                          [J-24-2016] [MO: Saylor, C.J.]
                  IN THE SUPREME COURT OF PENNSYLVANIA
                                MIDDLE DISTRICT

COMMONWEALTH OF PENNSYLVANIA,               :   No. 68 MAP 2015
                                            :
                    Appellant               :   Appeal from the Order of the Superior
                                            :   Court at No. 1962 MDA 2013 dated 12/
                                            :   24/14 vacating and remanding the
             v.                             :   judgment of sentence of the Lancaster
                                            :   County Court of Common Pleas,
                                            :   Criminal Division, at No. CP-36-CR-
MATTHEW BRYAN WOLFE,                        :   5791-2012 dated 10/1/13.
                                            :
                    Appellee                :   ARGUED: November 18, 2015
                                            :   RESUBMITTED: January 20, 2016



                                DISSENTING OPINION


JUSTICE DOUGHERTY                                     DECIDED: June 20, 2016
      I respectfully dissent. Appellee was tried by a jury and found guilty on June 13,

2013; four days later, the United States Supreme Court, overruling decades of prior

precedent, announced a new, non-retroactive constitutional rule in Alleyne v. United

States, ___ U.S. ___, 133 S.Ct. 2151 (2013). Appellee did not anticipate Alleyne: he

raised no constitutional challenge to 42 Pa.C.S. §9718, the statute exposing him to a

mandatory minimum sentence, demanding that the age-of-victim fact exposing him to

the mandatory sentence needed to be charged, presented to his jury, and found beyond

a reasonable doubt, which is the extent of Alleyne’s constitutional command. Nor did

appellee anticipate Commonwealth v. Hopkins, 117 A.3d 247 (Pa. 2015): he raised no

facial challenge to the statute, arguing that even though he had charging notice of the

triggering fact and the fact would go to the jury for determination beyond a reasonable

doubt, the statute was infected with a fatal Sixth Amendment flaw. Nor did appellee

seek retroactive benefit of Alleyne’s new rule post-verdict or on direct appeal to the
Superior Court, and he did not anticipate the rule in Hopkins and seek to launch a

retroactive facial challenge to the statute post-verdict or on appeal.

       Instead, the Superior Court panel raised a retroactive facial constitutional

challenge on appellee’s behalf, under the guise that appellee’s sentence was “illegal.”

The panel then decided the issue without input from the parties and afforded appellee

retroactive relief.   This approach allows for indulgence of a pretense that appellee

actually launched a timely facial challenge to the statute. When a new constitutional

rule applies in a globally retroactive fashion — such as the new rule in Miller v.

Alabama, ___ U.S. ___, 132 S.Ct. 2455 (2012) (barring imposition of mandatory

sentences of life without possibility of parole upon juvenile offenders), deemed

retroactive in Montgomery v. Louisiana, ___ U.S. ___, 136 S.Ct. 718 (2016) — it does

not matter that there was no error when a case was tried. Alleyne is not a retroactive

rule, and neither the trial court here, nor appellee’s counsel, did anything wrong.

       No doubt I retain a certain perspective when issues implicate the realities of trial

practice and judging.     Respectfully, I have difficulty upsetting the judgment below

without considering the actual trial and litigation of the matter, at the time it was tried,

pre-Alleyne and pre-Hopkins. That focus, in turn, leads me to agree with the substance

of Justice Todd’s dissenting expression: this particular defendant was afforded all the

United States Constitution could be said to mandate at his trial, and even if the trial

court could be said to have “erred” in some way, any error was harmless.

       Implicit in the Superior Court panel’s approach is a conclusion that appellee’s

able counsel dropped the Alleyne ball.       However, it is not difficult to imagine why

appellee did not anticipate, or later seek to make use of Alleyne, much less why he did

not anticipate Hopkins. Appellee and his counsel knew from the charging document the

simple, age-of-the-victim fact triggered exposure to the mandatory minimum.           They




                            [J-24-2016] [MO: Saylor, C.J.] - 2
knew his jury was going to pass upon that fact pursuant to the beyond a reasonable

doubt standard.    What they could not know was the future decision in Alleyne, its

specific contours, and the future interpretation of that decision in Hopkins, arising in a

post-Alleyne prosecution posing a facial challenge to a different statute. Whatever the

reason appellee never raised the claim, he has been afforded the retroactive benefit of

Alleyne’s non-retroactive, new constitutional rule, as implemented by Hopkins, on a

facial constitutional challenge he never raised.

       I have several difficulties with this case. First, assuming a question of the facial

constitutionality of a statute, in a case that would apply Alleyne to a trial where no

Alleyne claim was raised, colorably implicates sentencing legality, I question the

Superior Court’s practice in not affording the parties an opportunity to be heard before

rendering judgment. This is a questionable practice, as recognized by two learned

members of the panel below. See Commonwealth v. Wolfe, 106 A.3d 800, 807, 809

(Pa. Super. 2014) (Bowes, J., concurring, joined by Jenkins, J.) (“I am extremely

hesitant to extend [existing Superior Court decisions] absent adequate briefing” and

noting “absent adequate briefing, our Supreme Court has declined to sua sponte

address complex illegal sentencing questions”) (citations omitted).       As a matter of

fairness and prudence, the practice generally should be avoided.            See Freed v.

Geisinger Med. Ctr. Geisinger), 5 A.3d 212, 214 (Pa. 2010) (noting reargument was

granted out of recognition that, prior to sua sponte overruling prior decision and applying

new decision retroactively, parties should be afforded opportunity to be heard); Coady v.

Vaughn, 770 A.2d 287, 294 (Pa. 2001) (Castille, J., concurring) (we should “not indulge

the conceit that, without adversarial presentations, it is possible to discern any and all

arguments that may be made” on given issue). Advocacy is essential to the proper

discharge of the appellate review function, and it seems a small matter to afford the




                            [J-24-2016] [MO: Saylor, C.J.] - 3
parties a chance to do so. Participation can serve the salutary function of avoiding error

below, sparing this Court the need to review, and in a situation such as this one,

perhaps avoiding the necessity to focus on two cases, rather than one, to address

related issues: here, the power to raise a waived Alleyne claim sua sponte, and the

merits of the constitutional claim so raised.

         Instances where a defendant seeks benefit of the new constitutional rule

represented by Alleyne can arise in four distinct circumstances: cases where the

defendant preserved an Alleyne claim before the decision was handed down and his

direct appeal is still pending (an easy case: the defendant gets the benefit of the new

rule); cases where the defendant faces trial after Alleyne and seeks its benefit (also an

easy case, not implicating retroactivity, leaving aside issues of implementing the new

rule, see Hopkins, supra;) cases where the defendant did not raise and preserve the

claim at trial before (or after) Alleyne was decided, but seeks retroactive benefit of the

new rule on direct appeal; and cases where the defendant’s judgment is final and the

defendant seeks retroactive benefit of the new rule on collateral attack.

         This case presents an entirely different, artificial scenario: the defendant neither

anticipated the Alleyne rule nor sought its post-issuance benefit, but the Superior Court

raised the claim and awarded relief. The Majority candidly recognizes the issue of the

propriety of the Superior Court raising a retroactive Alleyne claim, on grounds the

sentence is “illegal.” The Majority then takes the perfectly reasonable stance that the

Commonwealth’s failure to address the line of decisions beginning with Commonwealth

v. Aponte, 855 A.2d 800 (Pa. 2004), which has found Apprendi-based1 claims to




1
    Apprendi v. New Jersey, 530 U.S. 466 (2000).



                              [J-24-2016] [MO: Saylor, C.J.] - 4
implicate Pennsylvania’s illegal sentencing doctrine,2 warrants deferring the sentencing

legality issue to Commonwealth v. Barnes, 122 A.3d 1034 (Pa. 2015) (per curiam),

where the issue is better developed. I have no objection to deferral. However, deferral

raises the question of why we do not hold this case — involving a non-preserved

Alleyne claim being treated as if it were a claim of preserved trial error — in reserve

pending determination of Barnes. Any defendant facing a new prosecution under 42

Pa.C.S. §9718 can avail himself of Alleyne and Hopkins to strike the statute.

       This brings me to a broader point.        Again, some Alleyne claims may seek

vindication of preserved issues, some may look backward for retroactive relief, and

some may involve new prosecutions, seeking to invalidate specific statutes on grounds

of facial unconstitutionality. The Court, which does not have total control over the timing

of the matters that ripen for decision, is not necessarily positioned to decide new-

federal-rule implementation issues in the most logical fashion, or in a fashion allowing

for appreciation of relevant nuances. By sheer happenstance, Hopkins was decided

first, and it involved a new, post-Alleyne prosecution arising on our direct appeal docket,

following a trial judge holding the statute there facially unconstitutional in the wake of

Alleyne.3 We acted without the benefit of the Superior Court’s screening function; and,


2
 As the Majority notes, the Commonwealth recognizes Alleyne is an extension of the
Apprendi doctrine.
3
  Hopkins involved a mandatory minimum sentence imposable by a judge under 18
Pa.C.S. §6317(a), upon finding a specified drug offense occurred within 1,000 feet of,
among other places, a school. Hopkins, 117 A.3d at 249. An Alleyne-style claim under
Section 6317(a) was not likely to be raised and preserved prior to Alleyne, since the
core of the constitutional rule is based upon the jury trial right. Operating in a landscape
without the specifics of the Alleyne holding (much less Hopkins), few defendants would
demand the jury be tasked with determining if the crimes occurred so near to a school.
This is a reality facial challenges obscure: some of the mandatory minimum statutes
operated to shield juries from learning things about the defendant, or the crime, many
defendants would rather the jury not know. This is particularly true of objective facts,
(continuedL)

                            [J-24-2016] [MO: Saylor, C.J.] - 5
because the appeal did not follow an order granting allocatur, there was not a broad

notice to the bench and bar of the potential importance of the case — which may

explain the absence of an amicus brief on the prosecution side in Hopkins providing the

sort of broad perspective represented by the able amicus briefs, filed on both sides, in

this appeal.4

       Meanwhile, cases involving retroactive application of Alleyne, like this one, and

Barnes — which optimally should have been decided before, or along with, Hopkins —

percolated through the Superior Court. The briefing and circumstances in this case and

other pending cases make it apparent the question of how best to implement new

federal constitutional rules may require more nuance than the Hopkins Court had any

reason to appreciate. See, e.g., Majority Opinion, slip op. at 9-10 (summarizing PDAA

amicus brief here).

       My concerns about implementing new rules are not limited to statutes affected by

Alleyne. Many new rules devised by the United States Supreme Court affect areas of

Pennsylvania criminal law controlled, or affected, by statutory provisions. In the past

several years, the Court has had to take measures to guide implementation of new rules

announced in cases such as Atkins v. Virginia, 536 U.S. 304 (2002) (barring execution

of murderers determined to be intellectually disabled),5 and Miller, supra.6


(Lcontinued)
such as age, prior crimes, etcL. It is another reason I believe pre-Alleyne prosecutions
must be viewed differently.
4
  The Hopkins docket reflects that, shortly before oral argument, the Pennsylvania
District Attorneys Association (PDAA) sought leave to participate in oral argument,
despite not having filed an amicus brief. Leave was denied. The Attorney General did
not seek to participate via brief or argument.
5
 See Commonwealth v. Sanchez, 36 A.3d 24 (Pa. 2011); Commonwealth v. Miller, 888
A.2d 624 (Pa. 2005).



                            [J-24-2016] [MO: Saylor, C.J.] - 6
      For my part, Hopkins having been decided, and the Court having reaffirmed it

here, I recognize its current force in the context of post-Alleyne prosecutions, where

facial challenges are raised. But I am uncomfortable with a retroactive application of a

“facially-and-fatally-infected-statute” approach, deriving from the happenstance that

Hopkins proceeded to decision first, where the infection, in this case, reaches back in

time to a case proceeding to verdict before Alleyne, where no Sixth Amendment

objection was ever lodged, and the core of the Sixth Amendment right powering Alleyne

was not violated.

      In the circumstances, I would defer decision of this case until Barnes decides the

“illegal sentence” question. I respect the Majority’s determination to proceed to decision

despite the posture of this case, given the practical and salutary benefit of providing a

more immediate answer to guide the post-Alleyne prosecution, facial-challenge scenario

not presented in this case. For my part, I cannot separate the proper decision in this

case from the actual circumstances in which it arose, which implicate retroactivity. In

my judgment, neither the trial court nor defense counsel here committed any error; and

even if error could be found, it was harmless under these circumstances.

      Accordingly, I would vacate the order of the Superior Court and remand for

consideration of the claims appellee actually raised on his appeal.




(Lcontinued)
6
  See Commonwealth v. Cunningham, 81 A.3d 1 (Pa. 2013); Commonwealth v. Batts,
66 A.3d 286 (Pa. 2013).



                           [J-24-2016] [MO: Saylor, C.J.] - 7
