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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
MEMORANDUM BY OLSON, J.: FILED SEPTEMBER 06, 2018
Appellant, Richard Walters, appeals from the order entered on August
28, 2017, dismissing his first petition filed pursuant to the Post Conviction
Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. Upon review, we reverse the
order of the PCRA court, vacate Appellant’s judgment of sentence, and remand
for resentencing without consideration of a mandatory minimum sentence.
The PCRA court summarized the facts and procedural history of this case
as follows:
On March 24, 2011, undercover police officers were conducting
surveillance at 7100 Torresdale Avenue in Philadelphia[,
Pennsylvania]. At 3:10 p.m., they saw a woman engage in a brief
conversation on her cell[ular] phone. Shortly after the phone call
ended, Appellant pulled up to the woman in a green Audi[.] The
woman got inside the car and gave Appellant money in exchange
for a small object. Officers removed Appellant and the female
from the vehicle. Officers recovered a clear plastic bag containing
about 3.3 grams of cocaine from the female. Officers recovered
$176[.00], and a cell[ular] phone from Appellant.
____________________________________
* Former Justice specially assigned to the Superior Court.
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After a bench trial on November 11, 2012, [the trial] court found
Appellant guilty of possession of a controlled substance with intent
to deliver and simple possession. On May 6, 2013, Appellant was
sentenced to a mandatory term of three to six years of
imprisonment, pursuant to 18 Pa.C.S.A. § 7508. On May 17,
2013, [the trial] court granted Appellant’s motion for modification
of sentence and made him [] eligible [for parole under the
Recidivism Risk Reduction Incentive (RRRI) program] after 27
months. No direct appeal was filed.
On April 21, 2014, Appellant filed a PCRA petition pro se. Counsel
was appointed, and [counsel] filed an amended [PCRA] petition
on January 7, 2017. The Commonwealth filed a letter brief in
response on July 1, 2017. Determining that the petition was
meritless, the [trial] court sent out a notice of its intent to dismiss
pursuant to Pa.R.Crim.P. 907 on July 21, 2017, and dismissed the
petition without a hearing on August 28, 2017.
Appellant filed a notice of [a]ppeal on September 6, 2017. On
September 7, 2017, [the trial] court directed Appellant to file a
concise statement of [errors] complained of on appeal pursuant
to Pa.R.A.P. 1925(b), which [the trial] court received on
September 28, 2017. [The trial court issued an opinion pursuant
to Pa.R.A.P. 1925(a) on October 18, 2017.]
PCRA Court Opinion, 10/18/2017, at 1-2.
Relevant to this appeal, we provide some additional factual and
procedural history. In his amended PCRA petition, Appellant claimed that he
“was subject to a mandatory sentencing statute which has been determined
to be unconstitutional” and, therefore, his “mandatory sentence was an illegal
sentence.” Amended PCRA Petition, 1/17/2017, at ¶¶ 7(1) and 7(3).
Appellant further claimed that, “counsel was ineffective for failing to raise the
issue of the illegal sentence at trial or on direct appeal.” Id. at ¶ 7(2). In
support of his positions, Appellant relied upon the United States Supreme
Court decision in Alleyne v. United States, 570 U.S. 1 (2013) and its
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Pennsylvania progeny. See Brief in Support of Amended PCRA petition,
1/17/2017, at *1-4 (unpaginated).
In rejecting Appellant’s claims, the PCRA court first recognized that “a
defendant could [] raise an Alleyne challenge in a timely PCRA petition so
long as his direct appeal from the judgment of sentence was still pending when
Alleyne was decided.” PCRA Court Opinion, 10/18/2017, at 3, citing
Commonwealth v. Ruiz, 131 A.3d 54 (Pa. Super. 2015). However, the PCRA
court determined that Appellant’s judgment of sentence became final one day
prior to the Alleyne decision. As a result, pursuant to our Supreme Court’s
decision in Commonwealth v. Washington, 142 A.2d 810 (Pa. 2016), the
PCRA court determined that Appellant was not entitled to retroactive relief.
Id. at 3-4. Furthermore, the PCRA court concluded that trial counsel could
not be ineffective for failing to anticipate a change in the law. Id. at 5.
Accordingly, the PCRA court denied Appellant relief.
On appeal, Appellant presents the following issue for our review:
1. Was counsel ineffective for failing to raise the issue of []
Appellant[] being subjected to an illegal mandatory minimum
sentence?
Appellant’s Brief at 9.
“We must determine whether the PCRA court's ruling is supported by
the record and free of legal error.” Commonwealth v. Johnson, 179 A.3d
1153, 1156 (Pa. Super. 2018). “We view the record in the light most
favorable to the prevailing party in the PCRA court.” Commonwealth v.
Staton, 184 A.3d 949, 954 (Pa. 2018) (internal citation omitted). “We are
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bound by any credibility determinations made by the PCRA court where they
are supported by the record.” Id. “However, we review
the PCRA court's legal conclusions de novo.” Id.
“[T]he [United States] Supreme Court rendered the Alleyne decision
on June 17, 2013, and held that sentencing schemes which predicated the
imposition of a mandatory minimum sentence on a fact found by
the sentencing court, by a preponderance of the evidence, were
unconstitutional.” Commonwealth v. DiMatteo, 177 A.3d 182, 185 (Pa.
2018). In this case, upon a preponderance of the evidence introduced at
sentencing, the trial court imposed a mandatory minimum sentence pursuant
to 18 Pa.C.S.A. § 7508, based upon the weight of the recovered narcotics.
“It is uncontested that Section 7508 is an unconstitutional
and illegal sentencing statute in light of Alleyne and its Pennsylvania
progeny.” Id. at 191 (citations omitted). Further, the DiMatteo Court
determined that “one serving an illegal sentence [is entitled to collateral] relief
when such relief is sought in a timely PCRA petition and the judgment
of sentence was not final when Alleyne was announced.” Id.; see also
Commonwealth v. Ruiz, 131 A.3d 54, 60 (Pa. Super. 2015) (appellant
entitled to PCRA relief on his illegal sentencing claim when his judgment of
sentence was still pending on direct review when Alleyne was decided).
In this case, there is no dispute that Appellant filed a timely, pro se
PCRA petition. Thereafter, in his amended PCRA petition, Appellant claimed
that he “was subject to a mandatory sentencing statute which has been
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determined to be unconstitutional” and, therefore, his “mandatory sentence
was an illegal sentence.” Amended PCRA Petition, 1/17/2017, at ¶¶ 7(1) and
7(3).
The PCRA court, however, determined that Appellant was not eligible for
relief because Alleyne was decided after Appellant’s judgment of sentence
became final. For the reasons that follow, however, we conclude that the
PCRA court erred in computing the finality of Appellant’s judgment of
sentence. In this case, the trial court originally sentenced Appellant on May
6, 2013. The trial court, however, granted Appellant post-sentence relief and
resentenced him on May 17, 2013. “[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 the review.” 42 Pa.C.S.A. § 9545(b)(3). Here,
Appellant did not appeal from the resentencing order and, thus, his judgment
of sentence became final at the expiration of the time to seek review or 30
days after imposition of his amended sentence. See Pa.R.A.P. 903(a) (“notice
of appeal [] shall be filed within 30 days after the entry of the order from
which the appeal is taken”). Hence, Appellant’s judgment of sentence became
final on Sunday, June 16, 2013. However, because the final day for filing an
appeal fell on a Sunday, Appellant had until the following day, or until Monday,
June 17, 2013, to perfect his direct appeal. See 1 Pa.C.S.A. § 1908
(“Whenever the last day of any [statutorily defined] period shall fall on
Saturday or Sunday, or on any day made a legal holiday by the laws of this
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Commonwealth or of the United States, such day shall be omitted from the
computation.”). As such, the PCRA court erred when it determined that
Appellant’s judgment of sentence became final on June 16, 2013, rather than
on June 17, 2013. Because Alleyne was decided on June 17, 2013, Appellant
had a viable illegal sentencing claim before his judgment of sentence became
final. As such, we conclude the PCRA court erred in computing the finality of
Appellant’s judgment of sentence and further erred in concluding that
Appellant was not eligible for relief because his judgment of sentence became
final before Alleyne was issued. Accordingly, pursuant to Ruiz and
DiMatteo, Appellant is entitled to relief.1
Order reversed. Judgment of sentence vacated. Case remanded for
resentencing consistent with this memorandum. Jurisdiction relinquished.
President Judge Gantman joins the memorandum.
President Judge Emeritus Stevens files a concurring statement.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/6/18
____________________________________________
1 Because Appellant is entitled to relief, we need not reach his alternative
contention that trial counsel was ineffective for failing to raise an illegal
sentencing claim.
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