J-S54018-18

                               2018 PA Super 259


 COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                   Appellant              :
                                          :
                                          :
              v.                          :
                                          :
                                          :
 ROBERT DAVID RANGER                      :   No. 87 WDA 2018

             Appeal from the Order Entered December 11, 2017
  In the Court of Common Pleas of Blair County Criminal Division at No(s):
                         CP-07-CR-0001127-2010,
            CP-07-CR-0001128-2010, CP-07-CR-0001129-2010,
            CP-07-CR-0001134-2010, CP-07-CR-0001136-2010,
            CP-07-CR-0001138-2010, CP-07-CR-0001510-2010,
            CP-07-CR-0001511-2010, CP-07-CR-0001533-2010,
            CP-07-CR-0001534-2010, CP-07-CR-0001535-2010


BEFORE: PANELLA, J., LAZARUS, J., and MURRAY, J.

OPINION BY LAZARUS, J.:                        FILED SEPTEMBER 19, 2018

     The Commonwealth of Pennsylvania appeals from the order, entered in

the Court of Common Pleas of Blair County, granting relief to Appellee, Robert

David Ranger, pursuant to his petition filed under the Post Conviction Relief

Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. Upon review, we affirm.

     The disposition of this matter turns on the effect of its unique procedural

history which is convoluted, at best. Accordingly, a detailed recital of that

history is in order. On January 31, 2011, Ranger was convicted by a jury of

multiple drug offenses and related charges.        The trial court imposed his

sentence, which included numerous mandatory minimum enhancements

under 18 Pa.C.S.A. § 7508, on April 25, 2011. Ranger filed a timely appeal
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on May 20, 2011, and this Court affirmed his judgment of sentence by

unpublished memorandum decision on May 15, 2012. See Commonwealth

v. Ranger, 826 WDA 2011 (Pa. Super. filed 5/15/12).          Ranger’s counsel

submitted a petition for allowance of appeal, which was returned to him on

June 19, 2012 because it was untimely by four days.

      On January 1, 2013, Ranger filed a timely first PCRA petition seeking

reinstatement of his direct appellate rights, nunc pro tunc.        The court

appointed Timothy Burns, Esquire, as counsel. Relevant to this matter, on

June 17, 2013, the United States Supreme Court decided United States v.

Alleyne, 570 U.S. 99 (2013), in which the Court held that any fact that

increases the mandatory minimum sentence for a crime is an “element” of

that crime that must be submitted to a jury and found beyond a reasonable

doubt. On January 29, 2015, the PCRA court granted Ranger’s request to

reinstate his direct appellate rights, nunc pro tunc, and appointed Robert

Donaldson, Esquire, to file a petition for allowance of appeal. The PCRA court

explained the more than two year delay between the filing of Ranger’s PCRA

petition and the granting of relief by noting that Attorney Burns had “suffered

a vicious physical attack in the courtroom by a different PCRA client which

resulted in his absence for a significant period of time.” PCRA Court Opinion,

12/11/17, at 2 n.1. When Attorney Burns finally concluded he could no longer

represent Ranger, the PCRA court appointed Attorney Donaldson to shepherd

Ranger’s PCRA petition to disposition.




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       The court held a hearing on Ranger’s PCRA petition on January 29, 2015.

At that hearing, the Commonwealth agreed to the reinstatement of Ranger’s

direct appellate rights for the limited purpose of filing a petition for allowance

of appeal to the Supreme Court on the sole issue of whether the

Commonwealth engaged in sentencing entrapment.             By order issued that

same date, the PCRA court reinstated Ranger’s direct appeal rights, nunc pro

tunc, and appointed Attorney Donaldson to represent Ranger in filing his

petition for allowance of appeal. On September 29, 2015, our Supreme Court

denied review.

       On July 27, 2016, Ranger filed a timely pro se PCRA petition,1 in which

he raised a claim pursuant to Alleyne.2          The court appointed counsel;

however, Ranger subsequently retained private counsel, Steven P. Passarello,

Esquire, who filed an amended PCRA petition, again raising, inter alia, an

Alleyne claim.      On December 11, 2017, after a hearing, the PCRA court

granted relief under Alleyne and ordered that Ranger be resentenced. The

Commonwealth appealed and raises the following issue for our review:

       Whether [Ranger], who was convicted and whose sentence was
       finalized prior to June 17, 2013, is entitled to resentencing
____________________________________________


1Pursuant to section 9545(b), a PCRA petition is timely if it is filed within one
year of the date the judgment of sentence becomes final. 42 Pa.C.S.A. §
9545(b)(1). Here, Ranger’s judgment of sentence became final on or about
December 28, 2015, when the time to file a writ of certiorari with the U.S.
Supreme Court expired. See 42 Pa.C.S.A. § 9545(b)(3); S.Ct.R. 13.

2Ranger’s multiple mandatory minimum sentences were imposed pursuant to
section 7508, which has been deemed unconstitutional pursuant to Alleyne.
See Commonwealth v. DiMatteo, 177 A.3d 182 (Pa. 2018).

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J-S54018-18


      pursuant to [Alleyne] when, as a result of his first PCRA
      [p]etition[,] [Ranger] received an agreed[-] to limited
      reinstatement of [appellate] rights that were not resolved prior to
      June 17, 2013.

Brief of Appellant, at 3.

      We begin by noting that this appeal presents a pure question of law,

over which our standard of review is plenary.             Commonwealth v.

Washington, 142 A.3d 810, 814 (Pa. 2016).

      The United States Supreme Court has held that “[w]hen a decision of

this Court results in a ‘new rule,’ that rule applies to all criminal cases still

pending on direct review.” Commonwealth v. Newman, 99 A.3d 86, 90

(Pa. Super. 2014), quoting Schriro v. Summerlin, 542 U.S. 348 (2004). The

question presented in this appeal is whether a case is considered “pending on

direct review” for purposes of the application of the new rule, where the “direct

review” results from the reinstatement of direct appellate rights, nunc pro

tunc, subsequent to the date the new rule was announced. We conclude that

it does.

      Our Supreme Court has previously held that, where a direct appeal nunc

pro tunc is granted, the conviction in question was never “final” for purposes

of determining whether the litigant is entitled to the benefit of a new rule of

law announced subsequent to his conviction.            In Commonwealth v.

Johnson, 304 A.2d 139 (Pa. 1973), the defendant was convicted of murder

in 1946. He did not file an appeal. He subsequently filed a petition under the

Post Conviction Hearing Act (“PCHA”), the predecessor to the PCRA, alleging,

inter alia, that he had not been informed of his right to appeal his judgment

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J-S54018-18



of sentence. The PCHA court denied relief but, on appeal, this Court reversed

and reinstated the defendant’s appellate rights in 1970. On direct appeal,

nunc    pro   tunc,    Johnson     raised      a   claim   that   his   confession   was

unconstitutionally obtained, as it was elicited at a critical stage in the

proceedings where counsel was required under the Sixth Amendment.

Johnson’s claim was based on the decision of the U.S. Supreme Court in

Massiah v. United States, 377 U.S. 201 (1964),3 which was decided

approximately 18 years after Johnson was convicted.4 In a prior collateral
____________________________________________


3 Massiah had been indicted for violations of federal narcotics laws. He
retained a lawyer, pleaded not guilty, and was released on bail. While Massiah
was free on bail, a federal agent used surreptitious means to listen to
incriminating statements made by him. Over Massiah’s objection, evidence of
these statements was introduced against him at trial. He was convicted, and
the Court of Appeals affirmed. The U.S. Supreme Court reversed, holding that
Massiah’s Sixth Amendment right to counsel was violated where incriminating
statements, deliberately obtained by federal agents after he had been indicted
and in the absence of his counsel, were used against him at his trial.

4 In a prior collateral appeal, the Court had denied Johnson relief on a claim
under Massiah. There, while agreeing that Johnson’s substantive claim
possessed merit, the Court nonetheless concluded that he was not entitled to
relief because his appeal was in the context of a collateral proceeding. The
Court relied upon United States ex rel. Allison v. State of New Jersey,
418 F.2d 332 (3rd Cir. 1969), in which the Third Circuit Court of Appeals
stated:

       The guidelines controlling the retroactive application of newly
       announced decisions governing criminal procedure . . . lead us to
       conclude that the rule of Massiah may not be utilized to attack
       convictions which have cleared the appellate courts on direct
       appeal before the date of the decision or where no appeal was
       taken.

Johnson, 304 A.2d at 141, quoting Allison, 418 F.2d at 336.


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J-S54018-18



appeal, the Court had denied Johnson relief under Massiah. While agreeing

that Johnson’s substantive claim under Massiah possessed merit, the Court

nonetheless concluded that he was not entitled to relief because his appeal

was in the context of a collateral proceeding. Because he was now on direct

appeal, nunc pro tunc, Johnson argued that he was entitled to relief under

Massiah.

     The Supreme Court agreed, citing its prior decision in Commonwealth

ex rel. Smith v. Meyers, 261 A.2d 550 (Pa. 1970). There, the Court

     allowed a direct appeal nunc pro tunc to a defendant convicted of
     first degree murder in 1948 under the felony murder doctrine.
     The defendant in that case had been involved in an armed robbery
     with two other men, during which a policeman was shot and killed.
     All three were convicted of murder, but Smith, the appellant, alone
     filed neither post-trial motions nor an appeal. Eighteen years
     later, Smith filed a habeas corpus petition, which eventually
     resulted in this Court granting him a direct appeal nunc pro tunc.
     On this appeal, Smith sought to avail himself of this Court’s ruling
     in Commonwealth v. Redline, [] 137 A.2d 472 ([Pa.] 1958),
     which was decided ten years subsequent to Smith’s conviction by
     the trial court. Smith’s two co-felons had also attempted to avail
     themselves of the Redline decision on habeas corpus petitions
     and had been denied relief by the court. [] However, the court
     ruled that Smith[,] unlike his co-felons[,] would be able to avail
     himself of the Redline rule. In distinguishing the situation of
     Smith from that of his co-felons, the court stated:

        All three of those cases, however, were collateral attacks on
        the convictions. By contrast, the instant case is on [d]irect
        appeal. Although in the three collateral attack cases, we
        spoke of the law as it existed at the time of the relator’s
        ‘conviction’, we were not at that time faced with a situation
        where the conviction had not yet become final, as here.
        Hough’s conviction had become final as a result of his
        appeal, and Almeida’s became final by virtue of his failure
        to take an appeal. In contrast, here, Smith’s conviction is
        not final, as he is on direct appeal. No one would suggest

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J-S54018-18


          that this Court would be violating any settled principles of
          law by making a change in the law and reversing a
          conviction, even though the law at the time of conviction
          supported the conviction. This has occurred innumerable
          times, in practically every landmark constitutional criminal
          case. Nor should the result be any different where the
          appeal is nunc pro tunc rather than immediately after
          conviction.

      [Smith,] 261 A.2d 550 at 559.

Commonwealth v. Johnson, 304 A.2d 139, 141 (Pa. 1973) (emphasis

added).

      Likewise, here, although Ranger’s conviction occurred in 2011 and he

did not file an appeal until his rights were reinstated in 2015, his judgment of

sentence was not final at the time the decision in Alleyne was announced, as

he subsequently was granted a direct appeal nunc pro tunc.          Accordingly,

Ranger is entitled to the benefit of Alleyne.

      The Commonwealth’s arguments against the grant of relief are

unavailing. First, it claims that “the PCRA court no longer had jurisdiction to

[consider] the instant petition as the petition was not filed within a year from

sentencing.” Brief of Appellant, at 8. This claim is patently meritless. The

one-year time limit for filing a timely PCRA is not triggered by the imposition

of sentence, but rather the exhaustion of a petitioner’s direct appellate rights.

See 42 Pa.C.S.A. § 9545(b) (“Any [PCRA] petition . . . shall be filed within

one year of the date the judgment becomes final[.] . . . [A] judgment becomes

final at the conclusion of direct review . . . or at the expiration of time for

seeking the review.”) (emphasis added). Here, our Supreme Court denied

Ranger’s petition for allowance of appeal on September 29, 2015, and he filed

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J-S54018-18



the instant PCRA petition on July 27, 2016, less than ten months later.

Accordingly, his petition is timely under section 9545(b) and no relief is due.

       Second, the Commonwealth posits that Ranger is not entitled to

retroactive application of Alleyne because his judgment of sentence became

final prior to the date Alleyne was decided and the case has not been held to

apply retroactively. However, as we discussed above, pursuant to Smith and

Johnson, Ranger’s judgment of sentence was not final at the time Alleyne

was decided, as his direct appellate rights were subsequently reinstated.

Moreover, although Ranger did not raise an Alleyne claim on direct appeal,

nunc pro tunc, his claim is not waived, as an Alleyne claim implicates the

legality of a sentence and is, thus, not subject to waiver.5 Newman, supra.

Ranger raised his Alleyne claim in a timely-filed PCRA petition and the PCRA

court did not err in granting him relief.

       Order affirmed.




____________________________________________


5 At Ranger’s 2015 PCRA hearing, the parties purported to stipulate that the
scope of Ranger’s nunc pro tunc appeal would be limited to the issue he could
have raised on allowance of appeal in 2012 and that Ranger would not be
allowed to benefit from the delay by raising an Alleyne claim. However, such
an agreement would be tantamount to a waiver of an illegal sentencing claim.
Such claims are not subject to waiver and may, in fact, be raised sua sponte
by the court.


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J-S54018-18




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/19/2018




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