J-S62041-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

NICHOLAS EDWARD SARVER

                            Appellant                No. 908 WDA 2015


                    Appeal from the PCRA Order June 5, 2015
                In the Court of Common Pleas of Fayette County
              Criminal Division at No(s): CP-26-CR-0002160-2012


BEFORE: GANTMAN, P.J., JENKINS, J., and PLATT, J.*

MEMORANDUM BY GANTMAN, P.J.:                       FILED AUGUST 19, 2016

        Appellant, Nicholas Edward Sarver, appeals from the order entered in

the Fayette County Court of Common Pleas, which denied his petition filed

pursuant to the Post Conviction Relief Act (“PCRA”).1 We reverse the order

denying PCRA relief, vacate the judgment of sentence, and remand for

resentencing.

        The relevant facts and procedural history of this case are as follows.

On July 23, 2012, police went to Appellant’s home to search for stolen

firearms. When the officers arrived, Appellant invited them into the house.

Police found multiple firearms near heroin and drug packaging materials. A

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1
    42 Pa.C.S.A. §§ 9541-9546.


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*Retired Senior Judge assigned to the Superior Court.
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jury convicted Appellant on May 8, 2013, of simple possession, possession

with intent to deliver (“PWID”), and possession of drug paraphernalia. The

court sentenced Appellant on June 5, 2013, to a mandatory minimum term

of five (5) to ten (10) years’ imprisonment for the PWID conviction, pursuant

to 42 Pa.C.S.A. § 9712.1. The court imposed no further penalty for simple

possession and possession of drug paraphernalia.     On April 23, 2014, this

Court affirmed the judgment of sentence. See Commonwealth v. Sarver,

No. 1062 WDA 2013, unpublished memorandum (Pa.Super. filed April 23,

2014). Appellant filed a timely pro se PCRA petition on September 26, 2014.

The PCRA court appointed counsel, who filed an amended petition. Following

a hearing, the court denied Appellant’s PCRA petition on June 5, 2015.

Appellant timely filed a notice of appeal on June 10, 2015.       The court

ordered Appellant to file a Rule 1925(b) statement, and Appellant timely

complied.

      Appellant raises one issue for our review:

         WHETHER THE PCRA COURT ERRED WHEN IT RULED THAT
         APPELLANT CANNOT RAISE HIS CLAIM THAT HIS
         MANDATORY SENTENCE IS ILLEGAL IN A PCRA PETITION?

(Appellant’s Brief at 6).

      Appellant argues his mandatory minimum sentence for PWID is illegal

pursuant to Alleyne v. U.S., ___ U.S. ___, 133 S.Ct. 2151, 186 L.Ed.2d

314 (2013), and its Pennsylvania progeny. Appellant asserts the PCRA court

erred when it determined Appellant could not raise his Alleyne challenge in


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a timely PCRA petition.   Appellant concludes this Court should vacate the

judgment of sentence and remand for resentencing. We agree.

      Our standard of review of the denial of a PCRA petition is limited to

examining   whether    the   evidence    of   record    supports    the     court’s

determination   and    whether   its    decision   is   free   of   legal    error.

Commonwealth v. Conway, 14 A.3d 101, 108 (Pa.Super. 2011), appeal

denied, 612 Pa. 687, 29 A.3d 795 (2011). This Court grants great deference

to the findings of the PCRA court if the record contains any support for those

findings. Commonwealth v. Boyd, 923 A.2d 513, 515 (Pa.Super. 2007),

appeal denied, 593 Pa. 754, 932 A.2d 74 (2007).         We owe no deference,

however, to the court’s legal conclusions.     Commonwealth v. Ford, 44

A.3d 1190, 1194 (Pa.Super. 2012).

      At the time of Appellant’s sentencing, Section 9712.1(a) required a

mandatory minimum sentence of five (5) years’ imprisonment where a

defendant is convicted of PWID “when at the time of the offense the

person…is in physical possession or control of a firearm, whether visible,

concealed about the person…or within the actor’s…reach or in close

proximity to the controlled substance[.]” 42 Pa.C.S.A. § 9712.1(a). Section

9712.1(c) stated that the statutory provisions shall not be an element of the

crime and applicability of the statute shall be determined at sentencing by a

preponderance of the evidence. 42 Pa.C.S.A. § 9712.1(c). In Alleyne, the

United States Supreme Court expressly held that any fact increasing the


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mandatory minimum sentence for a crime is considered an element of the

crime to be submitted to the fact-finder and found beyond a reasonable

doubt. Alleyne, supra. This Court later addressed the constitutionality of

Section 9712.1 in Commonwealth v. Newman, 99 A.3d 86 (Pa.Super.

2014) (en banc),2 which was filed on August 20, 2014. Relying on Alleyne,

Newman held that Section 9712.1 could no longer pass constitutional

muster as it “permits the trial court, as opposed to the jury, to increase a

defendant’s minimum sentence based upon a preponderance of the evidence

that the defendant was dealing drugs and possessed a firearm, or that a

firearm was in close proximity to the drugs.” Id. at 98. Newman further

held that the non-offending provisions of Section 9712.1 were not severable

and the statute was unconstitutional in its entirety. Id. at 101. See also

Commonwealth v. Hopkins, ___ Pa. ___, 117 A.3d 247 (2015) (declaring

mandatory minimum statute at 18 Pa.C.S.A. § 6317 (drug-free school

zones) unconstitutional in its entirety under Alleyne, where that statute

stated its provisions were not elements of crime and applicability of statute

should be determined at sentencing by preponderance of evidence).

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

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2
  Newman involved an Alleyne sentencing issue that could not have been
initially raised on direct appeal, because the defendant’s appeal had been
resolved on June 12, 2013, five days before Alleyne was decided. So, the
defendant filed a petition for reconsideration/reargument, which this Court
granted.



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reiterated the Newman Court’s declarations: (1) an Alleyne claim is a

nonwaivable challenge to the legality of sentence; and (2) Alleyne

announced a new constitutional rule that applied to all cases pending on

direct review when Alleyne was decided.        Id. at 59-60 (citing Newman,

supra at 90).   Based on those principles, Ruiz clarified that a defendant

could also raise an Alleyne challenge in a timely PCRA petition so long as

his direct appeal from the judgment of sentence was still pending when

Alleyne was decided. Id. at 59-60.

     Recently in Commonwealth v. Washington, ___ A.3d ___, 2016 WL

3909088 (Pa. filed July 9, 2016), the Pennsylvania Supreme Court

addressed a situation in which the defendant raised an Alleyne claim in a

timely PCRA petition but his judgment of sentence had become final prior to

the Alleyne decision. The Washington Court stated:

        [A] new rule of law does not automatically render final,
        pre-existing sentences illegal.      A finding of illegality
        concerning such sentences may be premised on such a
        rule only to the degree that the new rule applies
        retrospectively. In other words, if the rule simply does not
        pertain to a particular conviction or sentence, it cannot
        operate to render that conviction or sentence illegal. …

                                 *    *    *

        [N]ew constitutional procedural rules generally pertain to
        future cases and matters that are pending on direct review
        at the time of the rule’s announcement.

Id. at *3-4 (Pa. 2016) (emphasis added). See also id. at *4 (stating: “[I]f

a new constitutional rule does not apply, it cannot render an otherwise final


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sentence illegal”). The Washington Court applied the retroactivity analysis

delineated in Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d

334 (1989), and determined the new constitutional rule announced in

Alleyne is not a substantive or watershed procedural rule that would

warrant retroactive application. Washington, supra. The Court held the

defendant was not entitled to retroactive application of Alleyne because his

judgment of sentence had become final before Alleyne was decided. Id.

     Instantly, on June 5, 2013, the sentencing court imposed a mandatory

minimum term of five (5) years’ imprisonment for Appellant’s PWID

conviction per Section 9712.1. Alleyne was decided while Appellant’s direct

appeal was pending before this Court and before the appeal was resolved.

This Court affirmed Appellant’s judgment of sentence on May 23, 2014, after

Alleyne became     law but before Newman declared Section 9712.1

unconstitutional in its entirety by virtue of Alleyne.   After Newman was

filed on August 20, 2014, Appellant promptly filed a timely PCRA petition

challenging his mandatory minimum sentence as illegal in light of the

developing Alleyne case law.    Because Appellant’s judgment of sentence

was still pending when Alleyne was decided on June 17, 2013, Alleyne

applies to Appellant’s case, and he is entitled to review and relief under

Ruiz, supra. See also Newman, supra.

     The present matter is distinguishable from Washington, which

concerned the retroactive application of Alleyne to cases where the


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defendant’s judgment had already become final before the Alleyne

decision.    Washington did not consider the unique procedural posture

presented in Ruiz or in the instant case, where a defendant raises his

Alleyne challenge in a timely PCRA petition but his direct appeal from the

judgment of sentence was still pending at the time Alleyne was decided.3

The Washington Court, however, did specifically acknowledge the general

retroactivity of new constitutional rules to cases pending on direct review at

the time of the rule’s announcement. See Washington, supra at *2, *4.

Therefore, Washington does not necessarily foreclose Appellant’s claim for

review and relief under these unique circumstances.

       Based on the foregoing, we conclude Appellant is entitled to a remand

for resentencing without application of any unlawful mandatory minimum

statute. Accordingly, we reverse the order denying PCRA relief, vacate the

judgment of sentence in its entirety, and remand for resentencing without

imposition of a mandatory minimum term.            See Commonwealth v.
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3
  Washington also did not upset the holding in Newman and Ruiz that an
Alleyne violation renders a sentence illegal for purposes of waiver analysis.
Washington stands for the proposition that no Alleyne violation can occur
in the first place where the defendant’s sentence was imposed and became
final before Alleyne was decided. The Washington Court noted it recently
granted allowance of appeal in a separate case to address the distinct issue
of whether an Alleyne violation implicates the legality of sentence for issue
preservation purposes.      See Washington, supra at *4 n.6 (citing
Commonwealth v. Barnes, ___ Pa. ___, 122 A.3d 1034 (2015)).
Therefore, under current law, the claim that a sentence violates Alleyne
remains a nonwaivable challenge to the legality of the sentence. See
Newman, supra; Ruiz, supra.



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Bartrug, 732 A.2d 1287 (Pa.Super. 1999), appeal denied, 561 Pa. 651, 747

A.2d 896 (1999) (holding sentencing error in multi-count case normally

requires appellate court to vacate entire judgment of sentence so trial court

can restructure its sentencing scheme on remand).

      Order reversed; judgment of sentence vacated; case remanded for

resentencing. Jurisdiction is relinquished.

      Judge Jenkins concurs in the result.

      Judge Platt concurs in the result.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/19/2016




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