J-S56027-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT

OF

PENNSYLVANIA

Appellee

v.

RYAN THOMAS

Appellant No. 75 EDA 2017

Appeal from the PCRA Order Dated December 12, 2016

In the Court of Common Pleas of Delaware County

Criminal Division at No: CP-23-CR-0002727-2011

BEFORE: BOWES, STABILE, and PLATT,* JJ. 

MEMORANDUM BY STABILE, J.: FILED NOVEMBER 28, 2017

Appellant Ryan Thomas appeals from the December 12, 2016 order of 

the Court of Common Pleas of Delaware County, which denied his request for 

collateral relief under the Post Conviction Relief Act (the “PCRA”), 42 Pa.C.S.A. 

§§ 9541-46. Upon review, we vacate and remand. 

Appellant’s sole issue on appeal is that the PCRA court erred in 

dismissing his timely first PCRA petition challenging his mandatory minimum 

sentence of 60 to 120 months’ imprisonment under Alleyne v. United 

States, 133 S. Ct. 2151, 2161-63 (2013) (holding that any fact other than a 

prior conviction that triggers a mandatory minimum sentence must be found 

____________________________________________

* Retired Senior Judge assigned to the Superior Court.
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by a jury beyond a reasonable doubt).1 Alleyne was decided on June 17, 

2013, nearly four months before Appellant was sentenced on October 9, 

2013.2 An Alleyne challenge implicates the legality of a sentence, which “may 

be entertained as long as the reviewing court has jurisdiction. An illegal 

sentence must be vacated. Issues relating to the legality of a sentence are 

questions of law. Our standard of review over such questions is de novo and 

our scope of review is plenary.” Commonwealth v. Ali, 112 A.3d 1210, 1225 

(Pa. Super. 2015) (internal citations, quotations, and corrections omitted). An

Alleyne claim is a non-waivable challenge to the legality of a sentence that 

may be raised for the first time in a timely-filed PCRA petition, so long as the

judgment of sentence was not final when Alleyne was decided. 

Commonwealth v. Ruiz, 131 A.3d 54, 59-60 (Pa. Super. 2015). 

The PCRA court and the Commonwealth now agree with Appellant’s 

contention and urge us to vacate Appellant’s judgment of sentence and 

____________________________________________

1 Appellant entered into a negotiated plea to, inter alia, possession with intent 

to deliver, which carried a mandatory minimum sentence under 18 Pa.C.S.A. 

§ 7508. 

2 On November 7, 2013, the trial court denied Appellant’s post-sentence 

motion. Appellant did not file a direct appeal. His judgment of sentence 

became final on December 9, 2013. On October 20, 2014, Appellant filed the 

instant PCRA petition, asserting the Alleyne violation. The PCRA court 

appointed counsel who eventually filed a no-merit letter pursuant to 

Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988) and Commonwealth 

v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc) and petitioned to 

withdraw from the case. The PCRA court granted counsel’s petition on 

November 30, 2015. Thereafter, following the PCRA court’s issuance of a 

Pa.R.Crim.P. 907 notice of its intent to dismiss the petition without a hearing, 

the PCRA court denied Appellant PCRA relief on December 12, 2016. 
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remand this matter for resentencing consistent with Alleyne. Because 

Alleyne was decided before Appellant was sentenced, we agree with the 

parties’ and the PCRA court’s conclusion that the PCRA court’s order denying 

Appellant PCRA relief must be reversed. See Commonwealth v. Mosley, 

114 A.3d 1072, 1091 (Pa. Super. 2015) (invalidating 18 Pa.C.S.A. § 7508), 

appeal denied, 166 A.3d 1215 (Pa. 2017). Accordingly, we vacate 

Appellant’s judgment of sentence and remand for resentencing.

Order reversed. Judgment of sentence vacated. Case remanded for 

resentencing. Jurisdiction relinquished. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 11/28/2017