J-S41028-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                                          :
              v.                          :
                                          :
                                          :
 RICHARD WALTERS                          :
                                          :
                    Appellant             :   No. 2844 EDA 2017

                Appeal from the PCRA Order August 28, 2017
  In the Court of Common Pleas of Philadelphia County Criminal Division at
                     No(s): CP-51-CR-0001282-2012


BEFORE:     GANTMAN, P.J., OLSON, J., and STEVENS*, P.J.E.

CONCURRING STATEMENT BY STEVENS, P.J.E.: FILED             SEPTEMBER        06,

2018

       While I am constrained to agree with the Majority’s decision to reverse

the PCRA court’s Order and remand for resentencing, I write separately to

emphasize that in Commonwealth v. DiMatteo, 177 A.3d 182, 183 (Pa.

2018), the Pennsylvania Supreme Court granted review “to assess what relief,

if any, a criminal defendant is entitled to when he raises an illegal sentencing

challenge premised on Alleyne v. United States, 570 U.S. 99, 133 S.Ct.

2151, 186 L.Ed.2d 314 (2013) in a timely petition filed pursuant to the Post

Conviction Relief Act, 42 Pa.C.S. §§ 9541–9546, when, at the time Alleyne

was decided, the defendant's judgment of sentence was not yet final.” Citing

Commonwealth v. Newman, 99 A.3d. 86, 90 (Pa. 2014) the Court stressed

that “Alleyne applied only to cases pending on direct review as of June 17,

2013, the date of the Alleyne decision.” DiMatteo, 177 A.3d at 187–88

____________________________________
* Former Justice specially assigned to the Superior Court.
J-S41028-18



(italics added, boldface type in original). The Court ultimately held that its

prior decision in Commonwealth v. Washington, 142 A.3d 810 (Pa. 2016)

did not bar a petitioner “serving an illegal sentence from relief when such relief

is sought in a timely PCRA petition and the judgment of sentence was not final

when Alleyne was announced.” Id. at 191.

      The phrase “as of” is “used to indicate a time or date at which something

begins    of    ends.”     As    of    Definition,    Merriam      Webster.com,

http.//dictionary/browse/as is (last visited Aug. 22, 2018).            Although

Appellant did not file a direct appeal, as the Majority explains, he had until

June 17, 2013, to do so. As such, his case was pending on direct review until

the end of business on June 17, 2013; therefore, because his judgment of

sentence was not yet final when Alleyne was decided and the instant, first

PCRA petition was timely-filed, Alleyne is applicable to Appellant’s case

retroactively. See Commonwealth v. Ruiz, 131 A.3d 54, 60-61 (Pa.Super.

2015).




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