J-S29034-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   :        IN THE SUPERIOR COURT OF
                                               :             PENNSYLVANIA
                     v.                        :
                                               :
DEVIN NATHANIEL BYES-SANDERS                   :
                                               :
                          Appellant            :
                                               :        No. 1593 WDA 2015

                 Appeal from the PCRA Order September 14, 2015
          in the Court of Common Pleas of Erie County Criminal Division
                        at No(s): CP-25-CR-0002258-2012

BEFORE: BENDER, P.J.E., PANELLA, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.:                                 FILED MAY 11, 2016

        Appellant, Devin Nathaniel Byes-Sanders, appeals pro se from the

order of the Erie County Court of Common Pleas denying his pro se “Petition

to Vacate Illegal Sentence” and his counseled “Supplement to Motion for

Post-Conviction Collateral Relief.” Appellant challenges the constitutionality

of his sentence pursuant to Alleyne v. United States, 133 S. Ct. 2151

(2013).     We conclude Appellant’s pro se motion constitutes a first Post

Conviction Relief Act1 (“PCRA”) petition, reverse the order dismissing the

petition,   vacate    Appellant’s   judgment       of   sentence,   and   remand   for

resentencing.




*
    Former Justice specially assigned to the Superior Court.
1
    42 Pa.C.S. §§ 9541-9546.
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        This Court previously set forth the factual circumstances underlying

Appellant’s convictions, after a non-jury trial, for possession of a controlled

substance,2 possession with intent to deliver,3 and possession of drug

paraphernalia.4 See Commonwealth v. Bynes-Sanders, 1544 WDA 2013

(Pa. Super. Aug. 21, 2014) (unpublished memorandum).             For the present

purposes, it suffices to note that the trial court, on August 29, 2013,

sentenced Appellant to a mandatory minimum sentence of forty-eight

months to ninety-six months’ imprisonment pursuant to 18 Pa.C.S. §

7508(a)(3)(iii) (“Drug trafficking sentencing and penalties”).

        Appellant filed a direct appeal and this Court affirmed his judgment of

sentence on August 21, 2014.       Appellant did not petition for allowance of

appeal and therefore his judgment of sentence became final on September

20, 2014.     On May 8, 2015 Appellant filed the instant pro se “Petition to

Vacate an Illegal Sentence” wherein he argues that his mandatory minimum

sentence is illegal under Alleyne, which was decided June 17, 2013, prior to

his sentencing.    The PCRA court properly treated Appellant’s petition as a




2
    35 P.S. § 780-113(a)(16).
3
    35 P.S. § 780-113(a)(30).
4
    35 P.S. § 780-113(a)(32).




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PCRA petition5 and appointed William R. Hathaway, Esquire as PCRA counsel.

Subsequently, on June 10, 2015, Appellant filed the instant, counseled

supplement to his PCRA petition, which reiterated the claims initially set

forth in his pro se filing.

      On August 11, 2015, the PCRA court issued a notice of intent to

dismiss Appellant’s PCRA petition pursuant to Pa.R.Crim.P. 907, which found

Appellant’s Alleyne claim to be waived for failure to raise it prior to

collateral review and even if not waived, such claim would fail because

Alleyne would not be available on collateral review. PCRA Court’s Rule 907

Notice, 8/11/15, at 3. On September 15, 2015, the PCRA court dismissed

Appellant’s PCRA petition.      Appellant filed a timely notice of appeal and

court-ordered Pa.R.A.P. 1925(b) statement.        The PCRA court issued a

responsive Rule 1925(a) opinion incorporating the reasoning set forth in the

court’s Rule 907 Notice.

      On appeal, Appellant raises the following single issue for our review.

             Whether the lower court erred in failing to find that
             the mandatory minimum sentence imposed in the
             instant case constituted an illegal sentence under
             Alleyne?

Appellant’s Brief at 2.

      Preliminarily, we note:


5
  A motion filed after a judgment of sentence is final and that challenges the
legality of sentence must be construed as a PCRA petition. Commonwealth
v. Taylor, 65 A.3d 462, 466 (Pa. Super. 2013).



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         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 finding in the
         certified record.

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

omitted).

     Further, our Court has held that an Alleyne claim presents “a non-

waivable challenge to the legality of sentence [and] such a claim may be

raised on direct appeal, or in a timely filed PCRA petition.” Commonwealth

v. Ruiz, 131 A.3d 54, 60 (Pa. Super. 2015). Indeed, pursuant to Ruiz, an

Alleyne claim may be raised in a timely PCRA petition when a petitioner’s

judgment of sentence was not yet final when Alleyne was decided. Id. at

59-60.

     “In Alleyne, the United States Supreme Court held any 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.”     Ruiz, 131 A.3d at 57

(citation and some punctuation omitted).    This Court has specifically held

that the holding in Alleyne renders 18 Pa.C.S. § 7508, in its entirety,

unconstitutional because the statute permits the trial court to make factual

determinations at sentencing under a relaxed preponderance of the evidence

standard.   See Commonwealth v. Vargas, 108 A.3d 858, 876-77 (Pa.

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




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      In the case sub judice, Alleyne was decided prior to Appellant’s

sentencing. Thus, Appellant’s Alleyne claim remains cognizable under his

instant timely PCRA petition as his judgment of sentence was not yet final

when Alleyne was issued. See Ruiz, 131 A.3d at 60. Therefore, because

this Court has specifically ruled that the statute pursuant to which Appellant

was sentenced, 18 Pa.C.S. § 7508, is unconstitutional under Alleyne, we

conclude that Appellant is entitled to be resentenced.       Accordingly, 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: 5/11/2016




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