Commonwealth v. DiMatteo

• Decision Date: 18 January 2018
• Docket Number: No. 10 MAP 2017,10 MAP 2017
• Citation: 177 A.3d 182
• Parties: COMMONWEALTH of Pennsylvania, Appellant v. Phillip DIMATTEO, Appellee
• Court: Pennsylvania Supreme Court

177 A.3d 182

COMMONWEALTH of Pennsylvania, Appellant

v.Phillip DIMATTEO, Appellee

No. 10 MAP 2017

Supreme Court of Pennsylvania.

Submitted June 16, 2017

Decided January 18, 2018

Nicholas J. Casenta Jr., Esq., Thomas P. Hogan Jr., Esq., Chester County District Attorney's Office, for Commonwealth of Pennsylvania, Appellant.

Phillip DiMatteo, Pro Se.

SAYLOR, C.J., BAER, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, JJ.

OPINION

JUSTICE MUNDY

We granted review in this case to assess what relief, if any, a criminal defendant is entitled to when he raises an illegal sentencing challenge premised on Alleyne v. United States , 570 U.S. 99, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013) in a timely petition filed pursuant to the Post Conviction Relief Act, 42 Pa.C.S. §§ 9541 – 9546, when, at the time Alleyne was decided, the defendant's judgment of sentence was not yet final.

I.

On November 20, 2012, Appellee, Phillip DiMatteo, entered into an open guilty plea to 56 counts¹ of possession with intent to deliver (PWID) and one count each of criminal conspiracy and corrupt organizations.² The charges stemmed from a drug operation in which DiMatteo and fourteen other individuals were involved in trafficking cocaine. Relevant to the issue, the Commonwealth sought imposition of the mandatory minimum sentence under 18 Pa.C.S. § 7508. Section 7508 prescribes various mandatory minimum sentences for certain violations of The Controlled Substance, Drug, Device and Cosmetic Act, including PWID, predicated on the weight and classification of the controlled substance. See id. Notably, Section 7508 specifies that its provisions "shall not be an element of the crime[,]" the application of the sentence "shall be determined at sentencing[,]" and the factual determinations necessary to impose the sentence are to be found by the sentencing court by a preponderance of the evidence. 18 Pa.C.S. § 7508(b). On February 6, 2013, the court imposed mandatory minimum sentences pursuant to Section 7508 on 55 counts of PWID.³ N.T., 2/6/13, at 50–52. The sentencing court structured its sentence, by ordering certain sentences to run concurrently and others consecutively, such that DiMatteo faced an aggregate sentence of fifteen to thirty years' imprisonment.⁴ Id. at 54.

DiMatteo timely sought reconsideration of his sentence from the sentencing court. The court denied his motion on June 12, 2013. Five days following the sentencing court's denial of DiMatteo's motion for reconsideration, on June 17, 2013, the United States Supreme Court issued its decision in Alleyne. Alleyne held that any fact which, by law, increases the mandatory minimum sentence for a crime must be: (1) treated as an element of the offense, as opposed to a sentencing factor; (2) submitted to the jury; and (3) found beyond a reasonable doubt. Alleyne , 133 S.Ct. at 2163.

DiMatteo did not file a notice of appeal to the Superior Court. On May 22, 2014, DiMatteo filed a timely, pro se PCRA petition in which he argued post-sentence counsel⁵ was ineffective for failure to investigate a change in the law which prohibits the imposition of the mandatory minimum sentences under which he was sentenced and for counsel's failure to file a direct appeal.⁶ DiMatteo's PCRA Pet., 5/22/14, at 3. Counsel was appointed; however, he believed that the issues raised were without merit and filed a petition to withdraw.⁷ The PCRA court determined the allegation that post-sentence counsel failed to file a direct appeal presented a genuine issue of material fact and held a hearing on May 12, 2015. On August 25, 2015, the PCRA court denied the petition.

DiMatteo appealed the denial of his petition to the Superior Court challenging the PCRA court's denial of both of his issues. In an unpublished memorandum opinion, the Superior Court vacated DiMatteo's judgment of sentence and remanded for resentencing. The intermediate court limited its discussion to whether DiMatteo was serving an illegal sentence under Alleyne without addressing the ineffective assistance of counsel claim. It noted that decisions of the Superior Court have clarified that the holding in Alleyne rendered sentences imposed pursuant to Section 7508 unconstitutional. Commonwealth v. DiMatteo , 2016 WL 5341100 at *2 (Pa. Super. July 25, 2016). The court found its decision in Commonwealth v. Ruiz , 131 A.3d 54 (Pa. Super. 2015), to be dispositive. The court explained that in Ruiz , a panel of the Superior Court "held that where a petitioner currently serving a mandatory minimum sentence has filed a timely PCRA petition and his judgment of sentence was not final at the time Alleyne was decided, his sentence is illegal and he is entitled to a new sentence." DiMatteo , 2016 WL 5341100 at *2. Accordingly, it remanded for resentencing. Of significance, six days prior to the Superior Court's ruling on DiMatteo's claim, this Court decided Commonwealth v. Washington , 636 Pa. 301, 142 A.3d 810 (2016), wherein we held "that Alleyne does not apply retroactively to cases pending on collateral review[.]" Washington , 142 A.3d at 820.

We granted the Commonwealth's petition for allowance of appeal to consider if the Superior Court's decision is in conflict with this Court's decision in Washington , and, in the event DiMatteo is entitled to relief, whether the Superior Court ordered the appropriate remedy. See Commonwealth v. DiMatteo , 166 A.3d 1229 (Pa. 2017) (per curiam). Our scope of review over the legal questions presented is plenary. Washington , 142 A.3d at 814.

We find it beneficial to engage in a brief recitation of the jurisprudential landscape informing this decision. As noted, the Supreme Court rendered the Alleyne decision on June 17, 2013, and held that sentencing schemes which predicated the imposition of a mandatory minimum sentence on a fact found by the sentencing court, by a preponderance of the evidence, were unconstitutional. The decision was an extension of Apprendi v. New Jersey , 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), which held any fact that increases the punishment for a crime beyond the statutorily prescribed maximum must be submitted to the jury and found beyond a reasonable doubt. Apprendi , 530 U.S. at 490, 120 S.Ct. 2348. Initially, the United States Supreme Court declined to extend the logic of Apprendi and upheld the constitutionality of mandatory minimum sentencing statutes that mandated a judge to find the operative sentencing fact by a preponderance of the evidence. See Harris v. United States , 536 U.S. 545, 567–68, 122 S.Ct. 2406, 153 L.Ed.2d 524 (2002) (explaining that Apprendi only prohibited judicial power to extend the mandatory maximum sentence beyond what was authorized by statute and reaffirming its pre– Apprendi decision, McMillan v. Pennsylvania , 477 U.S. 79, 106 S.Ct. 2411, 91 L.Ed.2d 67 (1986) ). However, in Alleyne , the Supreme Court reconsidered and expressly overruled its decision in Harris. See Alleyne , 133 S.Ct. at 2163. The effect of the decision in this Commonwealth was the invalidation of a number of similarly-patterned mandatory minimum sentencing statutes as unconstitutional, which were challenged on direct appeal. See, e.g. Commonwealth v. Newman , 99 A.3d 86, 98–102 (Pa. Super 2014) (en banc ) (declaring 42 Pa.C.S. § 9712.1 unconstitutional because it increased the penalty for certain drug offenses when a judge finds, by a preponderance of the evidence, that at the time of the offense, the offender was in possession of a firearm). ⁸

This Court answered the question of whether these statutes could withstand constitutional scrutiny in the negative in Commonwealth v. Hopkins , 632 Pa. 36, 117 A.3d 247, 259–60 (2015) (holding 42 Pa.C.S. § 6317 unconstitutional because it allowed a judge to increase a sentence for conviction of drug offenses based on the occurrence of the offense within 1,000 feet of a school and that such legislatively mandated fact-finding could not be severed), and Commonwealth v. Wolfe , 636 Pa. 37, 140 A.3d 651, 660–61 (2016) (holding 42 Pa.C.S. § 9718 unconstitutional notwithstanding that the operative, mandatory sentencing fact was an element of the underlying offense).⁹

Although this Court definitively concluded that mandatory sentencing statutes patterned in this manner were unconstitutional, questions lingered over whether such challenges should be regarded as illegal sentencing claims subject to sua sponte correction on direct appeal by the courts notwithstanding a failure to raise and/or preserve the claim. In Commonwealth v. Barnes , 637 Pa. 493, 151 A.3d 121 (2016), this Court squarely addressed the issue. Barnes was sentenced to a mandatory minimum term of five years' imprisonment pursuant to 42 Pa.C.S. § 9712.1 based on his conviction for PWID and based on a judicial finding that drugs were in close proximity to a firearm. See Barnes , 151 A.3d at 122. Barnes filed his notice of appeal to the Superior Court on June 14, 2013 raising two challenges to the sufficiency of the evidence. Four days after he filed his notice of appeal, the Supreme Court announced its decision in Alleyne. See id. at 123. The Superior Court affirmed the judgment of sentence, and sua sponte addressed and dismissed the notion that Barnes' sentence violated Alleyne. See id. (explaining that the Superior Court relied on its pre– Newman decision in Commonwealth v. Watley , 81 A.3d 108, 118–21 (Pa. Super. 2013) (en banc ), which held no Alleyne violation occurs by the imposition of Section § 9712.1 where a jury convicts of PWID contemporaneously with a possessory firearm charge.). This Court accepted review to address whether the Superior Court erred in its treatment of the Alleyne issue, and whether the failure of Barnes to raise the issue precluded relief. A majority of this Court ultimately found that Alleyne challenges on direct appeal implicate the legality of the sentence and are not subject to traditional rules of issue preservation.

As that sentencing provision has now been rendered unconstitutional on

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