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                               2016 PA Super 283


COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA


                     v.

SEAN JOSEPH CICCONE

                          Appellant                 No. 3114 EDA 2014


                Appeal from the PCRA Order October 7, 2014
               In the Court of Common Pleas of Bucks County
            Criminal Division at No(s): CP-09-CR-0003231-2011


BEFORE: FORD ELLIOTT, P.J.E., BENDER, P.J.E., BOWES, SHOGAN,
        LAZARUS, MUNDY, OLSON, OTT AND STABILE, JJ.

OPINION BY BOWES, J.:                          FILED DECEMBER 13, 2016

     Sean Ciccone appeals from the order entered on October 7, 2014,

denying his Post-Conviction Relief Act (“PCRA”) petition.      After careful

review, we affirm.

     Police charged Appellant with three counts of possession with intent to

deliver (“PWID”), conspiracy to commit PWID, and possession of drug

paraphernalia on January 6, 2011.      Appellant entered a negotiated guilty

plea on September 2, 2011, to two counts of PWID, and one count each of

conspiracy to commit PWID and possession of drug paraphernalia. The facts

underlying the plea were that police executed a search warrant at his

residence on July 6, 2010. Upon entering the home, police saw a .22 rifle

and marijuana in both the first floor bedroom and a back bedroom. Police

also observed a double-barreled shotgun in the first floor bedroom and
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another shotgun in a separate bedroom.             The first floor bedroom also

contained bins for drying and packaging marijuana. In the basement of the

home, police found over fifty marijuana plants, potting soil, and growing

chemicals. The weight of the plants was approximately thirteen pounds.

       Prior to sentencing, the Commonwealth provided notice that it would

seek a three-year mandatory minimum sentence, under 18 Pa.C.S. §

7508(a)(1)(ii), based on the weight of the marijuana and the number of

plants recovered.      This aspect of the sentence was negotiated based on a

five-year mandatory minimum sentence applying due to the proximity of the

drugs to firearms. Per the negotiated plea, the court imposed a sentence of

three and one-half to five years incarceration on one count of PWID on

September 9, 2011.1           The court thereafter amended that sentence on

December 16, 2011, to indicate that Appellant was eligible for the Risk

Recidivism Reduction Incentive (“RRRI”) program, which permitted Appellant

to be paroled after serving thirty-five months of his sentence.

       Appellant did not file a direct appeal, but presented a timely pro se

PCRA petition on April 9, 2012.            The PCRA court appointed counsel on


____________________________________________


1
  Pursuant to 42 Pa.C.S. § 9756, a defendant’s minimum sentence shall not
exceed one-half the maximum sentence the court imposed. This, however,
did not apply where mandatory minimum sentences were at issue.
Commonwealth v. Bell, 645 A.2d 211 (Pa. 1994); Commonwealth v.
Hockenberry, 689 A.2d 283 (Pa.Super. 1997).



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October 25, 2012.2       The court conducted evidentiary hearings on August 15,

2013, April 21, 2014, and June 27, 2014. At the August 15, 2013 hearing,

Appellant agreed to waive all but two claims.        Specifically, he asked the

PCRA court to find plea counsel ineffective for declining to challenge the

weight of the marijuana and in failing to contest the number of marijuana

plants recovered.

       Following the original two hearings, but prior to the last hearing,

counsel filed an amended petition on June 18, 2014.           In that petition,

Appellant averred that his sentence was illegal based on Alleyne v. United

States, 133 S.Ct. 2151 (2013). The PCRA court, at the conclusion of the

evidentiary hearings, directed Appellant to file a brief within thirty days

regarding his claims and provided that the Commonwealth would have an

additional twenty days to file a response. The PCRA court denied relief on

October 7, 2014.

       This timely appeal ensued.3 The PCRA court directed Appellant to file

and serve a Pa.R.A.P. 1925(b) concise statement of errors complained of on

____________________________________________


2
  Appellant filed a pro se notice to amend his PCRA petition on February 20,
2013, as well as a request to proceed pro se. The notice to amend filing is a
nullity as he was represented by counsel. Commonwealth v. Ali, 10 A.3d
282 (Pa. 2010). Appellant also did not object to being represented by PCRA
counsel during the PCRA evidentiary hearings.
3
  Appellant filed a pro se notice of appeal on October 20, 2014 that the
Bucks County Clerk of Courts docketed and forwarded to counsel. See
(Footnote Continued Next Page)


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appeal. Appellant complied, raising a single issue: whether he was illegally

sentenced under Apprendi v. New Jersey, 530 U.S. 466 (2000), wherein

the Court ruled that, under the Sixth Amendment, any fact, other than a

prior conviction, that increases a defendant’s maximum sentence must be

submitted to a jury and proven beyond a reasonable doubt. The PCRA court

recognized that Appellant’s position was based on arguing for the retroactive

treatment of Alleyne, which applied Apprendi to mandatory minimum

sentences. See Alleyne, supra at 2163 (“facts[, other than a prior

conviction,] that increase mandatory minimum sentences must be submitted

to the jury” and found beyond a reasonable doubt).         Since Appellant was

sentenced under a mandatory minimum sentencing provision, the PCRA

court treated the issue as raising an Alleyne claim rather than one under

the earlier Apprendi case, and it denied relief based upon a finding that
4
    Alleyne did not apply retroactively in the PCRA setting.


                       _______________________
(Footnote Continued)

Pa.R.Crim.P. 576(A)(4) (When a “defendant is represented by an attorney”
and files a document not executed by the lawyer, “the clerk of courts shall
accept it for filing, time stamp it with the date of receipt and make a docket
entry reflecting the date of receipt, and place the document in the criminal
case file. A copy of the time stamped document shall be forwarded to the
defendant's attorney and the attorney for the Commonwealth within 10 days
of receipt.”). Counsel thereafter filed another, timely notice of appeal on
October 30, 2014.
4
  This author filed a dissent joined by Judge Olson and Judge Stabile. Judge
(now Justice) Mundy filed a concurrence joined by Judge Lazarus.



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      The appeal was submitted to a three-judge panel, but this Court sua

sponte granted en banc review.        The present en banc panel consisting of

P.J.E. Ford Elliott, P.J.E. Bender, J. Bowes, J. Shogan, J. Lazarus, J. (now

Justice) Mundy, J. Olson, J. Ott, and J. Stabile, concluded that Alleyne

applied retroactively, and granted Appellant relief.        However, that decision

was withdrawn after our Supreme Court disseminated Commonwealth v.

Washington, 142 A.3d 810, 811 (Pa. 2016), wherein the Court held that

Alleyne does not apply retroactively “to attacks upon mandatory minimum

sentences advanced on collateral review.” We now re-visit Appellant’s

position.

      Appellant claims that his sentence is illegal under Alleyne and that he

should be granted relief since this legality-of-sentence issue, which is

cognizable under the PCRA, was presented in a timely PCRA petition.

Appellant’s brief at 4.     We first note that, in the PCRA context, appellate

review is confined to a determination of “whether the PCRA court's rulings

are supported by the record and are free of legal error.” Commonwealth

v. Bardo, 105 A.3d 678, 685 (Pa. 2014)

      Appellant   asserts     that   Alleyne   and   this    Court’s   decision   in

Commonwealth v. Newman, 99 A.3d 86 (Pa.Super. 2014) (en banc),

renders his sentence illegal and that he should have been granted relief

since he filed a timely PCRA petition and his contention is cognizable.           In

Newman, we struck down as unconstitutional the mandatory minimum

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sentencing provision of 42 Pa.C.S. § 9712.1, which applied when drugs were

found in proximity to guns, because that statute allocated to the sentencing

court the decision, under a preponderance-of-the-evidence standard, as to

whether the facts supported imposition of the mandatory sentence. Accord

Commonwealth v. Wolfe, 140 A.3d 651 (Pa. 2016) (ruling that mandatory

sentencing provision in 42 Pa.C.S. § 9718 was unconstitutional under

Alleyne as it provided sentencing court was to determine its applicability at

sentencing by a preponderance of the evidence and refusing to sever portion

of statute that violated Alleyne); Commonwealth v. Hopkins, 117 A.3d

247 (Pa. 2015) (same reasoning applied to statute that provided for

mandatory minimum sentence when drugs were sold near to schools, 18

Pa.C.S. § 6317). Significantly, these three decisions were all issued during a

defendant’s direct appeal.

       We recognize that, in a host of direct appeal cases, we have addressed

Alleyne sentencing claims under the illegal sentencing paradigm and held

that Alleyne issues present non-waivable legality of sentencing claims.5 We

____________________________________________


5
   See, e.g., Commonwealth v. Vargas, 108 A.3d 858 (Pa.Super. 2014)
(en banc); Commonwealth v. Newman, 99 A.3d 86 (Pa.Super. 2014) (en
banc); Commonwealth v. Watley, 81 A.3d 108 (Pa.Super. 2013) (en
banc). However, in Commonwealth v. Barnes, 122 A.3d 1034, 1035 (Pa.
2015), our Supreme Court granted allowance of appeal to address whether
“a challenge to a sentence pursuant to Alleyne v. United States, ––– U.S.
––––, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013), implicates the legality of the
sentence and is therefore non-waivable.”
(Footnote Continued Next Page)


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have invalidated many mandatory minimum sentencing statutes. Indeed, in

Commonwealth v. Mosley, 114 A.3d 1072 (Pa.Super. 2015), a direct

appeal, this Court has expressly struck down the mandatory minimum

sentencing provision implicated in the present case, 18 Pa.C.S. § 7508,

which increased a sentence based upon the weight of the drugs, as

determined at sentencing by the court under the preponderance of the

evidence burden of proof.

      However, Appellant conflates the concept of illegal sentences with

whether Alleyne can be applied retroactively in the collateral review

context.    The Washington Court clearly articulated that the fact that

Alleyne may raise a legality-of-sentence issue does not obviate the need for

a retroactivity analysis as to whether Alleyne can be applied to a collateral

attack on a judgment of sentence. Additionally, our Supreme Court squarely

laid to rest the latter question by ruling that Alleyne is not retroactive under

United States Supreme Court test for ascertaining retroactivity 6 and by

refusing to find Alleyne retroactive on independent state grounds. It held

that “Alleyne does not apply retroactively to cases pending on collateral

review” so that the appellant’s sentence “is not illegal on account of
                       _______________________
(Footnote Continued)


6
  “The normal framework for determining whether a new rule applies to
cases on collateral review stems from the plurality opinion in Teague v.
Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989).” Welch v.
United States, 136 S. Ct. 1257, 1264 (2016).



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Alleyne.” Washington, supra at 820. Thus, Appellant’s sentence is not

illegal under Alleyne because Alleyne is inapplicable in this collateral

proceeding.

      While the Supreme Court did not address this concept, we likewise

reject the position that a mandatory sentencing statute rendered illegal by

Alleyne   is   void   ab   initio   thereby   rendering   any   sentence   imposed

thereunder invalid. This conclusion flows from the progression of the law on

the subject.     Before one can reach a reasoned examination of whether

Alleyne renders a mandatory minimum sentencing statute void ab initio, it

is necessary to examine the case upon which it is premised, Apprendi v.

New Jersey, supra.         Apprendi involves the Sixth Amendment right to

have an impartial jury determine each element of a crime beyond a

reasonable doubt.      Apprendi fired bullets into the home of an African-

American family who recently moved into an all-white enclave.              He pled

guilty in connection with that crime and other shootings. When the plea was

entered, the prosecutor reserved the right to invoke a New Jersey hate

crime statute while Apprendi retained the ability to contest its application.

Under the hate crime provision, the maximum sentence that Apprendi could

receive pursuant to the plea increased if a trial court found that, under a

preponderance-of-the-evidence standard, the defendant committed the

crime to intimidate an individual or group based upon, inter alia, the victim’s

race or color.    A hearing was held on the applicability of the hate crime

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statute to the shooting that involved the African-American family, and the

parties presented countervailing evidence regarding Apprendi’s motivation

for the crime.    The trial court concluded that the offense was racially

motivated   and   sentenced   the   defendant    to   an   enhanced   term   of

imprisonment by applying the hate crime law.

     The Apprendi Court concluded that Apprendi had a Sixth Amendment

right, applicable to New Jersey by virtue of the due process clause of the

Fourteenth Amendment, to have a jury determine beyond a reasonable

doubt whether the crime was racially motivated. It premised that holding on

the fact that the issue of the motivation for his crime increased the

maximum sentence that Apprendi faced.           Apprendi’s specific and oft-

repeated holding is, “[A]ny fact (other than prior conviction) that increases

the maximum penalty for a crime must be charged in an indictment,

submitted to a jury, and proven beyond a reasonable doubt.” Id. at 476

(quoting Jones v. United States, 526 U.S. 227, 243, n. 6 (1999)).

     It is of key importance in the present case to note that Apprendi’s

holding was, prior to Alleyne, never applicable to a fact that increased a

minimum sentence, including a fact that triggered a mandatory minimum

sentence.   The United States Supreme Court’s decision in McMillan v.

Pennsylvania, 477 U.S. 79 (1986), involved Pennsylvania’s mandatory

minimum sentencing statute 42 Pa.C.S. § 9712, which required imposition of

a mandatory minimum sentence of five years if a defendant committed

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certain offenses while visibly possessing a firearm.   Under § 9712, after a

defendant was adjudicated guilty of the underlying offense, the sentencing

court would determine by a preponderance of the evidence whether the

defendant visibly possessed a firearm.       If the defendant did, then the

mandatory minimum sentence of five years had to be imposed.

      The defendants in McMillan maintained that having a sentencing court

decide the visible-possession issue offended their Sixth Amendment right to

a jury trial.   Their position was that “visible possession of a firearm” was

actually an element of any of the crimes that invoked § 9712, and thus, had

to be submitted to a jury and proven beyond a reasonable doubt.           The

United States Supreme Court rejected that argument. The McMillan Court

upheld the constitutionality of § 9712 because it did not increase the

statutory maximum penalty for any offense committed, failed to create a

separate crime calling for an additional penalty, and was inapplicable until a

defendant was convicted of the particular crime for which he was to be

sentenced.

      Apprendi was filed subsequent to McMillan. Thereafter, in Harris v.

United States, 536 U.S. 545 (2002), this nation’s High Court re-visited

McMillan and its viability under Apprendi. The statute at issue in Harris

provided for an increase in the minimum sentence if a sentencing court

determined that the defendant brandished a firearm during the commission

of the underlying crime.     The Harris Court rejected a challenge to the

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holding of McMillan based on the Apprendi decision.           Under Harris,

mandatory minimum sentences that were imposed within the maximum

ceiling set by a jury verdict did not violate a defendant's Sixth Amendment

right to a jury trial.

      Alleyne applied the holding of Apprendi in the mandatory minimum

sentencing context.      Alleyne and his accomplices committed an armed

robbery of a store manager who was driving the business’s deposits to a

bank, and he was charged with various federal offenses.        An applicable

federal law provided for an increase in the mandatory minimum sentence by

two years if a firearm was brandished during the crime.     The jury did not

indicate on its verdict slip that the gun in question was visible, but the

sentencing court applied the enhanced sentence of two years.         Alleyne

objected and maintained that raising his mandatory minimum sentence

based on the sentencing court’s finding that he displayed the firearm

violated his Sixth Amendment right to a jury trial. The trial court, applying

Harris, dismissed Alleyne’s complaint.      After the federal appeals court

affirmed, the United States Supreme Court reversed and overruled Harris.

      The Alleyne Court observed that Harris distinguished between facts

that increased a statutory maximum and those that increased a mandatory

minimum sentence. It concluded that this differentiation was incompatible

with the rationale of Apprendi since mandatory minimum sentences pertain

to the permissible ranges of penalties that can be imposed upon a conviction

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for a crime.     The United States Supreme Court reasoned that since

“[m]andatory minimum sentences increase the penalty for a crime,” it

“follows, then, that any fact that increases the mandatory minimum is an

‘element’ that must be submitted to the jury.” Alleyne, supra at 2155. The

Court continued that

      Apprendi's definition of ‘elements’ necessarily includes not only
      facts that increase the ceiling, but also those that increase the
      floor. Both kinds of facts alter the prescribed range of sentences
      to which a defendant is exposed and do so in a manner that
      aggravates the punishment. . . .         Facts that increase the
      mandatory minimum sentence are therefore elements and must
      be submitted to the jury and found beyond a reasonable doubt.

Id. at 2158.     Thus, Alleyne clearly abrogated existing law.         Accord

Washington, supra (observing that Alleyne created a new rule of law);

Wolfe, supra at 653 (“During Appellee's trial and prior to sentencing, the

Supreme Court of the United States issued its Alleyne decision, overruling

its own prior precedent and establishing a new constitutional rule of law[.]”).

      Thus, when the statute as issue herein was enacted, as well as when

the sentence thereunder was imposed, it was, in fact, constitutional, and

cannot be considered void from inception.         McMillan; supra; Harris,

supra.   Alleyne    overruled   Harris   and    McMillan    and   rendered    a

constitutional statute unconstitutional as of the date that Alleyne was

disseminated.    Pennsylvania’s mandatory minimum statutes cannot be

considered unconstitutionally void ab initio as the United States Supreme

Court initially upheld the identical sentencing paradigm in passing on the

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constitutionality of 42 Pa.C.S. § 9712.       McMillan, supra; see also

Commonwealth v. Stokes, 38 A.3d 846 (Pa.Super. 2011) (upholding 42

Pa.C.S. § 9712, but opining that the statute would fail if Harris and

McMillan were overturned).

      In Commonwealth v. Derhammer, 134 A.3d 1066, 1077 n.10

(Pa.Super. 2016) (emphasis added), we set forth:

      There are exceptions to the [Ex parte] Siebold, [100 U.S. 371
      (1879)] pronouncement that an unconstitutional law is void from
      the outset.     That is, where there are actions taken in
      justifiable reliance upon a judicial ruling that the statute
      was constitutional at one point in time, the statute is not
      always considered a nullity and as if it never existed. See
      46 Am.Jur. 2d Constitutional Law § 196; Heilig Estate, 13 Pa.
      D. & C.3d 1, *8; see also Lemon v. Kurtzman, 411 U.S. 192,
      199 (1973) (limiting its decision in Norton v. Shelby County,
      118 U.S. 425, 442 (1886), which reiterated the constitutionally
      void ab initio doctrine espoused in Siebold by stating, “However
      appealing the logic of Norton may have been in the abstract, its
      abandonment reflected our recognition that statutory or even
      judge-made rules of law are hard facts on which people must
      rely in making decisions and in shaping their conduct.”); see
      also Thomas Raeburn White, Commentaries on the Constitution
      of Pennsylvania, 27-28 (1907) (discussing exceptions to
      unconstitutionally void ab initio doctrine).

Appellant’s sentence was not illegal when imposed, he was sentenced under

the statute in justifiable reliance upon existing United States Supreme Court

precedent that it was constitutional, and the statute is not a nullity.

Appellant’s sentence can be considered illegal now only if Alleyne is held to

apply retroactively.   Our Supreme Court has clearly ruled in Washington

that such is not the case.



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        Accordingly, the trial court did not commit an error of law or an abuse

of discretion in concluding that Alleyne did not render Appellant’s sentence

illegal. We thus affirm the denial of PCRA relief.

        Order affirmed.

        President Judge Emeritus Ford Elliott, Judge Shogan, Judge Lazarus,

Judge Olson, Judge Ott and Judge Stabile Join this Opinion.

        President Judge Emeritus Bender files a Dissenting Opinion.

        Judge Mundy did not participate in the consideration or decision of this

case.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/13/2016




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