J-S52025-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                     IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                         Appellee

                    v.

JORDAN MICHAEL MOFFETT,

                         Appellant                    No. 204 WDA 2015


             Appeal from the PCRA Order of January 15, 2015
                In the Court of Common Pleas of Erie County
            Criminal Division at No(s): CP-25-CR-0001618-2013


BEFORE: SHOGAN, OLSON and WECHT, JJ.

MEMORANDUM BY OLSON, J.:                          FILED DECEMBER 14, 2015

     Appellant, Jordan Michael Moffett, appeals from the order entered on

January 15, 2015, dismissing his first petition pursuant to the Post

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

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

resentencing.

     We briefly summarize the facts and procedural history of this case as

follows. On November 1, 2013, Appellant pled guilty to robbery pursuant to

18 Pa.C.S.A. § 3701(a)(ii). On December 17, 2013, the trial court imposed

a mandatory term of five to ten years of imprisonment pursuant to 42

Pa.C.S.A. § 9712, based upon the court’s determination at sentencing that

Appellant committed the robbery with a firearm. Because Appellant did not

request reconsideration or file a direct appeal, his judgment of sentence
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became final on January 16, 2013. See Pa.R.Crim.P. 720; Pa.R.A.P. 903

(providing thirty days to file appeal under both rules). On September 12,

2014, Appellant filed a pro se PCRA petition.         The PCRA court appointed

counsel who filed an amended PCRA petition, on October 31, 3014, alleging

Appellant’s sentence was illegal.         On December 24, 2014, the PCRA court

sent Appellant notice of its intent to dismiss the PCRA petition without a

hearing pursuant to Pa.R.Crim.P. 907, along with an accompanying opinion.

By order entered on January 15, 2015, the PCRA court denied relief. The

PCRA court, in its December 24, 2014 opinion, concluded that the United

States Supreme Court’s decision in Alleyne1 did not apply to Appellant’s

case because he entered a guilty plea and Alleyne does not apply

retroactively in the context of a PCRA petition. This timely appeal followed.

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

           [1.] Whether the [trial] 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.

        Appellant asserts his sentence is illegal under Alleyne because the

trial court imposed his mandatory sentence based upon an unconstitutional

statute. Id. at 4. Appellant’s sentence became final after the decision was

rendered in Alleyne, on June 17, 2013, but before our Court interpreted and
____________________________________________


1
    Alleyne v. United States, -- U.S. --, 133 S. Ct. 2151 (2013).



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applied Alleyne in Commonwealth v. Newman, 99 A.3d 86 (Pa. Super.

2014) and Commonwealth v. Valentine, 101 A.3d 801 (Pa. Super. 2014).

Thus, Appellant argues, in effect, that his case does not involve retroactive

application of the rule announced in Alleyne even though he is presently

proceeding on collateral review. Id. Accordingly, Appellant argues that his

sentence is illegal, regardless of whether he pled guilty or was convicted

following trial. Id.

      Our scope and standard of review is well-settled:

        In PCRA appeals, our scope of review is limited to the
        findings of the PCRA court and the evidence on the record of
        the PCRA court's hearing, viewed in the light most favorable
        to the prevailing party. Because most PCRA appeals involve
        questions of fact and law, we employ a mixed standard of
        review. We defer to the PCRA court's factual findings and
        credibility determinations supported by the record. In
        contrast, we review the PCRA court's legal conclusions de
        novo.

Commonwealth v. Reyes-Rodriguez, 111 A.3d 775, 779 (Pa. Super.

2015) (internal citations and quotations omitted).

      Here, the trial court imposed a five-year mandatory minimum

sentence, pursuant to 42 Pa.C.S.A. § 9712, based upon its finding that

Appellant brandished a firearm during the commission of a robbery.       The

PCRA court subsequently denied Appellant’s requested relief under Alleyne

on two grounds.        First, the PCRA court determined that Alleyne and its

progeny are “not applicable in the [guilty] plea setting because the

defendant concedes the factual predicates that implicate the mandatory



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minimum sentence.” PCRA Court Opinion, 12/24/2014, at 3. Second, the

PCRA court determined that Appellant was not entitled to retroactive

application of Alleyne. Id.

      This Court has held Section 9712 to be unconstitutional, in its entirety,

in light of Alleyne. Commonwealth v. Valentine, 101 A.3d at 812; see

also Commonwealth v. Hopkins, 117 A.3d 247, 262 (Pa. 2015) (holding a

statute is unconstitutional in its entirety when the remaining unoffending

provisions of that statute are incapable of severance).      Because Section

9712 is unconstitutional in its entirety, any sentence imposed pursuant to

that section is illegal and must be vacated, as no statutory authority for such

a penalty exists.   Commonwealth v. Fennell, 105 A.3d 13, 15-20 (Pa.

Super. 2014) (emphasis added) (explaining “if no statutory authorization

exists for a particular sentence, that sentence is illegal and subject to

correction” and holding a defendant’s stipulation to the fact that resulted in

the imposition of a mandatory minimum sentence did not satisfy the dictates

of Alleyne).

      In view of these principles, we reject the PCRA court’s conclusion that

Alleyne “is not applicable in the plea setting because the defendant

concedes the factual predicates that implicate the mandatory minimum

sentence.”     PCRA Court Opinion, 12/24/2014, at 3; see Fennell, supra

(because mandatory minimum sentencing statute is unconstitutional in its

entirety, the court rejected stipulations of fact regarding the weight of

narcotics recovered as grounds for distinguishing Alleyne); see also

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Commonwealth v. Vargas, 108 A.3d 858, 877 (Pa. Super. 2014) (en

banc) (same).   Any sentence, regardless of the result of a plea or a trial,

imposed pursuant to Section 9712 is illegal in the wake of Alleyne.

     We now consider whether Appellant’s challenge to the legality of

sentence under Alleyne, under the specific circumstances presented here,

implicates the policy against retroactive application of that decision.     In

Commonwealth v. Newman, 99 A.3d 86, 90 (Pa. Super. 2014) (en banc),

we held that Alleyne does not apply retroactively to all cases, but does

apply to cases that were pending on direct appeal when the United States

Supreme Court announced its decision on June 27, 2013.          Id.; see also

Commonwealth v. Cunningham, 81 A.3d 1, 6 (Pa. 2013) (Miller does not

apply retroactively to a case in which defendant's judgment of sentence for

murder   became     final   more   than   six   years   prior   to   Alleyne);

Commonwealth v. Riggle, 2015 WL 4094427, *5-7 (Pa. Super. 2015)

(neither the Pennsylvania Supreme Court nor the United States Supreme

Court has declared that Alleyne should be applied retroactively on collateral

review to cases wherein the judgment of sentence become final prior to

Alleyne); Commonwealth v. Miller, 102 A.3d 988, 995 (Pa. Super. 2014)

(same). We infer from these holdings that collateral relief is available only

where a defendant’s judgment of sentence was not final at the time Alleyne

was decided.

     In this case, Appellant pled guilty on November 1, 2013.         The trial

court sentenced Appellant on December 17, 2013. Thus, because Alleyne

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became the law on June 27, 2013, before Appellant pled guilty and received

his sentence, we see no impediment to applying Alleyne under the present

circumstances before us.

       The PCRA “provides for an action by which persons convicted of crimes

they did not commit and persons serving illegal sentences may obtain

collateral relief.”    42 Pa.C.S.A. § 9542 (emphasis added).           A sentence

imposed in violation of Alleyne is illegal and the issue cannot be waived.

Commonwealth v. Wolfe, 106 A.3d 800, 801 (Pa. Super. 2014).                    “A

challenge to the legality of a sentence ... may be entertained as long as the

reviewing court has jurisdiction.” Id. A challenge to the legality of sentence

is cognizable under the PCRA. Commonwealth v. Jackson, 30 A.3d 516,

521 (Pa. Super. 2011).          The PCRA court has jurisdiction to hear PCRA

petitions filed within one year of the date the judgment becomes final. 2 42

Pa.C.S.A. § 9545.

       In this case, the PCRA court erred as a matter of law in denying

Appellant relief. Appellant presented a legality of sentence claim in a timely

PCRA petition.     Alleyne was controlling at the time Appellant entered his

plea and received his sentence.          Thus, we are constrained to reverse the

PCRA court’s order, vacate the judgment of sentence, and remand for a new

sentence in accordance with Alleyne and Valentine.


____________________________________________


2
    There is no dispute that Appellant filed a timely PCRA petition.



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     Order reversed. Judgment of sentence vacated. Case remanded for

resentencing consistent with this memorandum. Jurisdiction relinquished.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/14/2015




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