Commonwealth v. Washington, T., Aplt.

142 A.3d 810, 636 Pa. 301, 2016 Pa. LEXIS 1536, 2016 WL 3909088
CourtSupreme Court of Pennsylvania
DecidedJuly 19, 2016
Docket37 EAP 2015
StatusPublished
Cited by519 cases

This text of 142 A.3d 810 (Commonwealth v. Washington, T., Aplt.) is published on Counsel Stack Legal Research, covering Supreme Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth v. Washington, T., Aplt., 142 A.3d 810, 636 Pa. 301, 2016 Pa. LEXIS 1536, 2016 WL 3909088 (Pa. 2016).

Opinions

OPINION

Chief Justice SAYLOR.

The controlling question presented is whether the Supreme Court of the United States’ decision in Alleyne v. United States, — U.S. - , 138 S.Ct. 2151, 186 L.Ed.2d 314 (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 eneom-[303]*303passing 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, 632 Pa. 36, 61-62, 117 A.3d 247, 262 (2015) (holding that Section 6317 of the Crimes Code, 18 Pa.C.S. § 6317 — which predicates a mandatory minimum sen[304]*304tence 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, 2015 WL 7203054 (Pa.Super. May 12, 2015) (citing Commonwealth v. Valentine, 101 A.3d 801, 811-12 (Pa.Super.2014)). 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) (“[Wjhere 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, “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 [305]*305issue 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, 103 L.Ed.2d 334 (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, 193 L.Ed.2d 599 (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, 28 L.Ed.2d 404 (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, 159 L.Ed.2d 442 (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 Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct.

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Bluebook (online)
142 A.3d 810, 636 Pa. 301, 2016 Pa. LEXIS 1536, 2016 WL 3909088, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-washington-t-aplt-pa-2016.