J-E01011-16
                                  2016 PA Super 283


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.

DISSENTING OPINION BY BENDER, P.J.E.              FILED DECEMBER 13, 2016

        I respectfully disagree with the Majority’s conclusion that this Court is

compelled to deny Appellant relief from an unconstitutional and, therefore,

illegal sentence. As Appellant raised his meritorious illegal sentencing claim

in a timely PCRA1 petition, I believe he should be granted relief under the

statutory authority of that provision alone, even if there is no mandatory

requirement for retroactive application of the new constitutional rule at

issue. Accordingly, I dissent.

        The statute under which Appellant was sentenced, 18 Pa.C.S. §

7508(a)(1)(ii), contravenes the Sixth Amendment and the Due Process

Clause of the United States Constitution, as those constitutional provisions
____________________________________________


1
    Post Conviction Relief Act, 42 Pa.C.S. §§ 9541-9546.
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were interpreted by the Supreme Court of the United States in Alleyne v.

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

99 A.3d 86 (Pa. Super. 2014) (en banc) (striking down Pennsylvania’s

statutory   mandatory    minimum    sentencing    scheme    under   Alleyne);

Commonwealth v. Fennell, 105 A.3d 13 (Pa. Super. 2014) (applying

Newman to Section 7508).          Thus, there should be no question that

Appellant is currently serving an illegal sentence, viewed from the current

state of the law.   The issue before this Court is not, therefore, whether

Appellant’s sentence is illegal and/or unconstitutional (it is both); the

question before this Court is whether Appellant may seek relief for this

continuing injustice under the auspices of the PCRA.

      In my view, at least two theories potentially support granting relief.

First, as discussed (and rejected) by the Majority, is whether Appellant is

entitled to relief by the retroactive effect of Alleyne and its progeny, under

the framework established in Teague v. Lane, 489 U.S. 288 (1989)

(plurality). In Teague, the Supreme Court of the United States established

a framework for determining whether retroactive application of new

constitutional rules is required on collateral review. The general rule holds

that “new constitutional rules of criminal procedure will not be applicable” on

collateral review, unless they fall within two exceptions. Id. at 310. “[T]he

exceptions extend to rules prohibiting a certain category of punishment for a

class of defendants because of their status or offense, … and watershed

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rules of criminal procedure implicating the fundamental fairness and

accuracy of the criminal proceeding.” Commonwealth v. Cunningham, 81

A.3d 1, 4 (Pa. 2013) (internal citations and quotation marks omitted).

       As the Majority in this case correctly surmised, in Commonwealth v.

Washington, 142 A.3d 810 (Pa. 2016), our Supreme Court rejected a claim

that the new rule announced in Alleyne falls within the scope of either of

the two Teague exceptions.               Despite my own misgivings about this

conclusion,2 I recognize the binding nature of the Washington decision, and

its consistency with other pertinent authorities.          See e.g., U.S. v.

Winkelman, 746 F.3d 134, 136 (3d Cir. 2014) (holding that the “Alleyne

decision does not fit into either” Teague exception category and, therefore,

could not circumvent the federal Habeas Corpus statute’s 1-year period of

limitation, as it did not fall within the exception to that deadline provided for

new rights recognized “by the Supreme Court and made retroactively

applicable to cases on collateral review[,]” 28 U.S.C. § 2255(f)(3)).

Accordingly, I agree that this Court cannot grant relief to Appellant premised

on the theory that retroactive application of Alleyne is required under the

Teague framework.

____________________________________________


2
  I believe that in Pennsylvania, at least, the implementation of Alleyne has
been a watershed decision affecting sentencing procedure, given the patent
unconstitutionality of Pennsylvania’s now-defunct mandatory minimum
sentencing scheme.



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          However, while Teague provides the framework to determine whether

retroactive application of Alleyne on collateral review is required, it does not

at all bar Pennsylvania’s General Assembly from providing relief to persons

sharing Appellant’s procedural posture. That brings us to the second theory

supporting granting relief in this case: the PCRA statute explicitly provides

for it.

          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.3 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,


____________________________________________


3
  Technically, the state courts are free to adopt their own retroactivity
principles governing whether they give retroactive effect to new federal
constitutional decisions. However, our Supreme Court, like many others,
has chosen to adhere to the Teague framework in determining the
retroactivity of new, federal constitutional decisions. Cunningham, 81 A.3d
at 8 (“This Court … generally has looked to the Teague doctrine in
determining retroactivity of new federal constitutional rulings.”).



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the states are still free to provide a remedy above and beyond what is

required under Teague. I believe that such relief is afforded by the PCRA

statute, but only for timely PCRA petitions.

      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).

      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.   It is patently obvious that it did so given the

provision addressing the retroactive effect of newly recognized constitutional

rights in 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


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retroactively”). Indeed, it is precisely because the PCRA statute specifically

addresses retroactivity concerns with regard to untimely PCRA petitions that

the absence of retroactivity-concerned language in the provisions governing

timely petitions strongly suggests the legislature was not concerned with

retroactivity issues for timely PCRA petition. In any event, even if the PCRA

is ambiguous with regard to retroactivity in those provisions, the principle of

lenity generally dictates that whatever ambiguity exists must be resolved in

favor of the defendant in criminal case.

      The Majority cleverly avoids this second theory by narrowly framing

the concept of an ‘illegal sentence’ as a sentence which was illegal at its

inception. Accordingly, under such logic, since Appellant’s sentence was not

illegal when issued, he is not now serving an illegal sentence. However, I

believe the Majority misapprehends what constitutes an illegal sentence,

particularly with respect to the statutory language at issue, which does not

speak to the state of the law at the time of sentencing, but instead to

whether a petitioner is a “person[] serving [an] illegal sentence[,]” 42

Pa.C.S. § 9542. See Majority Opinion at 14 (“Appellant’s sentence can be

considered illegal now only if Alleyne is held to apply retroactively.”)

(emphasis added).

      The problem with this assumption is that Teague-related retroactivity

principles do not govern whether a sentence remains legal in the present, in

light of a different understanding of constitutional law in the past when the


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sentence was imposed.         The question of legality turns on whether

Appellant’s sentence contravenes the Sixth Amendment and Due Process

Clause as understood today under Alleyne.           Retroactivity jurisprudence

instead governs whether courts are required to grant relief from illegal

sentences, regardless of the legality when they were imposed.           Indeed,

there would be no need for retroactivity principles at all in this setting if the

only essential question is, ‘what was the state of the law when the sentence

was imposed?’

      The Teague decision, and the retroactivity principles it espouses, were

specifically adopted from “Justice Harlan's view of retroactivity for cases on

collateral review.”   Teague, 489 U.S. at 310.      In one of Justice Harlan’s

concurrences, which later formed the basis for the Teague decision, he

opined:
      Habeas corpus always has been a collateral remedy, providing
      an avenue for upsetting judgments that have become otherwise
      final. It is not designed as a substitute for direct review. The
      interest in leaving concluded litigation in a state of repose, that
      is, reducing the controversy to a final judgment not subject to
      further judicial revision, may quite legitimately be found by
      those responsible for defining the scope of the writ to outweigh
      in some, many, or most instances the competing interest in
      readjudicating convictions according to all legal standards in
      effect when a habeas petition is filed. Indeed, this interest in
      finality might well lead to a decision to exclude completely
      certain legal issues, whether or not properly determined under
      the law prevailing at the time of trial, from the cognizance of
      courts administering this collateral remedy.

Williams v. U.S., 401 U.S. 667, 682–83 (1971) (J. Harlan, concurring)

(emphasis added).     Under Justice Harlan’s view, retroactivity principles do

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not operate to decide whether Appellant’s sentence is currently illegal given

its apparent legality when imposed. Retroactivity principles concern whether

the court should act to address an issue, “whether or not properly

determined under the law prevailing at the time of trial[.]”        Id. Moreover,

Justice Harlan recognized that “those responsible for defining the scope of

the writ,” i.e., the federal legislature, were properly tasked with weighing

the   interest   in   “readjudicating   convictions”   based   on   a   subsequent

understanding of the law, against the interest in the finality of judgments.

Hence, retroactivity analysis concerns whether the courts are obliged to

grant relief for illegal sentences, not whether sentences are illegal or not.

      The test for illegality must be the state of the law in the present, not

the state of the law at some prior time. If this were not true, there would

simply be no need for retroactivity analysis for the application of new rules.

By definition, the prior sentence would always be “legal” today because it

was “legal” when issued.       What is the purpose of retroactivity analysis in

illegal sentence jurisprudence if, by definition, new rules never rendered

illegal old sentences?

      In sum, I believe that while it is clear that Washington precludes this

Court from being required to give retroactive effect to Alleyne under

Teague, the PCRA statute by its own terms provides relief from any illegal

sentence if such a claim is raised in a timely PCRA petition.           Under the

current state of the law, Appellant’s sentence is illegal and, therefore, I


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believe his timely PCRA petition entitles him to relief under the terms of the

PCRA itself.   As the Majority reaches a different conclusion, I respectfully

dissent.




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