Commonwealth v. Washington, T., Aplt. , 636 Pa. 301 ( 2016 )

[J-73-2016]
IN THE SUPREME COURT OF PENNSYLVANIA
EASTERN DISTRICT
SAYLOR, C.J., BAER, TODD, DONOHUE, DOUGHERTY, WECHT, JJ.
COMMONWEALTH OF PENNSYLVANIA, : No. 37 EAP 2015
:
Appellee : Appeal from the Judgment of Superior
: Court entered on 5/12/15 at No. 532
v. : EDA 2011 reversing the order entered
: on 8/6/08 in the Court of Common
TERRANCE WASHINGTON, : Pleas, Philadelphia County, Criminal
: Division, at Nos. CP-51-0711021,
Appellant : 0711141, and 1009712-1996 and CP-
: 51-CR-1107481, 1107621, 1107651
: and 1107671-1997
:
: SUBMITTED: April 7, 2016
OPINION
CHIEF JUSTICE SAYLOR DECIDED: July 19, 2016
The controlling question presented is whether the Supreme Court of the United
States’ decision in Alleyne v. United States, ___ U.S. ___, 133 S. Ct. 2151 (2013),
applies retroactively to attacks upon mandatory minimum sentences advanced on
collateral review.
This discretionary appeal has a prolix factual and procedural history,
commencing with numerous armed robberies perpetrated by Appellant in 1996.
Appellant was charged with almost two dozen robbery offenses as well as related
crimes, and he was convicted upon a jury trial relative to many of the charges and after
pleas concerning others. In 1998, the common pleas court imposed an aggregate
sentence of 35 to 70 years’ imprisonment, with the aggregate minimum encompassing
multiple mandatory minimum sentences under Section 9712 of the Sentencing Code.
See 42 Pa.C.S. §9712(a).
The provisions of Section 9712 require imposition of a five-year mandatory
minimum sentence for crimes of violence involving the visible possession of a firearm
placing a victim in fear of death or serious bodily injury. See id. Of particular relevance
here, the statute specifies that its prescriptions “shall not be an element of the crime,”
and that the applicability “shall be determined at sentencing,” with factual matters being
resolved by the sentencing court “by a preponderance of the evidence.” Id. §9712(b).
Appellant did not initially pursue a direct appeal. He later obtained appellate
review nunc pro tunc, however. That appeal was unsuccessful, and the judgments of
sentence became final in 2006.
Later that year, Appellant filed a timely petition under the Post Conviction Relief
Act, 42 Pa.C.S. §§9541 – 9546 (the “PCRA”). Notably, Appellant did not raise a Sixth
Amendment challenge to the above directives of Section 9712(b). The PCRA court
dismissed the petition, and several procedural irregularities ensued, which were
addressed in a 2011 order of the Superior Court according Appellant the right to appeal
from the dismissal of the post-conviction petition.
In 2013, the Supreme Court of the United States issued its Alleyne decision,
overruling its prior precedent. Alleyne held that any fact that, by law, increases the
penalty for a crime must be treated as an element of the offense, submitted to a jury,
rather than a judge, and found beyond a reasonable doubt. See Alleyne, ___ U.S. at
___, 133 S. Ct. at 2163. The effect was to invalidate a range of Pennsylvania
sentencing statutes predicating mandatory minimum penalties upon non-elemental facts
and requiring such facts to be determined by a preponderance of the evidence at
sentencing. See, e.g., Commonwealth v. Hopkins, ___ Pa. ___, ___, 117 A.3d 247,
[J-73-2016] - 2
262 (2015) (holding that Section 6317 of the Crimes Code, 18 Pa.C.S. §6317 -- which
predicates a mandatory minimum sentence upon a fact to be determined by a
preponderance at sentencing -- was constitutionally infirm, under Alleyne).
The Superior Court disposed of Appellant’s appeal from the denial of post-
conviction relief via memorandum opinion in 2015, affirming in relevant part. Although
Appellant had not raised a pertinent Sixth Amendment claim, the majority acted of its
own accord to discuss the Alleyne decision. At the outset, the majority highlighted its
previous holding that Section 9712 was “unconstitutional in its entirety.” Commonwealth
v. Washington, No. 532 EDA 2011, slip op. at 14 (Pa. Super. May 12, 2015) (citing
Commonwealth v. Valentine, 101 A.3d 801, 811-12 (Pa. Super. 2013)). Nevertheless,
in light of Appellant’s failure to raise and preserve the Alleyne issue before the PCRA
court, the majority deemed that determination to be inapplicable. See id. Notably, the
majority couched its reasoning in terms of retroactivity jurisprudence. See id. (quoting,
indirectly, Commonwealth v. Cabeza, 503 Pa. 228, 233, 469 A.2d 146, 148 (1983)
(“[W]here an appellate decision overrules prior law and announces a new principle,
unless the decision specifically declares the ruling to be prospective only, the new rule
is to be applied retroactively to cases where the issue in question is properly preserved
at all stages of adjudication up to and including any direct appeal.”)).
In a responsive memorandum concurring in relevant regards, Judge Bowes
characterized the majority’s treatment of Alleyne as “cursory.” Id. at 4 (Bowes, J.,
concurring and dissenting). Judge Bowes initially noted that the Superior Court had
held that Alleyne violations undermine the legality of sentences, see, e.g., Valentine,
101 A.3d at 809 (citing Commonwealth v. Watley, 81 A.3d 108, 118 (Pa. Super. 2013)
(en banc)), such that the conventional rules of issue preservation did not apply, see
Commonwealth v. Fahy, 558 Pa. 313, 331, 737 A.2d 214, 223 (1999) (explaining that,
[J-73-2016] - 3
“legality of sentence is always subject to review within the PCRA,” albeit subject to the
enactment’s self-contained time limits). Unlike the majority, however, the responsive
opinion distinguished issue preservation in the context of direct appellate review from
retroactivity analysis on post-conviction review.
In terms of retroactivity impacting the post-conviction stage, Judge Bowes
discussed the seminal framework delineated in Teague v. Lane, 489 U.S. 288, 109 S.
Ct. 1060 (1989) (plurality), as follows. Under the Teague line of cases, a new rule of
constitutional law is generally retrospectively applicable only to cases pending on direct
appellate review. See, e.g., Montgomery v. Louisiana, ___ U.S. ___, ___, 136 S. Ct.
718, 728 (2016) (“Under Teague, a new constitutional rule of criminal procedure does
not apply, as a general matter, to convictions that were final when the new rule was
announced.”). In other cases, retroactive effect is accorded only to rules deemed
substantive in character, and to “watershed rules of criminal procedure” which “alter our
understanding of the bedrock procedural elements” of the adjudicatory process.
Teague, 489 U.S. at 311, 109 S. Ct. at 1076 (quoting Mackey v. United States, 401 U.S.
667, 693, 91 S. Ct. 1171, 1180 (1971) (Harlan, J., concurring)).
Concerning the substantive/procedural dichotomy, substantive rules are those
that decriminalize conduct or prohibit punishment against a class of persons. See
Montgomery, ___ U.S. at ___, 136 S. Ct. at 729-30. Concomitantly, the Supreme Court
has made clear that “rules that regulate only the manner of determining the defendant’s
culpability are procedural.” Id. at ___, 136 S. Ct. at 730 (quoting Schriro v. Summerlin,
542 U.S. 348, 353, 124 S. Ct. 2519, 2523 (2004)) (emphasis in original). As to
watershed rules, to date, the Supreme Court of the United States has discerned only
one, arising out of the sweeping changes to the criminal justice system brought about
by the conferral of the right to counsel upon indigent defendants charged with felonies in
[J-73-2016] - 4
Gideon v. Wainwright, 372 U.S. 335, 83 S. Ct. 792 (1963). See Beard v. Banks, 542
U.S. 406, 417, 124 S. Ct. 2504, 2513-14 (2004).1
Judge Bowes reasoned that the Alleyne ruling was not substantive, since it does
not prohibit punishment for a class of offenders nor does it decriminalize conduct.
Rather, she described the decision as procedurally mandating the inclusion of any facts
which will increase a mandatory minimum sentence in an indictment or information, as
well as a determination by a fact-finder of those facts beyond a reasonable doubt. Nor
did Judge Bowes find that the Alleyne decision announced an extraordinary, watershed
rule of criminal procedure altering bedrock principles. In these regards, Judge Bowes
highlighted that her reasoning was consistent with numerous federal courts which had
determined that the new rule announced in Alleyne did not apply retroactively on
collateral review.2
Judge Bowes recognized that Alleyne involved not only the identity of the fact-
finder but also addressed the burden of proof attaching to law-based sentencing
enhancements. She found this to be no different from Apprendi v. New Jersey, 530
U.S. 466, 120 S. Ct. 2348 (2000), however, from which Alleyne derived, explaining that
1
See generally Schriro, 542 U.S. at 352, 124 S. Ct. at 2523 (discussing the
extraordinary nature of watershed rules and opinion that “it is unlikely that any . . . ‘ha[s]
yet to emerge’” (quoting, indirectly, Sawyer v. Smith, 497 U.S. 227, 243, 110 S. Ct.
2822, 2839 (1990))); Whorton v. Bockting, 549 U.S. 406, 417-18, 127 S. Ct. 1173,
1181-82 (2007) (stressing the narrow scope of the procedural right exception to the
general rule against retrospective application on collateral review and collecting cases
in which such application was disallowed).
2
See, e.g., United States v. Reyes, 755 F.3d 210, 212 (3d Cir. 2014); In re Mazzio, 756
F.3d 487, 489-90 (6th Cir. 2014); Hughes v. United States, 770 F.3d 814, 819 (9th Cir.
2014); United States v. Redd, 735 F.3d 88, 92 (2d Cir. 2013); In re Payne, 733 F.3d
1027, 1030 (10th Cir. 2013); In re Kemper, 735 F.3d 211, 212 (5th Cir. 2013); Simpson
v. United States, 721 F.3d 875, 876 (7th Cir. 2013).
[J-73-2016] - 5
neither this Court nor the Supreme Court of the United States had found that Apprendi
should be retroactively applied.3
We allowed appeal to consider the issue, as framed by Appellant, of “[a]re the
mandatory sentences imposed upon petitioner illegal pursuant to Alleyne?”
Commonwealth v. Washington, ___ Pa. ___, 127 A.3d 1287 (2015). Our review of this
legal issue is plenary.
Throughout his brief, Appellant characterizes his sentence as “illegal under
Alleyne” and stresses that the PCRA provides an avenue for relief from illegal
sentences. Brief for Appellant at 16 (citing, inter alia, Commonwealth v. Gordon, 596
Pa. 231, 234, 942 A.2d 174, 175 (2007), for the proposition that “it seems to be a settled
question in Pennsylvania that Apprendi-based challenges raise questions related to the
legality of a sentence”). Appellant further emphasizes that the Alleyne issue arises in
the context of a timely-filed PCRA petition, distinguishing instances involving untimely
petitions. See generally Fahy, 558 Pa. at 331, 737 A.2d at 223 (determining that even
challenges to illegal sentences are subject to the PCRA’s time limitations).
3
Accord Jeanty v. Warden, FCI-Miami, 757 F.3d 1283, 1285 (11th Cir. 2014) (“[W]e
have repeatedly held that Apprendi’s rule does not apply retroactively on collateral
review.”); Sepulveda v. United States, 330 F.3d 55, 62 (1st Cir. 2003) (“The Apprendi
decision is about criminal procedure, pure and simple.”); Coleman v. United States, 329
F.3d 77, 90 (2d Cir. 2003); Ellzey v. United States, 324 F.3d 521, 527 (7th Cir. 2003);
United States v. Brown, 305 F.3d 304, 310 (5th Cir. 2002); Curtis v. United States, 294
F.3d 841, 844 (7th Cir. 2002); United States v. Mora, 293 F.3d 1213, 1219 (10th Cir.
2002); United States v. Sanchez-Cervantes, 282 F.3d 664, 673 (9th Cir. 2002); McCoy
v. United States, 266 F.3d 1245, 1259 (11th Cir. 2001); United States v. Moss, 252 F.3d
993, 1000-01 (8th Cir. 2001); United States v. Sanders, 247 F.3d 139, 146 (4th Cir.
2001); Jones v. Smith, 231 F.3d 1227, 1236 (9th Cir. 2000). See generally Haifeng
Peng, Is Blakely v. Washington Retroactive?, 27 CARDOZO L. REV. 423, 440 (2005) (“All
federal circuits have unanimously concluded that Apprendi does not apply
retroactively”).
[J-73-2016] - 6
Initially, given that this matter arises on post-conviction review, we find it
necessary to clarify the interrelationship between retroactivity determinations and the
sentence-legality question. In this regard, it is significant that Appellant agrees that
Alleyne established a new rule of federal constitutional law. See Brief for Appellant at
32.4
Consistent with Judge Bowes’ explanation, a new rule of law does not
automatically render final, pre-existing sentences illegal. A finding of illegality,
concerning such sentences, may be premised on such a rule only to the degree that the
new rule applies retrospectively. In other words, if the rule simply does not pertain to a
particular conviction or sentence, it cannot operate to render that conviction or sentence
illegal. Accord Welch v. United States, ___ U.S. ___, ___, 136 S. Ct. 1257, 1264 (2016)
(alluding to the “general bar on retroactivity” for new constitutional rules of a procedural
dimension); Montgomery, ___ U.S. at ___, 136 S. Ct. at 730 (“[A] trial conducted under
a procedure found to be unconstitutional in a later case does not, as a general matter,
have the automatic consequence of invalidating a defendant’s conviction or sentence.”).
Appellant’s framing of the issue presented, as well as the bulk of his brief, disregards
this necessary role of a retroactivity assessment relative to a determination of legality at
the collateral review stage.5
4
This proposition seems indisputable, given that the Alleyne Court expressly overruled
its prior precedent in Harris v. United States, 536 U.S. 545, 122 S. Ct. 2406 (2002).
See Alleyne, ___ U.S. at ___, 133 S. Ct. at 2163.
5
The Commonwealth, on the other hand, aptly summarizes the essential point as
follows:
[A]s of September 2006, there was no precedent from the
United States Supreme Court, nor any Pennsylvania Court,
that would have prohibited application of the instant
mandatory minimum provision. Quite to the contrary, as
(continuedP)
[J-73-2016] - 7
There is no question that this Court has had some difficulty defining the contours
of “illegality” in the abstract for purposes of the issue preservation doctrine. Compare
Commonwealth v. Foster, 609 Pa. 502, 524-25 n.21, 17 A.3d 332, 345-46 n.21 (2011)
(Opinion Announcing the Judgment of the Court), with id. at 534-39, 17 A.3d at 352-54
(Castille, C.J., concurring); id. at 539-41, 17 A.3d 355-56 (Saylor, J., concurring); id. at
541-42, 17 A.3d at 356-57 (Eakin, J., concurring).6 Any remaining uncertainty in this
regard, however, does not affect our analysis, above and below. Again, if a new
constitutional rule does not apply, it cannot render an otherwise final sentence illegal.
As the Commonwealth relates and Judge Bowes apprehended, new
constitutional procedural rules generally pertain to future cases and matters that are
pending on direct review at the time of the rule’s announcement. See Schriro, 542 U.S.
(Pcontinued)
recently as 2002, the United States Supreme Court in Harris
v. United States had rejected a claim that Apprendi, the
precursor to Alleyne, applied to mandatory minimum
sentencing provisions, and explicitly reaffirmed [the Court’s
previous upholding of] 42 Pa.C.S. §9712. Thus, had a court
been presented with defendant’s current sentencing claim at
any time up to and including September 2006, when his
direct appeal ended (Alleyne was not decided until 2013),
current law would unequivocally have required its rejection.
The Alleyne rule is therefore new, and cannot apply on
collateral review except in “limited circumstances,” Schriro[,
542 U.S. at 351, S. Ct. at 2522], i.e., unless it is a
“substantive or “watershed” rule under Teague.
Brief for Appellee at 15 (citations adjusted); accord id. at 20 (“The issue is not
constitutionality under subsequent law . . ., but whether a sentence that was lawful
when imposed must be overturned under a decision reached many years later because
[such decision] applies retroactively on collateral review.”).
6
Notably, this Court has otherwise granted allocatur to determine whether an Alleyne
violation renders a sentence illegal for issue preservation purposes. See
Commonwealth v. Barnes, ___ Pa. ___, 122 A.3d 1034, 1034-35 (2015) (per curiam).
[J-73-2016] - 8
at 351-52, 124 S. Ct. at 2522 (citing Griffith v. Kentucky, 479 U.S. 314, 323, 328, 107 S.
Ct. 708, 716 (1987)).7 To determine whether the rule applies retroactively to cases at
the collateral review stage, additional analysis is necessary, either per Teague and its
progeny or under some state-law formulation that is consistent with the authority
recognized in Danforth v. Minnesota, 552 U.S. 264, 282, 128 S. Ct. 1029, 1042 (2008)
(explaining that Teague “limits the kinds of constitutional violations that will entitle an
individual to relief on federal habeas, but does not in any way limit the authority of a
state court, when reviewing its own state criminal convictions, to provide a remedy for a
violation that is deemed ‘nonretroactive’ under Teague”).
In the relevant portion of his brief, Appellant primarily urges this Court to
recognize an independent, state-level retroactivity jurisprudence, per Danforth. Along
these lines, Appellant asserts that the PCRA establishes a remedial scheme for those
prisoners who are serving illegal sentences, and that he is entitled to relief under the
PCRA “since his mandatory minimum sentences are illegal under Alleyne.” Brief for
Appellant at 36-37.8 Appellant also urges that we should adopt a principle supporting
retroactive application of new constitutional rules for violations that “implicate[]
fundamental fairness and foster[] unreliability and inaccuracy in the fact-finding
process.” Id. at 37. Although this standard seems similar to the watershed-rules aspect
7
Notably, the plurality decision of this Court in Foster -- in which various Justices
discussed the illegal-sentence doctrine as it pertains to issue preservation -- is
distinguishable from the present case both in that the case reached this Court at the
direct appeal stage, and the matter did not concern a rule couched as a new one of
constitutional law. See Foster, 609 Pa. at 508, 17 A.3d at 335-36.
8
This aspect of Appellant’s argument is addressed earlier in our opinion, as we have
explained that the legality or illegality of Appellant’s sentence cannot be adjudged
without reference to the legal standards governing retroactive application of new
constitutional rules.
[J-73-2016] - 9
of Teague, Appellant obviously wishes for this Court to lower the high threshold
maintained by the Supreme Court of the United States.
Alternatively, Appellant contends that the rule announced in Alleyne is
substantive in character or meets the Teague-based exception to non-retroactive
application of watershed procedural rules, highlighting that Alleyne’s holding concerns a
defendant’s Sixth Amendment right to a jury trial and to proof beyond a reasonable
doubt. Appellant recognizes that the Supreme Court of the United States has “laid to
rest the idea that new rules of criminal procedure which implicate jury trial rights should
be applied retroactively.” Brief for Appellant at 38 (citing Schriro, 542 U.S. at 353, 124
S. Ct. at 2523 (denominating a rule allocating decision-making authority as between
juries and judges as a “prototypical procedural rule”)). He nonetheless maintains that
the dual-faceted aspect of Alleyne’s holding, also encompassing the matter of the
burden of proof, justifies a different outcome.9 In this regard, Appellant references In re
Winship, 397 U.S. 358, 90 S. Ct. 1068 (1970), as exemplifying the “vital role in the
American scheme of criminal procedure” occupied by the reasonable doubt standard of
proof. Brief for Appellant at 39 (quoting Winship, 397 U.S. at 363, 90 S. Ct. at 1072).
The Commonwealth, on the other hand, takes the position that this Court should
continue to adhere to Teague rather than recognizing a new state-level retroactivity
jurisprudence. See, e.g., Commonwealth v. Bracey, 604 Pa. 459, 485-86, 986 A.2d
128, 143-44 (2009) (“Teague is acknowledged as setting forth the legal framework for a
principled approach to deciding when a pronouncement of law should be given effect to
cases pending on collateral review[;] [t]his Court has looked to Teague principles when
confronted with [such] questions.”). The Commonwealth finds that the Teague
9
Appellant correctly relates that Schriro did not specifically involve the burden-of-proof
dynamic. See Schriro, 542 U.S. at 351 n.1, 124 S. Ct. at 2522 n.1.
[J-73-2016] - 10
approach affords appropriate respect to the strong societal interest in finality of
judgments, which resides among the legislative purposes underlying the PCRA. See
generally Commonwealth v. Sam, 597 Pa. 523, 542-43, 952 A.2d 565, 576-77 (2008)
(collecting cases stressing the essential role of finality in the criminal justice system and
discussing the General Assembly’s efforts to foster it via the statutory prescriptions for
post-conviction review).
According to the Commonwealth, adoption of Appellant’s suggested approach –
which the Commonwealth views as a test centered upon fundamental fairness in the
abstract – would remove the essential controls on retroactive application of new rules,
thus unduly undermining finality. It is for this reason, the Commonwealth observes, that
the Supreme Court of the United States has maintained the distinction, in the
retroactivity calculus, between general rules embodying due process and extraordinary,
bedrock-altering, “watershed” rules. See Tyler v. Cain, 533 U.S. 656, 666 n.7, 121 S.
Ct. 2478, 2484-85 n.7 (2001) (indicating that not all rules “relating to due process (or
even the ‘fundamental requirements of due process’) alter [the] understanding” of
bedrock procedural elements essential to the fairness of a proceeding (citation
omitted)).
On this subject, the Commonwealth stresses that watershed rules, at the federal
level, to date, encompass only a class of one, i.e., the right to counsel proclaimed in the
seminal Gideon decision, acknowledged to be “fundamental and essential to a fair trial.”
Gideon, 372 U.S. at 340, 83 S. Ct. at 794 (quoting Betts v. Brady, 316 U.S. 455, 465, 62
S. Ct. 1252, 1257 (1942)). In these terms, the Commonwealth explains:
Gideon recognized that this principle was virtually timeless,
having been recognized at the foundation of the republic; the
Court explained that in enforcing this right it was not
breaking new ground, but rather was “returning to . . . old
precedents, sounder we believe than the new” in order to
[J-73-2016] - 11
“restore constitutional principles established to achieve a
fairer system of justice.” There was also a clear national
consensus. Twenty-two States filed amicus briefs
denouncing the contrary rule as an “anachronism.” The
concurring Justices (there was no dissent) made clear that
they too embraced the right to counsel as a bedrock
principle.
Brief for Appellee at 23 (citations omitted).
The Commonwealth maintains, however, that Alleyne is vastly different. The
Supreme Court of the United States, the Commonwealth notes, had twice decided that
the sentencing scheme under Section 9712 of the Pennsylvania Sentencing Code was
constitutional. See McMillan v. Pennsylvania, 477 U.S. 79, 93, 106 S. Ct. 2411, 2420
(1986); see also Harris, 536 U.S. at 568-69, 122 S. Ct. at 2420 (reaffirming McMillan).
The Commonwealth asserts that, in ultimately reversing course, the Alleyne Court “said
nothing to suggest that it was recognizing anything of ‘bedrock’ importance.” Brief for
Appellee at 24. On the contrary, the Commonwealth relates:
Alleyne allows the sentencing court to penalize the same
conduct that triggered the mandatory statute as a matter of
discretion. [See Alleyne, ___ U.S. at ___,] 133 S. Ct. at
2163. The Court remanded for “resentencing consistent with
the jury’s verdict,” allowing the sentencing court to impose
the exact same sentence should it so decide. Thus, nothing
“fundamental” or “essential” is violated if the sentencing
court elects to impose a higher sentence based on the
conduct that previously triggered the statutory minimum,
since Alleyne specifically allows that in discretionary
sentencing.
Alleyne is no more of a “bedrock” nature than similar new
procedural sentencing rules that have been barred under
Teague even in capital cases. E.g., Beard v. Banks, 542
U.S. [at] 416-17[, 124 S. Ct. at 2513] (new rule to ensure that
capital sentencing jurors are not prevented from giving effect
to mitigating evidence not found unanimously was
procedural under Teague); Graham v. Collins, 506 U.S.
[461,] 477[, 113 S. Ct. 892, 903 (1993)] (new rule to ensure
[J-73-2016] - 12
that capital sentencing jurors could give effect to evidence of
mental retardation and abused childhood was procedural
and barred by Teague); Sawyer v. Smith, 497 U.S. 227[, 244
110 S. Ct. 2822, 2832-33] (1990) (new rule preventing
misleading of capital sentencing jurors by suggesting that
ultimate responsibility for imposing sentence lay elsewhere
was procedural and barred by Teague).
Brief for Appellee at 24-25. Based on such history, it is the Commonwealth’s core
position that “Alleyne clearly does not have ‘the primacy and centrality of the rule
adopted in Gideon.’” Id. at 25 (quoting Banks, 542 U.S. at 420, 124 S. Ct. at 2515).
The Commonwealth also maintains that the new Alleyne rule is procedural in
character, because it merely regulates the manner of determining culpability as
opposed to altering the range of conduct or the class of persons that the law punishes.
See id. at 16 (citing Montgomery, ___ U.S. at ___, 136 S. Ct. at 729-30). “[E]very court
in the nation to consider this question in a published ruling has held that Alleyne does
not apply retroactively on collateral review,” the Commonwealth highlights. Id. at 10;
see also supra note 2. The Commonwealth urges that we should reach the same
conclusion here.10
10
The Commonwealth also advances several jurisprudential reasons why we should
decline to resolve this appeal, such as abstractness of the Alleyne rule relative to the
substantial punishment which will be imposed on Appellant in all events. The present
matter is an important one, however, affecting a large range of cases, this one was
selected to resolve the question, and we will therefore proceed to the merits without
further treatment of such collateral matters.
From a concurring posture, Justice Todd observes that our approach to the
Commonwealth’s additional arguments highlights the present case’s importance. See
Concurring Opinion, slip op. at 1. Our reasoning, however, is also based upon the fact
that appeal was allowed discretely to address the Alleyne retroactivity issue. See
Commonwealth v. Washington, ___ Pa. ___, 127 A.3d 1287 (2015) (per curiam)
(granting allocatur “limited to” the issue of “[a]re the mandatory sentences imposed
upon petitioner illegal pursuant to Alleyne”). To the extent that the concurrence
suggests that a discretionary appeals court is obliged to exceed the scope of an
allocatur grant to engage in a developed resolution of all issues advanced in an
(continuedP)
[J-73-2016] - 13
There is presently no controversy concerning the proposition that Alleyne sets
forth a new rule of constitutional law. As to the substantive-procedural distinction, we
agree with the Commonwealth that the Alleyne rule neither alters the range of conduct
or the class of persons punished by the law. See Montgomery, ___ U.S. at ___, 136 S.
Ct. at 729-30. Rather, the holding allocates the relevant decision-making authority to a
jury rather than a judge, while establishing the beyond-a-reasonable-doubt standard as
the essential burden of proof. See Alleyne, 133 U.S. at ___, ___ S. Ct. at 2155. Again,
such matters were also central to the seminal Apprendi decision, see Apprendi, 530
U.S. at 490, 120 S. Ct. at 2363, which the Supreme Court of the United States has
never deemed to be retroactive and which is universally regarded as non-retroactive by
the federal courts of appeals. See supra note 3; cf. Schriro, 542 U.S. at 353, 124 S. Ct.
at 2523 (holding that a rule requiring certain facts to be determined by a jury rather than
a judge was procedural in nature, for purposes of Teague). See generally
Commonwealth v. Riggle, 119 A.3d 1058, 1067 (Pa. Super. 2015) (determining that the
Alleyne rule is procedural).11
We also have no basis for disagreeing with the Commonwealth that the Alleyne
rule is not of a groundbreaking, “watershed” character. It remains lawful and, indeed,
(Pcontinued)
appellee’s brief, see Concurring Opinion, slip op. at 1 (expressing the concern that our
opinion “may unnecessarily serve to relax courts’ obligation to consider jurisprudential
bases for resolution of appeals”), we know of no authority that supports it. Indeed, from
our perspective, such an approach to the discretionary review process would render
many of this Court’s opinions unnecessarily unwieldy.
11
Most recently, the Supreme Court of the United States has described the essential
analysis in addressing the substantive/procedural distinction under Teague as a
functional one. See Welch, ___ U.S. at ___, 136 S. Ct. at 1266. We do not find this
overlay to alter our above reasoning or the rationale underlying the many decisions of
other courts finding the Alleyne rule to be non-retroactive relative to the collateral review
stage.
[J-73-2016] - 14
routine for judges to increase sentences, in the discretionary sentencing regime, based
on facts that they find by a preponderance of the evidence. See Alleyne, ___ U.S. at
___, 133 S.Ct. at 2163 (“Our ruling today does not mean that any fact that influences
judicial discretion must be found by a jury[;] [w]e have long recognized that broad
sentencing discretion, informed by judicial factfinding, does not violate the Sixth
Amendment.”). Thus, the inherent reliability of judge-determined facts at the sentencing
stage is not directly in issue, and we find that this understanding places substantial
perspective on the fairness concerns involved. Cf. Welch, ___ U.S. at ___, 136 S. Ct.
at 1266 (“The chance of a more accurate outcome under [a] new procedure normally
does not justify the cost of vacating a conviction whose only flaw is that its procedures
‘conformed to then-existing constitutional standards’” (quoting Teague, 489 U.S. at 310,
109 S. Ct. at 1075)).
We recognize that, per Alleyne, it is no longer permissible for state legislatures to
direct judges to apply specified minimum sentences based on preponderance-based
judicial findings of fact. Nevertheless, we conclude that such new rule is materially
different in character from Gideon’s prescription for assistance of counsel, which is
presently enshrined as the only recognized watershed rule of criminal procedure. See
Banks, 542 U.S. at 417, 124 S. Ct. at 2513-14; see also supra note 1.
As to Appellant’s argument that we should recognize an independent state-level
retroactivity jurisprudence grounded on fairness considerations, but lacking the
constraints imposed at the federal level, we decline to do so in this case. From our
perspective, balancing fairness and finality is essential in considering the appropriate
retrospective effect of a new rule of constitutional procedure. Accord Welch, ___ U.S.
at ___, 136 S. Ct. at 1266 (“The Teague framework creates a balance between, first,
the need for finality in criminal cases, and second, the countervailing imperative to
[J-73-2016] - 15
ensure that criminal punishment is imposed only when authorized by law.”). Appellant’s
arguments, however, touch on only one side of this equation. Unless and until
developed arguments are advanced which persuade this Court that a better equilibrium
can be achieved, the Teague construct shall remain the default approach, in
Pennsylvania, to the retrospective application of new constitutional procedural rules
pronounced by the Supreme Court of the United States.
We hold that Alleyne does not apply retroactively to cases pending on collateral
review, and that Appellant’s judgment of sentence, therefore, is not illegal on account of
Alleyne.
The order of the Superior Court is affirmed.
Justices Baer, Dougherty and Wecht join the opinion.
Justice Todd files a concurring opinion in which Justice Donohue joins.
Justice Dougherty files a concurring opinion.
[J-73-2016] - 16