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 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, J., SHOGAN, J.,
        LAZARUS, J., MUNDY, J., OLSON, J., OTT, J., and STABILE, J.

CONCURRING OPINION BY MUNDY, J.:                                FILED JULY 12, 2016

       I concur in the result of the learned Majority in this case, but I cannot

join its opinion.    Although I agree that we may correct Appellant’s illegal

sentence in this case based on Commonwealth v. Newman, 99 A.3d 86

(Pa. Super. 2014) (en banc), appeal denied, 121 A.3d 496 (Pa. 2015),1 and

its progeny, I disagree with the Majority’s analysis.

       Succinctly stated, I cannot accept the Majority and the Dissent’s

premise    that   Newman         and    its    progeny   are   conclusions   of   federal




____________________________________________
1
 Subsequent to Newman, our Supreme Court decided Commonwealth v.
Hopkins, 117 A.3d 247 (Pa. 2015), which adopted Newman’s conclusion. I
utilize Newman to refer to this entire line of cases for simplicity.
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constitutional law.2       In Newman, the defendant was sentenced to a

mandatory minimum under 42 Pa.C.S.A. § 9712.1, after the trial court found

by a preponderance of the evidence that the defendant possessed a firearm

“in close proximity” to drugs. Newman, supra at 98. This Court concluded

that, consistent with Alleyne, Appellant’s Sixth Amendment right to a jury

trial was violated, as the “in close proximity” element was not submitted to

the jury and found beyond a reasonable doubt, and the error was not

harmless. Id. But then the Newman Court went further and opined that

under 1 Pa.C.S.A. § 1925, the subsections of Section 9712.1 could not be




____________________________________________
2
   The Majority and Dissent’s premise is apparent in their treatment of
Commonwealth v. Riggle, 119 A.3d 1058 (Pa. Super. 2015), in which this
Court concluded that Alleyne v. United States, 133 S. Ct. 2151 (2013) did
not apply retroactively to cases where the judgment of sentence became
final before Alleyne was decided. Riggle, supra at 1067. The Riggle
Court applied the framework set by the United States Supreme Court in
Teague v. Lane, 489 U.S. 288 (1989) (plurality), which determines
whether a new rule of federal constitutional law shall be applied retroactively
to cases where the judgment of sentence had become final. See id.
Although the Majority initially states that Riggle and Teague are legally
irrelevant to the question presented in this case, the Majority overrules
Riggle at the end of its opinion. Majority Opinion at 16, 23. Therefore, it is
understandable that the Dissent spends almost all of its time explaining, as a
federal constitutional matter, why Alleyne is not retroactive under Teague.
See generally Dissenting Opinion at 20. As I explain infra, this Court need
not engage in this mode of analysis to resolve the instant appeal. See
Appellant’s Supplemental Brief at 14 (stating that Appellant can receive
relief from his illegal sentence “regardless of the decisions concerning the
retroactive application of Alleyne to cases on collateral review[]”)
(emphasis added).



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severed from each other, rendering the statute “unconstitutional in its

entirety.”3 Id. at 101-102, 102 n.10.

       In the instant case, Section 7508(a)(1)(ii)’s three-year mandatory

minimum was applied after Appellant admitted as part of his guilty plea that

“[t]he weight of the [marijuana] plants was approximately, 13 pounds.”

N.T., 9/9/11, at 5; see also 18 Pa.C.S.A. § 7508(a)(1)(ii) (requiring a

mandatory minimum sentence of three years’ imprisonment “when the

amount of marijuana involved is at least ten pounds, but less than 50

pounds[]”). Since Appellant admitted to the triggering element, Appellant’s

Sixth Amendment right to a jury trial was not violated.     See generally

Alleyne, supra at 2163; Cunningham v. California, 549 U.S. 270, 274-

275 (2007) (stating that the Sixth Amendment requires extra elements

either be “found by a jury or admitted by the defendant[]”) (citation

omitted; emphasis added).



____________________________________________
3
  I filed a concurring opinion in Newman, explaining that Section 9712.1
was severable. See Newman, supra at 104-106 (Mundy, J., concurring). I
have also expressed my disagreement with Newman’s severability analysis
in subsequent opinions. See generally Commonwealth v. Wolfe, 106
A.3d 800, 803 n.4 (Pa. Super. 2014), appeal granted, 121 A.3d 433 (Pa.
2015); Commonwealth v. Fennell, 105 A.3d 13, 18 n.3 (Pa. Super. 2014),
appeal denied, 121 A.3d 494 (Pa. 2015); Commonwealth v. Cardwell,
105 A.3d 748, 752 n.3 (Pa. Super. 2014), appeal denied, 121 A.3d 494 (Pa.
2015). However, I have also stated that since Newman is the law of this
Commonwealth, it “must be applied in a principled manner[.]” Wolfe,
supra; Fennell, supra; Cardwell, supra.               Therefore, accepting
Newman’s severability analysis, I cannot deny its legal consequences.



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     However, under Newman, the fact that Appellant’s constitutional

rights were not violated is legally irrelevant.   We have held Newman

requires voiding a mandatory minimum sentence even if the jury finds the

extra element beyond a reasonable doubt, the defendant stipulates to the

same, or the extra element was already an element of the primary offense.

See Commonwealth v. Vargas, 108 A.3d 858, 864, 876-877 (Pa. Super.

2014) (en banc) (holding Section 7508 sentence illegal even though

defendant stipulated to the drug weight), appeal denied, 121 A.3d 496 (Pa.

2015); Fennell, supra at 20 (same); Cardwell, supra at 754-755 (same);

Wolfe, supra at 805-806 (holding Section 9718 sentence illegal even

though extra element of victim’s age was already an element of the

underlying primary offense); Commonwealth v. Valentine, 101 A.3d 801,

812 (Pa. Super. 2014) (holding Sections 9712 and 9713 sentences illegal

even though the extra elements were submitted to the jury on a special

verdict form and found beyond a reasonable doubt), appeal denied, 124

A.3d 309 (Pa. 2015).

     Newman’s severability analysis is not based on Alleyne, the Sixth

Amendment, or anything the United States Supreme Court has promulgated,

but rather it was a conclusion of this Court under 1 Pa.C.S.A. § 1925.

Therefore, Newman’s severability holding is purely a state law conclusion,

and it is not one of federal constitutional law. The United States Supreme

Court has consistently acknowledged that the severability of state statutes


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because of a constitutional defect is a state law issue.            See Hooper v.

Bernalillo Cnty. Assessor, 472 U.S. 612, 625 (1985) (stating, after

holding a portion of a New Mexico statute unconstitutional that “[i]t is for the

New Mexico courts to decide, as a matter of state law, whether the state

legislature would have enacted the statute without the invalid portion);

Morey v. Doud, 354 U.S. 457, 470 n.16 (1957) (stating, after holding a

portion   of   an   Illinois   statute   unconstitutional   that   “the    question    of

severability is a question of state law, [and] the judgment of the Supreme

Court of Illinois is binding here[]”), overruled on other grounds, City of New

Orleans v. Dukes, 427 U.S. 297 (1976). Newman and its progeny do not

stand for the proposition that the jury must find the extra element for a

mandatory minimum beyond a reasonable doubt, which is what Alleyne

holds. Instead, Newman’s severability conclusion stands for the legal rule

that the jury is prohibited from finding said element beyond a reasonable

doubt.     Therefore,      I   cannot    accept   the   Majority   or     the   Dissent’s

characterization that we must decide whether Alleyne is retroactive under

Teague.

      Newman voids all of the mandatory minimum statutes, except those

based on a prior conviction, which explicitly require judicial fact-finding by a

preponderance of the evidence.           Therefore, due to Newman’s state law

conclusion on severability, Appellant’s mandatory minimum sentence now

lacks statutory authorization, which is a legality of sentence issue.                See


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Commonwealth v. Rivera, 95 A.3d 913, 915 (Pa. Super. 2014) (stating,

“[i]f no statutory authorization exists for a particular sentence, that sentence

is illegal and subject to correction[]”) (citation omitted).      A legality of

sentence issue is cognizable under the PCRA. 42 Pa.C.S.A. § 9543(a)(vii);

accord Commonwealth v. Beck, 848 A.2d 987, 989 (Pa. Super. 2004).

Such claims “may be entertained as long as the reviewing court has

jurisdiction.” Commonwealth v. Borovichka, 18 A.3d 1242, 1254 n.8 (Pa.

Super. 2011) (citation omitted).    As Appellant’s PCRA petition was timely,

we have jurisdiction and authority to correct Appellant’s illegal sentence.

      Based on the foregoing, I agree with the Majority that Appellant’s

mandatory minimum sentence is illegal and subject to correction because his

PCRA petition was timely. However, I would leave Riggle undisturbed and

not offer any explicit or implicit opinion as to whether Alleyne is retroactive

as a matter of federal law under Teague. Accordingly, I respectfully concur

in the result only.

      Judge Lazarus joins this concurring opinion.




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