Opinion
J-S53010-17 No. 1028 EDA 2016
10-11-2017
COMMONWEALTH OF PENNSYLVANIA, Appellee v. GARY PALMER, Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the PCRA Order Entered March 4, 2016
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0204941-2006 CP-51-CR-1100971-2005 BEFORE: BENDER, P.J.E., OLSON, J., and FORD ELLIOTT, P.J.E. MEMORANDUM BY BENDER, P.J.E.:
Appellant, Gary Palmer, appeals from the post-conviction court's March 4, 2016 order denying his timely-filed petition under the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. After careful review, we affirm in part, reverse in part, vacate Appellant's judgment of sentence, and remand to the PCRA court for resentencing.
Briefly, Appellant was charged in two separate cases with various offenses stemming from a string of robberies and a shootout with police before they took Appellant into custody for those robberies. Appellant's cases were consolidated and proceeded to a jury trial in May of 2007. At the close thereof, the jury convicted Appellant of multiple crimes, including robbery, theft by unlawful taking, aggravated assault, simple assault, recklessly endangering another person, terroristic threats, possessing an instrument of crime, possession with intent to deliver a controlled substance, and several firearm offenses. Appellant was ultimately sentenced August 7, 2007, to an aggregate term of 11 to 22 years' incarceration, followed by 6 years' probation.
Appellant filed a timely direct appeal, but due to procedural matters not pertinent herein, it was not until November 30, 2012, that this Court affirmed his judgment of sentence. Commonwealth v. Palmer , 63 A.3d 841 (Pa. Super. 2012) (unpublished judgment order). On May 2, 2013, our Supreme Court denied Appellant's petition for allowance of appeal. Commonwealth v. Palmer , 67 A.3d 795 (Pa. 2013). Therefore, his judgment of sentence became final ninety days thereafter, or on July 31, 2013. See 42 Pa.C.S. § 9545(b)(3) (stating that a judgment of sentence becomes final at the conclusion of direct review or the expiration of the time for seeking the review); Commonwealth v. Owens , 718 A.2d 330, 331 (Pa. Super. 1998) (directing that under the PCRA, petitioner's judgment of sentence becomes final ninety days after our Supreme Court rejects his or her petition for allowance of appeal since petitioner had ninety additional days to seek review with the United States Supreme Court).
Appellant filed a timely, pro se PCRA petition on December 20, 2013. Counsel was appointed and filed several amended petitions on Appellant's behalf over the ensuing years. On February 3, 2016, the PCRA court issued a Pa.R.Crim.P. 907 notice of its intent to dismiss Appellant's petition, and issued an order doing so on March 4, 2016. Appellant filed a timely notice of appeal, and he also timely complied with the PCRA court's order to file a Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal. The PCRA court filed a Rule 1925(a) opinion on January 31, 2017.
Herein, Appellant presents two issues for our review:
1. Did the [PCRA] [c]ourt err in failing to grant discovery and dismissing the PCRA petition without holding an evidentiary hearing to determine the substantial issues of material fact?Appellant's Brief at 10.
2. Was counsel ineffective for failing to object to the prosecutor's falsely using firearms recovered in the police shooting incident to convict [] Appellant on the robberies, for failing to object to the consolidation of the cases, for failing to raise a speedy trial issue and for failing to object to [] Appellant's mandatory minimum sentence[?]
Our standard of review regarding an order denying post-conviction relief under the PCRA is whether the determination of the court is supported by the evidence of record and is free of legal error. Commonwealth v. Ragan , 923 A.2d 1169, 1170 (Pa. 2007). This Court grants great deference to the findings of the PCRA court, and we will not disturb those findings merely because the record could support a contrary holding. Commonwealth v. Touw , 781 A.2d 1250, 1252 (Pa. Super. 2001).
We will begin by addressing Appellant's claim that his trial and appellate counsels acted ineffectively by not challenging the legality of two mandatory minimum sentences imposed in this case. Appellant argues that those sentences were rendered illegal by the United States Supreme Court's decision in Alleyne v. United States , 133 S.Ct. 2151, 2163 (2013) (holding that "facts that increase mandatory minimum sentences must be submitted to the jury" and found beyond a reasonable doubt). Specifically, Appellant received mandatory minimum sentences under 42 Pa.C.S. §§ 9712 (Sentences for offenses committed with firearms) and 9712.1 (Sentences for certain drug offenses committed with firearms). Both of these sentencing statutes have been declared unconstitutional under Alleyne. See Commonwealth v. Newman , 99 A.3d 86 (Pa. Super. 2014) (en banc) (holding that 42 Pa.C.S. § 9712.1 is unconstitutional under Alleyne ); Commonwealth v. Valentine , 101 A.3d 801 (Pa. Super. 2014) (declaring 42 Pa.C.S. § 9712 unconstitutional under Alleyne ).
While Appellant frames his sentencing challenge as an ineffectiveness claim, we will simply review the legality of his mandatory minimum sentences directly, as we are permitted to raise such issues sua sponte. See Commonwealth v . Orellana , 86 A.3d 877, 882-83 n.7 (recognizing "that this Court is endowed with the ability to consider an issue of legality of sentence sua sponte") (citation omitted).
Preliminarily, Appellant recognizes that our Supreme Court has held that Alleyne does not apply retroactively to collateral attacks on mandatory minimum sentences. See Appellant's Brief at 27 (citing Commonwealth v. Washington , 142 A.3d 810 (Pa. 2016)); see also Commonwealth v. Riggle , 119 A.3d 1058 (Pa. Super. 2015) (declining to give Alleyne retroactive effect to cases where a timely PCRA petition was filed and the petitioner's judgment of sentence was finalized before Alleyne was decided). However, Appellant avers, and we agree, that Washington and Riggle are distinguishable from the present case. Notably, in both Washington and Riggle , the petitioners' judgments of sentence became final before Alleyne was decided on June 17, 2013. In contrast, here, Appellant's judgment of sentence became final on July 31, 2013, after Alleyne was issued. In another case with a similar procedural posture, Commonwealth v. Ruiz , 131 A.3d 54 (Pa. Super. 2015), this Court held that Alleyne may be applied retroactively to a timely PCRA petitioner, as long as the petitioner's judgment of sentence was not yet final when Alleyne was decided. Id. at 59-60. See also Newman , 99 A.3d at 90 (holding that Newman's case "was still pending on direct appeal when Alleyne was handed down, and the decision may be applied to [Newman's] case retroactively") (footnote omitted).
As in Ruiz and Newman , here, Appellant's judgment of sentence was not final when Alleyne was decided. Therefore, as the PCRA court now recognizes, and the Commonwealth concedes, " Alleyne applies directly to [Appellant], because his judgments of sentence were not yet final when the decision was announced." Commonwealth's Brief at 28 (citing Ruiz , supra ); PCRA Court Opinion (PCO), 1/31/17, at 8 (stating that Appellant's "[j]udgment of [s]entence did not become final until July 31, 2013, well after Alleyne was decided, rendering his sentence illegal"). Accordingly, Appellant's mandatory minimum sentences are illegal pursuant to Alleyne , and we must vacate his judgment of sentence and remand for resentencing, without imposition of those mandatory minimum terms of incarceration.
In regard to Appellant's other issues, we have reviewed the briefs of the parties, the certified record, and the applicable law. Additionally, we have reviewed the thorough opinion of the Honorable Charles J. Cunningham, III, of the Court of Common Pleas of Philadelphia County. We conclude that Judge Cunningham's well-reasoned opinion accurately disposes of the remaining issues presented by Appellant. See PCO at 8-24. Accordingly, we adopt that opinion as our own and affirm the denial of Appellant's issues (aside from his legality of sentence claim) for the reasons set forth therein.
Order reversed in part, affirmed in part. Judgment of sentence vacated. Case remanded for resentencing. Jurisdiction relinquished. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 10/11/2017
Image materials not available for display.