J. S54043/15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellee : : v. : : TROY BROADUS, : : Appellant : No. 893 EDA 2015
Appeal from the PCRA Order March 12, 2015 In the Court of Common Pleas of Montgomery County Criminal Division No(s).: CP-46-CR-0007849-2010
BEFORE: BOWES, PANELLA, and FITZGERALD,* JJ.
MEMORANDUM BY FITZGERALD, J.: FILED FEBRUARY 29, 2016
Appellant, Troy Broadus, appeals pro se from the order entered in the
Montgomery County Court of Common Pleas dismissing his first, timely-filed
Post Conviction Relief Act1 (“PCRA”) petition. He argues, inter alia, his
sentence under 18 Pa.C.S. § 7508, which imposes mandatory minimum
sentences for possessing certain weights of drugs, is illegal under 42 Pa.C.S.
§ 9756, which provides a minimum sentence should not exceed one-half of
the maximum sentence. We vacate the judgment of sentence and remand
for resentencing.
* Former Justice specially assigned to the Superior Court. 1 42 Pa.C.S. §§ 9541-9546. J.S54043/15
On October 8, 2013, Appellant entered negotiated guilty pleas to two
counts of possessing a controlled substance with intent to deliver.2 He
admitted to, inter alia, selling approximately 28 grams of cocaine and 111
grams of cocaine to undercover officers on separate occasions. N.T.,
10/8/13, at 10. The court immediately imposed the following negotiated
sentences on each count, to run concurrently: (1) three to six years’
imprisonment, and (2) seven to ten years’ imprisonment. For both
sentences, the court applied the mandatory sentence provisions of 18
Pa.C.S. § 7508.
Appellant did not file a post-sentence motion or a direct appeal. On
September 25, 2014,3 he filed a pro se, timely PCRA petition arguing, inter
alia, his mandatory minimum sentence was unconstitutional under Alleyne
v. United States, 133 S. Ct. 2151 (2013). Appellant’s PCRA Pet., 9/25/14,
at 2 (unpaginated). The PCRA court appointed Patrick J. McMenamin, Jr.,
Esq. (“Counsel”) to represent Appellant. Counsel then filed a “no merit”
Finley4 letter to withdraw from representation. On February 13, 2015, the
court granted Counsel’s petition to withdraw and issued a Pa.R.Crim.P. 907
2 35 P.S. § 780-113(a)(30). 3 The petition was postmarked this date. See generally Commonwealth v. Wilson, 911 A.2d 942, 944 n.2 (Pa. Super. 2006) (discussing prisoner mailbox rule). 4 See Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
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notice of intent to dismiss Appellant’s petition without a hearing. In
response to the notice, Appellant filed a pro se letter, arguing only that his
sentence was illegal because the minimum sentence exceeded one-half of
the maximum. The court dismissed the PCRA petition on March 13, 2015,
and Appellant filed a timely pro se notice of appeal and complied with the
court’s order to file a Pa.R.A.P. 1925(b) statement of matters complained of
on appeal.
The argument section in Appellant’s pro se brief, one and a half pages
in length, is not entirely clear and short in discussion. 5 Nevertheless, we
discern that one of Appellant’s claims is that his sentence of seven to ten
years is illegal because the minimum exceeds one-half the maximum. His
sole argument is, “Essentially, the court paid lip service to the requirement
of the statute 9756(b) and stated 7508 that this case of Hockenberry was
different circumstances of how both petitioners argued their cases.”6 Id. at
8. We conclude he is entitled to relief.
5 See Pa.R.A.P. 2119(a) (requiring argument section to include “discussion and citation of authorities as are deemed pertinent”); Commonwealth v. Johnson, 985 A.2d 915, 924 (Pa. 2009) (holding claim is waived where appellate brief fails to provide any discussion with citation to relevant authority or fails to develop issue in any meaningful fashion capable of review). 6 In Commonwealth v. Hockenberry, 689 A.2d 283 (Pa. Super. 1997), the defendant, like Appellant in the case sub judice, received a sentence of seven to ten years’ imprisonment pursuant to the mandatory minimum sentencing provisions of 18 Pa.C.S. § 7508(a). See Hockenberry, 689 A.2d at 287. On appeal, the defendant “contend[ed] his sentence [was] in
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Initially, Appellant’s claim goes to the legality of sentence, see
Hockenberry, 689 A.2d at 288, and is therefore not waived. See
Commonwealth v. Concordia, 97 A.3d 366, 372 (Pa. Super. 2014)
(“[W]hile challenges to the legality of a defendant’s sentence cannot be
waived, they ordinarily must be raised within a timely PCRA petition.”);
Commonwealth v. Randal, 837 A.2d 1211, 1214 (Pa. Super. 2003)
(noting, “challenges to ‘[a]n illegal sentence can never be waived and may
be reviewed sua sponte by this Court.’ ‘An illegal sentence must be
vacated.’” (citations omitted)). “Issues relating to the legality of a sentence
are questions of law[.] . . . Our standard of review over such questions is de
novo and our scope of review is plenary.” Commonwealth v. Cardwell,
105 A.3d 748, 750 (Pa. Super. 2014) (citation omitted), appeal denied, 121
A.3d 494 (Pa. Aug. 12, 2015).
On June 17, 2013, the United States Supreme Court decided Alleyne.
The Ruiz Court summarized the Alleyne holding as follows:
In Alleyne, the United States Supreme Court held “[a]ny fact that, by law, increases the penalty for a crime is an ‘element’ that must be submitted to the jury and found beyond a reasonable doubt.” In applying that mandate, an en banc panel of this Court, in
violation of 42 Pa.C.S. § 9756(b), which provides that the court ‘shall impose a minimum sentence of confinement which shall not exceed one-half of the maximum sentence imposed.’” Id. at 289. This Court construed the defendant’s claim as a challenge to the legality of his sentence, id. at 288, and denied relief, reasoning Section 7508 crafted an exception to Section 9756. Id. at 289.
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Commonwealth v. Newman, supra, 99 A.3d 86 (Pa. Super. 2014) (en banc), appeal denied, 121 A.3d 496 (Pa. 2015), held that Alleyne rendered the mandatory minimum sentencing provision at 42 Pa.C.S. § 9712.1 . . . unconstitutional.
* * *
We note the Newman Court instructed that Alleyne applies only to cases pending on direct appeal as of June 27, 2013, the date of the Alleyne decision.
Commonwealth v. Ruiz, ___ A.3d ___, 2015 WL 9632089, at *2-*3 (Pa.
Super. Dec. 30, 2015) (citations omitted). “The Newman Court also made
clear that an Alleyne claim is a non-waivable challenge to the legality of
sentence. Such a claim may be raised on direct appeal, or in a timely filed
PCRA petition.” Id. at *5 (citations and footnote omitted). In Ruiz, the
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J. S54043/15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellee : : v. : : TROY BROADUS, : : Appellant : No. 893 EDA 2015
Appeal from the PCRA Order March 12, 2015 In the Court of Common Pleas of Montgomery County Criminal Division No(s).: CP-46-CR-0007849-2010
BEFORE: BOWES, PANELLA, and FITZGERALD,* JJ.
MEMORANDUM BY FITZGERALD, J.: FILED FEBRUARY 29, 2016
Appellant, Troy Broadus, appeals pro se from the order entered in the
Montgomery County Court of Common Pleas dismissing his first, timely-filed
Post Conviction Relief Act1 (“PCRA”) petition. He argues, inter alia, his
sentence under 18 Pa.C.S. § 7508, which imposes mandatory minimum
sentences for possessing certain weights of drugs, is illegal under 42 Pa.C.S.
§ 9756, which provides a minimum sentence should not exceed one-half of
the maximum sentence. We vacate the judgment of sentence and remand
for resentencing.
* Former Justice specially assigned to the Superior Court. 1 42 Pa.C.S. §§ 9541-9546. J.S54043/15
On October 8, 2013, Appellant entered negotiated guilty pleas to two
counts of possessing a controlled substance with intent to deliver.2 He
admitted to, inter alia, selling approximately 28 grams of cocaine and 111
grams of cocaine to undercover officers on separate occasions. N.T.,
10/8/13, at 10. The court immediately imposed the following negotiated
sentences on each count, to run concurrently: (1) three to six years’
imprisonment, and (2) seven to ten years’ imprisonment. For both
sentences, the court applied the mandatory sentence provisions of 18
Pa.C.S. § 7508.
Appellant did not file a post-sentence motion or a direct appeal. On
September 25, 2014,3 he filed a pro se, timely PCRA petition arguing, inter
alia, his mandatory minimum sentence was unconstitutional under Alleyne
v. United States, 133 S. Ct. 2151 (2013). Appellant’s PCRA Pet., 9/25/14,
at 2 (unpaginated). The PCRA court appointed Patrick J. McMenamin, Jr.,
Esq. (“Counsel”) to represent Appellant. Counsel then filed a “no merit”
Finley4 letter to withdraw from representation. On February 13, 2015, the
court granted Counsel’s petition to withdraw and issued a Pa.R.Crim.P. 907
2 35 P.S. § 780-113(a)(30). 3 The petition was postmarked this date. See generally Commonwealth v. Wilson, 911 A.2d 942, 944 n.2 (Pa. Super. 2006) (discussing prisoner mailbox rule). 4 See Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
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notice of intent to dismiss Appellant’s petition without a hearing. In
response to the notice, Appellant filed a pro se letter, arguing only that his
sentence was illegal because the minimum sentence exceeded one-half of
the maximum. The court dismissed the PCRA petition on March 13, 2015,
and Appellant filed a timely pro se notice of appeal and complied with the
court’s order to file a Pa.R.A.P. 1925(b) statement of matters complained of
on appeal.
The argument section in Appellant’s pro se brief, one and a half pages
in length, is not entirely clear and short in discussion. 5 Nevertheless, we
discern that one of Appellant’s claims is that his sentence of seven to ten
years is illegal because the minimum exceeds one-half the maximum. His
sole argument is, “Essentially, the court paid lip service to the requirement
of the statute 9756(b) and stated 7508 that this case of Hockenberry was
different circumstances of how both petitioners argued their cases.”6 Id. at
8. We conclude he is entitled to relief.
5 See Pa.R.A.P. 2119(a) (requiring argument section to include “discussion and citation of authorities as are deemed pertinent”); Commonwealth v. Johnson, 985 A.2d 915, 924 (Pa. 2009) (holding claim is waived where appellate brief fails to provide any discussion with citation to relevant authority or fails to develop issue in any meaningful fashion capable of review). 6 In Commonwealth v. Hockenberry, 689 A.2d 283 (Pa. Super. 1997), the defendant, like Appellant in the case sub judice, received a sentence of seven to ten years’ imprisonment pursuant to the mandatory minimum sentencing provisions of 18 Pa.C.S. § 7508(a). See Hockenberry, 689 A.2d at 287. On appeal, the defendant “contend[ed] his sentence [was] in
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Initially, Appellant’s claim goes to the legality of sentence, see
Hockenberry, 689 A.2d at 288, and is therefore not waived. See
Commonwealth v. Concordia, 97 A.3d 366, 372 (Pa. Super. 2014)
(“[W]hile challenges to the legality of a defendant’s sentence cannot be
waived, they ordinarily must be raised within a timely PCRA petition.”);
Commonwealth v. Randal, 837 A.2d 1211, 1214 (Pa. Super. 2003)
(noting, “challenges to ‘[a]n illegal sentence can never be waived and may
be reviewed sua sponte by this Court.’ ‘An illegal sentence must be
vacated.’” (citations omitted)). “Issues relating to the legality of a sentence
are questions of law[.] . . . Our standard of review over such questions is de
novo and our scope of review is plenary.” Commonwealth v. Cardwell,
105 A.3d 748, 750 (Pa. Super. 2014) (citation omitted), appeal denied, 121
A.3d 494 (Pa. Aug. 12, 2015).
On June 17, 2013, the United States Supreme Court decided Alleyne.
The Ruiz Court summarized the Alleyne holding as follows:
In Alleyne, the United States Supreme Court held “[a]ny fact that, by law, increases the penalty for a crime is an ‘element’ that must be submitted to the jury and found beyond a reasonable doubt.” In applying that mandate, an en banc panel of this Court, in
violation of 42 Pa.C.S. § 9756(b), which provides that the court ‘shall impose a minimum sentence of confinement which shall not exceed one-half of the maximum sentence imposed.’” Id. at 289. This Court construed the defendant’s claim as a challenge to the legality of his sentence, id. at 288, and denied relief, reasoning Section 7508 crafted an exception to Section 9756. Id. at 289.
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Commonwealth v. Newman, supra, 99 A.3d 86 (Pa. Super. 2014) (en banc), appeal denied, 121 A.3d 496 (Pa. 2015), held that Alleyne rendered the mandatory minimum sentencing provision at 42 Pa.C.S. § 9712.1 . . . unconstitutional.
* * *
We note the Newman Court instructed that Alleyne applies only to cases pending on direct appeal as of June 27, 2013, the date of the Alleyne decision.
Commonwealth v. Ruiz, ___ A.3d ___, 2015 WL 9632089, at *2-*3 (Pa.
Super. Dec. 30, 2015) (citations omitted). “The Newman Court also made
clear that an Alleyne claim is a non-waivable challenge to the legality of
sentence. Such a claim may be raised on direct appeal, or in a timely filed
PCRA petition.” Id. at *5 (citations and footnote omitted). In Ruiz, the
defendant was sentenced on June 5, 2013, and because he did not file a
direct appeal, his judgment of sentence became final on July 5, 2013, after
Alleyne was decided. “As such, Ruiz’s case ‘was still pending on direct
appeal when Alleyne was handed down, and the decision may be applied to
[Ruiz’s] case retroactively.’” Id. at *4 (citations omitted). On November
25, 2014, in Cardwell, this Court held Section 7508 was facially
unconstitutional in its entirety under Alleyne. See Cardwell, 105 A.3d at
754. “If no statutory authorization exists for a particular sentence, that
sentence is illegal and subject to correction.” Randal, 837 A.2d at 1214.
As noted above, on October 8, 2013, several months after Alleyne
was decided, the court sentenced Appellant. Appellant did not file a direct
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appeal, but did file a timely PCRA petition invoking Alleyne. Cf. Ruiz, ___
A.3d at ___, 2015 WL 9632089 at *5. Subsequently, the Cardwell Court
invalidated Section 7508—the section Appellant was sentenced under—as
unconstitutional. See Cardwell, 105 A.3d at 754. Because Appellant filed a
timely PCRA petition invoking Alleyne, and because the statute under which
he was sentenced was deemed unconstitutional, we conclude he is entitled
to relief. See Ruiz, ___ A.3d at ___, 2015 WL 9632089 at *5; Cardwell,
105 A.3d at 754. Accordingly, we reverse the order dismissing Appellant’s
PCRA petition, vacate Appellant’s judgment of sentence, and remand for
resentencing.
Order reversed. Judgment of sentence vacated. Case remanded for
resentencing. Jurisdiction relinquished.
Panella, J., joins this memorandum.
Bowes, J., concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 2/29/2016
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