J-S25018-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

TERRY EUGENE SHIELDS

                            Appellant                 No. 1356 WDA 2014


              Appeal from the PCRA Order Entered July 16, 2014
              In the Court of Common Pleas of Allegheny County
               Criminal Division at No: CP-02-CR-0003007-2009


BEFORE: BENDER, P.J.E., STABILE, and PLATT,* JJ.

MEMORANDUM BY STABILE, J.:                              FILED JULY 30, 2015

        Appellant, Terry Eugene Shields, appeals from the July 16, 2014 order

dismissing his petition pursuant to the Post Conviction Relief Act (“PCRA”),

42 Pa.C.S.A. §§ 9541-46. We reverse and remand.

        A prior panel of this Court summarized the underlying facts:

               On November 11, 2008, at approximately 12:30 p.m.,
        June Bartosh and her fiancé Phillip Dillard were at home, in their
        living room, with their two-year-old son. Bartosh, wearing only
        a tank top and wrapped in a blanket, was sitting on the couch.
        Three men broke down the locked front door and entered the
        house. According to Dillard, the first man was approximately
        6’1”, the second was 5’9” to 5’10”, and the third, around 5’6”.
        […]


____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
J-S25018-15


            Dillard attempted to stop the three men, who repeatedly
     struck him in the face with a gun. The men demanded to know
     where they could find money and guns in the house, but both
     Dillard and Bartosh denied having either. One of the three men
     then informed Bartosh and Dillard that “Coke told [them]
     everything,” so they knew there was money in the house.
     Dillard testified that “Coke” was the name of a childhood friend.
     Eventually, Dillard told the three men where they could find
     money and a gun.

            Meanwhile, [Appellant], who was not wearing a mask,
     picked Bartosh up and threw her to the ground, bound her hands
     and feet with duct tape, and taped her mouth. Bartosh further
     testified that [Appellant] slapped her across the face numerous
     times as she pleaded with him not to do this in front of her
     young son. He then smacked her across the buttocks and said
     she had a “fat ass.” The other two men dragged Dillard upstairs
     to get the money and gun, while [Appellant] remained
     downstairs with Bartosh, who testified that [Appellant] continued
     to hit her repeatedly, and then inserted his fingers into her
     vagina and rectum. He then said he was going to force her to
     perform oral sex on him. Bartosh continued to plead with
     [Appellant] not to do so in front of her son.

           Dillard came back downstairs with the two men, who
     attempted to flee but could not open the door because they had
     broken it coming in. They screamed at Bartosh, asking her how
     to get out, and she directed them to use the back door
     downstairs. The other two men left while [Appellant] waited
     with Bartosh to make sure they got out. He then grabbed the
     necklace and earrings Bartosh was wearing, and followed the
     other men. Throughout the ten-minute attack, the intruders
     broke numerous pieces of furniture including a television and a
     table that [Appellant] broke over Bartosh’s arms.

Commonwealth      v.   Shields,   1280   WDA   2012   (Pa.   Super.   2013),

unpublished memorandum at 1-3 (record citations omitted).




                                   -2-
J-S25018-15


       On April 16, 2012, a jury found Appellant guilty of two counts of

robbery and one count each of burglary, aggravated indecent assault,

unlawful restraint and conspiracy.1            On June 29, 2012, the trial court

imposed an aggregate fifteen to forty-five years of incarceration followed by

three years of probation. On July 9, 2012, Appellant filed a post-sentence

motion challenging only the weight of the evidence.          After the trial court

denied that motion Appellant filed a direct appeal. This Court affirmed the

judgment of sentence on August 6, 2013.               Our Supreme Court denied

allowance of appeal on December 13, 2013.

       Appellant filed a timely first PCRA petition on January 21, 2014.

Appointed counsel filed an amended petition on May 27, 2014. On June 6,

2014, the PCRA court filed its notice of intent to dismiss the petition without

a hearing pursuant to Pa.R.Crim.P. 907.              Appellant filed an untimely

response2 on July 14, 2014 and the PCRA court dismissed the petition two

days later. This timely appeal followed.

       In his untimely response to the PCRA court’s Rule 907 notice,

Appellant asserted for the first time that his sentence is illegal under

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

mandatory minimum sentences violate the Sixth Amendment right to a jury
____________________________________________


1
    18 Pa.C.S.A. §§ 3701, 3502, 3125, 2902 and 903, respectively.
2
  A petitioner has 20 days to respond to the PCRA court’s Rule 907 notice.
Pa.R.Crim.P. 907(1).



                                           -3-
J-S25018-15


trial unless the fact that triggers the mandatory minimum is found by a jury

beyond a reasonable doubt. Id. at 2155, 2162-63. Instantly, Appellant is

serving three consecutive five to fifteen year sentences for two counts of

robbery and one count of burglary.      In each of those sentences, the trial

court imposed a five-year mandatory minimum, pursuant to 42 Pa.C.S.A.

§ 9712, because Appellant brandished a firearm during the offenses.        This

Court has held     § 9712   to   be   unconstitutional   in light of   Alleyne.

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

      In Commonwealth v. Newman, 99 A.3d 86, 90 (Pa. Super. 2014),

we held that Alleyne does not apply retroactively to all cases.        Alleyne

applies only to cases that were pending on direct appeal when the United

States Supreme Court announced the decision on June 27, 2013. Instantly,

the PCRA court declined to address Appellant’s Alleyne argument, noting

that Appellant’s direct appeal was complete at the time of Alleyne. PCRA

Court Opinion, 1/9/15, at 5. In this, the PCRA Court was in error. As noted

above, this Court affirmed Appellant’s judgment of sentence on August 6,

2013, roughly six weeks after the United States Supreme Court decided

Alleyne. Despite this, Appellant did not notify the direct appeal panel of the

Alleyne decision pursuant to Pa.R.A.P. 2501(b), nor did Appellant file a

timely application for reargument.     Appellant neglected the issue entirely

until his untimely response to the Rule 907 notice.




                                      -4-
J-S25018-15


      Appellant’s delay is of no moment, as a sentence imposed in violation

of   Alleyne    is    illegal   and    therefore     the   issue   cannot    be    waived.

Commonwealth v. Wolfe, 106 A.3d 800, 801 (Pa. Super. 2014).                              A

challenge to the legality of a sentence is cognizable under the PCRA.

Commonwealth v. Jackson, 30 A.3d 516, 521 (Pa. Super. 2011), appeal

denied, 47 A.3d 845 (Pa. 2012). Section 9542 of the PCRA provides: “This

subchapter provides for an action by which persons convicted of crimes they

did not commit and persons serving illegal sentences may obtain

collateral relief.”    42 Pa.C.S.A. § 9542 (emphasis added).                Section 9543

provides that a petitioner is eligible for relief if he or she is serving a

sentence     “greater      than       the   lawful    maximum.”          42       Pa.C.S.A.

§ 9543(a)(2)(vii).      Appellant’s sentence is illegal, though not greater than

the lawful maximum. In similar circumstances, this Court has deemed the

issue cognizable under the PCRA. Commonwealth v. Hockenberry, 689

A.2d 283, 288 (Pa. Super. 1997), appeal denied, 695 A.2d 794 (Pa. 1997)

(holding that the imposition of a mandatory minimum under 18 Pa.C.S.A.

§ 7502(a) implicates the legality of a sentence and is cognizable under the

PCRA).

      The PCRA court expressed concern that application of Alleyne to this

case would invite a flood of PCRA petitions from persons sentenced to

mandatory minimum sentences prior to Alleyne.                      PCRA Court Opinion,

1/9/15, at 6.    We disagree.          Newman makes clear that Alleyne applies


                                            -5-
J-S25018-15


only to cases pending on direct appeal as of June 27, 2013. This is one such

case.    Our result does not expand the set of cases governed by Alleyne.

Moreover, Appellant has complied with the jurisdictional time limits for filing

a PCRA petition.

        Based on the foregoing, we are constrained to reverse the PCRA

court’s order, vacate the judgment of sentence and remand for a new

sentence in accordance with Alleyne and Valentine.

        Order reversed. Judgment of sentence vacated. Case remanded for

entry of a new sentence in accordance with this memorandum. Jurisdiction

relinquished.

        P.J.E. Bender joins the memorandum.

        J. Platt files a dissenting memorandum.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/30/2015




                                      -6-
