Com. v. Sarver, N. ( 2016 )

J-S62041-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
NICHOLAS EDWARD SARVER
Appellant No. 908 WDA 2015
Appeal from the PCRA Order June 5, 2015
In the Court of Common Pleas of Fayette County
Criminal Division at No(s): CP-26-CR-0002160-2012
BEFORE: GANTMAN, P.J., JENKINS, J., and PLATT, J.*
MEMORANDUM BY GANTMAN, P.J.: FILED AUGUST 19, 2016
Appellant, Nicholas Edward Sarver, appeals from the order entered in
the Fayette County Court of Common Pleas, which denied his petition filed
pursuant to the Post Conviction Relief Act (“PCRA”).1 We reverse the order
denying PCRA relief, vacate the judgment of sentence, and remand for
resentencing.
The relevant facts and procedural history of this case are as follows.
On July 23, 2012, police went to Appellant’s home to search for stolen
firearms. When the officers arrived, Appellant invited them into the house.
Police found multiple firearms near heroin and drug packaging materials. A
____________________________________________
1
42 Pa.C.S.A. §§ 9541-9546.
_____________________________
*Retired Senior Judge assigned to the Superior Court.
J-S62041-15
jury convicted Appellant on May 8, 2013, of simple possession, possession
with intent to deliver (“PWID”), and possession of drug paraphernalia. The
court sentenced Appellant on June 5, 2013, to a mandatory minimum term
of five (5) to ten (10) years’ imprisonment for the PWID conviction, pursuant
to 42 Pa.C.S.A. § 9712.1. The court imposed no further penalty for simple
possession and possession of drug paraphernalia. On April 23, 2014, this
Court affirmed the judgment of sentence. See Commonwealth v. Sarver,
No. 1062 WDA 2013, unpublished memorandum (Pa.Super. filed April 23,
2014). Appellant filed a timely pro se PCRA petition on September 26, 2014.
The PCRA court appointed counsel, who filed an amended petition. Following
a hearing, the court denied Appellant’s PCRA petition on June 5, 2015.
Appellant timely filed a notice of appeal on June 10, 2015. The court
ordered Appellant to file a Rule 1925(b) statement, and Appellant timely
complied.
Appellant raises one issue for our review:
WHETHER THE PCRA COURT ERRED WHEN IT RULED THAT
APPELLANT CANNOT RAISE HIS CLAIM THAT HIS
MANDATORY SENTENCE IS ILLEGAL IN A PCRA PETITION?
(Appellant’s Brief at 6).
Appellant argues his mandatory minimum sentence for PWID is illegal
pursuant to Alleyne v. U.S., ___ U.S. ___, 133 S.Ct. 2151, 186 L.Ed.2d
314 (2013), and its Pennsylvania progeny. Appellant asserts the PCRA court
erred when it determined Appellant could not raise his Alleyne challenge in
-2-
J-S62041-15
a timely PCRA petition. Appellant concludes this Court should vacate the
judgment of sentence and remand for resentencing. We agree.
Our standard of review of the denial of a PCRA petition is limited to
examining whether the evidence of record supports the court’s
determination and whether its decision is free of legal error.
Commonwealth v. Conway, 14 A.3d 101, 108 (Pa.Super. 2011), appeal
denied, 612 Pa. 687, 29 A.3d 795 (2011). This Court grants great deference
to the findings of the PCRA court if the record contains any support for those
findings. Commonwealth v. Boyd, 923 A.2d 513, 515 (Pa.Super. 2007),
appeal denied, 593 Pa. 754, 932 A.2d 74 (2007). We owe no deference,
however, to the court’s legal conclusions. Commonwealth v. Ford, 44
A.3d 1190, 1194 (Pa.Super. 2012).
At the time of Appellant’s sentencing, Section 9712.1(a) required a
mandatory minimum sentence of five (5) years’ imprisonment where a
defendant is convicted of PWID “when at the time of the offense the
person…is in physical possession or control of a firearm, whether visible,
concealed about the person…or within the actor’s…reach or in close
proximity to the controlled substance[.]” 42 Pa.C.S.A. § 9712.1(a). Section
9712.1(c) stated that the statutory provisions shall not be an element of the
crime and applicability of the statute shall be determined at sentencing by a
preponderance of the evidence. 42 Pa.C.S.A. § 9712.1(c). In Alleyne, the
United States Supreme Court expressly held that any fact increasing the
-3-
J-S62041-15
mandatory minimum sentence for a crime is considered an element of the
crime to be submitted to the fact-finder and found beyond a reasonable
doubt. Alleyne, supra. This Court later addressed the constitutionality of
Section 9712.1 in Commonwealth v. Newman, 99 A.3d 86 (Pa.Super.
2014) (en banc),2 which was filed on August 20, 2014. Relying on Alleyne,
Newman held that Section 9712.1 could no longer pass constitutional
muster as it “permits the trial court, as opposed to the jury, to increase a
defendant’s minimum sentence based upon a preponderance of the evidence
that the defendant was dealing drugs and possessed a firearm, or that a
firearm was in close proximity to the drugs.” Id. at 98. Newman further
held that the non-offending provisions of Section 9712.1 were not severable
and the statute was unconstitutional in its entirety. Id. at 101. See also
Commonwealth v. Hopkins, ___ Pa. ___, 117 A.3d 247 (2015) (declaring
mandatory minimum statute at 18 Pa.C.S.A. § 6317 (drug-free school
zones) unconstitutional in its entirety under Alleyne, where that statute
stated its provisions were not elements of crime and applicability of statute
should be determined at sentencing by preponderance of evidence).
In Commonwealth v. Ruiz, 131 A.3d 54 (Pa.Super. 2015), this Court
____________________________________________
2
Newman involved an Alleyne sentencing issue that could not have been
initially raised on direct appeal, because the defendant’s appeal had been
resolved on June 12, 2013, five days before Alleyne was decided. So, the
defendant filed a petition for reconsideration/reargument, which this Court
granted.
-4-
J-S62041-15
reiterated the Newman Court’s declarations: (1) an Alleyne claim is a
nonwaivable challenge to the legality of sentence; and (2) Alleyne
announced a new constitutional rule that applied to all cases pending on
direct review when Alleyne was decided. Id. at 59-60 (citing Newman,
supra at 90). Based on those principles, Ruiz clarified that a defendant
could also 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. Id. at 59-60.
Recently in Commonwealth v. Washington, ___ A.3d ___, 2016 WL
3909088 (Pa. filed July 9, 2016), the Pennsylvania Supreme Court
addressed a situation in which the defendant raised an Alleyne claim in a
timely PCRA petition but his judgment of sentence had become final prior to
the Alleyne decision. The Washington Court stated:
[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. …
* * *
[N]ew constitutional procedural rules generally pertain to
future cases and matters that are pending on direct review
at the time of the rule’s announcement.
Id. at *3-4 (Pa. 2016) (emphasis added). See also id. at *4 (stating: “[I]f
a new constitutional rule does not apply, it cannot render an otherwise final
-5-
J-S62041-15
sentence illegal”). The Washington Court applied the retroactivity analysis
delineated in Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d
334 (1989), and determined the new constitutional rule announced in
Alleyne is not a substantive or watershed procedural rule that would
warrant retroactive application. Washington, supra. The Court held the
defendant was not entitled to retroactive application of Alleyne because his
judgment of sentence had become final before Alleyne was decided. Id.
Instantly, on June 5, 2013, the sentencing court imposed a mandatory
minimum term of five (5) years’ imprisonment for Appellant’s PWID
conviction per Section 9712.1. Alleyne was decided while Appellant’s direct
appeal was pending before this Court and before the appeal was resolved.
This Court affirmed Appellant’s judgment of sentence on May 23, 2014, after
Alleyne became law but before Newman declared Section 9712.1
unconstitutional in its entirety by virtue of Alleyne. After Newman was
filed on August 20, 2014, Appellant promptly filed a timely PCRA petition
challenging his mandatory minimum sentence as illegal in light of the
developing Alleyne case law. Because Appellant’s judgment of sentence
was still pending when Alleyne was decided on June 17, 2013, Alleyne
applies to Appellant’s case, and he is entitled to review and relief under
Ruiz, supra. See also Newman, supra.
The present matter is distinguishable from Washington, which
concerned the retroactive application of Alleyne to cases where the
-6-
J-S62041-15
defendant’s judgment had already become final before the Alleyne
decision. Washington did not consider the unique procedural posture
presented in Ruiz or in the instant case, where a defendant raises his
Alleyne challenge in a timely PCRA petition but his direct appeal from the
judgment of sentence was still pending at the time Alleyne was decided.3
The Washington Court, however, did specifically acknowledge the general
retroactivity of new constitutional rules to cases pending on direct review at
the time of the rule’s announcement. See Washington, supra at *2, *4.
Therefore, Washington does not necessarily foreclose Appellant’s claim for
review and relief under these unique circumstances.
Based on the foregoing, we conclude Appellant is entitled to a remand
for resentencing without application of any unlawful mandatory minimum
statute. Accordingly, we reverse the order denying PCRA relief, vacate the
judgment of sentence in its entirety, and remand for resentencing without
imposition of a mandatory minimum term. See Commonwealth v.
____________________________________________
3
Washington also did not upset the holding in Newman and Ruiz that an
Alleyne violation renders a sentence illegal for purposes of waiver analysis.
Washington stands for the proposition that no Alleyne violation can occur
in the first place where the defendant’s sentence was imposed and became
final before Alleyne was decided. The Washington Court noted it recently
granted allowance of appeal in a separate case to address the distinct issue
of whether an Alleyne violation implicates the legality of sentence for issue
preservation purposes. See Washington, supra at *4 n.6 (citing
Commonwealth v. Barnes, ___ Pa. ___, 122 A.3d 1034 (2015)).
Therefore, under current law, the claim that a sentence violates Alleyne
remains a nonwaivable challenge to the legality of the sentence. See
Newman, supra; Ruiz, supra.
-7-
J-S62041-15
Bartrug, 732 A.2d 1287 (Pa.Super. 1999), appeal denied, 561 Pa. 651, 747
A.2d 896 (1999) (holding sentencing error in multi-count case normally
requires appellate court to vacate entire judgment of sentence so trial court
can restructure its sentencing scheme on remand).
Order reversed; judgment of sentence vacated; case remanded for
resentencing. Jurisdiction is relinquished.
Judge Jenkins concurs in the result.
Judge Platt concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/19/2016
-8-