L.Ed.2d viability and its imposed upon Court re-visited McMillan that can be ties a conviction Apprendi. at issue The statute for a crime. The United States for an in the provided Harris increase “[m]andatory Court reasoned since sentencing court minimum if a penalty minimum sentences increase crime,” “follows,then, any that the defendant brandished for a determined fact during firearm the commission mandatory that increases the minimum is underlying The Court re- crime. Harris an ‘element’ that must be submitted challenge holding Alleyne, supra jected jury.” at 2155. Apprendi based decision.
McMillan continued that Harris, minimum sen- mandatory Under Apprendi’s definition ‘elements’ nec- imposed tences that were maxi- within essarily only includes not facts that in- by jury ceiling mum verdict set ceiling, crease the also those violate a Sixth Amendment defendant’s increase the floor. Both of facts kinds right jury to a trial. prescribed range alter the of sentences exposed defendant do Apprendi holding of applied the aggravates pun- so a manner that ishment .... Facts that increase the accomplices and his com- context. mandatory minimum sentence are there- robbery of a store man- mitted armed must fore elements and be submitted depos- driving the business’s ager who was jury beyond a and found reasonable bank, charged its to a and he with doubt. applicable An fed- federal offenses. various provided for an increase Thus, Alleyne
eral law clearly Id. at 2158. abro- *6 mandatory minimum two Washington, sentence gated existing Accord law. during if years a firearm brandished Alleyne was supra (observing that created a jury on its 653, the crime. The did indicate law); Wolfe, supra at rule in slip gun question that the verdict (“During trial to sen- Appellee’s and visible, applied sentencing but the Supreme tencing, United Al- years. of two Alleyne decision, the enhanced sentence its overrul- States issued objected raising leyne and maintained that ing prior precedent and establish- own mandatory law[.]”). his minimum sentence based ing a new constitutional rule of finding that he sentencing court’s dis- Thus, statute at herein when the issue his played the firearm violated Sixth enacted, as well as when the sentence right jury to a trial. The trial Amendment was, fact, in imposed, thereunder was. court, Harris, Al- applying dismissed constitutional, cannot and be considered ap- After the federal leyne’s complaint. McMillan, supra; inception. from void affirmed, peals court the United States Harris, supra. Alleyne overruled Harris and overruled Court reversed and rendered a constitu- and McMillan Harris. as of the tional statute unconstitutional Alleyne Alleyne that Penn- Court observed Harris date that was disseminated. mandatory statutes sylvania’s facts increased distinguished between unconstitutionally in- statutory those that cannot be considered maximum and ab initio as the United States Su- minimum sentence. creased void 1010 constitutional, initially upheld the that it and
preme Court identical the statute in on the sentencing paradigm passing not nullity. Appellant’s sentence can be § 42 constitutionality only if considered now McMillan, supra; see also Common- apply retroactively. held to Our Stokes, (Pa.Super. v. A.3d 846 wealth Washington clearly in has ruled 2011) 9712, (upholding 42 Pa.C.S. that such is not the case. opining fail Har- that the statute would Accordingly, the trial court not com- overturned). ris and McMillan were an error of or mit law an abuse of discre- Derhammer, v. concluding tion in did not 2016) (em- 1066, (Pa.Super. 1077 n.10
A.3d Appellant’s illegal. render We added), phasis forth: we set thus affirm the denial PCRA relief. parte exceptions to ] There are the [Ex affirmed. Order 371, Siebold, 25 L.Ed. [100 U.S. (1879)]pronouncement that an unconsti- Elliott, Judge President Emeritus Ford from tutional law is the outset. void Lazarus, Judge Shogan, Judge Judge is, That where are there actions taken Olson, Judge Judge Ott Stabile Join judicial justifiable upon reliance Opinion. ruling that was constitu- statute point time, tional at one the statute Judge files President Emeritus Bender always nullity is not considered Dissenting Opinion. never as if it existed. See Am.Jur. 2d Judge Mundy participate did not Heilig 196; Constitutional Es- Law or consideration decision of this case.
tate, 1, *8; 13 Pa. D. & C.3d see also Kurtzman, 192, 199, Lemon 411 U.S. DISSENTING OPINION BY (1973) L.Ed.2d 151 BENDER, P.J.E. Shelby (limiting its decision Norton disagree Majori- I respectfully with the County, 118 U.S. ty’s compelled conclusion this Court is (1886), L.Ed. 178 which reiterated Appellant from deny relief an unconsti- constitutionally void ab initio doctrine and, therefore, illegal tutional As sentence. espoused by stating, in Siebold “Howev- his raised meritorious logic may er appealing Norton in timely peti- claim a PCRA1 abstract, have been its abandon- tion, I granted believe he should be recognition ment reflected our that stat- statutory authority provi- under the of that *7 utory judge-made or even of rules law alone, sion even there is no mandatory people rely are hard facts on must which requirement for of application retroactive making shaping decisions and their the new constitutional rale at issue. Ac- conduct.”); see Thomas Raeburn also I cordingly, dissent. White, Commentaries on the Constitu- (1907) (dis- Pennsylvania, tion of 27-28 The Appellant statute under cussing exceptions to unconstitutionally sentenced, 7508(a)(1)(h), 18 Pa.C.S. con- doctrine). ab initio void travenes the Amendment the Sixth of Appellant’s Due the illegal sentence was not Process Clause United States Constitution, imposed, provi- he was sentenced under the stat- as those constitutional justifiable ute in reliance upon existing interpreted by Supreme sions were Alleyne Supreme precedent United Court States the United v. Court States Act, §§ 1. Post Conviction Relief 42 Pa.C.S. 9541-9546. — States, -, (internal 133 S.Ct. quotation
United
U.S.
citations and
marks
(2013).
omitted).
Com
L.Ed.2d
See
(Pa.
Newman,
v.
mining
application of
whether retroactive
However,
provides
while Teague
col
required
new constitutional
rulés is
framework
determine-
retroac-
whether
lateral
general
rule holds that
review.
application
tive
collateral
proce
constitutional rules of criminal
“new
required, it
all bar
review is
does not at
applicable”
dure
not be
on collateral
will
Pennsylvania’s
Assembly
General
.from
review,
they
excep
unless
two
fall within
providing
persons
Appel-
relief to
sharing,
tions. Id. at
1060.'
“[T]he
procedural
brings
posture.
lant’s
That
us
exceptions
prohibiting
extend to
rules
theory supporting
granting
second
punishment
certain
for a
category
class
relief in
ex-
this case: the PCRA statute
or
defendants because of their status
,
plicitly provides
it.
offense, ...
of crimi
and watershed rules
It
acknowledged
must
procedure
nal
fundamental
implicating the
*8
Teague
accuracy
pro
nonretroactivity
fairness
the
rule of
criminal
was
Cunning
ceeding.”
goals
fashioned to achieve the
of federal
ham,
(2013)
622
4
Pa.
habeas while
intru-
minimizing
A.3d
federal
least,
Pennsylvania,
given
patent unconstitutionality
2.
I believe
in
at
the
of
Penn-
implementation
sylvania's
of
been a water-
has
now-defunct
affecting sentencing procedure,
shed decision
scheme.
proceedings.
Notably,
criminal
It
not
into state
Section
does
delineate
sion
illegal
authority
limit
between sentences which
when
intended to
of
illegal
issued and sentences which became
to overturn
convic-
federal courts
state
Indeed,
at a
of
later time.
the use
the term
tions—not to limit a
court’s au-
state
“serving” suggests that no such distinction
grant
violations
thority to
relief for
of
say
was intended. This is not to
that the
new rules
constitutional
law when
of
legislature
contemplate
did not
retroactivi-
reviewing its own State’s convictions.
ty
patently
concerns. It is
obvious that it
Minnesota,
280-
Danforth
U.S.
given
provision addressing
did so
(2008)
81, 128
over, expressly the PCRA statute states theory by narrowly framing concept “provides that it for an action ‘illegal an sentence’ as sentence which persons they illegal convicted crimes inception. Accordingly, persons serving illegal commit logic, sen- such Appellant’s since sen- issued, may Id. tences obtain collateral relief.” tence was not is not he added). (emphasis serving However, now sentence. new, Technically, determining retroactivity the state courts are free to federal adopt retroactivity principles gov Cunningham, own their constitutional decisions. ("This they give erning generally whether retroactive effect to at 8 ... has A.3d Teague determining new federal constitutional decisions. Howev looked to the doctrine er, Court, others, many retroactivity like our has federal constitutional rul Teague ings.”). chosen to adhere to the framework in *9 revision, judicial may quite legit- further Majority misapprehends I what believe the sentence, particularly illegal imately responsible an be those constitutes found statutory language at of to respect defining scope to the for the the writ with issue, some, of speak outweigh many, does not to the state in or in- most sentencing, law at time of in competing the the stances the interest read- petitioner “per- is a to judicating according instead to whether all convictions sentence[,]” serving illegal legal ] in effect when a habeas [an] standards sone Indeed, at Majority Opinion 9542. See is this interest in filed. (“Appellant’s finality might can be consid- to a decision to sentence well lead issues, to illegal only legal ered now if is held completely exclude certain added). apply retroactively.”) (emphasis un- properly whether or not determined at prevailing der law the time the of problem assumption with this The trial, cognizance the courts ad- from of Teague-related princi- retroactivity ministering remedy. this collateral ples govern do not whether a sentence light in of legal present, U.S., 667, 682-83, remains in the 401 U.S. Williams understanding (1971) (J. different of constitutional 1171, 28 Har- S.Ct. L.Ed.2d past lan, added). law when sentence was concurring) (emphasis Under imposed. question legality view, of The turns retroactivity princi- Justice Harlan’s Appellant’s sentence contravenes whether operate Ap- not to decide whether ples do Sixth Process Amendment and Due pellant’s currently illegal given sentence is Alleyne. today Clause as understood apparent legality imposed. Retro- when Retroactivity jurisprudence gov- instead activity principles concern whether required grant issue, whether courts are erns court should act address sentences, of illegal regardless relief from properly or not determined un- “whether imposed. In- legality they when were tri- prevailing der the law at the time of deed, no for there would be need retroac- Moreover, recog- Id. Harlan alt.]” Justice setting at tivity principles all in this defining for responsible nized that “those is, only question writ,” i.e., essential “what scope of the the federal of state the law the sentence was properly legislature, were tasked with imposed?’ “readjudicating weighing the interest subsequent under- convictions” based Teague decision, the retroactiv- law, against the interest in standing ity specifically it principles espouses, were Hence, finality judgments. retroac- adopted from Harlan’s “Justice view tivity analysis concerns the courts whether retroactivity for cases on collateral re- obliged grant illegal relief for sen- are Teague, view.” 489 U.S. tences, not whether sentences are concur- one Justice Harlan’s or not. rences, which the basis for later formed Teague decision, opined: he illegality The test for must be the state present, not state of corpus always Habeas has been a collat- the law the If this not remedy, prior eral avenue for the law at some time. providing an' true, simply there would be no need upsetting judgments that have become retroactivity analysis application for the designed otherwise final. It is as definition, By The interest substitute direct review. new rules. today always “legal” in a would because leaving litigation concluded state is, pur- reducing “legal” when issued. repose, that the contro- was What retroactivity analysis sen-
versy judgment subject pose to a final *10 if, definition, jurisprudence by tence
rules old sentences? never rendered sum, I believe that while it is clear Washington precludes this Court being required
from to give retroactive Teague,
effect to the PCRA under provides terms
statute own relief any illegal
from claim such a timely in a petition.
raised PCRA Under law, Appellant’s
the current state and, therefore, I
sentence is believe timely
his PCRA him entitles the terms of the PCRA itself. Majority
As the reaches different conclu-
sion, respectfully I dissent.
B.L., Appellant F.L., Appellees
T.B. and 828 MDA 2016
No. Pennsylvania.
Superior Court September
Submitted
FILED DECEMBER