Com. v. Shields, T. ( 2015 )

J-S25018-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
TERRY EUGENE SHIELDS
Appellant No. 1356 WDA 2014
Appeal from the PCRA Order Entered July 16, 2014
In the Court of Common Pleas of Allegheny County
Criminal Division at No: CP-02-CR-0003007-2009
BEFORE: BENDER, P.J.E., STABILE, and PLATT,* JJ.
MEMORANDUM BY STABILE, J.: FILED JULY 30, 2015
Appellant, Terry Eugene Shields, appeals from the July 16, 2014 order
dismissing his petition pursuant to the Post Conviction Relief Act (“PCRA”),
42 Pa.C.S.A. §§ 9541-46. We reverse and remand.
A prior panel of this Court summarized the underlying facts:
On November 11, 2008, at approximately 12:30 p.m.,
June Bartosh and her fiancé Phillip Dillard were at home, in their
living room, with their two-year-old son. Bartosh, wearing only
a tank top and wrapped in a blanket, was sitting on the couch.
Three men broke down the locked front door and entered the
house. According to Dillard, the first man was approximately
6’1”, the second was 5’9” to 5’10”, and the third, around 5’6”.
[…]
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
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Dillard attempted to stop the three men, who repeatedly
struck him in the face with a gun. The men demanded to know
where they could find money and guns in the house, but both
Dillard and Bartosh denied having either. One of the three men
then informed Bartosh and Dillard that “Coke told [them]
everything,” so they knew there was money in the house.
Dillard testified that “Coke” was the name of a childhood friend.
Eventually, Dillard told the three men where they could find
money and a gun.
Meanwhile, [Appellant], who was not wearing a mask,
picked Bartosh up and threw her to the ground, bound her hands
and feet with duct tape, and taped her mouth. Bartosh further
testified that [Appellant] slapped her across the face numerous
times as she pleaded with him not to do this in front of her
young son. He then smacked her across the buttocks and said
she had a “fat ass.” The other two men dragged Dillard upstairs
to get the money and gun, while [Appellant] remained
downstairs with Bartosh, who testified that [Appellant] continued
to hit her repeatedly, and then inserted his fingers into her
vagina and rectum. He then said he was going to force her to
perform oral sex on him. Bartosh continued to plead with
[Appellant] not to do so in front of her son.
Dillard came back downstairs with the two men, who
attempted to flee but could not open the door because they had
broken it coming in. They screamed at Bartosh, asking her how
to get out, and she directed them to use the back door
downstairs. The other two men left while [Appellant] waited
with Bartosh to make sure they got out. He then grabbed the
necklace and earrings Bartosh was wearing, and followed the
other men. Throughout the ten-minute attack, the intruders
broke numerous pieces of furniture including a television and a
table that [Appellant] broke over Bartosh’s arms.
Commonwealth v. Shields, 1280 WDA 2012 (Pa. Super. 2013),
unpublished memorandum at 1-3 (record citations omitted).
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On April 16, 2012, a jury found Appellant guilty of two counts of
robbery and one count each of burglary, aggravated indecent assault,
unlawful restraint and conspiracy.1 On June 29, 2012, the trial court
imposed an aggregate fifteen to forty-five years of incarceration followed by
three years of probation. On July 9, 2012, Appellant filed a post-sentence
motion challenging only the weight of the evidence. After the trial court
denied that motion Appellant filed a direct appeal. This Court affirmed the
judgment of sentence on August 6, 2013. Our Supreme Court denied
allowance of appeal on December 13, 2013.
Appellant filed a timely first PCRA petition on January 21, 2014.
Appointed counsel filed an amended petition on May 27, 2014. On June 6,
2014, the PCRA court filed its notice of intent to dismiss the petition without
a hearing pursuant to Pa.R.Crim.P. 907. Appellant filed an untimely
response2 on July 14, 2014 and the PCRA court dismissed the petition two
days later. This timely appeal followed.
In his untimely response to the PCRA court’s Rule 907 notice,
Appellant asserted for the first time that his sentence is illegal under
Alleyne v. United States, 133 S. Ct. 2151 (2013). Alleyne held
mandatory minimum sentences violate the Sixth Amendment right to a jury
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1
18 Pa.C.S.A. §§ 3701, 3502, 3125, 2902 and 903, respectively.
2
A petitioner has 20 days to respond to the PCRA court’s Rule 907 notice.
Pa.R.Crim.P. 907(1).
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trial unless the fact that triggers the mandatory minimum is found by a jury
beyond a reasonable doubt. Id. at 2155, 2162-63. Instantly, Appellant is
serving three consecutive five to fifteen year sentences for two counts of
robbery and one count of burglary. In each of those sentences, the trial
court imposed a five-year mandatory minimum, pursuant to 42 Pa.C.S.A.
§ 9712, because Appellant brandished a firearm during the offenses. This
Court has held § 9712 to be unconstitutional in light of Alleyne.
Commonwealth v. Valentine, 101 A.3d 801, 812 (Pa. Super. 2014).
In Commonwealth v. Newman, 99 A.3d 86, 90 (Pa. Super. 2014),
we held that Alleyne does not apply retroactively to all cases. Alleyne
applies only to cases that were pending on direct appeal when the United
States Supreme Court announced the decision on June 27, 2013. Instantly,
the PCRA court declined to address Appellant’s Alleyne argument, noting
that Appellant’s direct appeal was complete at the time of Alleyne. PCRA
Court Opinion, 1/9/15, at 5. In this, the PCRA Court was in error. As noted
above, this Court affirmed Appellant’s judgment of sentence on August 6,
2013, roughly six weeks after the United States Supreme Court decided
Alleyne. Despite this, Appellant did not notify the direct appeal panel of the
Alleyne decision pursuant to Pa.R.A.P. 2501(b), nor did Appellant file a
timely application for reargument. Appellant neglected the issue entirely
until his untimely response to the Rule 907 notice.
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Appellant’s delay is of no moment, as a sentence imposed in violation
of Alleyne is illegal and therefore the issue cannot be waived.
Commonwealth v. Wolfe, 106 A.3d 800, 801 (Pa. Super. 2014). A
challenge to the legality of a sentence is cognizable under the PCRA.
Commonwealth v. Jackson, 30 A.3d 516, 521 (Pa. Super. 2011), appeal
denied, 47 A.3d 845 (Pa. 2012). Section 9542 of the PCRA provides: “This
subchapter 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). Section 9543
provides that a petitioner is eligible for relief if he or she is serving a
sentence “greater than the lawful maximum.” 42 Pa.C.S.A.
§ 9543(a)(2)(vii). Appellant’s sentence is illegal, though not greater than
the lawful maximum. In similar circumstances, this Court has deemed the
issue cognizable under the PCRA. Commonwealth v. Hockenberry, 689
A.2d 283, 288 (Pa. Super. 1997), appeal denied, 695 A.2d 794 (Pa. 1997)
(holding that the imposition of a mandatory minimum under 18 Pa.C.S.A.
§ 7502(a) implicates the legality of a sentence and is cognizable under the
PCRA).
The PCRA court expressed concern that application of Alleyne to this
case would invite a flood of PCRA petitions from persons sentenced to
mandatory minimum sentences prior to Alleyne. PCRA Court Opinion,
1/9/15, at 6. We disagree. Newman makes clear that Alleyne applies
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only to cases pending on direct appeal as of June 27, 2013. This is one such
case. Our result does not expand the set of cases governed by Alleyne.
Moreover, Appellant has complied with the jurisdictional time limits for filing
a PCRA petition.
Based on the foregoing, 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.
Order reversed. Judgment of sentence vacated. Case remanded for
entry of a new sentence in accordance with this memorandum. Jurisdiction
relinquished.
P.J.E. Bender joins the memorandum.
J. Platt files a dissenting memorandum.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/30/2015
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