J-E01012-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

ANTHONY S. HASKINS,

Appellant No. 1815 MDA 2014

Appeal from the PCRA Order October 1, 2014

In the Court of Common Pleas of Dauphin County

Criminal Division at No(s): CP-22-CR-0003755-2008

BEFORE: FORD ELLIOTT, P.J.E., BENDER, P.J.E., BOWES, SHOGAN, 

LAZARUS, MUNDY, OLSON, OTT, AND STABILE, JJ.

MEMORANDUM BY BOWES, J.: FILED JUNE 06, 2016

Anthony Haskins appeals pro se1from the October 1, 2014 order 

denying his first timely PCRA petition. We vacate the October 1, 2014 order 

and Appellant’s January 18, 2011 judgment of sentence and remand for 

resentencing.

Based on the following proof, a jury found Appellant guilty of 

possession of a controlled substance with intent to deliver (“PWID”), person 

____________________________________________

1

 The PCRA court permitted initial PCRA counsel to withdraw pursuant to 

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

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

Thereafter, based on Appellant’s response to the court’s notice of intent to 

dismiss the petition without a hearing, the court appointed new PCRA 

counsel. That attorney was allowed to withdraw after Appellant requested to 

proceed pro se and was given a colloquy regarding waiver of counsel. N.T. 

PCRA Hearing, 7/30/14, at 15-17.
J-E01012-16

- 2 -

not to possess a firearm, carrying an unlicensed firearm, and possession of 

drug paraphernalia. On April 9, 2008, Harrisburg Police responded to a 

report of shots fired in the area of 13th and Market Streets in Harrisburg 

City. Appellant, who was located on 13th Street, was the shooting victim.2 

Witnesses reported that Appellant was actually shot on Brady Street, which 

was close to where he was found. At the corner of Brady Street, police 

found a functional gun and a set of car keys belonging to a silver Honda 

parked nearby on Howard Street. The Honda belonged to Alina Everchik, 

who was sitting in the vehicle when officers discovered it. Everchik reported 

that Appellant was her friend, had borrowed the car that morning, and, after 

he was shot, Appellant called her and told her to move that vehicle. She 

was unable to comply with Appellant’s request because she did not have its 

keys. 

Police had the car towed to the lot of a towing company, and obtained 

a search warrant for the Honda the following day. They discovered therein 

two clear baggies containing a total of 24.9 grams of marijuana. Everchik 

denied ownership of the marijuana. Police then obtained a warrant for 

Appellant’s residence, where they found Everchik and Appellant as well as 

37.1 grams of marijuana and a digital scale. Appellant admitted that the 

____________________________________________

2

 Appellant initially refused to identify his assailant, but eventually told 

police that Donald Woods shot him. 
J-E01012-16

- 3 -

marijuana in the residence belonged to him and that he had been driving the 

Honda on April 9, 2008, from morning until the time of the shooting. The 

Commonwealth also presented expert testimony that, under the facts and 

circumstances present in this case, the marijuana in question was possessed 

with the intent to deliver.

The trial court imposed its judgment of sentence on January 18, 2011. 

The sentence included application of 42 Pa.C.S. § 9712.13on the PWID 

offense. N.T. Sentencing, 1/18/11, at 15. The court also sentenced 

Appellant to a consecutive term of incarceration of three to six years on one 

of the firearm offenses so that Appellant’s aggregate judgment of sentence 

was eight to sixteen years incarceration. Appellant timely appealed to this 

Court, which affirmed on September 25, 2012. Commonwealth v. 

Haskins, 60 A.3d 861 (Pa.Super. 2012) (unpublished memorandum). Our 

Supreme Court denied allowance of appeal on May 6, 2013. 

Commonwealth v. Haskins, 67 A.3d 794 (Pa. 2013). 

On June 17, 2013, the United States Supreme Court disseminated its 

decision in Alleyne v. United States, 133 S.Ct. 2151, 2155 (2013), 

____________________________________________

3 Section 9712.1, which has been ruled unconstitutional, required imposition 

of a five-year mandatory minimum jail term for a PWID conviction if a 

firearm was found in close proximity to the illegal drugs. That statute also 

stated that its provisions were not elements of the crime and were to be 

determined at sentencing by the court pursuant to a preponderance-of-theevidence standard.
J-E01012-16

- 4 -

wherein the Court held that “[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.” Pursuant to Alleyne, the defendant has a 

constitutional right to have a jury decide the existence of any fact, other 

than a prior conviction, beyond a reasonable doubt if that fact triggers 

application of a mandatory minimum sentence. Herein, the facts necessary 

for application of § 9712.1 were found by the sentencing court pursuant to a 

preponderance of the evidence standard. See footnote 3, supra. On August 

20, 2014, this Court decided in Commonwealth v. Newman, 99 A.3d 86 

(Pa.Super. 2014) (en banc), that 42 Pa.C.S. § 9712.1 is unconstitutional in 

its entirety under Alleyne.

4

Appellant herein did not file a writ of certiorari from our Supreme 

Court’s May 6, 2013 denial of allowance of appeal from our affirmance of his 

judgment of sentence. Appellant did file a timely pro se PCRA petition on 

May 30, 2013. On June 3, 2013, the PCRA court appointed counsel, who 

was subsequently permitted to withdraw. See footnote 1, supra. As noted, 

on June 17, 2013, the United States Supreme Court decided Alleyne. Even 

though a writ of certiorari could have been timely filed following PCRA 

____________________________________________

4

In Commonwealth v. Hopkins, 117 A.3d 247 (Pa. 2015), our Supreme 

Court employed the same reasoning as the en banc Court in Newman, and 

declared a different mandatory minimum sentencing provision, 18 Pa.C.S. § 

6317, void in its entirety under Alleyne. 
J-E01012-16

- 5 -

counsel’s June 3, 2013 appointment, PCRA counsel did not file that writ. 

Specifically, Appellant had until August 4, 2013, ninety days after the May 6, 

2013 denial of allowance of appeal by our Supreme Court, to seek certiorari

in the United States Supreme Court.5

In this timely PCRA proceeding, Appellant sought relief from his 

judgment of sentence pursuant to Alleyne. On October 1, 2014, the PCRA 

court denied relief based upon its conclusion that Alleyne was not 

retroactively applicable to PCRA petitioners. This timely appealed ensued, 

and the matter initially was submitted to a panel. This Court sua sponte

granted en banc review. The only relief that Appellant seeks in this appeal is 

re-sentencing without application of the unconstitutional mandatory 

minimum sentence applied in this matter.

____________________________________________

5

 United States Supreme Court Rule 13 states: 

 Unless otherwise provided by law, a petition for a writ of 

certiorari to review a judgment in any case, civil or criminal, 

entered by a state court of last resort . . . is timely when it is 

filed with the Clerk of this Court within 90 days after entry of the 

judgment. A petition for a writ of certiorari seeking review of a 

judgment of a lower state court that is subject to discretionary 

review by the state court of last resort is timely when it is filed 

with the Clerk within 90 days after entry of the order denying 

discretionary review.

U.S. Sup. Ct. R. 13.
J-E01012-16

- 6 -

On January 25, 2016, Appellant submitted a supplemental brief 

seeking application of our December 30, 2015 decision in Commonwealth 

v. Ruiz, 131 A.3d 54 (Pa.Super. 2015). The Commonwealth did not 

respond to the supplemental brief. In Ruiz, the defendant was denied PCRA 

relief pursuant to a timely-filed PCRA petition. On appeal, the defendant, 

who was sentenced under the same mandatory minimum at issue in the 

present case, claimed that he was entitled to re-sentencing under Alleyne

and Newman. We agreed with that contention, vacated the judgment of 

sentence, and remanded for resentencing.

The Ruiz Court concluded that Ruiz was entitled to be re-sentenced 

since he filed a timely PCRA petition and since Alleyne had been decided 

when his judgment of sentence was not final, as defined by the PCRA. 

Specifically, Ruiz did not file a direct appeal, but Alleyne was issued within 

the thirty-day window for filing one. In Ruiz, we specifically distinguished 

Commonwealth v. Riggle, 119 A.3d 1058 (Pa.Super. 2015), which held 

that a PCRA petitioner is not entitled to retroactive application of the 

Alleyne decision. The Ruiz Court concluded that Riggle was inapplicable 

because Alleyne was issued after Riggle’s sentence was final, as defined by 

the PCRA. In so doing, we observed that Newman held that Alleyne

applies to any case pending on direct appeal when Alleyne was filed. See

Schriro v. Summerlin, 542 U.S. 348, 351 (2004) (“When a decision of this 
J-E01012-16

- 7 -

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. See 

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.”). Under Ruiz, a defendant is entitled to relief pursuant to Alleyne

and Newman if the defendant’s judgment of sentence was still pending on 

direct review, as determined by reference to § 9545(b)(3) of the PCRA, 

when Alleyne was filed. 

We find Ruiz persuasive and apply it in the present case. Appellant’s 

judgment of sentence was still pending on direct review when Alleyne was 

issued. Section 9545(b)(3) states, “For purposes of this subchapter, a 

judgment becomes final at the conclusion of direct review, including 

____________________________________________

6

 Alleyne is a new rule of law in that it overruled existing Supreme Court 

precedent that provided that any fact necessary to trigger application of a 

mandatory minimum sentence did not have to be submitted to a jury and 

proven beyond a reasonable doubt. See Harris v. United States, 536 U.S. 

545 (2002); McMillan v. Pennsylvania, 477 U.S. 79 (1986). 
J-E01012-16

- 8 -

discretionary review in the Supreme Court of the United States and the 

Supreme Court of Pennsylvania, or at the expiration of time for seeking the 

review.” 42 Pa.C.S. § 9545(b)(3). On May 6, 2013, our Supreme Court 

denied allowance of appeal from our affirmance of Appellant’s judgment of 

sentence. As analyzed, supra, Appellant had ninety days to petition for a 

writ of certiorari. Thus, Appellant’s judgment of sentence became final for 

purposes of § 9545(b)(3) on August 4, 2013, when the time for seeking 

review in the United States Supreme Court expired. Alleyne was issued on 

June 17, 2013, while Appellant’s direct appeal was pending, and he therefore 

is entitled to application of Alleyne and Newman. 

The October 1, 2014 PCRA order and the January 18, 2011 judgment 

of sentence are vacated. Case remanded for resentencing. Jurisdiction 

relinquished. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 6/6/2016