J-S56027-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT
                                                             OF
                                                        PENNSYLVANIA
                             Appellee

                        v.

    RYAN THOMAS

                             Appellant                 No. 75 EDA 2017


             Appeal from the PCRA Order Dated December 12, 2016
               In the Court of Common Pleas of Delaware County
               Criminal Division at No: CP-23-CR-0002727-2011


BEFORE: BOWES, STABILE, and PLATT,* JJ.

MEMORANDUM BY STABILE, J.:                       FILED NOVEMBER 28, 2017

        Appellant Ryan Thomas appeals from the December 12, 2016 order of

the Court of Common Pleas of Delaware County, which denied his request for

collateral relief under the Post Conviction Relief Act (the “PCRA”), 42 Pa.C.S.A.

§§ 9541-46. Upon review, we vacate and remand.

        Appellant’s sole issue on appeal is that the PCRA court erred in

dismissing his timely first PCRA petition challenging his mandatory minimum

sentence of 60 to 120 months’ imprisonment under Alleyne v. United

States, 133 S. Ct. 2151, 2161-63 (2013) (holding that any fact other than a

prior conviction that triggers a mandatory minimum sentence must be found


____________________________________________


*   Retired Senior Judge assigned to the Superior Court.
J-S56027-17



by a jury beyond a reasonable doubt).1 Alleyne was decided on June 17,

2013, nearly four months before Appellant was sentenced on October 9,

2013.2 An Alleyne challenge implicates the legality of a sentence, which “may

be entertained as long as the reviewing court has jurisdiction.               An illegal

sentence must be vacated. Issues relating to the legality of a sentence are

questions of law. Our standard of review over such questions is de novo and

our scope of review is plenary.” Commonwealth v. Ali, 112 A.3d 1210, 1225

(Pa. Super. 2015) (internal citations, quotations, and corrections omitted). An

Alleyne claim is a non-waivable challenge to the legality of a sentence that

may be raised for the first time in a timely-filed PCRA petition, so long as the

judgment     of   sentence      was    not     final   when   Alleyne   was    decided.

Commonwealth v. Ruiz, 131 A.3d 54, 59-60 (Pa. Super. 2015).

       The PCRA court and the Commonwealth now agree with Appellant’s

contention and urge us to vacate Appellant’s judgment of sentence and

____________________________________________


1 Appellant entered into a negotiated plea to, inter alia, possession with intent
to deliver, which carried a mandatory minimum sentence under 18 Pa.C.S.A.
§ 7508.
2 On November 7, 2013, the trial court denied Appellant’s post-sentence
motion. Appellant did not file a direct appeal. His judgment of sentence
became final on December 9, 2013. On October 20, 2014, Appellant filed the
instant PCRA petition, asserting the Alleyne violation. The PCRA court
appointed counsel who eventually filed a no-merit letter pursuant to
Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988) and Commonwealth
v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc) and petitioned to
withdraw from the case. The PCRA court granted counsel’s petition on
November 30, 2015. Thereafter, following the PCRA court’s issuance of a
Pa.R.Crim.P. 907 notice of its intent to dismiss the petition without a hearing,
the PCRA court denied Appellant PCRA relief on December 12, 2016.

                                             -2-
J-S56027-17



remand this matter for resentencing consistent with Alleyne.       Because

Alleyne was decided before Appellant was sentenced, we agree with the

parties’ and the PCRA court’s conclusion that the PCRA court’s order denying

Appellant PCRA relief must be reversed. See Commonwealth v. Mosley,

114 A.3d 1072, 1091 (Pa. Super. 2015) (invalidating 18 Pa.C.S.A. § 7508),

appeal denied, 166 A.3d 1215 (Pa. 2017).           Accordingly, we vacate

Appellant’s judgment of sentence and remand for resentencing.

      Order reversed. Judgment of sentence vacated. Case remanded for

resentencing. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/28/2017




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