non-waivable challenge in Pennsylvania

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).

2018However, in Commonwealth v. Ruiz, 131 A.3d 54 (Pa. Super 2015), this Court recognized that an Alleyne claim constitutes a non-waivable challenge to the legality of a sentence and may be raised for the first time in a timely-filed PCRA petition if the petitioner’s judgment of sentence was not final when Alleyne was decided.

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).

2016Id. at 60 , citing Commonwealth v. Newman, 99 A.3d 86, 90 (Pa. Super. 2014) (en banc) (recognizing that Alleyne applies to all criminal cases pending on direct review), appeal denied, 121 ____________________________________________ 2 The issue of whether Alleyne implicates the legality of a sentence, and thus constitutes a non-waivable claim, is currently pending before the Pennsylvania Supreme Court in Commonwealth v. Barnes, 122 A.3d 1034 -1035 (Pa. 2015) (per curiam order granting petition for allowance of appeal in part). -4- J-S65016- 16 A.3d 496 (Pa. 2015).

2018See Commonwealth v. Hopkins, 67 A.3d 817, 821 (Pa. Super. 2013) (stating that a challenge to the application of a mandatory minimum sentence is a non-waivable challenge to the legality of the sentence imposed). - 11 - J-S80017-17 (b) Penalties.--Notwithstanding section 1103(1) (relating to sentence of imprisonment for felony), a person convicted under subsection (a) shall be sentenced to a term of imprisonment fixed by the court at not more than 40 years. 18 Pa.C.S. § 2702.1(a) and (b).

2017“As a general rule, a challenge to the application of a mandatory minimum sentence is a non-waivable challenge to the legality of sentence.” Commonwealth v. Hopkins, 67 A.3d 817, 821 (Pa. Super. 2013) (internal quotation marks and citation omitted).

2025Further, the failure to appoint counsel to represent a child’s legal interests pursuant to Section 2313(a) is a non-waivable error. [In re T.S., 192 A.3d 1080, 1087 (Pa. 2018)].

2025The failure to appoint counsel to represent a child’s legal interests “is a non-waivable error.” T.S., 192 A.3d at 1087 .

2024See Jacobs, 900 A.2d at 376-77 (holding “a denial of the right of allocution does not create a non-waivable challenge to the legality of the sentence[]”); see also Pa.R.A.P. 302(a) (“Issues not raised in the trial court are waived and cannot be raised for the first time on appeal.”).

2019While “the right of allocution is of paramount importance,” our courts have unequivocally held “that a denial of the right of allocution does not create a non-waivable challenge to the legality of sentence.” Commonwealth v. Jacobs, 900 A.2d 368, 375-377 (Pa. Super. 2006) (en banc) (citations omitted).

2017See Watley, supra at 118 . -7- J-S40022-17 2015), this Court recognized that an Alleyne claim constitutes a non- waivable challenge to the legality of a sentence and may be raised for the first time in a timely-filed PCRA petition if the petitioner’s judgment of sentence was not final when Alleyne was decided.

2016See, e.g., Commonwealth v. Watley, 81 A.3d 108, 118 (Pa.Super.2013) (en banc) (citing Foster for the proposition that “Mpplication of a mandatory minimum sentence gives rise to illegal sentence concerns,” and thus a challenge to such is non-waivable); Commonwealth v. Hopkins, 67 A.3d 817, 821 (Pa.Super.2013) (“As a general rule, a challenge to the application of a mandatory minimum sentence is a non-waivable challenge to the legality of sentence.” (internal quotations omitted)); Commonwealth v. Newman, 99 A.3d 86, 90 (Pa.Super.2014) (en banc) (same).

2017See Commonwealth v. Robinson, 931 A.2d 15, 24 (Pa.Super. 2007). -4- J-S06006-17 Commonwealth v. Britton, 134 A.3d 83, 86 (Pa.Super. 2016) (quoting Commonwealth v. Caban, 60 A.3d 120, 132 (Pa.Super. 2012)).

2014The question then becomes whether a constitutional attack on a statute that authorizes a mandatory minimum sentence may also be considered a non-waivable challenge to the legality of the sentence actually imposed, and if so, to what extent. [T]his Court has grappled with the illegal sentencing doctrine as jurisprudence on such issues as constitutional sentencing challenges and the difference between legal sentencing questions and an illegal sentence have Id. en banc cases, we have established the principle that the term illegal sentence is a term of art that - 12 - J-S41033-14 Commonwealth v.

2024See 42 Pa.C.S.A § 9726(c)(1) (“The court shall not sentence a defendant to pay a fine unless it appears of record that ...” the defendant has the financial means to pay the fine and that the fine will not interfere with payment of restitution to a victim.”); see also Commonwealth v. Boyd, 73 A.3d 1269 (Pa. Super. 2013) (en banc) (failure to consider a defendant’s ability to pay before imposing fines is a non-waivable challenge to the legality of sentence).

2017Such a challenge is a non- waivable challenge to the legality of the sentence, Commonwealth v. Boyd, 73 A.3d 1269, 1274 (Pa.Super. 2013) (en banc), for which our standard of review is de novo, Commonwealth v. Childs, 63 A.3d 323, 325 (Pa.Super. 2013).10 ____________________________________________ 9 Further, even if he had raised the challenge in the post-sentence motion, we would conclude that it lacked merit.

2021Commonwealth v. Childs, 63 A.3d 323, 325 (Pa. Super. 2013).

2017Such a challenge is a non- waivable challenge to the legality of the sentence, Commonwealth v. Boyd, 73 A.3d 1269, 1274 (Pa.Super. 2013) (en banc), for which our standard of review is de novo, Commonwealth v. Childs, 63 A.3d 323, 325 (Pa.Super. 2013).10 ____________________________________________ 9 Further, even if he had raised the challenge in the post-sentence motion, we would conclude that it lacked merit.

2015See Commonwealth v. Williams, 920 A.2d 887 (Pa. Super. 2007) (claim that sentences should have merged raises a non-waivable challenge to the legality of the sentences).

2010However, because a claim that a trial court erroneously did not *1276 merge charges for purposes of sentencing is a non-waivable challenge to the legality of sentence, Commonwealth v. Williams, 920 A.2d 887, 888 (Pa.Super.2007), we will discuss the merits of Appellant’s claim.

2026See id. at 24-27. “[A] challenge to the application of a mandatory minimum sentence is a non-waivable challenge to the legality of the sentence.” Commonwealth v. Lawrence, 99 A.3d 116, 122 (Pa. Super. 2014) (citation omitted).

2014Commonwealth v. Lawrence, 99 A.3d 116, 122 (Pa.Super.2014).

2025See Commonwealth v. Watson, 228 A.3d 928, 941 (Pa. Super. 2020); see also Commonwealth v. Edwards, 256 A.3d 1130 , 1136 (Pa. 2021) (stating that merger “raises a non-waivable challenge to the legality of the sentence” (citation omitted)).

2023See Commonwealth v. Watson, 228 A.3d 928, 941 (Pa. Super. 2020).

2022See also Commonwealth v. Simmons, 262 A.3d 512, 515 (Pa. Super. 2021) (en banc).

2022Simmons, 262 A.3d at 515.

2020See Commonwealth v. Diamond, 945 A.2d 252, 256 (Pa. Super. 2008) (stating, generally, that a challenge to the application of a mandatory minimum sentence is a non- waivable challenge to the legality of sentence).

2013As a general rule, “a challenge to the application of a mandatory minimum sentence is a non-waivable challenge to the legality of sentence.” Commonwealth v. Diamond, 945 A.2d 252, 256 (Pa.Super.2008), appeal denied, 598 Pa. 755 , 955 A.2d 356 (2008).

2019See Commonwealth v. Washington, 142 A.3d 810, 820 (Pa. 2016); see also Commonwealth v. Ruiz, 131 A.3d 54 (Pa.Super. 2015).

2017See Commonwealth v. Washington, 142 A.3d 810, 820 (Pa. 2016); see also Commonwealth v. Ruiz, 131 A.3d 54 (Pa. Super 2015).

2017Commonwealth v. Foster, 960 A.2d 160, 168 (Pa. Super. 2008) (“application of a mandatory minimum sentence is a non-waivable challenge to the legality of a sentence.”) (internal citations omitted).

2017See Commonwealth v. Robinson, 7 A.3d 868, 871 (Pa. Super. 2010) (concluding that a claim that “the trial court fail[ed] to make a statutorily required determination regarding a defendant‟s eligibility for an RRRI minimum sentence as required” constitutes “a non-waivable challenge to the legality of [his] sentence”); Commonwealth v. Foster, 960 A.2d 160, 163 (Pa. Super. 2008) (“[C]laims pertaining to the legality of sentence are non- waivable, may be leveled for the first time on appeal, and our jurisdiction need not be invoked in a Pa.R.A.P. 2119(f) statement.”) (citation omitted). -9- J-A0501

2016See Schriro v. Summerlin, 542 U.S. 348, 351 (2004) (“When a decision of this -6- J-E01012-16 Court results in a ‘new rule,’ that rule applies to all criminal cases still pending on direct review.”).6 Our conclusion in Ruiz was that, if a defendant’s direct appeal was pending when Alleyne was filed, 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.

2016See Schriro v. Summerlin, 542 U.S. 348, 351 (2004) (“When a decision of this Court results in a ‘new rule,’ that rule applies to all criminal cases still pending on direct review.”).2 Our conclusion in Ruiz was that, if a defendant’s direct appeal was pending when Alleyne was filed, 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.

2016Further, “[a] claim that the trial court imposed an illegal sentence by failing to merge sentences is a question of law.” Commonwealth v. Duffy, 832 A.2d 1132, 1137 (Pa.Super. 2003) (quotation and quotation -3- J-S36045-16 marks omitted).

2016Further, “[a] claim that the trial court imposed an illegal sentence by failing to merge sentences is a question of law.” Commonwealth v. Duffy, 832 A.2d 1132, 1137 (Pa. Super. 2003) (quoting Commonwealth v. Collins, 764 A.2d 1056 , 1057 n.1 (Pa. 2001)).

2016A claim that sentences should have merged is “a non-waivable challenge to the legality of the sentence.” Commonwealth v. Lomax, 8 A.3d 1264, 1267 (Pa. Super. 2010) (citing Commonwealth v. Martz, 926 A.2d 514, 525 (Pa. Super. 2007)).

2010However, we do not find waiver, as a claim that sentences should have merged is "a non-waivable challenge to the legality of the sentence.” See Commonwealth v. Martz, 926 A.2d 514, 525 (Pa.Super.2007), appeal denied, 596 Pa. 704 , 940 A.2d 363 (2008). 4 .

2016A claim that sentences should have merged is “a non-waivable challenge to the legality of the sentence.” Commonwealth v. Lomax, 8 A.3d 1264, 1267 (Pa.Super. 2010) (citation omitted).

2016A claim that sentences should have merged is “a non-waivable challenge to the legality of the sentence.” Commonwealth v. Lomax, 8 A.3d 1264, 1267 (Pa. Super. 2010) (citing Commonwealth v. Martz, 926 A.2d 514, 525 (Pa. Super. 2007)).

2016See Newman, supra at 90 (“challenge to a sentence premised upon Alleyne . . . implicates the legality of the sentence,” and such a challenge cannot be waived); Commonwealth v. Beck, 848 A.2d 987, 989 (Pa.Super. 2004) (“Issues concerning the legality of sentence are cognizable under the PCRA.”).

2016See Newman, supra at 90 (“challenge to a sentence premised upon Alleyne . . . implicates the legality of the sentence,” and such a challenge cannot be waived); Commonwealth v. Beck, 848 A.2d 987, 989 (Pa.Super. 2004) (“Issues concerning the legality of sentence are cognizable under the PCRA.”).

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. 2014), 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 the 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).

2017Accordingly, we agree with the parties that Appellant’s sentence is illegal due to the trial court’s failure to make a determination of Appellant’s RRRI eligibility on the record at the time of sentencing, and the ____________________________________________ 3 Although Appellant’s RRRI issue was not raised in his post-sentence motion or in his Pa.R.A.P. 1925(b) statement, this Court has held that “where the trial court fails to make a statutorily required determination regarding a defendant’s eligibility for an RRRI minimum sentence as required, the sentence is illegal,” and this “issue presen

2017See Commonwealth v. Robinson, 7 A.3d 868, 871 (Pa. Super. 2010) (concluding that a claim that “the trial court fail[ed] to make a statutorily required determination regarding a defendant‟s eligibility for an RRRI minimum sentence as required” constitutes “a non-waivable challenge to the legality of [his] sentence”); Commonwealth v. Foster, 960 A.2d 160, 163 (Pa. Super. 2008) (“[C]laims pertaining to the legality of sentence are non- waivable, may be leveled for the first time on appeal, and our jurisdiction need not be invoked in a Pa.R.A.P. 2119(f) statement.”) (citation omitted). -9- J-A0501

2021See N.T., Sentencing H’rg, at 6-7; see also Commonwealth v. Harley, 924 A.2d 1273, 1277 (Pa. Super. 2007) (“Ordinarily, a challenge to the application of a mandatory minimum sentence is a non-waivable challenge to the legality of the sentence.”) (citation omitted).

2008As stated by our Supreme Court, when statutory language is clear, “it generally furnishes the best indication of legislative intent.” Dickson, 591 Pa. at 372 , 918 A.2d at 100 . ¶ 12 The remaining cases cited by the majority, Commonwealth v. Harley, 924 A.2d 1273 (Pa.Super.2007), Commonwealth v. Johnson, 920 A.2d 873 (Pa.Super.2007), Commonwealth v. Stafford, 932 A.2d 214 (Pa.Super.2007), and Commonwealth v. Bongiorno, 905 A.2d 998 (Pa.Super.2006), each contain broad statements indicating that a challenge to the application of a mandatory minimum sentence is a non-waivable challenge to the leg

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.

2014This Court has consistently enunciated three distinct categories of legality of sentence involving merger/double jeopardy; and (3) claims implicating the rule in Apprendi v. New Jersey, 530 U.S. 466 (2000) Id. (internal parallel citations omitted).