Commonwealth v. Johnson, J-S09021-15

CourtSuperior Court of Pennsylvania
Decision Date13 March 2015
Docket NumberNo. 1073 WDA 2014,J-S09021-15,1073 WDA 2014
PartiesCOMMONWEALTH OF PENNSYLVANIA, Appellee v. FRANK JOHNSON, Appellant

COMMONWEALTH OF PENNSYLVANIA, Appellee
v.
FRANK JOHNSON, Appellant

J-S09021-15
No. 1073 WDA 2014

SUPERIOR COURT OF PENNSYLVANIA

MARCH 13, 2015


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

Appeal from the PCRA Order June 9, 2014
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0018920-2008

BEFORE: FORD ELLIOTT, P.J.E., BOWES, and ALLEN, JJ.

MEMORANDUM BY BOWES, J.:

Frank Johnson appeals from the order entered June 9, 2014, denying his PCRA petition. After careful review, we vacate and remand for additional proceedings.

On August 2, 2011, a jury found Appellant guilty of two counts of possession with intent to deliver ("PWID") cocaine, possession of cocaine, possession of drug paraphernalia, possession of a small amount of marijuana, and criminal conspiracy to commit PWID. The court imposed sentence on October 17, 2011. Based on 18 Pa.C.S. § 7508, a drug mandatory minimum statute relating to prior convictions and the weight of the drugs involved, the court imposed a five to ten year sentence on one count of PWID. The court further imposed a consecutive two and one-half to

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five year sentence for the conspiracy charge. In addition, the court awarded Appellant 453 days of credit for time served.

Appellant filed a timely post-sentence motion and trial counsel also sought to withdraw. Trial counsel was permitted to withdraw and substitute counsel was appointed and filed a modified post-sentence motion. The trial court denied that motion and Appellant timely appealed. This Court affirmed the judgment of sentence. Commonwealth v. Johnson, 63 A.3d 820 (Pa.Super. 2012) (unpublished memorandum). Thereafter, Appellant sought review with the Pennsylvania Supreme Court, which denied his petition for allowance of appeal on April 30, 2013. Commonwealth v. Johnson, 65 A.3d 413 (Pa. 2013).

Appellant timely filed a pro se PCRA petition on July 22, 2013. The PCRA court promptly appointed PCRA counsel on July 24, 2013, and directed counsel to file an amended petition. Initial PCRA counsel withdrew as a result of a conflict of interest, and the court appointed substitute counsel. New PCRA counsel then filed an amended petition arguing that Appellant's sentence was illegal based on Alleyne v. United States, 133 S.Ct. 2151 (2013), a decision filed after Appellant's trial, sentencing, and this Court's decision on direct appeal. Specifically, Appellant alleged that his sentence was illegal because the jury did not determine the weight of the cocaine that triggered application of the mandatory sentence. The Commonwealth filed a response, and the PCRA court issued a Pa.R.Crim.P. 907 notice of dismissal

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on May 7, 2014. The PCRA court entered a final order denying Appellant's petition on May 28, 2014. New counsel was appointed on June 30, 2014, and this timely appeal followed.

The PCRA court directed Appellant to file and serve a Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal. Appellant complied, and the PCRA court authored its opinion. The matter is now ready for this Court's review. Appellant raises three issues for this Court's consideration.

1. Whether Defendant is entitled to additional credit for the period of February 12 to 27, 2009 because he was detained for that period on account of the instant matter and the period of February 28, 2009 to April 15, 2009 because he was detained for probation violation proceedings based, in part, upon the new charges in the instant matter and where credit for either of those periods was not applied to any other case/matter?

2. Whether the sentence imposed was illegal as the jury did not find beyond a reasonable doubt that the defendant was in possession of more than 10 but less than 100 grams of cocaine as required under the Sixth Amendment to the United States Constitution and Alleyne v. United States, --- U.S. ---, 133 S.Ct. 2151 (2013)?

3. Whether the decision in Alleyne v. United States, --- U.S. ---, 133 S.Ct. 2151 (2013) applies retroactively to cases on collateral review?

Appellant's brief at 3.

Appellant's initial challenge is to the court's failure to award credit for time served from February 12, 2009 to April 15, 2009. Claims related to credit for time served for periods spent incarcerated prior to sentencing have

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been held to relate to the legality of one's sentence. Commonwealth v. Hollawell, 604 A.2d 723 (Pa.Super. 1992); Commonwealth v. Beck, 848 A.2d 987 (Pa.Super. 2004); Commonwealth v. Davis, 852 A.2d 392 (Pa.Super. 2004). Accordingly, the issue, if raised in a timely PCRA matter, is non-waivable. Commonwealth v. Fahy, 737 A.2d 214, 223 (Pa. 1999). Since the question is one of law, our standard of review is de novo and our scope of review is plenary. Commonwealth v. Pander, 100 A.3d 626, 630 (Pa.Super. 2014) (en banc).

Appellant argues that from February 12, 2009 until February 27, 2009, he was incarcerated as a result of the charges in the instant case. He continues that from February 28, 2009 until April 15, 2009, he was detained for a probation violation based, in part, on the charges in this case. Importantly, Appellant maintains that he did not receive credit for these periods at any other case.

The PCRA court opined that Appellant had received credit for these periods in separate contempt matters, citing four family division cases. However, Appellant disputes that contention, and the Commonwealth candidly acknowledges that the current record does not adequately indicate that Appellant was awarded credit at either this case or the cases referenced

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by the PCRA court.1 Since Appellant has raised an issue of material fact, and we are unable to discern from the certified record whether the issue has no merit, we remand for the PCRA court to conduct a hearing to clarify and make a record as to whether Appellant is entitled to credit for the periods mentioned. See Pa.R.Crim.P. 908(A)(2).

Appellant's second and third issues are interrelated as they both concern the United States Supreme Court decision in Alleyne, supra. In Alleyne, the High Court held that the constitutional jury trial right requires any fact, other than a prior conviction, that triggers a mandatory minimum sentence, be proven beyond a reasonable doubt before a jury. Subsequently, this Court, though recognizing the distinction between a jury trial right claim and illegal sentencing issues, opined that an Alleyne claim can implicate the illegal sentencing paradigm. Commonwealth v. Watley, 81 A.3d 108 (Pa.Super. 2013) (en banc).

In addition, in a host of other decisions from this Court, involving direct appeals, we have found that Alleyne issues are non-waivable illegal sentencing claims. Commonwealth v. Ferguson, 2015 PA Super 1; Commonwealth v. Wolfe, 2014 PA Super 288; Commonwealth v. Fennell, 2014 PA Super 261, Commonwealth v. Cardwell, 2014 PA Super

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263; Commonwealth v. Valentine, 100 A.3d 801 (Pa.Super. 2014); Commonwealth v. Lawrence, 99 A.3d 116 (Pa.Super. 2014); Commonwealth v. Newman, 99 A.3d 86 (Pa.Super. 2014) (en banc); Commonwealth v. Matteson, 96 A.3d 1064 (Pa.Super. 2014); Commonwealth v. Thompson, 93 A.3d 478 (Pa.Super. 2014); Commonwealth v. Munday, 78 A.3d 661 (Pa.Super. 2013).2

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In Watley, this Court also distinguished between applying Alleyne on direct appeal and collateral review. We noted that a case may be retroactive on direct appeal, but not during collateral proceedings. Watley, supra at 117 n.5. Thus, while this Court has held that Alleyne applies retroactively on direct appeal, see Newman, supra, we have declined to construe that decision as applying retroactively to cases during PCRA review. Commonwealth v. Miller, 102 A.3d 988 (Pa.Super. 2014).

In Miller, the PCRA petitioner attempted to utilize Alleyne as a timeliness exception to the PCRA's one-year-time-bar based on the retroactive new constitutional rule exception. Miller, however, had been sentenced to a mandatory minimum based on prior convictions for violent crimes and Alleyne itself held that it did not apply to prior convictions. See

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Alleyne, supra at 2160 n.1; see also Watley, supra at 117 n.3. Thus, Alleyne had no application to the petitioner therein. Cf. Commonwealth v. Chambers, 35 A.3d 34 (Pa.Super. 2011) (holding of case and not its rationale determines whether case meets retroactive new constitutional rule exception). However, the Miller panel discussed, in dicta, whether either the United Supreme Court or Pennsylvania Supreme Court held Alleyne retroactive. The Miller Court opined that because neither high court announced that Alleyne applied retroactively, it could not qualify as a timeliness exception. The panel was not faced with the separate question of whether it could consider Alleyne retroactive during a timely PCRA petition, despite the United States Supreme Court not having held Alleyne to be retroactive. See Danforth v. Minnesota, 552 U.S. 264 (2008) (holding that state courts may grant broader retroactive effect to a United States Supreme Court constitutional ruling).

Even construing much of the Miller decision as dicta, and recognizing that Miller involved an untimely PCRA petition, Appellant is not entitled to Alleyne relief during collateral review. The seminal test in determining whether a constitutional rule is new and warrants retroactive application during collateral review was delineated in Teague v. Lane, 489 U.S. 288 (1989) (plurality), and has been accepted by a majority of the United States Supreme Court. See Commonwealth v. Lesko, 15 A.3d 345, 363 (Pa. 2011) (citing Butler v. McKellar, 494 U.S. 407 (1990)). We are cognizant that Teague involved federal habeas review and did not consider whether

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state courts "can provide remedies for violations of [newly-recognized constitutional] rights in their own postconviction proceedings." Danforth, supra at 275. As Danforth stated, Teague spoke only to the context of federal habeas. Id. at 280-281.

In addition, we acknowledge that in ...

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