J-S23005-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                         Appellee

                    v.

THEODORE WOODALL

                         Appellant                  No. 1566 EDA 2016


                 Appeal from the PCRA Order April 25, 2016
            In the Court of Common Pleas of Philadelphia County
            Criminal Division at No(s): CP-51-CR-1208311-2003


BEFORE: OLSON, SOLANO and MUSMANNO, JJ.

MEMORANDUM BY OLSON, J.:                           FILED MARCH 29, 2017

      Appellant, Theodore Woodall, appeals from the order entered on April

25, 2016, which dismissed his first petition filed pursuant to the Post

Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546.      We vacate the

order of the PCRA court, vacate the judgment of sentence, and remand for

resentencing.

      In 2004, a jury found Appellant guilty of two counts of aggravated

assault and one count each of carrying a firearm on the public streets of

Philadelphia and possessing instruments of crime; the convictions arose out

of Appellant shooting one Philadelphia police officer in the neck and shooting

at another Philadelphia police officer.

      On November 22, 2004, the trial court sentenced Appellant to serve an

aggregate term of 21 to 42 years in prison for his convictions. Further, as
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the Commonwealth concedes, during “the November 22, 2004[] sentencing

hearing, [the trial court] indicated that the mandatory minimum sentence of

five years for offenses committed with firearms, 42 Pa.C.S.A. § 9712,

applied to [Appellant’s] aggravated assault convictions.”      Commonwealth’s

Brief at 2; see also N.T. Sentencing, 11/22/04, at 3.

      Following the nunc pro tunc reinstatement of Appellant’s direct appeal

rights, this Court affirmed Appellant’s judgment of sentence on July 2, 2014

and our Supreme Court denied Appellant’s petition for allowance of appeal

on November 13, 2014. Commonwealth v. Woodall, 105 A.3d 781 (Pa.

Super. 2014) (unpublished memorandum) at 1-24, appeal denied, 104 A.3d

4 (Pa. 2014).

      On February 12, 2015, Appellant filed the current, timely PCRA

petition. The petition constitutes Appellant’s first petition for post-conviction

collateral relief under the PCRA. See Commonwealth v. Turner, 73 A.3d

1283 (Pa. Super. 2013) (“[w]hen a PCRA petitioner’s direct appeal rights are

reinstated nunc pro tunc in his first PCRA petition, a subsequent PCRA

petition will be considered a first PCRA petition for timeliness purposes”).

      The PCRA court appointed counsel to represent Appellant and counsel

filed an amended PCRA petition on Appellant’s behalf. Within the amended

petition, Appellant claimed that his sentence is illegal, as he was sentenced

under a mandatory minimum sentencing statute that was rendered

unconstitutional by Alleyne v. United States, ___ U.S. ___, 133 S.Ct.




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2151 (2013).       See Appellant’s Amended PCRA Petition, 9/17/15, at 2;

Appellant’s Brief in Support of Amended PCRA Petition, 9/17/15, at 1.

      On April 25, 2016, the PCRA court dismissed Appellant’s petition and

Appellant filed a timely notice of appeal to this Court. Appellant raises one

claim on appeal:

         Did the [PCRA] court err in failing to grant PCRA relief
         where [] Appellant had been sentenced pursuant to a
         mandatory minimum sentence law that has been declared
         unconstitutional?

Appellant’s Brief at 7 (some internal capitalization omitted).

      Appellant claims that he is entitled to relief, as he was sentenced

under a mandatory minimum sentencing statute that was rendered

unconstitutional by Alleyne. The Commonwealth concedes that Appellant’s

sentence is, in fact, illegal and that Appellant is entitled to relief in this case.

Commonwealth’s       Brief   at   5.    We   agree    with   Appellant    and   the

Commonwealth.       We thus vacate Appellant’s judgment of sentence and

remand for resentencing.

      We observe our well-established standard of review: “In reviewing the

denial of PCRA relief, we examine whether the PCRA court’s determination is

supported by the record and free of legal error.” Commonwealth v. Fears,

86 A.3d 795, 803 (Pa. 2014) (internal quotations and citations omitted).

         Alleyne challenges implicate the legality of a sentence. A
         challenge to the legality of a sentence may be entertained
         as long as the reviewing court has jurisdiction. An illegal
         sentence must be vacated. Issues relating to the legality of
         a sentence are questions of law. Our standard of review


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        over such questions is de novo and our scope of review is
        plenary.

Commonwealth v. Ali, 112 A.3d 1210, 1225 (Pa. Super. 2015) (internal

citations, quotations, and corrections omitted).

      In Apprendi v. New Jersey, 530 U.S. 466 (2000), the United States

Supreme Court held: “[o]ther than the fact of a prior conviction, any fact

that increases the penalty for a crime beyond the prescribed statutory

maximum must be submitted to a jury, and proved beyond a reasonable

doubt.” Apprendi, 530 U.S. at 489. Further, in Alleyne, the United States

Supreme Court expanded “Apprendi’s basic jury-determination rule to

mandatory minimum sentences.”         Alleyne, ___ U.S. at ___, 133 S.Ct. at

2167 (Breyer, J., concurring).      Specifically, the Alleyne court held that,

where an “aggravating fact” increases a mandatory minimum sentence, “the

fact is an element of a distinct and aggravated crime.           [The fact] must,

therefore, be submitted to the jury and found beyond a reasonable doubt.”

Alleyne, 133 S.Ct. at 2162-2163.

      As this Court has held, Alleyne rendered the mandatory minimum

sentencing   statute   of   42   Pa.C.S.A.   §   9712   wholly   unconstitutional.

Commonwealth v. Valentine, 101 A.3d 801, 812 (Pa. Super. 2014).

Further, in Commonwealth v. Ruiz, 131 A.3d 54 (Pa. Super. 2015), this

Court held that an Alleyne claim is a non-waivable challenge to the legality

of a sentence that may be raised for the first time on direct appeal or in a

timely-filed PCRA petition.      Ruiz, 131 A.3d at 60; 42 Pa.C.S.A. § 9542

(“persons serving illegal sentences may obtain collateral relief”).

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      We also observed in Ruiz that Alleyne may be applied retroactively to

cases pending on collateral review so long as the petitioner’s judgment of

sentence was not final when Alleyne was decided.         Ruiz, 131 A.3d at

59-60.   In the case at bar, while Appellant was originally sentenced on

November 22, 2004, Appellant’s judgment of sentence did not become final

until February 11, 2015.     See 42 Pa.C.S.A. § 9545(b)(3) (“A judgment

becomes final at the conclusion of direct review, including discretionary

review in the Supreme Court of the United States . . . , or at the expiration

of time for seeking the review”); see also U.S. Sup. Ct. R. 13.1.      Since

Alleyne was decided on June 17, 2013, Appellant is entitled to the benefit of

Alleyne and the instant case does not implicate an impermissible retroactive

application of that case.

      Based on our review of the procedural background of this case and the

relevant case law discussed above, we conclude that Appellant is entitled to

resentencing without consideration of the mandatory minimum sentencing

provision of 42 Pa.C.S.A. § 9712. Therefore, since the PCRA court erred in

dismissing Appellant’s petition raising an Alleyne challenge, we vacate the

order denying Appellant PCRA relief, vacate Appellant’s judgment of

sentence, and remand for resentencing.

      Order vacated.    Judgment of sentence vacated.    Case remanded for

resentencing. Jurisdiction relinquished.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/29/2017




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