142 A.3d 810 (Pa. 2016)

No. 37 EAP 2015


COMMONWEALTH of Pennsylvania, Appellee, v. Terrance WASHINGTON, Appellant.

John Martin Belli, Esq., for Terrance Washington. Hugh J. Burns Jr., Esq., Philadelphia, for Commonwealth of Pennsylvania.

John Martin Belli, Esq., for Terrance Washington.

Hugh J. Burns Jr., Esq., Philadelphia, for Commonwealth of Pennsylvania.



Chief Justice SAYLOR.

The controlling question presented is whether the Supreme Court of the United States' decision in Alleyne v. United States, ––– U.S. ––––, 133 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 encompassing 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, ––– Pa. ––––, ––––, 117 A.3d 247, 262 (2015) (holding that Section 6317 of the Crimes Code, 18 Pa.C.S. § 6317 —which predicates a mandatory minimum sentence 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) (“[W]here 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 issue 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. 792, 9 L.Ed.2d 799 (1963). See Beard v. Banks, 542 U.S. 406, 417, 124 S.Ct. 2504, 2513–14, 159 L.Ed.2d 494 (2004).

See generally Schriro, 542 U.S. at 352, 124 S.Ct. at 2523 (discussing the extraordinary nature of watershed rules and opinion that “it is unlikely that any ... ‘ha[s] yet to emerge’ ” (quoting, indirectly, Sawyer v. Smith, 497 U.S. 227, 243, 110 S.Ct. 2822, 2839, 111 L.Ed.2d 193 (1990) )); Whorton v. Bockting, 549 U.S. 406, 417–18, 127 S.Ct. 1173, 1181–82, 167 L.Ed.2d 1 (2007) (stressing the narrow scope of the procedural right exception to the general rule against retrospective application on collateral review and collecting cases in which such application was disallowed).

Judge Bowes reasoned that the Alleyne ruling was not substantive, since it does not prohibit punishment for a class of offenders nor does it decriminalize conduct. Rather, she described the decision as procedurally mandating the inclusion of any facts which will increase a mandatory minimum sentence in an indictment or information, as well as a determination by a fact-finder of those facts beyond a reasonable doubt. Nor did Judge Bowes find that the Alleyne decision announced an extraordinary, watershed rule of criminal procedure altering bedrock principles. In these regards, Judge Bowes highlighted that her reasoning was consistent with numerous federal courts which had determined that the new rule announced in Alleyne did not apply retroactively on collateral review. Judge Bowes recognized that Alleyne involved not only the identity of the fact-finder but also addressed the burden of proof attaching to law-based sentencing enhancements. She found this to be no different from Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), however, from which Alleyne derived, explaining that neither this Court nor the Supreme Court of the United States had found that Apprendi should be retroactively applied.

See, e.g., United States v. Reyes, 755 F.3d 210, 212 (3d Cir.2014) ; In re Mazzio, 756 F.3d 487, 489–90 (6th Cir.2014) ; Hughes v. United States, 770 F.3d 814, 819 (9th Cir.2014) ; United States v. Redd, 735 F.3d 88, 92 (2d Cir.2013) ; In re Payne, 733 F.3d 1027, 1030 (10th Cir.2013) ; In re Kemper, 735 F.3d 211, 212 (5th Cir.2013) ; Simpson v. United States, 721 F.3d 875, 876 (7th Cir.2013).

Jeanty v. Warden, FCI–Miami, 757 F.3d 1283, 1285 (11th Cir.2014) (“[W]e have repeatedly held that Apprendi 's rule does not apply retroactively on collateral review.”); Sepulveda v. United States, 330 F.3d 55, 62 (1st Cir.2003) (“The Apprendi decision is about criminal procedure, pure and simple.”); Coleman v. United States, 329 F.3d 77, 90 (2d Cir.2003) ; Ellzey v. United States, 324 F.3d 521, 527 (7th Cir.2003) ; United States v. Brown, 305 F.3d 304, 310 (5th Cir.2002) ; Curtis v. United States, 294 F.3d 841, 844 (7th Cir.2002) ; United States v. Mora, 293 F.3d 1213, 1219 (10th Cir.2002) ; United States v. Sanchez–Cervantes , 282 F.3d 664, 673 (9th Cir.2002) ; McCoy v. United States, 266 F.3d 1245, 1259 (11th Cir.2001) ; United States v. Moss, 252 F.3d 993, 1000–01 (8th Cir.2001) ; United States v. Sanders, 247 F.3d 139, 146 (4th Cir.2001) ; Jones v. Smith, 231 F.3d 1227, 1236 (9th Cir.2000). See generally Haifeng Peng, Is Blakely v. Washington Retroactive?, 27 Cardozo L.Rev. 423, 440 (2005) (“All federal circuits have unanimously concluded that Apprendi does not apply retroactively”).

We allowed appeal to consider the issue, as framed by Appellant, of “[a]re the mandatory sentences imposed upon petitioner illegal pursuant to Alleyne ?” Commonwealth v. Washington, ––– Pa. ––––, 127 A.3d 1287 (2015). Our review of this legal issue is plenary.

Throughout his brief, Appellant characterizes his sentence as “illegal under Alleyne ” and stresses that the PCRA provides an avenue for relief from illegal sentences. Brief for Appellant at 16 (citing, inter alia, Commonwealth v. Gordon, 596 Pa. 231, 234, 942 A.2d 174, 175 (2007), for the proposition that “it seems to be a settled question in Pennsylvania that Apprendi -based challenges raise questions related to the legality of a sentence”). Appellant further emphasizes that the Alleyne issue arises in the context of a timely-filed PCRA petition, distinguishing instances involving untimely petitions. See generally Fahy, 558 Pa. at 331, 737 A.2d at 223 (determining that even challenges to illegal sentences are subject to the PCRA's time limitations).

Initially, given that this matter arises on post-conviction review, we find it necessary to clarify the interrelationship between retroactivity determinations and the sentence-legality question. In this regard, it is significant that Appellant agrees that Alleyne established a new rule of federal constitutional law. See Brief for Appellant at 32.

This proposition seems indisputable, given that the Alleyne Court expressly overruled its prior precedent in Harris v. United States, 536 U.S. 545, 122 S.Ct. 2406, 153 L.Ed.2d 524 (2002). See Alleyne, ––– U.S. at ––––, 133 S.Ct. at 2163.

Consistent with Judge Bowes' explanation, a new rule of law does not automatically render final, pre-existing sentences illegal. A finding of illegality, concerning such sentences, may be premised on such a rule only to the degree that the new rule applies retrospectively. In other words, if the rule simply does not pertain to a particular conviction or sentence, it cannot operate to render that conviction or sentence illegal. Accord Welch v. United

States, ––– U.S. ––––, ––––, 136 S.Ct. 1257, 1264, 194 L.Ed.2d 387 (2016) (alluding to the “general bar on retroactivity” for new constitutional rules of a procedural dimension); Montgomery, ––– U.S. at ––––, 136 S.Ct. at 730 (“[A] trial conducted under a procedure found to be unconstitutional in a later case does not, as a general matter, have the automatic consequence of invalidating a defendant's conviction or sentence.”). Appellant's framing of the issue presented, as well as the bulk of his brief, disregards this necessary role of a retroactivity assessment relative to a determination of legality at the collateral review stage.

The Commonwealth, on the other hand, aptly summarizes the essential point as follows:

[A]s of September 2006, there was no precedent from the United States Supreme Court, nor any Pennsylvania Court, that would have prohibited application of the instant mandatory minimum provision. Quite to the contrary, as recently as 2002, the United States Supreme Court in Harris v. United States had rejected a claim that Apprendi, the precursor to Alleyne, applied to mandatory minimum sentencing provisions, and explicitly reaffirmed [the Court's previous upholding of] 42 Pa.C.S. § 9712. Thus, had a court been presented with defendant's current sentencing claim at any time up to and including September 2006, when his direct appeal ended (Alleyne was not decided until 2013), current law would unequivocally have required its rejection. The Alleyne rule is therefore new, and cannot apply on collateral review except in “limited circumstances,” Schriro [, 542 U.S. at 351, 124 S.Ct. at 2522 ], i.e., unless it is a “substantive or ‘watershed’ rule under Teague.

Brief for Appellee at 15 (citations adjusted); accord id. at 20 (“The issue is not constitutionality under subsequent law ..., but whether a sentence that was lawful when imposed must be overturned under a decision reached many years later because [such decision] applies retroactively on collateral review.”).

There is no question that this Court has had some difficulty defining the contours of “illegality” in the abstract for purposes of the issue preservation doctrine. Compare Commonwealth v. Foster, 609 Pa. 502, 524–25 n. 21, 17 A.3d 332, 345–46 n. 21 (2011) (Opinion Announcing the Judgment of the Court), with id. at 534–39, 17 A.3d at 352–54 (Castille, C.J., concurring); id. at 539–41, 17 A.3d at 355–56 (Saylor, J., concurring); id. at 541–42, 17 A.3d at 356–57 (Eakin, J., concurring). Any remaining uncertainty in this regard, however, does not affect our analysis, above and below. Again, if a new constitutional rule does not apply, it cannot render an otherwise final sentence illegal.

Notably, this Court has otherwise granted allocatur to determine whether an Alleyne violation renders a sentence illegal for issue preservation purposes. See Commonwealth v. Barnes, ––– Pa. ––––, 122 A.3d 1034, 1034–35 (2015) (per curiam ).

As the Commonwealth relates and Judge Bowes apprehended, new constitutional procedural rules generally pertain to future cases and matters that are pending on direct review at the time of the rule's announcement. See Schriro, 542 U.S. at 351–52, 124 S.Ct. at 2522 (citing Griffith v. Kentucky, 479 U.S. 314, 323, 328, 107 S.Ct. 708, 716, 93 L.Ed.2d 649 (1987) ). To determine whether the rule applies retroactively to cases at the collateral review stage, additional analysis is necessary, either per Teague and its progeny or under some state-law formulation that is consistent with the authority recognized in Danforth

Notably, the plurality decision of this Court in Foster —in which various Justices discussed the illegal-sentence doctrine as it pertains to issue preservation—is distinguishable from the present case both in that the case reached this Court at the direct appeal stage, and the matter did not concern a rule couched as a new one of constitutional law. See Foster, 609 Pa. at 508, 17 A.3d at 335–36.

v. Minnesota,
552 U.S. 264, 282, 128 S.Ct. 1029, 1042, 169 L.Ed.2d 859 (2008) (explaining that Teague “limits the kinds of constitutional violations that will entitle an individual to relief on federal habeas, but does not in any way limit the authority of a state court, when reviewing its own state criminal convictions, to provide a remedy for a violation that is deemed ‘nonretroactive’ under Teague ”).

In the relevant portion of his brief, Appellant primarily urges this Court to recognize an independent, state-level retroactivity jurisprudence, per Danforth. Along these lines, Appellant asserts that the PCRA establishes a remedial scheme for those prisoners who are serving illegal sentences, and that he is entitled to relief under the PCRA “since his mandatory minimum sentences are illegal under Alleyne. ” Brief for Appellant at 36–37. Appellant also urges that we should adopt a principle supporting retroactive application of new constitutional rules for violations that “implicate [ ] fundamental fairness and foster[ ] unreliability and inaccuracy in the fact-finding process.” Id. at 37. Although this standard seems similar to the watershed-rules aspect of Teague, Appellant obviously wishes for this Court to lower the high threshold maintained by the Supreme Court of the United States.

This aspect of Appellant's argument is addressed earlier in our opinion, as we have explained that the legality or illegality of Appellant's sentence cannot be adjudged without reference to the legal standards governing retroactive application of new constitutional rules.

Alternatively, Appellant contends that the rule announced in Alleyne is substantive in character or meets the Teague -based exception to non-retroactive application of watershed procedural rules, highlighting that Alleyne 's holding concerns a defendant's Sixth Amendment right to a jury trial and to proof beyond a reasonable doubt. Appellant recognizes that the Supreme Court of the United States has “laid to rest the idea that new rules of criminal procedure which implicate jury trial rights should be applied retroactively.” Brief for Appellant at 38 (citing Schriro, 542 U.S. at 353, 124 S.Ct. at 2523 (denominating a rule allocating decision-making authority as between juries and judges as a “prototypical procedural rule”)). He nonetheless maintains that the dual-faceted aspect of Alleyne 's holding, also encompassing the matter of the burden of proof, justifies a different outcome. In this regard, Appellant references In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970), as exemplifying the “vital role in the American scheme of criminal procedure” occupied by the reasonable doubt standard of proof. Brief for Appellant at 39 (quoting Winship, 397 U.S. at 363, 90 S.Ct. at 1072 ).

Appellant correctly relates that Schriro did not specifically involve the burden-of-proof dynamic. See Schriro, 542 U.S. at 351 n. 1, 124 S.Ct. at 2522 n. 1.

The Commonwealth, on the other hand, takes the position that this Court should continue to adhere to Teague rather than recognizing a new state-level retroactivity jurisprudence. See, e.g., Commonwealth v. Bracey, 604 Pa. 459, 485–86, 986 A.2d 128, 143–44 (2009) (“Teague is acknowledged as setting forth the legal framework for a principled approach to deciding when a pronouncement of law should be given effect to cases pending on collateral review[;][t]his Court has looked to Teague principles when confronted with [such] questions.”). The Commonwealth finds that the Teague approach affords appropriate respect to the strong societal interest in finality of judgments, which resides among the legislative purposes underlying the PCRA. See generally Commonwealth v. Sam, 597 Pa. 523, 542–43, 952 A.2d 565, 576–77 (2008) (collecting cases stressing the essential role of finality in the criminal justice system and discussing the General Assembly's efforts to foster it via the statutory prescriptions for post-conviction review).

According to the Commonwealth, adoption of Appellant's suggested approach—which the Commonwealth views as a test centered upon fundamental fairness in the abstract—would remove the essential controls on retroactive application of new rules, thus unduly undermining finality. It is for this reason, the Commonwealth observes, that the Supreme Court of the United States has maintained the distinction, in the retroactivity calculus, between general rules embodying due process and extraordinary, bedrock-altering, “watershed” rules. See Tyler v. Cain, 533 U.S. 656, 666 n. 7, 121 S.Ct. 2478, 2484–85 n. 7, 150 L.Ed.2d 632 (2001) (indicating that not all rules “relating to due process (or even the ‘fundamental requirements of due process') alter [the] understanding” of bedrock procedural elements essential to the fairness of a proceeding (citation omitted)).

On this subject, the Commonwealth stresses that watershed rules, at the federal level, to date, encompass only a class of one, i.e., the right to counsel proclaimed in the seminal Gideon decision, acknowledged to be “fundamental and essential to a fair trial.” Gideon, 372 U.S. at 340, 83 S.Ct. at 794 (quoting Betts v. Brady, 316 U.S. 455, 465, 62 S.Ct. 1252, 1257, 86 L.Ed. 1595 (1942) ). In these terms, the Commonwealth explains:

Gideon recognized that this principle was virtually timeless, having been recognized at the foundation of the republic; the Court explained that in enforcing this right it was not breaking new ground, but rather was “returning to ... old precedents, sounder we believe than the new” in order to “restore constitutional principles established to achieve a fairer system of justice.” There was also a clear national consensus. Twenty-two States filed amicus briefs denouncing the contrary rule as an “anachronism.” The concurring Justices (there was no dissent) made clear that they too embraced the right to counsel as a bedrock principle.

Brief for Appellee at 23 (citations omitted).

The Commonwealth maintains, however, that Alleyne is vastly different. The Supreme Court of the United States, the Commonwealth notes, had twice decided that the sentencing scheme under Section 9712 of the Pennsylvania Sentencing Code was constitutional. See McMillan v. Pennsylvania, 477 U.S. 79, 93, 106 S.Ct. 2411, 2420, 91 L.Ed.2d 67 (1986) ; see also Harris, 536 U.S. at 568–69, 122 S.Ct. at 2420 (reaffirming McMillan ). The Commonwealth asserts that, in ultimately reversing course, the Alleyne Court “said nothing to suggest that it was recognizing anything of ‘bedrock’ importance.” Brief for Appellee at 24. On the contrary, the Commonwealth relates:

Alleyne allows the sentencing court to penalize the same conduct that triggered the mandatory statute as a matter of discretion. [See Alleyne, ––– U.S. at ––––,] 133 S.Ct. at 2163. The Court remanded for “resentencing consistent with the jury's verdict,” allowing the sentencing court to impose the exact same sentence should it so decide. Thus, nothing “fundamental” or “essential” is violated if the sentencing court elects to impose a higher sentence based on the conduct that previously triggered the statutory minimum, since Alleyne

specifically allows that in discretionary sentencing.

is no more of a “bedrock” nature than similar new procedural sentencing rules that have been barred under Teague even in capital cases. E.g., Beard v. Banks, 542 U.S. [at] 416–17[, 124 S.Ct. at 2513] (new rule to ensure that capital sentencing jurors are not prevented from giving effect to mitigating evidence not found unanimously was procedural under Teague ); Graham v. Collins, 506 U.S. [461,] 477[, 113 S.Ct. 892, 903, 122 L.Ed.2d 260 (1993) ] (new rule to ensure that capital sentencing jurors could give effect to evidence of mental retardation and abused childhood was procedural and barred by Teague ); Sawyer v. Smith, 497 U.S. 227 [, 244 110 S.Ct. 2822, 2832–33, 111 L.Ed.2d 193] (1990) (new rule preventing misleading of capital sentencing jurors by suggesting that ultimate responsibility for imposing sentence lay elsewhere was procedural and barred by Teague ).

Brief for Appellee at 24–25. Based on such history, it is the Commonwealth's core position that “Alleyne clearly does not have ‘the primacy and centrality of the rule adopted in Gideon. ’ ” Id. at 25 (quoting Banks, 542 U.S. at 420, 124 S.Ct. at 2515 ).

The Commonwealth also maintains that the new Alleyne rule is procedural in character, because it merely regulates the manner of determining culpability as opposed to altering the range of conduct or the class of persons that the law punishes. See id. at 16 (citing Montgomery, ––– U.S. at ––––, 136 S.Ct. at 729–30 ). “[E]very court in the nation to consider this question in a published ruling has held that Alleyne does not apply retroactively on collateral review,” the Commonwealth highlights. Id. at 10; see also supra note 2. The Commonwealth urges that we should reach the same conclusion here.

The Commonwealth also advances several jurisprudential reasons why we should decline to resolve this appeal, such as abstractness of the Alleyne rule relative to the substantial punishment which will be imposed on Appellant in all events. The present matter is an important one, however, affecting a large range of cases, this one was selected to resolve the question, and we will therefore proceed to the merits without further treatment of such collateral matters.

From a concurring posture, Justice Todd observes that our approach to the Commonwealth's additional arguments highlights the present case's importance. See Concurring Opinion, at 811. Our reasoning, however, is also based upon the fact that appeal was allowed discretely to address the Alleyne retroactivity issue. See Commonwealth v. Washington, –––Pa. ––––, 127 A.3d 1287 (2015) (per curiam ) (granting allocatur “limited to” the issue of “[a]re the mandatory sentences imposed upon petitioner illegal pursuant to Alleyne ”). To the extent that the concurrence suggests that a discretionary appeals court is obliged to exceed the scope of an allocatur grant to engage in a developed resolution of all issues advanced in an appellee's brief, see Concurring Opinion, at 811 (expressing the concern that our opinion “may unnecessarily serve to relax courts' obligation to consider jurisprudential bases for resolution of appeals”), we know of no authority that supports it. Indeed, from our perspective, such an approach to the discretionary review process would render many of this Court's opinions unnecessarily unwieldy.

There is presently no controversy concerning the proposition that Alleyne sets forth a new rule of constitutional law. As to the substantive-procedural distinction, we agree with the Commonwealth that the Alleyne rule neither alters the range of conduct or the class of persons punished by the law. See Montgomery, ––– U.S. at ––––, 136 S.Ct. at 729–30. Rather, the holding allocates the relevant decision-making authority to a jury rather than a judge, while establishing the beyond-a-reasonable-doubt standard as the essential burden of proof. See Alleyne, ––– U.S. at ––––, 133 S.Ct. at 2155. Again, such matters were also central to the seminal Apprendi decision, see Apprendi, 530 U.S. at 490, 120 S.Ct. at 2363, which the Supreme Court of the United States has never deemed to be retroactive and which is universally regarded as non-retroactive by the federal courts of appeals. See supra note 3; cf. Schriro, 542 U.S. at 353, 124 S.Ct. at 2523 (holding that a rule requiring certain facts to be determined by a jury rather than a judge was procedural in nature, for purposes of Teague ). See generally Commonwealth v. Riggle, 119 A.3d 1058, 1067 (Pa.Super.2015) (determining that the Alleyne rule is procedural).

Most recently, the Supreme Court of the United States has described the essential analysis in addressing the substantive/procedural distinction under Teague as a functional one. See Welch, ––– U.S. at ––––, 136 S.Ct. at 1266. We do not find this overlay to alter our above reasoning or the rationale underlying the many decisions of other courts finding the Alleyne rule to be non-retroactive relative to the collateral review stage.

We also have no basis for disagreeing with the Commonwealth that the Alleyne rule is not of a groundbreaking, “watershed” character. It remains lawful and, indeed, routine for judges to increase sentences, in the discretionary sentencing regime, based on facts that they find by a preponderance of the evidence. See Alleyne, ––– U.S. at ––––, 133 S.Ct. at 2163 (“Our ruling today does not mean that any fact that influences judicial discretion must be found by a jury[;][w]e have long recognized that broad sentencing discretion, informed by judicial factfinding, does not violate the Sixth Amendment.”). Thus, the inherent reliability of judge-determined facts at the sentencing stage is not directly in issue, and we find that this understanding places substantial perspective on the fairness concerns involved. Cf. Welch, ––– U.S. at ––––, 136 S.Ct. at 1266 (“The chance of a more accurate outcome under [a] new procedure normally does not justify the cost of vacating a conviction whose only flaw is that its procedures ‘conformed to then-existing constitutional standards' ” (quoting Teague, 489 U.S. at 310, 109 S.Ct. at 1075 )).

We recognize that, per Alleyne, it is no longer permissible for state legislatures to direct judges to apply specified minimum sentences based on preponderance-based judicial findings of fact. Nevertheless, we conclude that such new rule is materially different in character from Gideon 's prescription for assistance of counsel, which is presently enshrined as the only recognized watershed rule of criminal procedure. See Banks, 542 U.S. at 417, 124 S.Ct. at 2513–14 ; see also supra note 1.

As to Appellant's argument that we should recognize an independent state-level retroactivity jurisprudence grounded on fairness considerations, but lacking the constraints imposed at the federal level, we decline to do so in this case. From our perspective, balancing fairness and finality is essential in considering the appropriate retrospective effect of a new rule of constitutional procedure. Accord Welch, ––– U.S. at ––––, 136 S.Ct. at 1266 (“The Teague framework creates a balance between, first, the need for finality in criminal cases, and second, the countervailing imperative to ensure that criminal punishment is imposed only when authorized by law.”). Appellant's arguments, however, touch on only one side of this equation. Unless and until developed arguments are advanced which persuade this Court that a better equilibrium can be achieved, the Teague construct shall remain the default approach, in Pennsylvania, to the retrospective application of new constitutional procedural rules pronounced by the Supreme Court of the United States. We hold that Alleyne does not apply retroactively to cases pending on collateral review, and that Appellant's judgment of sentence, therefore, is not illegal on account of Alleyne.

The order of the Superior Court is affirmed.

Justices BAER, DOUGHERTY and WECHT join the opinion.

Justice TODD files a concurring opinion in which Justice DONOHUE joins.

Justice DOUGHERTY files a concurring opinion.


Justice TODD.

I join the Majority Opinion, with the exception of footnote 10, which in my view may unnecessarily serve to relax courts' obligation to consider jurisprudential bases for resolution of appeals. Therein, the majority determines that, because this issue is “important” and will affect “a large range of cases,” and was “allowed discretely to address the Alleyne retroactivity issue,” the Court need not address the collateral jurisprudential matters raised by the Commonwealth, “such as [the] abstractness of the Alleyne rule relative to the substantial punishment which will be imposed on Appellant in all events.” Majority Opinion at 818, n. 10.

Specifically, the Commonwealth offers that Appellant's claim is “potentially moot,” and that any determination regarding sentencing will have “no practical impact on his aggregate sentence.” Commonwealth's Brief at 8. I cannot join the majority's determination that these potential impediments need not be addressed. While there may be exceptional circumstances in which such jurisprudential concerns might give way to addressing a legal issue of vital and immediate importance, I am concerned that the bench and bar might interpret the majority's approach to arguments regarding such jurisprudential matters collateral to the primary legal question as a dilution of this Court's otherwise fairly strict adherence to the need to resolve threshold jurisprudential matters. See, e.g., Robinson Township v. Commonwealth, 623 Pa. 564, 83 A.3d 901, 916–17 (2013) ; Markham v. Wolf, ––– Pa. ––––, 136 A.3d 134, 147 n. 2 (2016) (Dougherty, J., concurring) (“justiciability questions (including political question limitations, standing, ripeness, and mootness) are threshold matters generally to be resolved before proceeding to the merits.”). Thus, contrary to the majority's assertion, while in my view our Court is not necessarily “obliged” to address these matters in all instances, it should do so on most occasions, especially when there is a risk we will be issuing a purely advisory opinion.

Rather than endorse a relaxation of a court's general obligation to consider these jurisprudential concerns, I would simply reject the Commonwealth's jurisprudential assertions on their merits. Specifically, the Commonwealth, after conceding that jurisdiction properly lies for this appeal in our Court, maintains that, because the Superior Court reversed the PCRA court's order denying relief, and remanded for an evidentiary hearing on two claims of ineffective assistance of counsel, if further proceedings result in a new trial, the sentencing issue Appellant seeks to raise in our Court would be moot. According to the Commonwealth, if Appellant was granted a new trial, on retrial, he would be either acquitted or resentenced under current law. Under the Commonwealth's scenario, the sentencing issue before us would be moot; however, if Appellant is not granted relief on his ineffectiveness claims, and no new trial is granted, the sentencing question would remain viable. Accordingly, as the issue before our Court is not necessarily moot, that is a sufficient basis, in my view, to reject the Commonwealth's entreaty to dismiss this case as improvidently granted.

Further, the Commonwealth argues that we should dismiss this appeal because the five-year mandatory minimum sentencing provision at issue before our Court had no practical effect on the aggregate penalty. The Commonwealth explains, inter alia, that Appellant's 35 to 70 year sentence resulted from the imposition of consecutive terms for 7 of his 21 robbery counts, and that the sentencing court imposed a discretionary aggregate minimum sentence of 35 years. Thus, according to the Commonwealth, the impact of the mandatory minimum statute at issue herein on the final sentence was “effectively nonexistent,” and there is little likelihood the aggregate sentence will change if we were to grant Appellant relief and remand for resentencing. Commonwealth's Brief at 9.

Yet, the Commonwealth's proffer—that the sentencing court “could, and plainly would, have imposed the same sentence if the mandatory provision had never existed”—is not necessarily true. Ultimately, sentencing is an integrated scheme. See Commonwealth v. Wilson, 620 Pa. 251, 67 A.3d 736, 745 n. 11 (2013) (rejecting request to strike invalid probation condition from sentence, as striking of condition was part of “landscape of options available to the court, and may affect the court's sentencing scheme”); Commonwealth v. Goldhammer, 512 Pa. 587, 517 A.2d 1280, 1283 (1986) (“When a defendant challenges one of several interdependent sentences, he, in effect, challenges the entire sentencing plan.”). While the Commonwealth's assertion that a decision in favor of Appellant would not affect Appellant's ultimate sentence is likely true, it is not a certainty, and, accordingly, does not mandate our dismissing this appeal on that basis.

Accordingly, for the above-offered reasons, I join the Majority Opinion with the exception of footnote 10.

Justice DONOHUE joins this concurring opinion.



I join the Majority Opinion, writing only to emphasize two points.

First, on the question whether an “illegal” sentence is at issue here, I agree the proper primary approach, when retroactive relief from an otherwise-final judgment is sought under a new constitutional rule announced by the United States Supreme Court, must be according to the Supreme Court's developed jurisprudence on retroactivity—i.e., Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989) (plurality), and its progeny. I recognize there is broad language in prior cases suggesting Apprendi -based claims implicate Pennsylvania law respecting “illegal sentences,” and appellant invokes those cases here in an attempt to secure greater retroactive application of the new federal rule announced in Alleyne v. United States, ––– U.S. ––––, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013). See Majority Opinion, at 5–6.

As the Majority notes, Alleyne derives from Apprendi.


Notably, the Court has candidly struggled with the proper contours of the concept of sentencing illegality. A variety of expressions have highlighted the complexity, which includes the fact that a sentencing legality claim “can be offered for a variety of reasons.” Commonwealth v. Spruill, 622 Pa. 299, 80 A.3d 453, 460–61 (2013). See Commonwealth v. Aponte, 579 Pa. 246, 855 A.2d 800, 814–15 (2004) (Castille, J., concurring) (advocating treating illegal sentencing claims in “less monolithic fashion” because doctrine may be offered for variety of reasons: to negate waiver on direct appeal, to seek substantive review despite statutory restrictions, to seek extraordinary jurisdiction nunc pro tunc, to avoid limitations upon retroactive application of new procedural rules, and to secure collateral review of sentence despite PCRA restrictions) (citing cases).

This case presents a specific claim of sentencing legality: a sentence is described as illegal to allow a new federal constitutional rule to have broader effect on final judgments than required by the United States Supreme Court, which devised the rule. I believe the Majority articulates a necessary limiting principle to the notion of what comprises an “illegal” sentence in this instance: a finding of illegality, concerning an already-final sentence, “may be premised on such a rule only to the degree that the new rule applies retrospectively.” See Majority Opinion, at 7.

Second, I write to further stress the terms of the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541 –9546, under which appellant is proceeding, when assessing both whether his claim implicates an “illegal” sentence and whether the Court should afford a broader retrospective application of Alleyne ' s new rule. On the latter point, appellant avails himself of the state law residual power recognized in Danforth v. Minnesota, 552 U.S. 264, 128 S.Ct. 1029, 169 L.Ed.2d 859 (2008), arguing for a state-level, broader Pennsylvania retroactivity rule premised upon generalized policy notions of fairness. Id. at 282, 128 S.Ct. 1029. Any such argument must come to grips with the PCRA, a legislative expression of Pennsylvania policy. In a case presenting a similar question, this Court stressed:

[L]itigants who may advocate broader retrospective extension of a new federal constitutional rule would do best to try to persuade this Court both that the new rule is resonate with Pennsylvanian norms and that there are good grounds to consider the adoption of broader retroactivity doctrine which would permit the rule's application at the collateral review stage. In the latter regard, the Court would benefit from recognition and treatment of the strong interest in finality inherent in an orderly criminal justice system, as well as the social policy and concomitant limitations on the courts' jurisdiction and authority reflected in the Post Conviction Relief Act.

Commonwealth v. Cunningham, 622 Pa. 543, 81 A.3d 1, 9 (2013) (footnote omitted) (emphasis original).

The “eligibility for relief” provision of the PCRA does not speak of “illegal sentences,” much less sentences argued to be illegal via retroactive operation of non-retroactive, new federal constitutional rules. Rather, the PCRA deems cognizable a claim that the petitioner is serving a sentence “greater than the lawful maximum.” 42 Pa.C.S. § 9543(a)(2)(vii). Although appellant forwards an artful argument under the statutory language, the argument ultimately fails because it depends upon an assumption that Alleyne applies retroactively. Appellant's Brief at 21–22.

The PCRA specifically addresses retroactivity in the context of new constitutional rights, but only in delineating exceptions to the PCRA time-bar; the provision is inapplicable as this petition was timely. See 42 Pa.C.S. § 9545(b)(iii). In the time- bar exception context, the General Assembly indicated its awareness that courts issue new constitutional rules on occasion, and those rules may, or may not, affect final judgments. As explained in a concurrence in Cunningham:

Section 9545(b) [of the PCRA] recognizes that new constitutional rights (state or federal) may come into existence after a sentence is final, and indeed, after a defendant's right to PCRA review has been exhausted. The statute allows new constitutional rights to be vindicated, but only after the Court announcing the new right has also held that the right operates retroactively: “the right asserted is a constitutional right that was recognized by the Supreme Court of the United States or the Supreme Court of Pennsylvania after the time period provided in this section and has been held by that court to apply retroactively.” 42 Pa.C.S. § 9545(b)(1)(iii). This safety valve for vindication of new and retroactive rights is logically limited to pronouncements from the two courts of last resort that can recognize new rights and makes clear that the court of last resort announcing the new right should also issue the holding on the retroactivity of the new right. There is nothing irrational in the statute's accommodation of new constitutional rules in this manner....

Id. at 12 (Castille, C.J., concurring).

Appellant plainly is not entitled to PCRA relief. If the United States Supreme Court were someday to hold Alleyne to be retroactive, Section 9545 would exist to vindicate that established right.