Commonwealth v. Ruiz

• Decision Date: 30 December 2015
• Docket Number: No. 1925 MDA 2014,1925 MDA 2014
• Citation: 131 A.3d 54
• Parties: COMMONWEALTH of Pennsylvania, Appellee v. Jorge Luis RUIZ, Jr., Appellant.
• Court: Pennsylvania Superior Court

131 A.3d 54

COMMONWEALTH of Pennsylvania, Appellee

v.Jorge Luis RUIZ, Jr., Appellant.

No. 1925 MDA 2014

Superior Court of Pennsylvania.

Submitted Aug. 10, 2015.

Filed Dec. 30, 2015.

Emily B. Cherniack, Philadelphia, for appellant.

Alisa R. Hobart, Assistant District Attorney, Reading, for Commonwealth, appellee.

BEFORE: DONOHUE, J., OTT, J., and MUSMANNO, J.

OPINION BY OTT, J.:

Jorge Luis Ruiz, Jr., appeals from the order entered October 15, 2014, in the Court of Common Pleas of Berks County, that dismissed his first petition for relief filed pursuant to the Post Conviction Relief Act ("PCRA"), 42 Pa.C.S. §§ 9541–9546. Ruiz seeks relief from the judgment of sentence of an aggregate term of six to 20 years' incarceration imposed on June 5, 2013, after he entered a negotiated guilty plea to possession with intent to deliver a controlled substance (PWID) (249.1 grams cocaine), criminal use of communication facility, and conspiracy.¹ On appeal, Ruiz contends the PCRA court "erred in denying [Ruiz's] PCRA Petition and [not] granting him a new sentencing hearing where the decision of Alleyne v. United States, –––U.S. ––––, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013)and subsequent Pennsylvania decisions made [Ruiz's] sentence unconstitutional and he filed a timely PCRA Petition." Ruiz's Brief at 5. Based upon the following, we reverse the order of the PCRA court, vacate the judgment of sentence, and remand for resentencing.

In this case, the court applied the mandatory minimum sentencing provision set forth in 42 Pa.C.S. § 9712.1("Sentences for certain drug offenses committed with firearms"),² and Ruiz was sentenced to serve an aggregate term of six to 20 years of incarceration in a state correctional facility.³ Ruiz did not file any post sentence motion or direct appeal.⁴

On June 17, 2013, 12 days after Ruiz was sentenced, the United States Supreme Court decided Alleyne. On June 2, 2014, Ruiz filed a timely, counseled PCRA petition, wherein he challenged the legality of his mandatory minimum sentence under Alleyne. On September 2, 2014, Ruiz filed a Supplemental Motion, citing Commonwealth v. Newman, 99 A.3d 86 (Pa.Super.2014)(en banc ), for the proposition that "the mandatory minimum that applies to firearms in the vicinity of contraband is unconstitutional." Ruiz's Supplemental Motion in Support of Post Conviction Relief Act, 9/2/2014, at 1. The PCRA court issued notice of intent to dismiss pursuant to Pa.R.Crim.P. 907, stating that Ruiz was not entitled to PCRA relief because he had not filed a direct appeal, and Ruiz responded to the Rule 907notice on October 9, 2014. On October 15, 2014, the PCRA court denied Ruiz relief and dismissed the petition. This appeal followed.⁵

On January 16, 2015, the PCRA court filed an opinion in which it reasoned that "although Alleyne was decided within the thirty day period that [Ruiz] had to file a direct appeal, it is not applicable to the instant case because [Ruiz] pleaded guilty and admitted to the mandatory minimum sentencing factors." PCRA Court Opinion, 1/16/2015, at 1–2 (citation omitted). However, the PCRA court later authored a supplemental opinion, wherein the court requested that this Court remand the case to the PCRA court for resentencing, citing Commonwealth v. Cardwell, 105 A.3d 748 (Pa.Super.2014).⁶ See PCRA Court Supplemental Opinion, 3/11/2015.

Our standard of review is well settled:

Our standard of review of an order denying PCRA relief is whether the record supports the PCRA court's determination and whether the PCRA court's decision is free of legal error. The PCRA court's findings will not be disturbed unless there is no support for the findings in the certified record.

Commonwealth v. Lawson, 90 A.3d 1, 4 (Pa.Super.2014)(internal citations omitted).

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." Alleyne, 133 S.Ct. at 2155. In applying that mandate, an en banc panel of this Court, in Commonwealth v. Newman, supra, 99 A.3d 86 (Pa.Super.2014)(en banc ), appeal denied, ––– Pa. ––––, 121 A.3d 496 (2015), held that Alleyne rendered the mandatory minimum sentencing provision at 42 Pa.C.S. § 9712.1—the same provision applied herein—unconstitutional. Section 9712.1, which provides for a five-year mandatory minimum prison term for PWID convictions when a firearm is in close proximity to the illegal drugs, includes a provision that permits the trial court to determine at sentencing whether the elements necessary to increase the mandatory minimum sentence were proven by a preponderance of the evidence. See 42 Pa.C.S. § 9712.1(c). The Newman Court held that, under Alleyne, Section 9712.1"can no longer pass constitutional muster [because] [i]t permits the trial court, as opposed to the jury, to increase a defendant's minimum sentence based upon a preponderance of the evidence" standard. Newman, supra, 99 A.3d at 98.

Further, the Newman Court found the unconstitutional provisions in Section 9712.1were not severable from the statute as a whole. See id. at 101("We find Subsections (a)and (c) of Section 9712.1are essentially and inseparably connected."). Recently, the Pennsylvania Supreme Court in Commonwealth v. Hopkins, ––– Pa. ––––, 117 A.3d 247 (2015), applied the same reasoning when it determined that another mandatory minimum sentencing statute, 18 Pa.C.S. § 6317, was unconstitutional under Alleyne. The Supreme Court opined:

In conclusion, we hold ... that numerous provisions of Section 6317are constitutionally infirm under Alleyne. Moreover, the remaining provisions of Section 6317, standing alone, are incomplete and are incapable of being vindicated in accord with the intent of the General Assembly. 1 Pa.C.S. § 1925. Because of the significant provisions found to violate the Constitution, which clearly express the intent of the legislature that Section 6317is a mandatory minimum sentencing statute, and not a substantive offense, we find the remaining unoffending provisions of Section 6317are incapable of being severed, and we will not judicially usurp the legislative function and rewrite Section 6317or create a substantive offense which the General Assembly clearly did not desire. Rather, we leave it to our sister branch for an appropriate statutory response to the United States Supreme Court's decision in Alleyne.

Id. at 262(footnote omitted).

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. See Newman, 99 A.3d at 90.

It is also settled that Alleyne does not invalidate a mandatory minimum sentence when presented in an untimely PCRA petition. See Commonwealth v. Miller, 102 A.3d 988 (Pa.Super.2014). In concluding Alleyne does not satisfy the new retroactive constitutional right exception to the PCRA's one year time bar, 42 Pa.C.S. § 9545(b)(1)(iii), the Miller Court explained:

Even assuming that Alleyne did announce a new constitutional right, neither our Supreme Court, nor the United States Supreme Court has held that Alleyne is to be applied retroactively to cases in which the judgment of sentence had become final. This is fatal to Appellant's argument regarding the PCRA time-bar. This Court has recognized that a new rule of constitutional law is applied retroactively to cases on collateral review only if the United States Supreme Court or our Supreme Court specifically holds it to be retroactively applicable to those cases.

Id. at 995(citations omitted) (emphasis supplied). Furthermore, this Court also recently declined to give Alleyne retroactive effect to cases on timely collateral review when the defendant's judgment of sentence was finalized before Alleyne was decided. See Commonwealth v. Riggle, 119 A.3d 1058 (Pa.Super.2015).

In Riggle, after the defendant was sentenced on August 7, 2009, this Court affirmed, and the Pennsylvania Supreme Court denied allowance of appeal on December 15, 2011. Id., 119 A.3d at 1061–1062. Riggle filed a timely PCRA petition on December 18, 2012, and, when the PCRA court issued notice of intent to dismiss the petition, Riggle responded and claimed that his sentence was illegal under Alleyne. See id., 119 A.3d at 1062.

In considering whether the United States Supreme Court's June 17, 2013, decision in Alleyne should apply to cases on collateral review, the Riggle Court held that while Alleyne "undoubtedly is a new constitutional rule," it does not meet the test for retroactive application during collateral review as set forth in the United States Supreme Court's decision, Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989)(plurality ). Riggle, supra, 119 A.3d at 1066. Specifically, the panel concluded the rule announced in Alleyne was neither substantive, nor a "watershed" procedural rule, that is, "necessary to prevent an impermissibly large risk of an inaccurate conviction and alters the understanding of the bedrock procedural elements essential to the fairness of a proceeding." Id. Therefore, the Riggle Court found that because "the fundamental fairness of the trial or sentencing is not seriously undermined, [ ] Alleyne is not entitled to retroactive effect in this PCRA setting. " Id. at 1067(emphasis supplied).

Having considered Miller and Riggle, we find that the case sub judice is distinguishable,⁷ and we agree with the PCRA court's ultimate conclusion that Ruiz's Alleyne claim does, in fact, warrant remand for resentencing. See PCRA Court Supplemental Opinion, 3/11/2015.

Here, Ruiz filed a timely PCRA petition within one year of the date his judgment of sentence became final. See 42 Pa.C.S. § 9545(b)(1)("Any petition under this subchapter, including a second or subsequent petition, shall be filed within one year of the date the judgment becomes final...."). Because Ruiz was sentenced on June 5, 2013, and did not file a direct appeal, his judgment of sentence became final on ...