Com. v. Walters, R. ( 2018 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
CONCURRING STATEMENT BY STEVENS, P.J.E.: FILED SEPTEMBER 06,
2018
While I am constrained to agree with the Majority’s decision to reverse
the PCRA court’s Order and remand for resentencing, I write separately to
emphasize that in Commonwealth v. DiMatteo, 177 A.3d 182, 183 (Pa.
2018), the Pennsylvania Supreme Court granted review “to assess what relief,
if any, a criminal defendant is entitled to when he raises an illegal sentencing
challenge premised on Alleyne v. United States, 570 U.S. 99, 133 S. Ct.
2151, 186 L. Ed. 2d 314 (2013) in a timely petition filed pursuant to the Post
Conviction Relief Act, 42 Pa.C.S. §§ 9541–9546, when, at the time Alleyne
was decided, the defendant's judgment of sentence was not yet final.” Citing
Commonwealth v. Newman, 99 A.3d. 86, 90 (Pa. 2014) the Court stressed
that “Alleyne applied only to cases pending on direct review as of June 17,
2013, the date of the Alleyne decision.” DiMatteo, 177 A.3d at 187–88
____________________________________
* Former Justice specially assigned to the Superior Court.
J-S41028-18
(italics added, boldface type in original). The Court ultimately held that its
prior decision in Commonwealth v. Washington, 142 A.3d 810 (Pa. 2016)
did not bar a petitioner “serving an illegal sentence from relief when such relief
is sought in a timely PCRA petition and the judgment of sentence was not final
when Alleyne was announced.” Id. at 191.
The phrase “as of” is “used to indicate a time or date at which something
begins of ends.” As of Definition, Merriam Webster.com,
http.//dictionary/browse/as is (last visited Aug. 22, 2018). Although
Appellant did not file a direct appeal, as the Majority explains, he had until
June 17, 2013, to do so. As such, his case was pending on direct review until
the end of business on June 17, 2013; therefore, because his judgment of
sentence was not yet final when Alleyne was decided and the instant, first
PCRA petition was timely-filed, Alleyne is applicable to Appellant’s case
retroactively. See Commonwealth v. Ruiz, 131 A.3d 54, 60-61 (Pa.Super.
2015).
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