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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                  IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                            Appellee

                       v.

ANTHONY S. HASKINS,

                            Appellant              No. 1815 MDA 2014


                 Appeal from the PCRA Order October 1, 2014
               In the Court of Common Pleas of Dauphin County
              Criminal Division at No(s): CP-22-CR-0003755-2008

BEFORE: FORD ELLIOTT, P.J.E., BENDER, P.J.E., BOWES, SHOGAN,
        LAZARUS, MUNDY, OLSON, OTT, AND STABILE, JJ.

MEMORANDUM BY BOWES, J.:                            FILED JUNE 06, 2016

       Anthony Haskins appeals pro se1 from the October 1, 2014 order

denying his first timely PCRA petition. We vacate the October 1, 2014 order

and Appellant’s January 18, 2011 judgment of sentence and remand for

resentencing.
      Based on the following proof, a jury found Appellant guilty of

possession of a controlled substance with intent to deliver (“PWID”), person

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1
   The PCRA court permitted initial PCRA counsel to withdraw pursuant to
Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and
Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc).
Thereafter, based on Appellant’s response to the court’s notice of intent to
dismiss the petition without a hearing, the court appointed new PCRA
counsel. That attorney was allowed to withdraw after Appellant requested to
proceed pro se and was given a colloquy regarding waiver of counsel. N.T.
PCRA Hearing, 7/30/14, at 15-17.
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not to possess a firearm, carrying an unlicensed firearm, and possession of

drug paraphernalia.       On April 9, 2008, Harrisburg Police responded to a

report of shots fired in the area of 13th and Market Streets in Harrisburg

City. Appellant, who was located on 13th Street, was the shooting victim.2

Witnesses reported that Appellant was actually shot on Brady Street, which

was close to where he was found.               At the corner of Brady Street, police

found a functional gun and a set of car keys belonging to a silver Honda

parked nearby on Howard Street.            The Honda belonged to Alina Everchik,

who was sitting in the vehicle when officers discovered it. Everchik reported

that Appellant was her friend, had borrowed the car that morning, and, after

he was shot, Appellant called her and told her to move that vehicle.            She

was unable to comply with Appellant’s request because she did not have its

keys.

        Police had the car towed to the lot of a towing company, and obtained

a search warrant for the Honda the following day. They discovered therein

two clear baggies containing a total of 24.9 grams of marijuana. Everchik

denied ownership of the marijuana.              Police then obtained a warrant for

Appellant’s residence, where they found Everchik and Appellant as well as

37.1 grams of marijuana and a digital scale.            Appellant admitted that the

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2
    Appellant initially refused to identify his assailant, but eventually told
police that Donald Woods shot him.



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marijuana in the residence belonged to him and that he had been driving the

Honda on April 9, 2008, from morning until the time of the shooting. The

Commonwealth also presented expert testimony that, under the facts and

circumstances present in this case, the marijuana in question was possessed

with the intent to deliver.

       The trial court imposed its judgment of sentence on January 18, 2011.

The sentence included application of 42 Pa.C.S. § 9712.13 on the PWID

offense.     N.T. Sentencing, 1/18/11, at 15.            The court also sentenced

Appellant to a consecutive term of incarceration of three to six years on one

of the firearm offenses so that Appellant’s aggregate judgment of sentence

was eight to sixteen years incarceration. Appellant timely appealed to this

Court, which affirmed on September 25, 2012. Commonwealth v.

Haskins, 60 A.3d 861 (Pa.Super. 2012) (unpublished memorandum). Our

Supreme      Court     denied     allowance      of   appeal   on   May   6,   2013.

Commonwealth v. Haskins, 67 A.3d 794 (Pa. 2013).

       On June 17, 2013, the United States Supreme Court disseminated its

decision in Alleyne v. United States, 133 S.Ct. 2151, 2155 (2013),

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3
  Section 9712.1, which has been ruled unconstitutional, required imposition
of a five-year mandatory minimum jail term for a PWID conviction if a
firearm was found in close proximity to the illegal drugs. That statute also
stated that its provisions were not elements of the crime and were to be
determined at sentencing by the court pursuant to a preponderance-of-the-
evidence standard.



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wherein the Court held that “[a]ny fact that, by law, increases the penalty

for a crime is an ‘element’ that must be submitted to the jury and found

beyond a reasonable doubt.” Pursuant to Alleyne, the defendant has a

constitutional right to have a jury decide the existence of any fact, other

than a prior conviction, beyond a reasonable doubt if that fact triggers

application of a mandatory minimum sentence. Herein, the facts necessary

for application of § 9712.1 were found by the sentencing court pursuant to a

preponderance of the evidence standard. See footnote 3, supra. On August

20, 2014, this Court decided in Commonwealth v. Newman, 99 A.3d 86

(Pa.Super. 2014) (en banc), that 42 Pa.C.S. § 9712.1 is unconstitutional in

its entirety under Alleyne.4

       Appellant herein did not file a writ of certiorari from our Supreme

Court’s May 6, 2013 denial of allowance of appeal from our affirmance of his

judgment of sentence. Appellant did file a timely pro se PCRA petition on

May 30, 2013.       On June 3, 2013, the PCRA court appointed counsel, who

was subsequently permitted to withdraw. See footnote 1, supra. As noted,

on June 17, 2013, the United States Supreme Court decided Alleyne. Even

though a writ of certiorari could have been timely filed following PCRA

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4
 In Commonwealth v. Hopkins, 117 A.3d 247 (Pa. 2015), our Supreme
Court employed the same reasoning as the en banc Court in Newman, and
declared a different mandatory minimum sentencing provision, 18 Pa.C.S. §
6317, void in its entirety under Alleyne.



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counsel’s June 3, 2013 appointment, PCRA counsel did not file that writ.

Specifically, Appellant had until August 4, 2013, ninety days after the May 6,

2013 denial of allowance of appeal by our Supreme Court, to seek certiorari

in the United States Supreme Court.5

       In this timely PCRA proceeding, Appellant sought relief from his

judgment of sentence pursuant to Alleyne. On October 1, 2014, the PCRA

court denied relief based upon its conclusion that Alleyne was not

retroactively applicable to PCRA petitioners. This timely appealed ensued,

and the matter initially was submitted to a panel.              This Court sua sponte

granted en banc review. The only relief that Appellant seeks in this appeal is

re-sentencing     without     application      of   the   unconstitutional   mandatory

minimum sentence applied in this matter.



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5
    United States Supreme Court Rule 13 states:

           Unless otherwise provided by law, a petition for a writ of
       certiorari to review a judgment in any case, civil or criminal,
       entered by a state court of last resort . . . is timely when it is
       filed with the Clerk of this Court within 90 days after entry of the
       judgment. A petition for a writ of certiorari seeking review of a
       judgment of a lower state court that is subject to discretionary
       review by the state court of last resort is timely when it is filed
       with the Clerk within 90 days after entry of the order denying
       discretionary review.

U.S. Sup. Ct. R. 13.




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     On January 25, 2016, Appellant submitted a supplemental brief

seeking application of our December 30, 2015 decision in Commonwealth

v. Ruiz, 131 A.3d 54 (Pa.Super. 2015).         The Commonwealth did not

respond to the supplemental brief. In Ruiz, the defendant was denied PCRA

relief pursuant to a timely-filed PCRA petition.   On appeal, the defendant,

who was sentenced under the same mandatory minimum at issue in the

present case, claimed that he was entitled to re-sentencing under Alleyne

and Newman.      We agreed with that contention, vacated the judgment of

sentence, and remanded for resentencing.

     The Ruiz Court concluded that Ruiz was entitled to be re-sentenced

since he filed a timely PCRA petition and since Alleyne had been decided

when his judgment of sentence was not final, as defined by the PCRA.

Specifically, Ruiz did not file a direct appeal, but Alleyne was issued within

the thirty-day window for filing one. In Ruiz, we specifically distinguished

Commonwealth v. Riggle, 119 A.3d 1058 (Pa.Super. 2015), which held

that a PCRA petitioner is not entitled to retroactive application of the

Alleyne decision. The Ruiz Court concluded that Riggle was inapplicable

because Alleyne was issued after Riggle’s sentence was final, as defined by

the PCRA.     In so doing, we observed that Newman held that Alleyne

applies to any case pending on direct appeal when Alleyne was filed. See

Schriro v. Summerlin, 542 U.S. 348, 351 (2004) (“When a decision of this




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Court results in a ‘new rule,’ that rule applies to all criminal cases still

pending on direct review.”).6

       Our conclusion in Ruiz was that, if a defendant’s direct appeal was

pending when Alleyne was filed, the defendant is entitled to relief pursuant

to a timely PCRA petition since an Alleyne claim is a non-waivable challenge

to the legality of sentence, which is cognizable under the PCRA.        See

Newman, supra at 90 (“challenge to a sentence premised upon Alleyne . .

. implicates the legality of the sentence,” and such a challenge cannot be

waived); Commonwealth v. Beck, 848 A.2d 987, 989 (Pa.Super. 2004)

(“Issues concerning the legality of sentence are cognizable under the

PCRA.”). Under Ruiz, a defendant is entitled to relief pursuant to Alleyne

and Newman if the defendant’s judgment of sentence was still pending on

direct review, as determined by reference to § 9545(b)(3) of the PCRA,

when Alleyne was filed.

       We find Ruiz persuasive and apply it in the present case. Appellant’s

judgment of sentence was still pending on direct review when Alleyne was

issued.    Section 9545(b)(3) states, “For purposes of this subchapter, a

judgment becomes final at the conclusion of direct review, including
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6
   Alleyne is a new rule of law in that it overruled existing Supreme Court
precedent that provided that any fact necessary to trigger application of a
mandatory minimum sentence did not have to be submitted to a jury and
proven beyond a reasonable doubt. See Harris v. United States, 536 U.S.
545 (2002); McMillan v. Pennsylvania, 477 U.S. 79 (1986).



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discretionary review in the Supreme Court of the United States and the

Supreme Court of Pennsylvania, or at the expiration of time for seeking the

review.” 42 Pa.C.S. § 9545(b)(3).    On May 6, 2013, our Supreme Court

denied allowance of appeal from our affirmance of Appellant’s judgment of

sentence.   As analyzed, supra, Appellant had ninety days to petition for a

writ of certiorari. Thus, Appellant’s judgment of sentence became final for

purposes of § 9545(b)(3) on August 4, 2013, when the time for seeking

review in the United States Supreme Court expired. Alleyne was issued on

June 17, 2013, while Appellant’s direct appeal was pending, and he therefore

is entitled to application of Alleyne and Newman.

      The October 1, 2014 PCRA order and the January 18, 2011 judgment

of sentence are vacated.    Case remanded for resentencing.     Jurisdiction

relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/6/2016




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