J-S46040-16


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,             :    IN THE SUPERIOR COURT OF
                                          :          PENNSYLVANIA
                     Appellee             :
                                          :
                     v.                   :
                                          :
PHILLIP DIMATTEO,                         :
                                          :
                      Appellant           :    No. 2820 EDA 2015

                  Appeal from the PCRA Order August 24, 2015
                in the Court of Common Pleas of Chester County,
                Civil Division, at No(s): CP-15-CR-0004033-2011

BEFORE:     BENDER, P.J.E., OTT, and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.:           FILED JULY 25, 2016

      Phillip DiMatteo (Appellant) appeals from the order entered on August

24, 2015, which denied his petition filed pursuant to the Post Conviction

Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. We reverse the order of the

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

resentencing.

      “[Appellant] was charged with 111 counts of possession with intent to

deliver [(PWID)], criminal conspiracy, 64 counts of dealing in proceeds of

unlawful activities, corrupt organizations, 111 counts of criminal use of a

communications facility and 111 counts of possession of a controlled

substance.” PCRA Court Opinion, 8/25/2015, at 2 n.1. These charges arose

after a lengthy investigation into Appellant and 14 others who were involved

in a large drug-trafficking operation.



*Retired Senior Judge assigned to the Superior Court.
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      On November 20, 2012, Appellant entered into an open guilty plea

whereby he pled guilty to 55 counts of PWID, and one count each of

conspiracy and corrupt organizations. On February 6, 2013, Appellant was

sentenced to an aggregate term of 15 to 30 years of incarceration. Relevant

to this appeal, that sentence included a number of mandatory minimum

sentences imposed pursuant to 18 Pa.C.S. § 7508.

      Appellant timely filed a motion for reconsideration of sentence. That

motion was denied on June 12, 2013.        Appellant did not file a notice of

appeal to this Court.

      On January 10, 2014, Appellant pro se filed a motion for modification

of sentence nunc pro tunc, which was denied by the trial court on February

24, 2014.1    On May 22, 2014, Appellant filed pro se a PCRA petition.

Counsel was appointed and subsequently moved to withdraw his appearance

pursuant to Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988) and

Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc). The


1
   In that motion, Appellant set forth a number of purported errors. The
Commonwealth responded arguing that this post-sentence motion was filed
352 days late. The trial court agreed, and dismissed the petition on this
basis. We observe that generally speaking, “[i]t is well-settled that the
PCRA is intended to be the sole means of achieving post-conviction relief.”
Commonwealth v. Taylor, 65 A.3d 462, 465 (Pa. Super. 2013).
Moreover, “an untimely post-sentence motion filed after finality of judgment
is to be treated as a PCRA petition.” Id. at 467. Accordingly, the trial court
should have treated Appellant’s pro se motion as a PCRA petition and
appointed counsel at that juncture.        Nevertheless, because Appellant
subsequently filed a timely PCRA petition, and counsel was appointed, there
was no prejudice to Appellant on the basis of this error.


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PCRA court reviewed the record and concluded there may be a genuine issue

of material fact “regarding [Appellant’s] allegation of trial counsel not filing a

direct appeal after [Appellant] specifically requested him to do so.” Order,

5/9/2015. Thus, the trial court scheduled a hearing. After the hearing, the

PCRA court dismissed Appellant’s PCRA petition and permitted counsel to

withdraw. Appellant pro se timely filed a notice of appeal to this Court.2

      On appeal, Appellant sets forth two issues for our review.         We first

consider Appellant’s contention that his sentence is illegal. Appellant’s Brief

at 9-10. Our standard of review of the denial of a PCRA petition is limited to

examining whether the court’s rulings are supported by the evidence of

record and free of legal error.      Commonwealth v. Anderson, 995 A.2d

1184, 1189 (Pa. Super. 2010).        Appellant contends that he is serving an

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

(2013).   Appellant’s Brief at 10.    In Alleyne, “the United States Supreme

Court [] held that any facts leading to an increase in a mandatory minimum

sentence are elements of the crime and must be presented to a jury and

proven beyond a reasonable doubt.”        Commonwealth v. Valentine, 101

A.3d 801, 809 (Pa. Super. 2014).         This Court has determined that the

holding in Alleyne renders unconstitutional the statutes pursuant to which

Appellant was sentenced. See Commonwealth v. Pennybaker, 121 A.3d


2
  The PCRA court did not order Appellant to file a statement of errors
complained of on appeal pursuant to Pa.R.A.P. 1925.


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530, 533-34 n.8 (Pa. Super. 2015) (recognizing that Alleyne has rendered

unconstitutional several Pennsylvania sentencing statutes, including 18

Pa.C.S. § 7508).

     In Commonwealth v. Ruiz, 131 A.3d 54 (Pa. Super. 2015), this

Court held that where a petitioner currently serving a mandatory minimum

sentence has filed a timely PCRA petition and his judgment of sentence was

not final at the time Alleyne was decided, his sentence is illegal and he is

entitled to a new sentence.3 Instantly, Appellant was sentenced on February

5, 2013, and filed timely a post-sentence motion. That motion was denied

on June 12, 2013, and Alleyne was decided five days later, on June 17,

2013. Appellant had until July 13, 2013 to file a direct appeal. Even though

Appellant did not file a direct appeal, his judgment of sentence became final

after Alleyne was decided and prior to the expiration of the time to file a

direct appeal. See also 42 Pa.C.S. § 9545(b)(3) (“For purposes of [the

PCRA], 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


3
  In Ruiz, the petitioner was sentenced on June 5, 2013, and Alleyne was
decided 12 days later, on June 17, 2013. The petitioner filed timely a PCRA
petition asserting that his sentence was illegal pursuant to Alleyne, and the
PCRA court dismissed the petition. This Court reversed concluding that
“Ruiz’s June 5, 2015 judgment of sentence was not final when Alleyne was
decided because … the 30-day period within which the trial court’s order
may be appealed, modified or rescinded, had not yet expired on June 17,
2013 - the date of the Alleyne decision.” Ruiz, 131 A.3d at 59.


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the review.”). Accordingly, pursuant to Ruiz, Appellant is serving an illegal

sentence because application of Alleyne renders such sentence illegal.

Thus, we reverse the order of the PCRA court, vacate Appellant’s judgment

of sentence, and remand for resentencing.4

      Order reversed.        Judgment of sentence vacated.   Case remanded.

Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.

Prothonotary



Date: 7/25/2016




4
  Because we have concluded that Appellant’s judgment of sentence must be
vacated, Appellant’s other issue raising trial counsel’s ineffective assistance
for failing to file a direct appeal from that judgment of sentence is moot.


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