Alleyne claim in Pennsylvania

2021See Commonwealth v. Ruiz, 131 A.3d 54, 59-60 (Pa. Super. 2015) (a defendant can raise an Alleyne challenge in a timely PCRA petition so long as his judgment of sentence was not yet final when Alleyne was decided on June 17, 2013). 6 1_Opinion and Notice The [United States] Supreme Court's decision in Almendarez-Torres v. United States, 523 U.S. 224 ... (1998)[,] held that the fact of a prior conviction does not need to be submitted to the jury and found beyond a reasonable doubt.

2021See Commonwealth v. Ruiz, 131 A.3d 54, 59-60 (Pa. Super. 2015) (a defendant can raise an Alleyne challenge in a timely PCRA petition so long as his judgment of sentence was not yet final when Alleyne was decided on June 17, 2013). 6 1_Opinion and Notice The [United States] Supreme Court's decision in Almendarez-Torres v. United States, 523 U.S. 224 ... (1998)[,] held that the fact of a prior conviction does not need to be submitted to the jury and found beyond a reasonable doubt.

2019The Commonwealth further notes that, in Washington, supra, this Court concluded that the Alleyne rule is not substantive.

2019The Commonwealth further notes that, in Washington, supra, this Court concluded that the Alleyne rule is not substantive.

2019It is well-settled that, “in order for this Court to review a legality of sentence claim, there must be a basis for our jurisdiction to engage in such review. . . . [T]hough not technically waivable, a legality [of sentence] claim may nevertheless be lost should it be raised . . . in an untimely PCRA petition for which no time-bar exception applies, thus depriving the court of jurisdiction -4- J-S64043-19 over the claim.” Commonwealth v. Miller, 102 A.3d 988, 995 (Pa. Super. 2014) (citations and internal quotation marks omitted) (concluding PCRA court correctly dismissed PCRA petition raising

2018Importantly, Alleyne did not overturn prior precedent that prior convictions are sentencing factors and -4- J-S16042-18 It is well settled that, “in order for this Court to review a legality of sentence claim, there must be a basis for our jurisdiction to engage in such review. . . . [T]hough not technically waivable, a legality [of sentence] claim may nevertheless be lost should it be raised . . . in an untimely PCRA petition for which no time-bar exception applies, thus depriving the court of jurisdiction over the claim.” Commonwealth v. Miller, 102 A.3d 988, 995 (Pa. Super. 2014) (citations

2021See Newman, 99 A.3d at 90 ; see also Commonwealth v. Ruiz, 131 A.3d 54, 59-60 (Pa. Super. 2015) (stating that, if a defendant’s direct appeal was pending when Alleyne was decided, the defendant is entitled to relief pursuant to a timely PCRA petition since an Alleyne claim is a non-waivable challenge to the legality of sentence, which is cognizable under the PCRA).

2021See Newman, 99 A.3d at 90 ; see also Commonwealth v. Ruiz, 131 A.3d 54, 59-60 (Pa. Super. 2015) (stating that, if a defendant’s direct appeal was pending when Alleyne was decided, the defendant is entitled to relief pursuant to a timely PCRA petition since an Alleyne claim is a non-waivable challenge to the legality of sentence, which is cognizable under the PCRA).

2018See 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.).

2018See 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.).

2025Chichkin disapproved of enhanced criminal sentencing based on an earlier ARD in light of Alleyne v. United States, 570 U.S. 99, 103 (2013), which held that any fact that increases the mandatory minimum sentence for a crime must be submitted to a jury and proved beyond a reasonable doubt. 3 The county court in the present matter reasoned that the Alleyne principle does not apply to a license suspension which, as a civil penalty, “does not implicate the rigorous constitutional safeguards applicable in criminal matters.” Ferguson v. PennDOT, 2021 WL 908562 , at *2 (C.P.

2021In this petition, Atkinson challenges the legality of his mandatory minimum sentences in light of the United States Supreme Court’s 2013 decision in Alleyne v. United States, 570 U.S. 99 (2013), and trial and appellate counsels’ ineffectiveness in failing to raise the Alleyne violation.

2016See generally Commonwealth v. Riggle, 119 A.3d 1058, 1067 (Pa. Super. 2015) (determining that the Alleyne rule is procedural).11 We also have no basis for disagreeing with the Commonwealth that the Alleyne rule is not of a groundbreaking, “watershed” character.

2016See generally Commonwealth v. Riggle, 119 A.3d 1058, 1067 (Pa. Super. 2015) (determining that the Alleyne rule is procedural).11 We also have no basis for disagreeing with the Commonwealth that the Alleyne rule is not of a groundbreaking, “watershed” character.

2022Commonwealth v. Ali, 112 A.3d 1210, 1226 (Pa. Super. 2015), vacated on other grounds, 149 A.3d 29 (Pa. 2016) (emphasis in original); see also Commonwealth v. Buterbaugh, 91 A.3d 1247 , 1270 n.10 (Pa. Super. 2014). -8- J-S21038-22 For the same reasons, the trial court did not err as a matter of law in applying the deadly weapon enhancement in the present case.

2019Commonwealth v. Ali, 112 A.3d 1210, 1226 (Pa. Super. 2015), vacated on other grounds, 149 A.3d 29 (Pa. 2016) (examining identical Alleyne claim as constituting challenge to discretionary aspects of sentencing).

2019Id. at 10. - 10 - J-S71043-18 It is well settled that an Alleyne challenge goes to the legality of sentence.9 See Commonwealth v. Barnes, 151 A.3d 121, 126-27 (Pa. 2016).

2019Id. at 10. - 10 - J-S71043-18 It is well settled that an Alleyne challenge goes to the legality of sentence.9 See Commonwealth v. Barnes, 151 A.3d 121, 126-27 (Pa. 2016).

2015See Watley, supra; Matteson, supra; United States v. Cotton, 535 U.S. 625 (2002) (Apprendi violation harmless); United States v. King, 751 F.3d 1268, 1279 (11th Cir. 2014) (Alleyne violation harmless); United States v. Harakaly, 734 F.3d 88 (1st Cir. 2013) (same); United States v. Mack, 729 F.3d 594 , (6th Cir. 2013) (same). _______________________ (Footnote Continued) constructs.

2014See Watley, supra; Matteson, supra; United States v. Cotton, 535 U.S. 625 , 122 S.Ct. 1781, 152 L.Ed.2d 860 (2002) (Apprendi violation harmless); United States v. King, 751 F.3d 1268, 1279 (11th Cir.2014) (Alleyne violation harmless); United States v. Harakaly, 734 F.3d 88 (1st Cir.2013) (same); United States v. Mack, 729 F.3d 594 , (6th Cir.2013) (same).

2017But see Commonwealth v. Barnes, 122 A.3d 1034 (Pa. 2015) (granting appeal to consider, inter alia, whether an Alleyne claim raises a challenge to the legality of sentencing).

2017But see Commonwealth v. Barnes, 122 A.3d 1034 (Pa. 2015) (granting appeal to consider, inter alia, whether an Alleyne claim raises a challenge to the legality of sentencing).

2021See Commonwealth v. Bragg, 133 A.3d 328 (Pa.Super. 2016), aff’d, 642 Pa. 13 , 169 A.3d 1024 (2017) (explaining U.S. Supreme Court recognized narrow exception to general Alleyne rule for prior convictions; as appellant was sentenced to mandatory minimum under Section 9714 for his prior conviction of crime of violence, his sentencing challenge has no merit). - 30 - J-A17024-21 that sentence is illegal and subject to correction.

2021Accord Commonwealth v. Bragg, 133 A.3d 328 , 332–33 (Pa. Super. 2016) (United States Supreme Court recognized narrow exception to Alleyne rule for prior convictions), aff'd, 642 Pa. 13 , 169 A.3d 1024 (2017).

2016See Commonwealth v. Wolfe, 106 A.3d 800 (Pa. Super), appeal granted, 121 A.3d 433 (Pa. 2015) (granting appeal to consider whether the Superior Court erred as a matter of law when it determined, sua sponte, that defendant’s mandatory minimum sentence was unconstitutional under Alleyne); Commonwealth v. Barnes, 105 A.3d 47 (Pa. Super. 2014) (unpublished memorandum), appeal granted, 122 A.3d 1034 (Pa. 2015) (granting appeal to consider, inter alia, whether an Alleyne claim raises a challenge to the legality of sentencing).

2016See Commonwealth v. Wolfe, 106 A.3d 800 (Pa. Super), appeal granted, 121 A.3d 433 (Pa. 2015) (granting appeal to consider whether the Superior Court erred as a matter of law when it determined, sua sponte, that defendant’s mandatory minimum sentence was unconstitutional under Alleyne); Commonwealth v. Barnes, 105 A.3d 47 (Pa. Super. 2014) (unpublished memorandum), appeal granted, 122 A.3d 1034 (Pa. 2015) (granting appeal to consider, inter alia, whether an Alleyne claim raises a challenge to the legality of sentencing).

2016See also Commonwealth v. Hopkins, ___ Pa. ___, 117 A.3d 247 (2015) (declaring mandatory minimum statute at 18 Pa.C.S.A. § 6317 (drug-free school zones) unconstitutional in its entirety under Alleyne, where that statute stated its provisions were not elements of crime and applicability of statute should be determined at sentencing by preponderance of evidence). -9- J-S17012-16 In Commonwealth v. Ruiz, 131 A.3d 54 (Pa.Super. 2015), this Court reiterated the Newman Court’s declarations: (1) an Alleyne claim is a nonwaivable challenge to the legality of sentence; and (2) Alleyne announced a new co

2016See also Commonwealth v. Hopkins, ___ Pa. ___, 117 A.3d 247 (2015) (declaring mandatory minimum statute at 18 Pa.C.S.A. § 6317 (drug-free school zones) unconstitutional in its entirety under Alleyne, where that statute stated its provisions were not elements of crime and applicability of statute should be determined at sentencing by preponderance of evidence). -9- J-S17012-16 In Commonwealth v. Ruiz, 131 A.3d 54 (Pa.Super. 2015), this Court reiterated the Newman Court’s declarations: (1) an Alleyne claim is a nonwaivable challenge to the legality of sentence; and (2) Alleyne announced a new co

2017See Commonwealth v. Wolfe, 140 A.3d 651, 660 (Pa. 2016) (“this Court has previously found that an asserted Apprendi-line violation implicated the legality of a sentence.”)2; Commonwealth v. Ruiz, 131 A.3d 54, 60 (Pa. Super. 2015) (Alleyne claim challenges legality of sentence, which petitioner could raise in timely filed PCRA petition where his direct appeal had been pending when Alleyne was decided). ____________________________________________ 1 Before us, in addition to the Alleyne issue, Appellant raises several other issues, see Appellant’s Brief at 4, which were not included in his Pa.R.

2017See Commonwealth v. Wolfe, 140 A.3d 651, 660 (Pa. 2016) (“this Court has previously found that an asserted Apprendi-line violation implicated the legality of a sentence.”)2; Commonwealth v. Ruiz, 131 A.3d 54, 60 (Pa. Super. 2015) (Alleyne claim challenges legality of sentence, which petitioner could raise in timely filed PCRA petition where his direct appeal had been pending when Alleyne was decided). ____________________________________________ 1 Before us, in addition to the Alleyne issue, Appellant raises several other issues, see Appellant’s Brief at 4, which were not included in his Pa.R.

2016See Commonwealth v. Miller, 102 A.3d 988 , 995 n. 5 (Pa.Super. 2014) (no Alleyne violation where the increase in the defendant’s minimum sentence was “based on the fact of prior convictions”); see also Commonwealth v. Valentine, 101 A.3d 801 , 804 n.2 (Pa.Super. 2014) (citation omitted; emphasis added) (“The Alleyne decision renders those Pennsylvania mandatory minimum sentencing statutes that do not pertain to prior convictions constitutionally infirm insofar as they permit a judge to automatically increase a defendant's sentence based on a preponderance of the evidence standard.”).

2015Commonwealth v. Miller, 102 A.3d 988 , 995 n. 5 (Pa.Super. 2014) (holding that there was no Alleyne violation where the -5- J-S45004-15 increase in the defendant’s minimum sentence was “based on the fact of prior convictions[.]”); see also Commonwealth v. Valentine, 101 A.3d 801 , 804 n. 2 (Pa.Super. 2014) (citation omitted; emphasis added) (“The Alleyne decision renders those Pennsylvania mandatory minimum sentencing statutes that do not pertain to prior convictions constitutionally infirm insofar as they permit a judge to automatically increase a defendant's sentence based on a preponderance

2022The Commonwealth asserted that an important exception exists to the Alleyne rule: under Almendarez-Torres v. United States, 523 U.S. 224 (1998), the fact of a prior conviction is not an element that must be proven beyond a reasonable doubt for enhanced statutory penalties to apply.

2022The Commonwealth asserted that an important exception exists to the Alleyne rule: under Almendarez-Torres v. United States, 523 U.S. 224 (1998), the fact of a prior conviction is not an element that must be proven beyond a reasonable doubt for enhanced statutory penalties to apply.

2021See Commonwealth v. Bragg, 133 A.3d 328 (Pa.Super. 2016), aff’d, 642 Pa. 13 , 169 A.3d 1024 (2017) (explaining U.S. Supreme Court recognized narrow exception to general Alleyne rule for prior convictions; as appellant was sentenced to mandatory minimum under Section 9714 for his prior conviction of crime of violence, his sentencing challenge has no merit). - 30 - J-A17024-21 that sentence is illegal and subject to correction.

2021Accord Commonwealth v. Bragg, 133 A.3d 328 , 332–33 (Pa. Super. 2016) (United States Supreme Court recognized narrow exception to Alleyne rule for prior convictions), aff'd, 642 Pa. 13 , 169 A.3d 1024 (2017).

2020See 42 Pa.C.S. § 9545(b)(2); Commonwealth v. Boyd, 923 A.2d 513, 517 (Pa. Super. 2007) (“With regard to an after- recognized constitutional right, this Court has held that the sixty-day period -7- J-S23015-20 begins to run upon the date of the underlying judicial decision” (citation omitted)).

2020See 42 Pa.C.S. § 9545(b)(2); Commonwealth v. Boyd, 923 A.2d 513, 517 (Pa. Super. 2007) (“With regard to an after- recognized constitutional right, this Court has held that the sixty-day period -7- J-S23015-20 begins to run upon the date of the underlying judicial decision” (citation omitted)).

2017Commonwealth v. Wolfe, 106 A.3d 800, 801 (Pa. Super. 2014). 6 Based upon our disposition, we need not further address Kohli’s bald Alleyne challenge. -5- J-S75035-16 Judgment of sentence reversed.

2016See Commonwealth v. Wolfe, 106 A.3d 800 (Pa. Super), appeal granted, 121 A.3d 433 (Pa. 2015) (granting appeal to consider whether the Superior Court erred as a matter of law when it determined, sua sponte, that defendant’s mandatory minimum sentence was unconstitutional under Alleyne); Commonwealth v. Barnes, 105 A.3d 47 (Pa. Super. 2014) (unpublished memorandum), appeal granted, 122 A.3d 1034 (Pa. 2015) (granting appeal to consider, inter alia, whether an Alleyne claim raises a challenge to the legality of sentencing).

2017And third, even if Appellant had met the 60-day requirement and even if Alleyne applied retroactively here, Appellant would not qualify for an Alleyne challenge, because Appellant did not receive any mandatory minimum sentences. -6- J-S96033-16 The only United States Supreme Court decision upon which Appellant relies that was decided less than 60 days prior to the filing of Appellant’s current PCRA petition4 is Montgomery, 136 S. Ct. 718 (Jan. 25, 2016), as revised, Jan. 27, 2016.

2017And third, even if Appellant had met the 60-day requirement and even if Alleyne applied retroactively here, Appellant would not qualify for an Alleyne challenge, because Appellant did not receive any mandatory minimum sentences. -6- J-S96033-16 The only United States Supreme Court decision upon which Appellant relies that was decided less than 60 days prior to the filing of Appellant’s current PCRA petition4 is Montgomery, 136 S. Ct. 718 (Jan. 25, 2016), as revised, Jan. 27, 2016.

2021Subsequently, in Commonwealth v. DiMatteo, 177 A.3d 182 (Pa. 2018), this Court held an Alleyne claim is cognizable under the PCRA.

2021Subsequently, in Commonwealth v. DiMatteo, 177 A.3d 182 (Pa. 2018), this Court held an Alleyne claim is cognizable under the PCRA.

2017See Commonwealth v. Barnes, _ A.3d _, 2016 WL 7449232 (Pa. Dec. 28, 2016) (an Alleyne challenge implicates the legality of a sentence for issue preservation purposes and is not waivable); Commonwealth v. Edrington, 780 A.2d 721, 723 (Pa.Super. 2001), citing Commonwealth v. Vasquez, 744 A.2d 1280 (Pa. 2000) (application of a mandatory sentencing provision implicates the legality of the sentence, not the discretionary aspects of the sentence); see also Commonwealth v. Fennell, 105 A.3d 13, 15 (Pa.Super. 2014), appeal denied, 121 A.3d 494 (Pa. 2015), citing Commonwealth v. Lawrence, 99 A.3d 116,

2017See Commonwealth v. Barnes, _ A.3d _, 2016 WL 7449232 (Pa. Dec. 28, 2016) (an Alleyne challenge implicates the legality of a sentence for issue preservation purposes and is not waivable); Commonwealth v. Edrington, 780 A.2d 721, 723 (Pa.Super. 2001), citing Commonwealth v. Vasquez, 744 A.2d 1280 (Pa. 2000) (application of a mandatory sentencing provision implicates the legality of the sentence, not the discretionary aspects of the sentence); see also Commonwealth v. Fennell, 105 A.3d 13, 15 (Pa.Super. 2014), appeal denied, 121 A.3d 494 (Pa. 2015), citing Commonwealth v. Lawrence, 99 A.3d 116,

2016Moreover, Irving’s challenge to plea counsel’s ineffectiveness for advising him to enter a guilty plea with a mandatory minimum sentence after the Supreme Court filed its decision in Alleyne appears to be meritorious based upon this Court’s recent decision in Commonwealth v. Melendez-Negron, 123 A.3d 1087, 1091 (Pa. Super. 2015) (defendant who entered negotiated guilty plea, including Section 9712.1 mandatory minimum sentence, was entitled to relief based upon ineffectiveness of plea counsel for advising him to enter guilty plea; Supreme Court’s decision in Alleyne put counsel on notice of the

2016Moreover, Irving’s challenge to plea counsel’s ineffectiveness for advising him to enter a guilty plea with a mandatory minimum sentence after the Supreme Court filed its decision in Alleyne appears to be meritorious based upon this Court’s recent decision in Commonwealth v. Melendez-Negron, 123 A.3d 1087, 1091 (Pa. Super. 2015) (defendant who entered negotiated guilty plea, including Section 9712.1 mandatory minimum sentence, was entitled to relief based upon ineffectiveness of plea counsel for advising him to enter guilty plea; Supreme Court’s decision in Alleyne put counsel on notice of the

2016See also Apprendi v. New Jersey, 530 U.S. 466, 490 (2000) (“Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the ____________________________________________ 2 See Commonwealth v. Ruiz, 2015 PA Super 275 at *5 , ___ A.3d ___, ___ (Pa. Super. filed December 30, 2015) (“[A]n Alleyne claim is a non- waivable challenge to the legality of sentence.

2016The Majority candidly recognizes the issue of the propriety of the Superior Court raising a retroactive Alleyne claim, on grounds the sentence is “illegal.” The Majority then takes the perfectly reasonable stance that the Commonwealth’s failure to address the line of decisions beginning with Commonwealth v. Aponte, 855 A.2d 800 (Pa. 2004), which has found Apprendi-based1 claims to 1 Apprendi v. New Jersey, 530 U.S. 466 (2000). [J-24-2016] [MO: Saylor, C.J.] - 4 implicate Pennsylvania’s illegal sentencing doctrine,2 warrants deferring the sentencing legality issue to Commonwealth v. Barnes, 122

2018The court concluded the mandatory minimum sentence could withstand an Alleyne challenge because "the jury specifically found the element required to impose the mandatory minimum sentence." Matteson , 96 A.3d at 1066 .

2018The court concluded the mandatory minimum sentence could withstand an Alleyne challenge because "the jury specifically found the element required to impose the mandatory minimum sentence." Matteson , 96 A.3d at 1066 .