J-S57028-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

COREY CHRISTOPHER LAFOREST

                            Appellant                 No. 786 EDA 2015


                 Appeal from the PCRA Order February 23, 2015
                In the Court of Common Pleas of Monroe County
              Criminal Division at No(s): CP-45-CR-0000930-2011


BEFORE: MUNDY, J., OTT, J., and STABILE, J.

MEMORANDUM BY OTT, J.:                            FILED December 18, 2015

        Corey Christopher Laforest appeals the order entered February 23,

2015, in the Monroe County Court of Common Pleas, dismissing his first

petition filed pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.

§ 9541 et seq. Laforest seeks relief from the judgment of sentence of an

aggregate term of five to 10 years’ imprisonment imposed on March 23,

2012, after a jury found him guilty of possession with intent to deliver

(“PWID”) cocaine, possession of cocaine, possession of a small amount of

marijuana, and possession of drug paraphernalia.1 On appeal, he contends

the PCRA court erred in denying his petition when the trial court imposed a

mandatory minimum sentence violative of the Supreme Court’s mandate in

____________________________________________


1
    35 P.S. §§ 780-113(a)(30), (a)(16), (a)(31), and (a)(32), respectively.
J-S57028-15



Alleyne v. United States, 133 S.Ct. 2151 (2013).        For the reasons that

follow, we reverse the order of the PCRA court, vacate the judgment of

sentence, and remand for resentencing.

     The relevant facts and procedural history underlying Laforest’s PCRA

petition are aptly summarized by the PCRA court as follows:

           In April of 2011, [Laforest] was arrested and charged with
     possessory drug offenses. The convictions stemmed from a drug
     enforcement operation staged by the Monroe County Drug Task
     Force. During the operation, a confidential informant conducted
     a controlled drug buy in a motel room occupied by [Laforest].
     After the controlled drug purchase, members of the Task Force
     obtained and executed a search warrant at the motel room.
     Inside the room, the officers found along with [Laforest] crack
     cocaine, marijuana, packing for drugs, and $1,900.

           Prior to trial, [Laforest’s] trial attorney moved to suppress
     the evidence found in the motel room. The motion was denied
     by opinion and order dated November 23, 2011. Subsequently,
     counsel moved to suppress statements [Laforest] made to task
     force members. That motion was also denied.

           On January 6, 2012, a jury convicted [Laforest] of [the
     above-listed offenses]. On March 23, 2012, [Laforest], who had
     a prior PWID conviction, was sentenced to incarceration of not
     less than five years nor more than ten years pursuant to the
     mandatory minimum sentencing provisions of 18 Pa.C.S. Section
     7508 which provides:

        (a) General rule.--Notwithstanding any other provisions
        of this or any other act to the contrary, the following
        provisions shall apply:

                       ***

         (2) A person who is convicted of violating section
        13(a)(14), (30) or (37) of The Controlled Substance, Drug,
        Device and Cosmetic Act where the controlled substance or
        a mixture containing it is classified in Schedule I or
        Schedule II under section 4 of that act and is a narcotic
        drug shall, upon conviction, be sentenced to a mandatory

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J-S57028-15


          minimum term of imprisonment and a fine as set forth in
          this subsection:

          ***

          (ii) when the aggregate weight of the compound or
          mixture containing the substance involved is at least ten
          grams and less than 100 grams; three years in prison and
          a fine of $15,000 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: five years in prison and $30,000 or such larger
          amount as is sufficient to exhaust the assets utilized in and
          the proceeds from the illegal activity[.]

       18 Pa.C.S.S. § 7508(a)(2)(ii).

             During trial, the Commonwealth presented evidence of the
       weight of the cocaine. However, the jury was not asked to
       determine the weight beyond a reasonable doubt. Instead, both
       factors listed in Section 7508(a)(2)(ii) – weight and prior
       conviction – were determined by the Court at sentencing.[2]

             On April 2, 201[2], [Laforest] filed timely post-sentence
       motions. He did not raise a sentencing challenge. Instead, he
       challenged our pre-trial suppression rulings and alleged that we
       erred in failing to grant a mistrial.     On August 23, 2012,
       [Laforest’s] motions were denied.

              On September 19, 2012, [Laforest] filed a timely appeal.
       Again, [Laforest] did not raise a sentencing challenge. Instead,
       in his sole assignment of error, he again challenged our pre-trial
       suppression rulings.

PCRA Court Opinion, 2/23/2015, at 1-3.



____________________________________________


2
  It is well settled that “the imposition of a mandatory minimum sentence
based on a prior conviction is not unconstitutional” under Alleyne.
Commonwealth v. Pennybaker, 121 A.3d 530, 534 (Pa. Super. 2015).




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J-S57028-15



        While Laforest’s direct appeal was pending before this Court, on June

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

September 5, 2013, a panel of this Court affirmed Laforest’s judgment of

sentence on direct appeal. See Commonwealth v. Laforest, 87 A.3d 373

(Pa. Super. 2013 (unpublished memorandum). Laforest did not petition the

Pennsylvania Supreme Court for review, and, accordingly, his judgment of

sentence became final on October 7, 2013.3

        On March 20, 2014, Laforest filed a timely, pro se PCRA petition,

asserting trial counsel’s ineffectiveness with regard to a plea offer. Counsel

was appointed, and filed an amended petition on April 24, 2014, challenging,

inter alia, the legality of Laforest’s mandatory minimum sentence under

Alleyne. As noted above, on February 23, 2015, the PCRA court dismissed

Laforest’s PCRA petition, and this timely appeal follows.4

        Laforest’s sole issue on appeal asserts the PCRA court erred in denying

him relief from an illegal sentence.

        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.
____________________________________________


3
    The 30th day, October 5, 2013, fell on a Saturday. See 1 Pa.C.S. § 1908.
4
  On March 17, 2015, the PCRA court ordered Laforest to file a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
Laforest complied with the court’s directive and filed a concise statement on
April 2, 2015.



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J-S57028-15



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

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, 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,

unconstitutional. Section 9712.1, which provides for a five-year mandatory

minimum prison term when a defendant possesses or is in close proximity to

a firearm while selling 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] it 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


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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

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.

     The mandatory sentencing statute applied sub judice, 18 Pa.C.S. §

7508, contains the same provision as in Sections 6317 and 9712.1, which

permits the trial court to make factual determinations at sentencing under

the relaxed preponderance of the evidence standard, and which has been

found to be unconstitutional under Alleyne.     Accordingly, since Alleyne,

when faced with a challenge on direct appeal to the imposition of a Section

7508 mandatory minimum sentence, this Court has consistently vacated the

sentence and remanded for resentencing. See Commonwealth v. Caple,

121 A.3d 511 (Pa. Super. 2015); Commonwealth v. Mosley, 114 A.3d

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J-S57028-15



1072 (Pa. Super. 2015); Commonwealth v. Vargas, 108 A.3d 858 (Pa.

Super. 2014) (en banc), appeal denied, 121 A.3d 496 (Pa. 2015);

Commonwealth v. Cardwell, 105 A.3d 748 (Pa. Super. 2014), appeal

denied, 121 A.3d 494 (Pa. 2015).

     Moreover, it is also settled that the decision in 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 “newly recognized

constitutional right” exception to the PCRA’s one-year bar, 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
     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 (emphasis supplied).     See also 42 Pa.C.S. § 9545(b)(1)(iii).

     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, the defendant’s judgment of sentence became final in

March of 2012, 15 months before the Supreme Court decided Alleyne in


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June of 2013.      The defendant filed a timely PCRA petition in December of

2012, and raised an Alleyne claim in response to the PCRA court’s notice of

intent to dismiss the petition. See Riggle, supra, 119 A.3d at 1062.

       In considering whether 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 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).

       Although the case sub judice presents a unique procedural backdrop,5

the PCRA court concluded that Laforest’s Alleyne claim failed to meet both

____________________________________________


5
 As will be discussed in more detail infra, Laforest’s judgment of sentence
was not final until after Alleyne was decided, which differentiates it from
Riggle. Further, Laforest presented his Alleyne claim in a timely filed PCRA
petition, which differentiates it from Miller.




                                           -8-
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the timeliness and eligibility requirements of the PCRA.      See PCRA Court

Opinion, 2/23/2015, at 12. For the reasons that follow, we disagree.

      First, with regard to the timeliness requirements, the PCRA court,

relying on Commonwealth v. Roman, 730 A.3d 486 (Pa. Super. 1999),

appeal denied, 747 A.2d 900 (Pa. 1999), concluded that the “after

recognized constitutional right” exception did not apply to Laforest’s claim

because “the right [set forth in Alleyne] was created before the time period

for filing a PCRA expired and because [Laforest] had ample time to raise the

issue in his direct appeal.”      PCRA Court Opinion, 2/23/2015, at 16.

Moreover, the court noted that Laforest did not file a request for relief within

60 days of the date Alleyne was filed pursuant to 42 Pa.C.S. § 9545(b)(2).

See id.

      We find, however, the PCRA court’s reliance on both Roman and the

Section 9545 timing requirements, is misplaced for one significant reason —

Laforest’s PCRA petition was timely filed within one year of the date his

judgment of sentence became final.

      In Roman, the defendant was convicted of a violation of the DUI

statute, which was declared to be unconstitutional five days after the

defendant was sentenced. Roman, supra, 730 A.2d at 487. Nevertheless,

the defendant did not file a direct appeal or a PCRA petition until more than

one year later, after the statutory period for filing a timely PCRA petition had

expired.   Id.   This Court concluded that the defendant was entitled to no

relief because (1) the subsection providing an exception for an after-

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J-S57028-15



recognized constitutional right did not apply because the right asserted was

not recognized after the time for filing a PCRA had expired, and the

defendant “has ample time to file either a direct appeal or a timely PCRA

petition[;]” and (2) the defendant did not file his petition within 60 days of

the date it could have been presented. Id. at 488 (emphasis omitted).

        Nonetheless, we emphasize that the exceptions set forth at Section

9545(b) apply only when a petitioner seeks to file a PCRA more than one

year after the date his or her judgment of sentence becomes 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, unless the petition alleges and the petitioner

proves” one of the timeliness exceptions) (emphasis supplied). The same is

true for the 60-day filing requirement.        The subsection specifically states:

“Any petition invoking an exception provided in paragraph (1) shall be filed

within 60 days of the date the claim could have been presented.” 42 Pa.C.S.

§ 9545(b)(2).

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

his judgment of sentence was final.         Therefore, neither the applicability of

the     after-recognized   constitutional    right   exception   to   the   timing

requirements, nor the 60-day filing period, is relevant under the facts of this

case.    Indeed, none of the provisions in Section 9545 hinders our review,

since we clearly have jurisdiction to review Laforest’s claim.




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      Second, the PCRA court found that Laforest failed to meet the

eligibility requirements of the Act because it found Laforest’s Alleyne

challenge was waived.      As a preliminary matter, we note Section 9543 of

the Act mandates that a petitioner’s eligibility for relief is premised upon his

ability to “plead and prove,” inter alia, “[t]hat the allegation of error has not

been previously litigated or waived.” 42 Pa.C.S. § 9543(a)(3) (emphasis

supplied).   While recognizing that this Court “has unequivocally held that

sentencing challenges premised on Alleyne implicate the legality of the

sentence and cannot be waived on appeal[,]” the PCRA court differentiated

those decisions because they each involved a direct appeal.         PCRA Court

Opinion, 2/23/2015, at 16-17, citing Newman, supra; Commonwealth v.

Watley, 81 A.3d 108 (Pa. Super. 2013) (en banc), appeal denied, 95 A.3d

277 (Pa. 2014). The court noted that a legality of sentencing claim “may be

entertained only if the reviewing court has jurisdiction” and “may be lost if

the PCRA petition is not timely filed.” Id. at 17 (emphasis in original).

      However, in advancing this argument, the PCRA court again ignores

the fact that Laforest’s petition was timely filed. Therefore, the jurisdictional

concerns raised by the court are of no moment. Furthermore, 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




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“implicates the legality of the sentence and cannot be waived on appeal.” 6

Newman, supra, 99 A.3d at 90.

       The PCRA court, nonetheless, attempts to impose an additional

roadblock to its review of Laforest’s claim by stating that Laforest “had both

ample time and ample opportunity to raise his sentencing challenge during

the four and a half months between the date Alleyne was decided and the

date his judgment of sentence became final.”            PCRA Court Opinion,

2/23/2015, at 18. The court insists that Laforest should have followed the

actions of the defendants in Newman and Commonwealth v. Munday, 78

A.3d 661 (Pa. Super. 2013), both of whom sought review of their Alleyne

claims while their cases were still pending on direct appeal.


____________________________________________


6
  We note that the 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?

Commonwealth v. Wolfe, 121 A.3d 433, 434 (Pa. 2015).




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       Indeed, in Newman, the defendant raised the Alleyne challenge in a

petition for reargument/reconsideration timely filed within 30-days after this

Court affirmed his judgment of sentence on direct appeal.                      Newman,

supra, 99 A.3d at 89.           Similarly, in Munday, the defendant’s attorney

alerted this Court to the decision in Alleyne during oral argument, and

requested permission to file a supplemental brief.7               Munday, supra, 78

A.3d at 664.      The PCRA court states:            “Here, [Laforest] could have used

these or similar procedures to raise his Alleyne claim during the pendency

of his appeal and … [h]is failure to do so is not excused by the fact that he

had already filed an appeal brief by the time Alleyne was decided.” PCRA

Court Opinion, 2/23/2015, at 18-19.

       However,     the    PCRA    court       is   attempting   to   impose   a   waiver

requirement that is neither included in the statute nor mandated by caselaw.

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

challenge to the legality of a sentence. Such a claim may be raised on direct

appeal, or in a timely filed PCRA petition. There is no requirement that to

preserve a legality of sentence issue that arises while a direct appeal is

pending, a defendant must request permission to file a supplemental brief or

petition this Court for reargument/reconsideration.


____________________________________________


7
 The decision in Alleyne was filed “only days prior to the submission of [the
defendant’s appellate] Brief.” Munday, supra, 78 A.3d at 664.




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      Indeed, in Newman, the en banc panel held that Alleyne constituted

a “new law” that “applies to all criminal cases still pending on direct

review.”     Newman, supra, 99 A.3d at 90 (emphasis supplied), quoting

Schiro v. Summerlin, 542 U.S. 348 (2004).               Although the procedural

posture in the present appeal is different, the fact remains that Laforest’s

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

decided.     Id.   Further, Laforest properly raised the claim in a timely filed

PCRA petition.       Therefore, we find the PCRA court erred in concluding

Laforest’s illegal sentence claim was waived.

      The PCRA court, however, provided one final basis for denying relief,

namely, “any error in sentencing [Laforest] under Section 7508 was

harmless.”     PCRA Court Opinion, 2/23/2015, at 23.          The court explained

there was “substantial, uncontradicted evidence” as to the weight of the

cocaine seized from Laforest’s hotel room, including a written report by a

police forensic scientist which was admitted into evidence without objection.

Id. at 24. Accordingly, the PCRA court concluded “the evidence regarding

weight was overwhelming and that the jury would have undoubtedly found

that the amount of cocaine fell within the weight range that triggers Section

7508(a)(2)(ii).” Id.

      This     Court   has    consistently   rejected   any    attempt   by   the

Commonwealth to employ a harmless error analysis to overcome the

mandate of Alleyne.          See Wolfe, supra, 106 A.3d at 806 (rejecting

argument that mandatory minimum statute could be applied because the

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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.”);

Commonwealth v. Cardwell, 105 A.3d 748, 754 (Pa. Super. 2014)

(rejecting argument 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).

        While we agree with the PCRA court’s observation that the Newman

decision “recognized the applicability of the harmless error doctrine,”8 the en

banc panel also determined that the mandatory minimum statute at issue

was unconstitutional as a whole, and incapable of severance.         Newman,

supra, 99 A.3d at 101. The Supreme Court’s opinion in Hopkins embraces

this view:

        It is beyond our province to, in essence, rewrite Section 6317 to
        transform its sentencing commands, whether by utilizing special
        verdicts or otherwise, into a new substantive offense, contrary to
        the express legislative intent to the contrary. Thus, we find the
        unoffending portions of the statute, standing alone, without a
        wholesale rewriting, are incomplete and incapable of being
        vindicated in accord with the legislature's intent. 1 Pa.C.S. §
        1925.
____________________________________________


8
    PCRA Court Opinion, 2/23/2015, at 23, n.9.



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Hopkins, supra, 117 A.3d at 261. Therefore, we reject the PCRA court’s

harmless error analysis.

     Accordingly, because we conclude the PCRA court erred in dismissing

Laforest’s Alleyne challenge to the mandatory minimum sentence imposed

by the trial court, 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 Memorandum. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/18/2015




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