J-E01011-16


                              2016 PA Super 149

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                         Appellee

                    v.

SEAN JOSEPH CICCONE,

                         Appellant                   No. 3114 EDA 2014


           Appeal from the PCRA Order Entered 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 BENDER, P.J.E.:                             FILED JULY 12, 2016

      Appellant, Sean Ciccone, appeals from the post-conviction court’s

October 7, 2014 order denying his timely petition filed under the Post

Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. The sole question

before this Court is: whether Appellant is entitled to relief when he raises, in

a timely PCRA petition, a claim that his sentence is illegal pursuant to

Alleyne v. United States, 133 S.Ct. 2151 (2013), and Commonwealth v.

Newman, 99 A.3d 86 (Pa. Super. 2014) (en banc). After careful review, we

conclude that relief is warranted.

      On September 2, 2011, Appellant pled guilty to two felony charges

under the Controlled Substance, Drug, Device and Cosmetic Act; specifically,

Appellant pled guilty to two violations of 35 P.S. § 780-113(a)(30) (“Except

as authorized by this act, the manufacture, delivery, or possession with
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intent to manufacture or deliver, a controlled substance by a person not

registered under this act, or a practitioner not registered or licensed by the

appropriate State board, or knowingly creating, delivering or possessing with

intent to deliver, a counterfeit controlled substance.”). Appellant also pled

guilty to conspiracy to commit these offenses, 18 Pa.C.S. § 903, as well as

to one count of possession of drug paraphernalia, 35 P.S. § 780-113(a)(32).

Appellant’s plea stemmed from his and his co-conspirator’s possession of

more than 50 marijuana plants.1

      At Appellant’s plea hearing, the Commonwealth invoked the three-year

mandatory minimum sentence prescribed by 18 Pa.C.S. § 7508(a)(1)(ii).

N.T., 9/9/11, at 2-3. At the time of Appellant’s sentencing, that provision

provided that:
      (1) A person who is convicted of violating section 13(a)(14),
      (30) or (37) of the act of April 14, 1972 (P.L. 233, No. 64),
      known as The Controlled Substance, Drug, Device and Cosmetic
      Act,1 where the controlled substance is marijuana shall, upon
      conviction, be sentenced to a mandatory minimum term of
      imprisonment and a fine as set forth in this subsection:
                                     …
         (ii) when the amount of marijuana involved is at least ten
         pounds, but less than 50 pounds, or at least 21 live plants
         but less than 51 live plants; three years in prison and a
         fine of $15,000 or such larger amount as is sufficient to
         exhaust the assets utilized in and the proceeds from the
         illegal activity; …


1
  The collective weight of the plants, discovered in Appellant’s and his co-
conspirator’s home, totaled 13 pounds. N.T., 9/9/11, at 5. Police also
discovered indicia of distribution, including bins for drying and packaging
marijuana, ‘owe’ sheets, and multiple firearms. Id. Additionally, Appellant
admitted that he both grew and sold marijuana. Id.

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18 Pa.C.S. § 7508(a)(1)(ii).

        Pursuant to Appellant’s negotiated plea agreement, and in compliance

with Section 7508(a)(1)(ii), the trial court sentenced Appellant to 3½-5

years’ (42-60 months’) incarceration, and to a fine of $15,000.           N.T.,

9/9/11, at 10-11.     Appellant did not file any post-sentence motions or a

direct appeal.    Accordingly, his conviction became ‘final’ on October 10,

2011.2

        On April 9, 2012, Appellant filed a timely, pro se PCRA petition,

alleging, inter alia, the ineffectiveness of his trial counsel. The PCRA court

appointed counsel     to   represent him, and evidentiary hearings were

conducted in April and June of 2014. However, none of those matters are

before us today.       As is pertinent to the instant appeal, Appellant

subsequently filed a counseled, amended PCRA petition on June 18, 2014,

alleging that his sentence is unconstitutional and, therefore, illegal pursuant

to Alleyne.      See Amended Motion for Post Conviction Collateral Relief,

6/18/14, at 1. The trial court denied Appellant’s PCRA petition on October 7,

2014.    Appellant filed a timely appeal, and a timely, court-order Pa.R.A.P.

1925(b) statement.      The PCRA court issued its Rule 1925(a) opinion on

December 23, 2014.

2
  “[A] judgment becomes final at the conclusion of direct review, including
discretionary review in the Supreme Court of the United States and the
Supreme Court of Pennsylvania, or at the expiration of time for seeking the
review.” 42 Pa.C.S. § 9545(b)(3) (emphasis added). “If the defendant does
not file a timely post-sentence motion, the defendant's notice of appeal shall
be filed within 30 days of imposition of sentence….” Pa.R.Crim.P. 720(a)(3).

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      Appellant filed a timely brief on April 6, 2015, and the Commonwealth

filed its brief on May 6, 2015. On October, 26, 2015, this Court issued an

order, sua sponte, certifying this case for en banc review, along with several

other cases raising identical questions. Order, 10/26/15, at 1.     The order

directed Appellant and the Commonwealth to address the following question:

“Whether the PCRA petitioner is entitled to relief when he raises, in a timely

PCRA petition, a claim that his sentence is illegal pursuant to Alleyne v.

United States, 133 S.Ct. 2151 (2013), and Commonwealth v. Newman,

99 A.3d 86 (Pa. Super. 2014) (en banc)?”         Id.   Pursuant to that Order,

Appellant filed a supplemental brief on November 16, 2015, and the

Commonwealth filed a substituted brief on December 7, 2015.                 Oral

argument was conducted on this issue on February 23, 2016.3 This matter

constitutes Appellant’s only claim for relief.

                                       ***

      We now endeavor to answer the question certified for en banc review

in this case. We begin with the applicable standard and scope of review.
      We review an order dismissing a petition under the PCRA in the
      light most favorable to the prevailing party at the PCRA level.
      Commonwealth v. Burkett, 5 A.3d 1260, 1267 (Pa. Super.
      2010). This review is limited to the findings of the PCRA court
      and the evidence of record. Id. We will not disturb a PCRA
      court's ruling if it is supported by evidence of record and is free
      of legal error. Id. This Court may affirm a PCRA court's decision

3
  Appellant’s counsel did not appear at oral argument, as he submitted this
matter for consideration on the briefs.       However, oral argument was
presented by counsel for other similarly situated appellants and the
respective District Attorneys.

                                      -4-
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      on any grounds if the record supports it. Id. Further, we grant
      great deference to the factual findings of the PCRA court and will
      not disturb those findings unless they have no support in the
      record. Commonwealth v. Carter, 21 A.3d 680, 682 (Pa.
      Super. 2011). However, we afford no such deference to its legal
      conclusions. Commonwealth v. Paddy, 609 Pa. 272, 15 A.3d
      431, 442 (2011); Commonwealth v. Reaves, 592 Pa. 134,
      923 A.2d 1119, 1124 (2007).          Where the petitioner raises
      questions of law, our standard of review is de novo and our
      scope of review plenary. Commonwealth v. Colavita, 606 Pa.
      1, 993 A.2d 874, 886 (2010).

Commonwealth v. Ford, 44 A.3d 1190, 1194 (Pa. Super. 2012).

Instantly, our decision concerns only questions of law. Thus, our “standard

of review is de novo and our scope of review plenary.” Id.

      In order to properly assess the scope and nature of the issue at hand,

a summary of the important developments in Alleyne-related Pennsylvania

case law is in order. In Alleyne, the Supreme Court of the United States

held that facts that give rise to mandatory minimum sentences (aside from

prior convictions) must be proven to a jury beyond a reasonable doubt.

Alleyne was itself an extension of the principle announced in Apprendi v.

New Jersey, 530 U.S. 466 (2000) (holding that any fact that increases

penalty for crime beyond prescribed statutory maximum, other than the fact

of a prior conviction, must be submitted to jury, and proven beyond

reasonable doubt).      However, prior to Alleyne, Pennsylvania courts

routinely   upheld   Apprendi-based   challenges   to   mandatory   minimum

sentences in Pennsylvania.    See e.g. Commonwealth v. Nguyen, 834

A.2d 1205, 1208 (Pa. Super. 2003) (“Appellate case law has routinely held

that the sentencing trigger is not an element of the offense but rather only a


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factor that does not improperly deny the jury the right to make relevant

factual determinations.”).

      Alleyne has proved to be cataclysmic to Pennsylvania’s common

statutory scheme for imposing mandatory minimum sentences.            As this

Court first acknowledged in Commonwealth v. Watley, 81 A.3d 108 (Pa.

Super. 2013), “[t]he Alleyne decision … renders those Pennsylvania

mandatory minimum sentencing statutes that do not pertain to prior

convictions constitutionally infirm insofar as they permit a judge to

automatically increase a defendant's sentence based on a preponderance of

the evidence standard.”      Id. at 117.   Importantly, the Watley Court also

recognized that Alleyne “necessarily implicated Pennsylvania's legality of

sentencing construct” and, as such, Alleyne-based claims “are not waivable

and may be raised sua sponte by this Court.” Id. at 117-18.

      In Watley, the defendant was subjected to a mandatory minimum

sentence based on his possession of a firearm during the commission of a

violation of 35 P.S. § 780-113(a)(30) (pertaining to “the manufacture,

delivery, or possession with intent to manufacture or deliver, a controlled

substance”). See 42 Pa.C.S. § 9712.1 (held unconstitutional in Newman).

The Watley Court conducted, sua sponte, an ad hoc Alleyne analysis,

ultimately concluding that the appellant’s sentence did not violate Alleyne

because “the jury's finding on the two firearms charges … directly aligned

with the [mandatory sentencing provision’s] requirement … that the

defendant possess a gun[.]” Watley, 81 A.3d at 120-21.

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        Subsequently, in Commonwealth v. Thompson, 93 A.3d 478 (Pa.

Super. 2014), this Court vacated, sua sponte, a mandatory minimum

sentence imposed pursuant to 18 Pa.C.S. § 7508 (Drug trafficking

sentencing and penalties) as unconstitutional under Alleyne.         Contrary to

the result in Watley, the Thompson court found it was “apparent from the

record that the facts that permitted application of that mandatory sentence

were not determined by the fact-finder nor proven beyond a reasonable

doubt.”    Thompson, 93 A.3d at 493.         Implicit in the Thompson decision

was the suggestion that application of Section 7508 would run afoul of

Alleyne in all but the rarest of circumstances, such as in Watley, where the

facts triggering the mandatory sentence at issue had been proven vis a vis

the elements of a simultaneous conviction.

        Case-by-case analyses of Alleyne issues, as conducted in Watley and

Thompson, were short-lived. In Newman, an en banc panel of this Court

held that Alleyne rendered the mandatory sentencing statute at issue in

Watley unconstitutional in its entirety.         Notably, the Newman Court

considered, but ultimately rejected, the Commonwealth’s argument that the

Alleyne-offending provision4 (hereinafter “proof at sentencing provision”) of

Section 9712.1 was severable from the statute as a whole.

4
    Subsection (c) of Section 9712.1 read as follows:

        (c) Proof at sentencing.--Provisions of this section shall not be
        an element of the crime, and notice thereof to the defendant
        shall not be required prior to conviction, but reasonable notice of
        the Commonwealth's intention to proceed under this section
        shall be provided after conviction and before sentencing. The
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     The proof at sentencing provision at issue in Newman proved to be

the Achilles heel of nearly all of Pennsylvania’s mandatory minimum

sentencing statutes.   Mandatory minimum sentences set forth in 42 Pa.C.S.

§§   9712 and 9713 were held unconstitutional in Commonwealth v.

Valentine, 101 A.3d 801 (Pa. Super. 2014) (applying Newman and

Alleyne).5 In Commonwealth v. Fennell, 105 A.3d 13 (Pa. Super. 2014),


     applicability of this section shall be determined at sentencing.
     The court shall consider any evidence presented at trial and shall
     afford the Commonwealth and the defendant an opportunity to
     present any necessary additional evidence and shall determine,
     by a preponderance of the evidence, if this section is applicable.

42 Pa.C.S. § 9712.1(c). As recognized by the Watley Court, this provision
clearly violated Alleyne in several respects.
5
  Interestingly, in Valentine, the trial court had sought to circumvent the
Alleyne-violating proof at sentencing provision set forth in those statutes by
placing the mandatory sentence triggering facts on the verdict slip, and
instructing the jury “to determine beyond a reasonable doubt whether” those
facts had been proven by the Commonwealth. Valentine, 101 A.3d at 811.
The Valentine Court rejected this approach, reasoning:

     By asking the jury to determine whether the factual
     prerequisites set forth in § 9712(a) and § 9713(a) had been
     met, the trial court effectively determined that the
     unconstitutional provisions of § 9712(c) and § 9713(c) were
     severable. Our decision in Newman[,] however[,] holds that
     the unconstitutional provisions of § 9712(c) and § 9713(c) are
     not severable but “essentially and inseparably connected” and
     that the statutes are therefore unconstitutional as a whole. …

     Moreover, Newman makes clear that “it is manifestly the
     province of the General Assembly to determine what new
     procedures must be created in order to impose mandatory
     minimum sentences in Pennsylvania following Alleyne.”
     Newman[, 99 A.3d] at 102. Therefore, the trial court lacked
     the authority to allow the jury to determine the factual
     predicates of §§ 9712 and 9713. [Id.] at 102–03 (recognizing
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appeal denied, 121 A.3d 494 (Pa. 2015), we granted relief based on Section

7508’s unconstitutionality, despite the fact that the defendant had stipulated

to the facts which triggered the mandatory minimum sentence. The Fennell

Court saw
      no meaningful difference, for the purposes of Newman and
      Valentine[,] between submitting the element to the jury and
      accepting a stipulation from a defendant. They both have the
      purpose of finding a method to impose a mandatory minimum
      sentence outside the statutory framework, but consistent with
      Alleyne. However, both Newman and Valentine unequivocally
      state that creating a new procedure in an effort to impose a
      mandatory minimum sentence is solely within the province of the
      legislature.

Fennell, 105 A.3d at 20. Thus, Newman and Valentine not only stand for

the proposition that Pennsylvania’s typical mandatory minimum sentencing

statutes are unconstitutional in light of Alleyne, but they reject, as violative

of separation of powers principles, any attempts to impose those mandatory

sentences by means that conceptually adhere to the dictates of Alleyne, but

which circumvent the unconstitutional statutory schemes that codify those

penalties. This theory also served to render unconstitutional several other

mandatory minimum sentences. See Commonwealth v. Bizzel, 107 A.3d

102, 103 (Pa. Super. 2014), appeal denied, 126 A.3d 1281 (Pa. 2015)

(holding 18 Pa.C.S. § 6317 (Drug-free school zones) unconstitutional in light


      that several trial courts of this Commonwealth have found
      Section 9712.1 as a whole to be no longer workable without
      legislative guidance).
Valentine, 101 A.3d at 812.



                                     -9-
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of Newman and Valentine);             Commonwealth v. Wolfe, 106 A.3d 800

(Pa. Super. 2014), appeal granted, 121 A.3d 433 (Pa. 2015) (holding 42

Pa.C.S.   §   9718      (Sentences    for   offenses    against   infant    persons)

unconstitutional   in    light   of   Newman      and    Valentine);       but   see

Commonwealth v. Reid, 117 A.3d 777, 784 (Pa. Super. 2015) (rejecting

an Alleyne-based challenge to 42 Pa.C.S. § 9714(a), which also contains a

version of the problematic proof at sentencing provision, because “Alleyne

did not overturn prior precedent that prior convictions are sentencing factors

and not elements of offenses”).

      Our Supreme Court ultimately endorsed the Newman/Valentine

approach in Commonwealth v. Hopkins, 117 A.3d 247 (Pa. 2015).                     In

considering the constitutionality of 18 Pa.C.S. § 6317, and in particular the

argument that the Alleyne-offending proof of sentencing provision was

severable from that statute, our Supreme Court stated:
      [W]e hold … that numerous provisions of Section 6317 are
      constitutionally infirm under Alleyne. Moreover, the remaining
      provisions of Section 6317, standing alone, are incomplete and
      are incapable of being vindicated in accord with the intent of the
      General Assembly. 1 Pa.C.S. § 1925. Because of the significant
      provisions found to violate the Constitution, which clearly
      express the intent of the legislature that Section 6317 is a
      mandatory minimum sentencing statute, and not a substantive
      offense, we find the remaining unoffending provisions of Section
      6317 are incapable of being severed, and we will not judicially
      usurp the legislative function and rewrite Section 6317 or create
      a substantive offense which the General Assembly clearly did not
      desire.    Rather, we leave it to our sister branch for an
      appropriate statutory response to the United States Supreme
      Court's decision in Alleyne.

Hopkins, 117 A.3d at 262. No such response has yet arrived.

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        The separation of powers theory was not the only basis on which this

Court has rejected attempts to circumvent the statutory scheme by reliance

on   defense    stipulations   to   facts   which   trigger    mandatory     minimum

sentences.     Another basis to reject the stipulation argument arose in

Commonwealth v. Vargas, 108 A.3d 858 (Pa. Super. 2014) (en banc),

appeal denied, 121 A.3d 496 (Pa. 2015), a case which involved a

defendant’s stipulation to a weight of heroin that triggered a mandatory

minimum sentence under Section 7508.             The Majority opinion in Vargas

dutifully applied the rationale of the Fennell decision, supra, to reject the

theory that the defendant’s pre-Alleyne stipulation could ever satisfy

Alleyne by circumventing the unconstitutional aspects of Section 7508’s

proof at sentencing provision.         However, in Part II of P.J.E. Bender’s

concurring and dissenting opinion in Vargas, which was joined by a majority

of the Vargas Court en banc panel judges, this Court also ruled it was “a

grave    injustice”   to   consider    a    pre-Alleyne       stipulation   as   having

demonstrated proof beyond a reasonable doubt of such facts when “such

pre-Alleyne stipulations only had the practical effect of conceding that the

Commonwealth could prove the weight of the drugs by a preponderance of

the evidence at sentencing.”          Vargas, 108 A.3d at 882 (P.J.E. Bender

concurring and dissenting).6

6
  P.J.E. Bender’s concurring and dissenting opinion was joined outright by
Judges Donahue and Lazarus, and Part II of his opinion was joined by P.J.E.
Ford Elliot in the second footnote of her concurring statement; P.J.E. Ford
Elliot’s concurring statement was joined, in turn, by Judges Panella,
Donahue, and Lazarus. Thus, a majority of this Court agreed with the
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     Notably, Alleyne, and its Pennsylvania progeny, most importantly

Newman, were routinely raised sua sponte by this Court, and/or addressed

despite a defendant’s failure (or inability) to raise the claim in the lower

court, to invalidate sentences under the auspices of Pennsylvania’s legality

of sentencing construct. As we recognized in Watley:
     Ordinarily, new rulings pertaining to cases on direct appeal are
     entitled to retroactive effect so long as the applicable issue is
     preserved. Commonwealth v. Lofton, 57 A.3d 1270, 1276
     (Pa. Super. 2012). Appellant did not preserve any challenge to
     his mandatory minimum sentence, his jury trial rights, or the
     constitutionality of § 9712.1, likely because similar challenges
     had been rejected based on prior United States Supreme Court
     decisions. The constitutionality of a statute can be waived. See
     Commonwealth v. Hartz, 367 Pa.Super. 267, 532 A.2d 1139,
     1142–1143 (1987) (en banc) (Cirillo, P.J. concurring) (collecting
     cases); see also Commonwealth v. Bavusa, 574 Pa. 620, 832
     A.2d 1042 (2003); Commonwealth v. Wallace, 368 Pa.Super.
     255, 533 A.2d 1051 (1987).

     Nonetheless, while we are cognizant that Alleyne was a Sixth
     Amendment jury trial rights case, it necessarily implicated
     Pennsylvania's legality of sentencing construct since it held that
     it is improper to sentence a person to a mandatory minimum
     sentence absent a jury's finding of facts that support the
     mandatory sentence.       Application of a mandatory minimum
     sentence gives rise to illegal sentence concerns, even where the
     sentence is within the statutory limits. See Commonwealth v.
     Foster, 960 A.2d 160 (Pa. Super. 2008), affirmed, 609 Pa. 502,
     17 A.3d 332 (2011) (OAJC); [Commonwealth v.] Hopkins,
     [67 A.3d 817,] 821 [(Pa. Super. 2013)]. Legality of sentence
     questions are not waivable and may be raised sua sponte by this



reasoning set forth in Part II of P.J.E. Bender’s concurring and dissenting
opinion as presenting additional grounds upon which to reject the argument
that pre-Alleyne stipulations to mandatory sentencing triggering facts could
satisfy Alleyne, independent of the unconstitutionality of Section 7508 and
the derivative separation of powers issue articulated in Newman,
Valentine, and Hopkins.
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      Court. See Hopkins, supra; Commonwealth v. Infante, 63
      A.3d 358 (Pa. Super. 2013).

Watley, 81 A.3d at 117-18 (footnotes omitted).

      Needless to say, Alleyne has wreaked havoc on mandatory minimum

sentencing in Pennsylvania, given that the unconstitutional proof at

sentencing provision common to most mandatory sentencing statutes is

neither severable nor subject to circumvention. See Newman; Valentine;

Vargas.    Today, we confront yet another wave of claims that arise in

Alleyne’s wake, of which the current case is fairly representative. Appellant

was sentenced to a mandatory minimum sentence pursuant to a statute

rendered unconstitutional in light of Alleyne, 18 Pa.C.S. § 7508. However,

Alleyne was not decided until after Appellant filed his timely PCRA petition

and, as such, Appellant’s conviction had become ‘final’ by the time Alleyne

was issued.    See footnote 2, supra.         Relatedly, Section 7508 was not

deemed unconstitutional until Fennell. The question, therefore, remains: is

Appellant, and those similarly situated, entitled to have his illegal sentence

vacated via a timely PCRA petition, despite the finality of his conviction?

      Recently, in Commonwealth v. Riggle, 119 A.3d 1058 (Pa. Super.

2015), a panel of this Court decided that such petitioners are not entitled to

relief. In that case, the appellant was sentenced to a mandatory minimum

sentence under 42 Pa.C.S. § 9718. After an unsuccessful direct appeal, the

appellant filed a timely PCRA petition on December 18, 2012, six months’

prior to the decision in Alleyne, raising multiple ineffective assistance of

counsel claims. PCRA counsel was appointed but ultimately filed a petition

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to withdraw and a no-merit letter. Subsequently, “[t]he PCRA court found

that none of [the a]ppellant's issues had merit, allowed counsel to withdraw,

and sent notice of its intent to dismiss the PCRA petition without a hearing.

In response to the notice, [the a]ppellant claimed that his sentence was

illegal under Alleyne[].” Riggle, 119 A.3d at 1062. The appellant renewed

that claim, inter alia, in his subsequent appeal from the denial of his PCRA

petition.

      The Riggle Court acknowledged that the appellant’s sentence was

illegal under Alleyne, but held that he wasn’t entitled to retroactive

application of that decision, or Newman, on collateral review. In reaching

that conclusion, the Riggle Court applied the retroactivity analysis set forth

in Teague v. Lane, 489 U.S. 288 (1989) (plurality), which our own

Supreme Court has utilized in considering the retroactive effect of new

United States Supreme Court cases in collateral proceedings.          See e.g.

Commonwealth v. Blystone, 725 A.2d 1197, 1203 (Pa. 1999) (considering

the retroactive effect of Morgan v. Illinois, 504 U.S. 719 (1992) (holding

that during voir dire for a capital offense, a state trial court may not refuse

inquiry into whether a potential juror would automatically impose the death

penalty)). “Under the Teague framework, an old rule applies both on direct

and collateral review, but a new rule is generally applicable only to cases

that are still on direct review. A new rule applies retroactively in a [federal]

collateral proceeding only if (1) the rule is substantive or (2) the rule is a

‘watershed rule of criminal procedure’ implicating the fundamental fairness

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and accuracy of the criminal proceeding.” Whorton v. Bockting, 549 U.S.

406, 416 (2007) (internal citations omitted).

     Using the Teague framework, the Riggle Court held:
     [T]he Alleyne ruling does not prohibit punishment for a class of
     offenders nor does it decriminalize conduct. Rather, Alleyne
     procedurally mandates the inclusion of facts in an indictment or
     information, which will increase a mandatory minimum sentence,
     and a determination by a factfinder of those facts beyond a
     reasonable doubt. Alleyne, therefore, is not substantive. Nor
     does Alleyne constitute a watershed procedural rule.

Riggle, 119 A.3d at 1067.

     The Riggle Court appears to have narrowly considered Alleyne under

Teague without due consideration of the unique and profound impact

Alleyne has had in Pennsylvania.      As documented above, Pennsylvania’s

common mandatory minimum sentencing scheme has been eviscerated by

Alleyne, particularly in light of the Newman line of decisions. Thus, even if

Alleyne is not a new substantive rule as the Riggle Court concluded, it is

not clear from the Riggle Court’s analysis why Alleyne, in light of Newman

and its progeny, is not, or has not resulted in, a watershed procedural

change in Pennsylvania.7

7
  The Riggle Court’s limited “watershed procedural rule” analysis contains
some obvious defects resulting from its framing of the issue without
consideration of that case’s distinctive effects on Pennsylvania law. In
rejecting Alleyne as constituting a watershed procedural rule, the Riggle
Court relied on a pre-Alleyne case, Schriro v. Summerlin, 542 U.S. 348
(2004),

     and its discussion of Ring v. Arizona, 536 U.S. 584, 122 S.Ct.
     2428, 153 L.Ed.2d 556 (2002)…. Preliminarily, Ring involved a
     successful Apprendi challenge to a death penalty statute.
     Alleyne, it should be remembered, relied on the Apprendi
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      Nevertheless, whether the Riggle Court’s retroactivity analysis under

Teague is correct is not dispositive of our decision in this case. There is an



      rationale. The High Court, in considering whether Ring applied
      retroactively, ruled that whether a judge or jury determined the
      facts essential to the increased punishment beyond a reasonable
      doubt was not material to the fundamental fairness or accuracy
      of capital sentencing.     See Schriro, supra. Therefore, the
      distinction between whether a judge or jury determines the facts
      at issue does not result in the procedure announced in Alleyne
      being a watershed rule. Although submission to a jury of certain
      facts may lead to more acquittals of the now “aggravated crime,”
      it does not undermine the underlying conviction or sentence of
      the “lesser crime.” This is because, in Pennsylvania, absent the
      jury finding the applicable facts, the defendant could receive the
      identical sentence for the “lesser crime.”            Hence, the
      fundamental fairness of the trial or sentencing is not seriously
      undermined, and Alleyne is not entitled to retroactive effect in
      this PCRA setting.

Riggle, 119 A.3d at 1067. This analysis ignores issues related to the
consensus reached by this Court in Part II of P.J.E. Bender’s concurring and
dissenting opinion in Vargas, discussed supra. See Footnote 6. Under the
pre-Alleyne framework, defendants may have conceded or stipulated to
mandatory minimum triggering facts because, at that time, such facts were
subject only to a preponderance of the evidence standard, a relatively easy
burden for the Commonwealth to overcome when compared to the beyond a
reasonable doubt standard. The Riggle Court states that this does not
“seriously undermine[]” the fairness of pre-Alleyne sentencing proceedings,
a carefully measured statement that exposes a tacit admission that at least
some degree of unfairness is evident. Riggle, 119 A.3d at 1067 (emphasis
added). Moreover, to say that a defendant “could” receive an identical
sentence for a lesser crime also disregards the practical reality that, even in
the absence a mandatory sentencing scheme, judges could have reasonably
exercised their discretion to use the same mandatory triggering facts to
justify more severe sentences. Clearly, the fundamental fairness of pre-
Alleyne sentencing proceedings in Pennsylvania are implicated by Alleyne,
because Pennsylvania’s now-unconstitutional approach to mandatory
minimum sentences had previously dictated not just sentencing procedures,
but also practical elements of criminal trial practice and strategy.

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applicable state-based remedy to Appellant’s illegal sentence that does not

require a finding of retroactivity under Teague. It must be acknowledged

that
       the Teague rule of nonretroactivity was fashioned to achieve the
       goals of federal habeas while minimizing federal intrusion 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 (2008) (emphasis added).

Thus, Teague dictates whether a decision must be applied retroactively as a

federal constitutional matter.   It does not purport to be the last word on

whether other remedies exist under Pennsylvania law for the correction of

illegal sentences.   Indeed, as Danforth suggests, when Teague does not

demand retroactive application of new constitutional rules, Pennsylvania is

still free to provide a remedy above and beyond what is provided by federal

constitutional jurisprudence. And it does.

       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).


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       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; certainly, the legislature contemplated the retroactive

effect of newly recognized constitutional rights when setting forth the criteria

for   consideration   of   untimely   PCRA     petitions.   See   42   Pa.C.S.   §

9545(b)(1)(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 its failure to address the matter with regard to timely PCRA

petitions strongly suggests that the legislature was open to providing a

remedy in situations such as the one before this Court today.

       Here, Appellant’s sentence was the result of the application of an

unconstitutional statute. See Fennell, supra. It is axiomatic that “[i]f no

statutory authorization exists for a particular sentence, that sentence is

illegal and subject to correction.” Commonwealth v. Leverette, 911 A.2d

998, 1001 (Pa. Super. 2006). Furthermore, “an unconstitutional statute is

ineffective for any purpose, … ‘[i]t is as if it were never enacted.’”     Glen-

Gery Corp. v. Zoning Hearing Bd. of Dover Twp., 907 A.2d 1033, 1043

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(Pa. 2006) (internal citations omitted).      Moreover, our Supreme Court has

stated that “[t]rial courts never relinquish their jurisdiction to correct an

illegal sentence.” Commonwealth v. Vasquez, 744 A.2d 1280, 1284 (Pa.

2000) (emphasis added).

      There is no doubt that the mandatory minimum sentence statute in

question, 18 Pa.C.S. § 7508, was unconstitutional when it was applied to

Appellant. See Glen-Gery Corp., 907 A.2d at 1037-39 (discussing the ab

initio doctrine and its origins in Marbury v. Madison, 5 U.S. 137 (1803)).

Alleyne did not serve to amend the United States Constitution.       Alleyne

merely recognized what had been previously unrecognized, or which had

been previously overlooked or misapprehended: that the Sixth Amendment

of the United States Constitution provides a defendant with the right to have

any facts that increase the mandatory minimum sentence to which he or she

is exposed be determined by a jury beyond a reasonable doubt. Thus,

Section 7508, through its proof at sentencing provision, routinely caused

Pennsylvania Courts to violate defendants’ Sixth Amendment rights until its

unconstitutionality was finally recognized.

      Nevertheless, whether illegal when issued, or rendered illegal as a

result of intervening authorities, it should be undisputed that Appellant is

currently “serving” an illegal sentence. Pennsylvania case law emphatically

supports the proposition that illegal sentences must be corrected by

Pennsylvania Courts when jurisdiction is not in doubt, and the PCRA statute

explicitly states that it exists to provide a remedy for illegal sentences,

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without any retroactivity qualifications in the context of timely PCRA

petitions.

      The Commonwealth argues that Commonwealth v. Cunningham, 81

A.3d 1 (Pa. 2013), prohibits relief in this matter.8      We disagree.      In

Cunningham, our Supreme Court concluded, erroneously, that the ‘new’

constitutional rule announced in Miller v. Alabama, 132 S.Ct. 2455 (2012)

(holding that mandatory life imprisonment without parole for those under

the age of 18 at the time of their crimes violates the Eighth Amendment),

was a new procedural rule, not a new substantive constitutional rule entitled

to retroactive effect under Teague.         Not only has the holding in

Cunningham been effectively overruled,9 that case also did not speak

directly to whether the express terms of the PCRA statute permit the

correction of illegal sentences in timely-filed PCRA petitions.   Instead, the

Cunningham decision only sought to answer whether retroactive application

of Miller was required under Teague, as the Court expressed in

characterizing the claim under consideration.10     Simply put, the matter


8
  The Commonwealth’s Brief misidentifies this case as “Commonwealth v.
Campbell,” Commonwealth’s Brief at 10-11, but otherwise provides
citations to Cunningham.
9
  In Montgomery v. Louisiana, 136 S.Ct. 718 (2016), the United States
Supreme Court held that Miller constituted a new substantive constitutional
rule that was entitled to retroactive effect under Teague.           Thus,
Montgomery effectively overruled the holding in Cunningham.
10
    The Cunningham Court stated/characterized the appellant’s claim as
follows:

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before us was not before the Court in Cunningham and, therefore, that

case cannot be read to prohibit a remedy it never considered.

      The statute under which Appellant was sentenced has been held to be

unconstitutional in its entirety; thus, Appellant is currently serving an illegal

sentence.    Because Appellant filed a timely PCRA petition, this Court has

jurisdiction to correct that illegal sentence, as did the PCRA court below.

Accordingly, we hold that when an unconstitutional mandatory minimum

sentencing statute results in an illegal sentence, that illegal sentence can be

corrected via a timely PCRA petition, irrespective of whether retroactive

application of the underlying constitutional ruling is required under the



      It is [the a]ppellant's position that the holding in Miller applies
      retroactively to prisoners, such as [a]ppellant, serving
      mandatory life-without-parole sentences for crimes committed
      as juveniles, even where they have exhausted their direct appeal
      rights and are proceeding under the Post Conviction Relief Act,
      42 Pa.C.S. §§ 9541–9546. According to [the a]ppellant, the
      United States Supreme Court unambiguously sanctioned
      retroactive application in Miller, since it reversed the order of a
      state appellate court affirming the dismissal of a post-conviction
      petition in the Jackson case. See Miller, ––– U.S. at ––––,
      132 S.Ct. at 2475. In this respect, [the a]ppellant invokes the
      admonishment that, “once a new rule is applied to the defendant
      in the case announcing the rule, evenhanded justice requires
      that it be applied retroactively to all who are similarly situated.”
      Teague[.]

Cunningham, 81 A.3d at 5.           Clearly, the issue before the court in
Cunningham was whether federal retroactivity principles, as delineated in
Teague, required retroactive application of Miller, not whether independent
state grounds permit the correction of illegal sentences pursuant
Pennsylvania’s illegal sentencing construct and the statutory authority of the
PCRA.

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Teague framework.11       Thus, we reverse the PCRA court’s denial of

Appellant’s PCRA petition and remand for resentencing. To the extent that

Riggle can be read to prohibit this specific form of relief, it is hereby

overruled.

      Order reversed.     Case remanded for resentencing.         Jurisdiction

relinquished.

      President Judge Emeritus Ford Elliott and Judges Shogan, Lazarus and

Ott join this opinion.

      Judge Mundy files a concurring opinion in which Judge Lazarus joins.

      Judge Bowes files a dissenting opinion in which Judges Olson and

Stabile join.
Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/12/2016


11
  We emphasize that our decision does not imply that retroactivity concerns
are immaterial to issues raised in timely PCRA petitions. To the contrary,
our decision is limited exclusively to illegal sentencing claims, as they fall
explicitly within the scope of the PCRA statute with regard to timely-filed
PCRA petitions, and because of our coexisting case law permitting the
correction of illegal sentences at any time by a court that possesses
jurisdiction to do so. The Teague analysis remains the primary framework
for determining whether new constitutional decisions, which do not
specifically implicate the legality of a sentence, apply retroactively on
collateral review.

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