J-S53028-15


                                  2015 PA Super 275

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

JORGE LUIS RUIZ, JR.

                            Appellant                 No. 1925 MDA 2014


                 Appeal from the PCRA Order October 15, 2014
                 In the Court of Common Pleas of Berks County
              Criminal Division at No(s): CP-06-CR-0003038-2012


BEFORE: DONOHUE, J., OTT, J., and MUSMANNO, J.

OPINION BY OTT, J.:                               FILED DECEMBER 30, 2015

       Jorge Luis Ruiz, Jr., appeals from the order entered October 15, 2014,

in the Court of Common Pleas of Berks County, that dismissed his first

petition for relief filed pursuant to the Post Conviction Relief Act (“PCRA”),

42 Pa.C.S. §§ 9541–9546. Ruiz seeks relief from the judgment of sentence

of an aggregate term of six to 20 years’ incarceration imposed on June 5,

2013, after he entered a negotiated guilty plea to possession with intent to

deliver a controlled substance (PWID) (249.1 grams cocaine), criminal use of

communication facility, and conspiracy.1 On appeal, Ruiz contends the PCRA

court “erred in denying [Ruiz’s] PCRA Petition and [not] granting him a new

____________________________________________


1
 See 35 P.S. § 780-113(a)(30); 18 Pa.C.S. § 7512; and 18 Pa.C.S. § 903
and 35 P.S. § 780-113(a)(30), respectively.
J-S53028-15



sentencing hearing where the decision of Alleyne v. United States, 133 S.

Ct. 2151 (2013) and subsequent Pennsylvania decisions made [Ruiz’s]

sentence unconstitutional and he filed a timely PCRA Petition.” Ruiz’s Brief

at 5.    Based upon the following, we reverse the order of the PCRA court,

vacate the judgment of sentence, and remand for resentencing.

        In this case, the court applied the mandatory minimum sentencing

provision set forth in 42 Pa.C.S. § 9712.1 (“Sentences for certain drug

offenses committed with firearms”),2 and Ruiz was sentenced to serve an

____________________________________________


2
  Although the PCRA court states in its September 10, 2014, order and
notice of intent to dismiss that Ruiz was sentenced to a mandatory minimum
pursuant to 18 Pa.C.S. § 7508(a)(3)(iii), this citation appears to be a
scrivener’s error. See PCRA Court Order and Notice of Intent to Dismiss,
9/10/2014, at 2. In fact, Ruiz’s Pennsylvania Sentencing Guideline Form for
the PWID charge reflects application of 42 Pa.C.S. § 9712.1.

      At the guilty plea/sentencing hearing, the Commonwealth advised the
court: “There is a mandatory sentence … because the possession with intent
to deliver the controlled substance was seized in close proximity to the
firearms that were utilized by each of the defendants. There is a 5-year
drug and gun mandatory applicable to them.” N.T., 6/5/2013, at 9
(emphasis supplied). The court asked Ruiz if he understood there was a
“gun and drug mandatory [that] calls for at least a mandatory minimum
sentence of 5 years of incarceration.”         Id. at 10.     Ruiz answered
affirmatively. Id. In addition, the court’s June 5, 2013, sentencing order of
five to ten years for Count 7, the PWID charge, includes a hand-written
notation, “gun and drug mandatory.” Sentence Order, 6/5/2013.

      We note that the “gun and drug mandatory” is a reference to 42
Pa.C.S. § 9712.1, which provides, in relevant part:

        Any person who is convicted of a violation of [35 P.S. § 780-
        113(a)(30)] … when at the time of the offense the person or the
        person’s accomplice is in physical possession or control of a
(Footnote Continued Next Page)


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aggregate term of six to 20 years of incarceration in a state correctional

facility.3 Ruiz did not file any post sentence motion or direct appeal.4

      On June 17, 2013, 12 days after Ruiz was sentenced, the United

States Supreme Court decided Alleyne.             On June 2, 2014, Ruiz filed a

                       _______________________
(Footnote Continued)

      firearm, whether visible, concealed about the person or the
      person’s accomplice or within the actor’s or accomplice’s reach
      or in close proximity to the controlled substance, shall likewise
      be sentenced to a minimum sentence of at least five years of
      total confinement.

42 Pa.C.S. § 9712.1(a). We further note that Section 7508(a)(3)(iii) requires
that when a person is convicted of possessing at least 100 grams of cocaine,
the court must impose, at a minimum,

      four years in prison and a fine of $ 25,000 or such larger amount
      as is sufficient to exhaust the assets utilized in and the proceeds
      from the illegal activity; however, if at the time of sentencing the
      defendant has been convicted of another drug trafficking
      offense: seven years in prison and $ 50,000 or such larger
      amount as is sufficient to exhaust the assets utilized in and the
      proceeds from the illegal activity.

18 Pa.C.S. § 7805(a)(3)(iii).    The court’s imposition of a five-year
mandatory minimum sentence lends further support to the fact that Ruiz
was sentenced under Section 9712.1.
3
  The court sentenced Ruiz in accordance with the plea agreement to five to
ten years’ imprisonment on the PWID charge, a consecutive sentence of six
months to five years’ imprisonment on the criminal use of communication
facility charge, and a consecutive sentence of six months to five years’
imprisonment on the conspiracy charge.
4
  On June 13, 2013, Ruiz filed a pro se motion to modify sentence. Since he
was represented by counsel, his pro se filing was a legal nullity. See
Commonwealth v. Ellis, 626 A.2d 1137, 1139 (Pa. 1993).




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J-S53028-15



timely, counseled PCRA petition, wherein he challenged the legality of his

mandatory minimum sentence under Alleyne. On September 2, 2014, Ruiz

filed a Supplemental Motion, citing Commonwealth v. Newman, 99 A.3d

86 (Pa. Super. 2014) (en banc), for the proposition that “the mandatory

minimum      that   applies    to   firearms   in   the   vicinity   of   contraband   is

unconstitutional.” Ruiz’s Supplemental Motion in Support of Post Conviction

Relief Act, 9/2/2014, at 1. The PCRA court issued notice of intent to dismiss

pursuant to Pa.R.Crim.P. 907, stating that Ruiz was not entitled to PCRA

relief because he had not filed a direct appeal, and Ruiz responded to the

Rule 907 notice on October 9, 2014. On October 15, 2014, the PCRA court

denied Ruiz relief and dismissed the petition. This appeal followed.5

____________________________________________


5
   On November 13, 2014, Ruiz filed a pro se notice of appeal. On November
19, 2014, the trial court issued an order directing Ruiz to file a Pa.R.A.P.
1925(b) statement within 21 days. Thereafter, on December 1, 2014, the
court granted Ruiz’s counsel’s petition to withdraw and, on December 2,
2015, appointed counsel to represent Ruiz on appeal. Ruiz then filed a
motion for extension of time to file a Rule 1925(b) statement, which the
court granted on December 12, 2014, allowing Ruiz an additional 30 days to
file a concise statement from receipt of the transcript. On January 1, 2015,
appointed counsel filed a Statement in Lieu of Concise Statement of Errors
Complained of on Appeal. See Pa.R.A.P. 1925(c)(4). The trial judge filed
an opinion on January 16, 2015.

       On February 3, 2015, private counsel entered her appearance for Ruiz
in this Court and filed an application for remand. On February 19, 2015, this
Court issued a per curiam order, granting the application and remanding for
a period not to exceed 30 days, ordered Ruiz to file a concise statement with
the trial court nunc pro tunc within 10 days of the date of the order, and
directed that the trial judge should prepare and file an opinion pursuant to
Pa.R.A.P. 1925(a). See Pa.R.A.P. 1925(c). Ruiz filed a concise statement on
(Footnote Continued Next Page)


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      On January 16, 2015, the PCRA court filed an opinion in which it

reasoned that “although Alleyne was decided within the thirty day period

that [Ruiz] had to file a direct appeal, it is not applicable to the instant case

because [Ruiz] pleaded guilty and admitted to the mandatory minimum

sentencing factors.”         PCRA Court Opinion, 1/16/2015, at 1–2 (citation

omitted). However, the PCRA court later authored a supplemental opinion,

wherein the court requested that this Court remand the case to the PCRA

court for resentencing, citing Commonwealth v. Cardwell, 105 A.3d 748

(Pa. Super. 2014).6 See PCRA Court Supplemental Opinion, 3/11/2015.

      Our standard of review is well settled:

      Our standard of review of an order denying PCRA relief is
      whether the record supports the PCRA court’s determination and
      whether the PCRA court’s decision is free of legal error. The
      PCRA court’s findings will not be disturbed unless there is no
      support for the findings in the certified record.

Commonwealth v. Lawson, 90 A.3d 1, 4 (Pa. Super. 2014) (internal

citations omitted).

      In Alleyne, the United States Supreme Court held “[a]ny fact that, by

law, increases the penalty for a crime is an ‘element’ that must be submitted
                       _______________________
(Footnote Continued)

February 26, 2015, and the trial court filed a supplemental opinion on March
11, 2015.
6
  In Commonwealth v. Cardwell, 105 A.3d 748 (Pa. Super. 2014), appeal
denied, 121 A.3d 494 (Pa. 2015), a panel of this Court applied Alleyne and
held the trial court erred by imposing a mandatory minimum sentence under
18 Pa.C.S. § 7508 even though the parties had stipulated to the weight of
the drugs at trial.



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J-S53028-15



to the jury and found beyond a reasonable doubt.” Alleyne, 133 S.Ct. at

2155.     In applying that mandate, an en banc panel of this Court, in

Commonwealth v. Newman, supra, 99 A.3d 86 (Pa. Super. 2014) (en

banc), appeal denied, 121 A.3d 496 (Pa. 2015), held that Alleyne rendered

the mandatory minimum sentencing provision at 42 Pa.C.S. § 9712.1 — the

same provision applied herein — unconstitutional.      Section 9712.1, which

provides for a five-year mandatory minimum prison term for PWID

convictions when a firearm is in close proximity to the illegal drugs, includes

a provision that permits the trial court to determine at sentencing whether

the elements necessary to increase the mandatory minimum sentence were

proven by a preponderance of the evidence. See 42 Pa.C.S. § 9712.1(c).

The Newman Court held that, under Alleyne, Section 9712.1 “can no

longer pass constitutional muster [because] [i]t permits the trial court, as

opposed to the jury, to increase a defendant’s minimum sentence based

upon a preponderance of the evidence” standard.         Newman, supra, 99

A.3d at 98.

        Further, the Newman Court found the unconstitutional provisions in

Section 9712.1 were not severable from the statute as a whole. See id. at

101 (“We find Subsections (a) and (c) of Section 9712.1 are essentially and

inseparably connected.”).    Recently, the Pennsylvania Supreme Court in

Commonwealth v. Hopkins, 117 A.3d 247 (Pa. 2015), applied the same

reasoning when it determined that another mandatory minimum sentencing




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statute, 18 Pa.C.S. § 6317, was unconstitutional under Alleyne.              The

Supreme Court opined:

      In conclusion, we hold … that numerous provisions of Section
      6317 are constitutionally infirm under Alleyne. Moreover, the
      remaining provisions of Section 6317, standing alone, are
      incomplete and are incapable of being vindicated in accord with
      the intent of the General Assembly. 1 Pa.C.S. § 1925. Because
      of the significant provisions found to violate the Constitution,
      which clearly express the intent of the legislature that Section
      6317 is a mandatory minimum sentencing statute, and not a
      substantive offense, we find the remaining unoffending provisions
      of Section 6317 are incapable of being severed, and we will not
      judicially usurp the legislative function and rewrite Section 6317
      or create a substantive offense which the General Assembly
      clearly did not desire. Rather, we leave it to our sister branch for
      an appropriate statutory response to the United States Supreme
      Court’s decision in Alleyne.

Id. at 262 (footnote omitted).

      We note the Newman Court instructed that Alleyne applies only to

cases pending on direct appeal as of June 27, 2013, the date of the

Alleyne decision. See Newman, 99 A.3d at 90.

      It is also settled that Alleyne does not invalidate a mandatory

minimum sentence when presented in an untimely PCRA petition.                See

Commonwealth v. Miller, 102 A.3d 988 (Pa. Super. 2014). In concluding

Alleyne does not satisfy the new retroactive constitutional right exception to

the PCRA’s one year time bar, 42 Pa.C.S. § 9545(b)(1)(iii), the Miller Court

explained:

      Even assuming that Alleyne did announce a new constitutional
      right, neither our Supreme Court, nor the United States
      Supreme Court has held that Alleyne is to be applied
      retroactively to cases in which the judgment of sentence

                                     -7-
J-S53028-15


      had become final.         This is fatal to Appellant’s argument
      regarding the PCRA time-bar. This Court has recognized that a
      new rule of constitutional law is applied retroactively to cases on
      collateral review only if the United States Supreme Court or our
      Supreme Court specifically holds it to be retroactively applicable
      to those cases.

Id. at 995 (citations omitted) (emphasis supplied). Furthermore, this Court

also recently declined to give Alleyne retroactive effect to cases on timely

collateral review when the defendant’s judgment of sentence was finalized

before Alleyne was decided.      See Commonwealth v. Riggle, 119 A.3d

1058 (Pa. Super. 2015).

      In Riggle, after the defendant was sentenced on August 7, 2009, this

Court affirmed, and the Pennsylvania Supreme Court denied allowance of

appeal on December 15, 2011. Id., 119 A.3d at 1061–1062. Riggle filed a

timely PCRA petition on December 18, 2012, and, when the PCRA court

issued notice of intent to dismiss the petition, Riggle responded and claimed

that his sentence was illegal under Alleyne. See id. 119 A.3d at 1062.

      In considering whether the United States Supreme Court’s June 17,

2013, decision in Alleyne should apply to cases on collateral review, the

Riggle Court held that while Alleyne “undoubtedly is a new constitutional

rule,” it does not meet the test for retroactive application during collateral

review as set forth in the United States Supreme Court’s decision, Teague

v. Lane, 489 U.S. 288 (1989) (plurality). Riggle, supra, 119 A.3d at 1066.

Specifically, the panel concluded the rule announced in Alleyne was neither

substantive, nor a “watershed” procedural rule, that is, “necessary to

prevent an impermissibly large risk of an inaccurate conviction and alters the

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understanding of the bedrock procedural elements essential to the fairness

of a proceeding.” Id. Therefore, the Riggle Court found that because “the

fundamental fairness of the trial or sentencing is not seriously undermined,

[] Alleyne is not entitled to retroactive effect in this PCRA setting.” Id. at

1067 (emphasis supplied).

       Having considered Miller and Riggle, we find that the case sub judice

is distinguishable,7 and we agree with the PCRA court’s ultimate conclusion

that Ruiz’s Alleyne claim does, in fact, warrant remand for resentencing.

See PCRA Court Supplemental Opinion, 3/11/2015.

       Here, Ruiz filed a timely PCRA petition within one year of the date his

judgment of sentence became final.             See 42 Pa.C.S. § 9545(b)(1) (“Any

petition under this subchapter, including a second or subsequent petition,

shall be filed within one year of the date the judgment becomes final ….”).

Because Ruiz was sentenced on June 5, 2013, and did not file a direct

appeal, his judgment of sentence became final on July 5, 2013, when the

30-day time period for filing a direct appeal to this Court expired. See 42

Pa.C.S. § 9545(b)(3) (“For purposes of this subchapter, a judgment

becomes final at the conclusion of direct review, including discretionary

____________________________________________


7
  As will be discussed in more detail infra, Ruiz presented his Alleyne claim
in a timely filed PCRA petition, in contrast to Miller.        Further, Ruiz’s
judgment of sentence did not become final until after Alleyne was decided,
which was not the case in Riggle.




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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.”).

Therefore, Ruiz’s PCRA petition, filed on June 2, 2014, was filed within the

statutory one-year period.         As such, Miller, supra, which addresses the

applicability of Alleyne to an untimely petition, is not implicated herein.

       Furthermore, in contrast to the procedural posture of the case in

Riggle, supra, Ruiz’s judgment of sentence was not yet final when Alleyne

was decided on June 17, 2013.8                 In this regard, we are guided by this

Court’s discussion in Newman, where the appellant’s judgment of sentence

was affirmed by this Court five days before the United States Supreme Court

issued Alleyne. This Court recognized:

       Although this court had already rendered its decision in
       appellant’s appeal at the time Alleyne was announced, we
       retain jurisdiction for 30 days thereafter, to modify or rescind
       our holding, or grant reargument as we have here, so long as
       the appellant does not seek allowance of appeal before our
       supreme court.       See 42 Pa.C.S.A. § 5505. Moreover, our
       decision does not become final until 30 days have elapsed and
       the time for filing a petition for allowance of appeal with our
       supreme court expires.       See Pa.R.A.P., Rule 1113(a), 42
       Pa.C.S.A. § 5505. Therefore, appellant’s case was still pending
       on direct appeal when Alleyne was handed down, and the
       decision may be applied to appellant's case retroactively.
____________________________________________


8
  We note that, based on the procedural history set forth in Riggle, Riggle’s
judgment of sentence became final in March of 2012, 90 days from the date
of the Pennsylvania Supreme Court’s decision, when the time for filing a
petition for a writ of certiorari with the United States Supreme Court expired.
See U.S. Supreme Court Rule 13. As such, Riggle’s judgment of sentence
became final 15 months before the Supreme Court decided Alleyne in June
of 2013.



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Newman, 99 A.3d at 90 (footnote omitted).

       Here, similar to the appellant in Newman, Ruiz’s June 5, 2013,

judgment of sentence was not final when Alleyne was decided because, in

this case, the 30-day period within which the trial court’s order may be

appealed, modified or rescinded, had not yet expired on June 17, 2013 —

the date of the Alleyne decision. See Pa.R.A.P. 903(a), 42 Pa.C.S. § 5505.

As such, Ruiz’s case “was still pending on direct appeal when Alleyne was

handed     down,    and    the    decision     may   be   applied   to   [Ruiz’s]   case

retroactively.” Newman, id.

       The Newman Court also made clear that an Alleyne claim is a non-

waivable challenge to the legality of sentence.9 Such a claim may be raised
____________________________________________


9
  To date, the Pennsylvania Supreme Court has not issued a decision
refuting the express holding of our en banc Court in Newman that an
Alleyne challenge “implicates the legality of the sentence and cannot be
waived on appeal.”). Newman, supra, 99 A.3d at 90.

      We note that Supreme Court appeared poised to address this issue
when it accepted allocator review in Commonwealth v. Johnson, 93 A.3d
806 (Pa. 2014), and directed the parties to address “[w]hether a challenge
to a sentence pursuant to Alleyne … implicates the legality of the sentence
and is therefore non-waivable.” However, the Court later dismissed the
appeal as improvidently granted. See Commonwealth v. Johnson, 106
A.3d 678 (Pa. 2014). Nevertheless, the Supreme Court has subsequently
accepted review of this Court’s decision in Commonwealth v. Wolfe, 106
A.3d 800 (Pa. Super. 2014), and framed the issue on appeal as follows:

       Whether the Superior Court of Pennsylvania’s sua sponte
       determination that the ten year mandatory minimum sentence
       for involuntary deviate sexual intercourse (Person less than 16
       years) imposed pursuant to 42 Pa.C.S.A. § 9718(a)(1) is facially
       unconstitutional is erroneous as a matter of law?
(Footnote Continued Next Page)


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on direct appeal, or in a timely filed PCRA petition. See 42 Pa.C.S. § 9542

(“persons    serving       illegal   sentences      may   obtain   collateral   relief”);

Commonwealth v. Hockenberry, 689 A.2d 283, 288 (Pa. Super. 1997)

(“Issues relating to the legality of sentence cannot be waived and are

cognizable under the PCRA”; addressing challenge to imposition of a

mandatory minimum under 18 Pa.C.S. § 7508(a)). Indeed, in Newman, the

en banc panel recognized that Alleyne constituted a “new rule” that “applies

to all criminal cases still pending on direct review.”         Newman, supra, 99

A.3d at 90 (emphasis supplied), quoting Schriro v. Summerlin, 542 U.S.

348 (2004). Although the procedural posture in the present appeal differs

from Newman in that Ruiz raised his claim in a timely PCRA petition, the

fact remains that Ruiz’s judgment of sentence was “still pending on direct

review” when Alleyne was decided. Newman, id.

      Moreover, as recognized by the PCRA court in this case, this Court has

consistently rejected any attempt by the Commonwealth to employ a

harmless error analysis to overcome the mandate of Alleyne.                         See

Cardwell, supra, 105 A.3d at 754 (Pa. Super. 2014) (rejecting argument
                       _______________________
(Footnote Continued)


Commonwealth v. Wolfe, 121 A.3d 433, 434 (Pa. 2015). See also
Commonwealth v. Barnes, 122 A.3d 1034 (Pa. 2015) (granting petition
for allowance of appeal limited to two issues, including, inter alia, “Whether
a challenge to a sentence pursuant to Alleyne[] implicates the legality of
the sentence and is therefore non-waivable”).




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that Commonwealth proved beyond a reasonable doubt triggering factor for

mandatory minimum when “Commonwealth and Appellant entered into a

stipulation that the total weight of the PCP in this case was 6.148 grams[;]”

Newman held the unconstitutional provisions of the statute were not

severable), appeal denied, 121 A.3d 494 (Pa. 2015). See also Wolfe,

supra, 106 A.3d at 806 (rejecting application of mandatory minimum

statute even though the jury was required to find the triggering fact, i.e.,

that the victim was under 16 years of age, in order to convict defendant of

underlying crime; “Newman stands for the proposition that mandatory

minimum sentence statutes in Pennsylvania of this format are void in their

entirety.”).

      Based on our review of the procedural background of this case and the

relevant case law discussed above, we agree with the PCRA court’s

conclusion in its March 11, 2015, supplemental opinion that Ruiz is entitled

to be resentenced without consideration of the mandatory minimum

sentencing provision of 42 Pa.C.S. § 9712.1. Therefore, finding error in the

PCRA court’s dismissal of Ruiz’s PCRA petition raising an Alleyne challenge,

we reverse the order denying PCRA relief, vacate the judgment of sentence,

and remand for resentencing.

      Order reversed. Judgment of sentence vacated. Case remanded for

proceedings consistent with this Opinion. Jurisdiction relinquished.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/30/2015




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