Commonwealth v. Ciccone
Commonwealth v. Ciccone
Opinion of the Court
OPINION BY
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 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)(h), 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.
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 October 25, 2012.
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, — U.S. -, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013). The PCRA court, at the conclusion of the evidentiary hear
This timely appeal ensued.
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.
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, 629 Pa. 352, 105 A.3d 678, 685 (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 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.
However, Appellant conflates the concept of illegal sentences with whether Al-leyne 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 retro-activity 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
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
The Apprendi Court concluded that Ap-prendi 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, 120 S.Ct. 2348 (quoting Jones v. United States, 526 U.S. 227, 243, n. 6, 119 S.Ct. 1215, 143 L.Ed.2d 311 (1999)).
It is of key importance in the pi-esent 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. 79,106 S.Ct. 2411, 91 L.Ed.2d 67 (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 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.
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. Al-leyne 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 Al-leyne’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 Appren-di 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 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 at 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 Su
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, 25 L.Ed. 717 (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, 93 S.Ct. 1463, 36 L.Ed.2d 151 (1973) (limiting its decision in Norton v. Shelby County, 118 U.S. 425, 442, 6 S.Ct. 1121, 30 L.Ed. 178 (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.
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 Bender files a Dissenting Opinion.
Judge Mundy did not participate in the consideration or decision of this case.
. 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, 537 Pa. 558, 645 A.2d 211 (1994); Commonwealth v. Hockenberry, 455 Pa.Super. 626, 689 A.2d 283 (1997).
. 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, 608 Pa. 71, 10 A.3d 282 (2010). Appellant also did not object to being represented by PCRA counsel during the PCRA evidentiary hearings.
. 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 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.
. This author filed a dissent joined by Judge Olson and Judge Stabile. Judge (now Justice) Mundy filed a concurrence joined by Judge Lazarus.
. 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.”
. “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, -U.S. -, 136 S.Ct. 1257, 1264, 194 L.Ed,2d 387 (2016).
Dissenting Opinion
DISSENTING OPINION BY
I respectfully disagree with the Majority’s conclusion that this Court is compelled to deny Appellant relief from an unconstitutional and, therefore, illegal sentence. As Appellant raised his meritorious illegal sentencing claim in a timely PCRA
The statute under which Appellant was sentenced, 18 Pa.C.S. § 7508(a)(1)(h), contravenes the Sixth Amendment and the Due Process Clause of the United States Constitution, as those constitutional provisions were interpreted by the Supreme Court of the United States in Alleyne v.
In my view, at least two theories potentially support granting relief. First, as discussed (and rejected) by the Majority, is whether Appellant is entitled to relief by the retroactive effect of Alleyne and its progeny, under the framework established in Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989) (plurality). In Teague, the Supreme Court of the United States established a framework for determining whether retroactive application of new constitutional rulés is required on collateral review. The general rule holds that “new constitutional rules of criminal procedure will not be applicable” on collateral review, unless they fall within two exceptions. Id. at 310, 109 S.Ct. 1060.' “[T]he exceptions extend to rules prohibiting a certain category of punishment for a class of defendants because of their status or offense, ... and watershed rules of criminal procedure implicating the fundamental fairness and accuracy of the criminal proceeding.” Commonwealth v. Cunningham, 622 Pa. 543, 81 A.3d 1, 4 (2013) (internal citations and quotation marks omitted).
As the Majority in this case correctly surmised, in Commonwealth v. Washington, 142 A.3d 810 (Pa. 2016), our Supreme Court rejected a claim that the new rule announced in Alleyne falls within the scope of either of the two Teague exceptions. Despite my own misgivings about this conclusion,
However, while Teague provides the framework to determine- whether retroactive application of Alleyne on collateral review is required, it does not at all bar Pennsylvania’s General Assembly .from providing relief to persons sharing, Appellant’s procedural posture. That brings us to the second theory supporting granting relief in this case: the PCRA statute explicitly provides for it. ,
It must be acknowledged that
the Teague rule of nonretroactivity was fashioned to achieve the goals of federal habeas while minimizing federal intru*1012 sion into state criminal proceedings. It was intended to limit the authority of federal courts to overturn state convictions—not to limit a state court’s authority to grant relief for violations of new rules of constitutional law when reviewing its own State’s convictions.
Danforth v. Minnesota, 552 U.S. 264, 280-81, 128 S.Ct. 1029, 169 L.Ed.2d 859 (2008) (emphasis added).
Thus, Teague dictates whether a decision must be applied retroactively as a federal constitutional matter.
A Pennsylvania state court’s authority to grant relief on collateral review is dictated by the PCRA statute. See 42 Pa.C.S. § 9542 (“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 .... ”). Moreover, the PCRA statute expressly states that it “provides for an action by which persons convicted of crimes they did not commit and persons serving illegal sentences may obtain collateral relief.” Id. (emphasis added).
Notably, Section 9542 does not delineate between sentences which were illegal when issued and sentences which became illegal at a later time. Indeed, the use of the term “serving” suggests that no such distinction was intended. This is not to say that the legislature did not contemplate retroactivity concerns. It is patently obvious that it did so given the provision addressing the retroactive effect of newly recognized constitutional rights in untimely PCRA petitions. See 42 Pa.C.S. § 9545(b)(l)(iii) (permitting consideration of an untimely PCRA petition where “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”). Indeed, it is precisely because the PCRA statute specifically addresses retroactivity concerns with regard to untimely PCRA petitions that the absence of retroactivity-concerned language in the provisions governing timely petitions strongly suggests the legislature was not concerned with retroactivity issues for timely PCRA petition. In any event, even if the PCRA is ambiguous with regard to retroactivity in those provisions, the principle of lenity generally dictates that whatever ambiguity exists must be resolved in favor of the defendant in criminal case.
The Majority cleverly avoids this second theory by narrowly framing the concept of an ‘illegal sentence’ as a sentence which was illegal at its inception. Accordingly, under such logic, since Appellant’s sentence was not illegal when issued, he is not now serving an illegal sentence. However,
The problem with this assumption is that Teague-related retroactivity principles do not govern whether a sentence remains legal in the present, in light of a different understanding of constitutional law in the past when the sentence was imposed. The question of legality turns on whether Appellant’s sentence contravenes the Sixth Amendment and Due Process Clause as understood today under Alleyne. Retroactivity jurisprudence instead governs whether courts are required to grant relief from illegal sentences, regardless of the legality when they were imposed. Indeed, there would be no need for retroac-tivity principles at all in this setting if the only essential question is, “what was the state of the law when the sentence was imposed?’
The Teague decision, and the retroactivity principles it espouses, were specifically adopted from “Justice Harlan’s view of retroactivity for cases on collateral review.” Teague, 489 U.S. at 310, 109 S.Ct. 1060. In one of Justice Harlan’s concurrences, which later formed the basis for the Teague decision, he opined:
Habeas corpus always has been a collateral remedy, providing an' avenue for upsetting judgments that have become otherwise final. It is not designed as a substitute for direct review. The interest in leaving concluded litigation in a state of repose, that is, reducing the controversy to a final judgment not subject to further judicial revision, may quite legitimately be found by those responsible for defining the scope of the writ to outweigh in some, many, or most instances the competing interest in read-judicating convictions according to all legal standards in effect when a habeas petition is filed. Indeed, this interest in finality might well lead to a decision to exclude completely certain legal issues, whether or not properly determined under the law prevailing at the time of trial, from the cognizance of courts administering this collateral remedy.
Williams v. U.S., 401 U.S. 667, 682-83, 91 S.Ct. 1171, 28 L.Ed.2d 404 (1971) (J. Harlan, concurring) (emphasis added). Under Justice Harlan’s view, retroactivity principles do not operate to decide whether Appellant’s sentence is currently illegal given its apparent legality when imposed. Retro-activity principles concern whether the court should act to address an issue, “whether or not properly determined under the law prevailing at the time of trialt.]” Id. Moreover, Justice Harlan recognized that “those responsible for defining the scope of the writ,” i.e., the federal legislature, were properly tasked with weighing the interest in “readjudicating convictions” based on a subsequent understanding of the law, against the interest in the finality of judgments. Hence, retroac-tivity analysis concerns whether the courts are obliged to grant relief for illegal sentences, not whether sentences are illegal or not.
The test for illegality must be the state of the law in the present, not the state of the law at some prior time. If this were not true, there would simply be no need for retroactivity analysis for the application of new rules. By definition, the prior sentence would always be “legal” today because it was “legal” when issued. What is the purpose of retroactivity analysis in illegal sen
In sum, I believe that while it is clear that Washington precludes this Court from being required to give retroactive effect to Alleyne under Teague, the PCRA statute by its own terms provides relief from any illegal sentence if such a claim is raised in a timely PCRA petition. Under the current state of the law, Appellant’s sentence is illegal and, therefore, I believe his timely PCRA petition entitles him to relief under the terms of the PCRA itself. As the Majority reaches a different conclusion, I respectfully dissent.
. Post Conviction Relief Act, 42 Pa.C.S. §§ 9541-9546.
. I believe that in Pennsylvania, at least, the implementation of Alleyne has been a watershed decision affecting sentencing procedure, given the patent unconstitutionality of Pennsylvania's now-defunct mandatory minimum sentencing scheme.
. Technically, the state courts are free to adopt their own retroactivity principles governing whether they give retroactive effect to new federal constitutional decisions. However, our Supreme Court, like many others, has chosen to adhere to the Teague framework in determining the retroactivity of new, federal constitutional decisions. Cunningham, 81 A.3d at 8 ("This Court ... generally has looked to the Teague doctrine in determining retroactivity of new federal constitutional rulings.”).
Reference
- Full Case Name
- COMMONWEALTH of Pennsylvania v. Sean Joseph CICCONE Appellant
- Cited By
- 32 cases
- Status
- Published