J-S41028-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                                          :
                v.                        :
                                          :
                                          :
 RICHARD WALTERS                          :
                                          :
                     Appellant            :   No. 2844 EDA 2017

                Appeal from the PCRA Order August 28, 2017
  In the Court of Common Pleas of Philadelphia County Criminal Division at
                     No(s): CP-51-CR-0001282-2012


BEFORE:       GANTMAN, P.J., OLSON, J., and STEVENS*, P.J.E.

MEMORANDUM BY OLSON, J.:                       FILED SEPTEMBER 06, 2018

      Appellant, Richard Walters, appeals from the order entered on August

28, 2017, dismissing his first petition filed pursuant to the Post Conviction

Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. Upon review, we reverse the

order of the PCRA court, vacate Appellant’s judgment of sentence, and remand

for resentencing without consideration of a mandatory minimum sentence.

      The PCRA court summarized the facts and procedural history of this case

as follows:

      On March 24, 2011, undercover police officers were conducting
      surveillance at 7100 Torresdale Avenue in Philadelphia[,
      Pennsylvania]. At 3:10 p.m., they saw a woman engage in a brief
      conversation on her cell[ular] phone. Shortly after the phone call
      ended, Appellant pulled up to the woman in a green Audi[.] The
      woman got inside the car and gave Appellant money in exchange
      for a small object. Officers removed Appellant and the female
      from the vehicle. Officers recovered a clear plastic bag containing
      about 3.3 grams of cocaine from the female. Officers recovered
      $176[.00], and a cell[ular] phone from Appellant.

____________________________________
* Former Justice specially assigned to the Superior Court.
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      After a bench trial on November 11, 2012, [the trial] court found
      Appellant guilty of possession of a controlled substance with intent
      to deliver and simple possession. On May 6, 2013, Appellant was
      sentenced to a mandatory term of three to six years of
      imprisonment, pursuant to 18 Pa.C.S.A. § 7508. On May 17,
      2013, [the trial] court granted Appellant’s motion for modification
      of sentence and made him [] eligible [for parole under the
      Recidivism Risk Reduction Incentive (RRRI) program] after 27
      months. No direct appeal was filed.

      On April 21, 2014, Appellant filed a PCRA petition pro se. Counsel
      was appointed, and [counsel] filed an amended [PCRA] petition
      on January 7, 2017. The Commonwealth filed a letter brief in
      response on July 1, 2017. Determining that the petition was
      meritless, the [trial] court sent out a notice of its intent to dismiss
      pursuant to Pa.R.Crim.P. 907 on July 21, 2017, and dismissed the
      petition without a hearing on August 28, 2017.

      Appellant filed a notice of [a]ppeal on September 6, 2017. On
      September 7, 2017, [the trial] court directed Appellant to file a
      concise statement of [errors] complained of on appeal pursuant
      to Pa.R.A.P. 1925(b), which [the trial] court received on
      September 28, 2017. [The trial court issued an opinion pursuant
      to Pa.R.A.P. 1925(a) on October 18, 2017.]

PCRA Court Opinion, 10/18/2017, at 1-2.

      Relevant to this appeal, we provide some additional factual and

procedural history. In his amended PCRA petition, Appellant claimed that he

“was subject to a mandatory sentencing statute which has been determined

to be unconstitutional” and, therefore, his “mandatory sentence was an illegal

sentence.”    Amended PCRA Petition, 1/17/2017, at ¶¶ 7(1) and 7(3).

Appellant further claimed that, “counsel was ineffective for failing to raise the

issue of the illegal sentence at trial or on direct appeal.” Id. at ¶ 7(2). In

support of his positions, Appellant relied upon the United States Supreme

Court decision in Alleyne v. United States, 570 U.S. 1 (2013) and its

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Pennsylvania progeny.     See Brief in Support of Amended PCRA petition,

1/17/2017, at *1-4 (unpaginated).

      In rejecting Appellant’s claims, the PCRA court first recognized that “a

defendant could [] raise an Alleyne challenge in a timely PCRA petition so

long as his direct appeal from the judgment of sentence was still pending when

Alleyne was decided.”      PCRA Court Opinion, 10/18/2017, at 3, citing

Commonwealth v. Ruiz, 131 A.3d 54 (Pa. Super. 2015). However, the PCRA

court determined that Appellant’s judgment of sentence became final one day

prior to the Alleyne decision. As a result, pursuant to our Supreme Court’s

decision in Commonwealth v. Washington, 142 A.2d 810 (Pa. 2016), the

PCRA court determined that Appellant was not entitled to retroactive relief.

Id. at 3-4. Furthermore, the PCRA court concluded that trial counsel could

not be ineffective for failing to anticipate a change in the law.   Id. at 5.

Accordingly, the PCRA court denied Appellant relief.

      On appeal, Appellant presents the following issue for our review:

      1. Was counsel ineffective for failing to raise the issue of []
         Appellant[] being subjected to an illegal mandatory minimum
         sentence?

Appellant’s Brief at 9.

      “We must determine whether the PCRA court's ruling is supported by

the record and free of legal error.” Commonwealth v. Johnson, 179 A.3d

1153, 1156 (Pa. Super. 2018).       “We view the record in the light most

favorable to the prevailing party in the PCRA court.”    Commonwealth v.

Staton, 184 A.3d 949, 954 (Pa. 2018) (internal citation omitted). “We are

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bound by any credibility determinations made by the PCRA court where they

are    supported        by    the     record.”      Id.      “However,         we    review

the PCRA court's legal conclusions de novo.” Id.

      “[T]he [United States] Supreme Court rendered the Alleyne decision

on June 17, 2013, and held that sentencing schemes which predicated the

imposition     of   a   mandatory      minimum sentence on          a    fact     found   by

the sentencing court,        by   a    preponderance        of    the   evidence,     were

unconstitutional.”      Commonwealth v. DiMatteo, 177 A.3d 182, 185 (Pa.

2018).     In this case, upon a preponderance of the evidence introduced at

sentencing, the trial court imposed a mandatory minimum sentence pursuant

to 18 Pa.C.S.A. § 7508, based upon the weight of the recovered narcotics.

“It   is     uncontested      that     Section     7508      is    an     unconstitutional

and illegal sentencing statute        in   light   of Alleyne and       its    Pennsylvania

progeny.”      Id. at 191 (citations omitted).            Further, the DiMatteo Court

determined that “one serving an illegal sentence [is entitled to collateral] relief

when such relief is sought in a timely PCRA petition and the judgment

of sentence was not final when Alleyne was announced.”                        Id.; see also

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

entitled to PCRA relief on his illegal sentencing claim when his judgment of

sentence was still pending on direct review when Alleyne was decided).

      In this case, there is no dispute that Appellant filed a timely, pro se

PCRA petition. Thereafter, in his amended PCRA petition, Appellant claimed

that he “was subject to a mandatory sentencing statute which has been

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determined to be unconstitutional” and, therefore, his “mandatory sentence

was an illegal sentence.” Amended PCRA Petition, 1/17/2017, at ¶¶ 7(1) and

7(3).

        The PCRA court, however, determined that Appellant was not eligible for

relief because Alleyne was decided after Appellant’s judgment of sentence

became final.    For the reasons that follow, however, we conclude that the

PCRA court erred in computing the finality of Appellant’s judgment of

sentence. In this case, the trial court originally sentenced Appellant on May

6, 2013. The trial court, however, granted Appellant post-sentence relief and

resentenced him on May 17, 2013.         “[A] judgment becomes final at the

conclusion of direct review, including discretionary 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.” 42 Pa.C.S.A. § 9545(b)(3). Here,

Appellant did not appeal from the resentencing order and, thus, his judgment

of sentence became final at the expiration of the time to seek review or 30

days after imposition of his amended sentence. See Pa.R.A.P. 903(a) (“notice

of appeal [] shall be filed within 30 days after the entry of the order from

which the appeal is taken”). Hence, Appellant’s judgment of sentence became

final on Sunday, June 16, 2013. However, because the final day for filing an

appeal fell on a Sunday, Appellant had until the following day, or until Monday,

June 17, 2013, to perfect his direct appeal.        See 1 Pa.C.S.A. § 1908

(“Whenever the last day of any [statutorily defined] period shall fall on

Saturday or Sunday, or on any day made a legal holiday by the laws of this

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Commonwealth or of the United States, such day shall be omitted from the

computation.”).      As such, the PCRA court erred when it determined that

Appellant’s judgment of sentence became final on June 16, 2013, rather than

on June 17, 2013. Because Alleyne was decided on June 17, 2013, Appellant

had a viable illegal sentencing claim before his judgment of sentence became

final. As such, we conclude the PCRA court erred in computing the finality of

Appellant’s judgment of sentence and further erred in concluding that

Appellant was not eligible for relief because his judgment of sentence became

final before Alleyne was issued.               Accordingly, pursuant to Ruiz and

DiMatteo, Appellant is entitled to relief.1

       Order reversed. Judgment of sentence vacated. Case remanded for

resentencing consistent with this memorandum. Jurisdiction relinquished.

       President Judge Gantman joins the memorandum.

       President Judge Emeritus Stevens files a concurring statement.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/6/18


____________________________________________


1 Because Appellant is entitled to relief, we need not reach his alternative
contention that trial counsel was ineffective for failing to raise an illegal
sentencing claim.

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