J-S52025-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

JORDAN MICHAEL MOFFETT,

Appellant No. 204 WDA 2015

Appeal from the PCRA Order of January 15, 2015

In the Court of Common Pleas of Erie County

Criminal Division at No(s): CP-25-CR-0001618-2013

BEFORE: SHOGAN, OLSON and WECHT, JJ.

MEMORANDUM BY OLSON, J.: FILED DECEMBER 14, 2015

Appellant, Jordan Michael Moffett, appeals from the order entered on 

January 15, 2015, dismissing his first petition pursuant to the Post 

Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. Upon review, we 

reverse, vacate Appellant’s judgment of sentence, and remand for 

resentencing.

We briefly summarize the facts and procedural history of this case as 

follows. On November 1, 2013, Appellant pled guilty to robbery pursuant to 

18 Pa.C.S.A. § 3701(a)(ii). On December 17, 2013, the trial court imposed 

a mandatory term of five to ten years of imprisonment pursuant to 42 

Pa.C.S.A. § 9712, based upon the court’s determination at sentencing that 

Appellant committed the robbery with a firearm. Because Appellant did not 

request reconsideration or file a direct appeal, his judgment of sentence 
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became final on January 16, 2013. See Pa.R.Crim.P. 720; Pa.R.A.P. 903 

(providing thirty days to file appeal under both rules). On September 12, 

2014, Appellant filed a pro se PCRA petition. The PCRA court appointed 

counsel who filed an amended PCRA petition, on October 31, 3014, alleging 

Appellant’s sentence was illegal. On December 24, 2014, the PCRA court 

sent Appellant notice of its intent to dismiss the PCRA petition without a 

hearing pursuant to Pa.R.Crim.P. 907, along with an accompanying opinion. 

By order entered on January 15, 2015, the PCRA court denied relief. The 

PCRA court, in its December 24, 2014 opinion, concluded that the United 

States Supreme Court’s decision in Alleyne1 did not apply to Appellant’s 

case because he entered a guilty plea and Alleyne does not apply 

retroactively in the context of a PCRA petition. This timely appeal followed.

On appeal, Appellant presents the following issue for our review:

[1.] Whether the [trial] court erred in failing to find that 

the mandatory minimum sentence imposed in the 

instant case constituted an illegal sentence under 

Alleyne?

Appellant’s Brief at 2.

Appellant asserts his sentence is illegal under Alleyne because the 

trial court imposed his mandatory sentence based upon an unconstitutional 

statute. Id. at 4. Appellant’s sentence became final after the decision was 

rendered in Alleyne, on June 17, 2013, but before our Court interpreted and 

____________________________________________

1 Alleyne v. United States, -- U.S. --, 133 S. Ct. 2151 (2013).
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applied Alleyne in Commonwealth v. Newman, 99 A.3d 86 (Pa. Super. 

2014) and Commonwealth v. Valentine, 101 A.3d 801 (Pa. Super. 2014). 

Thus, Appellant argues, in effect, that his case does not involve retroactive 

application of the rule announced in Alleyne even though he is presently 

proceeding on collateral review. Id. Accordingly, Appellant argues that his 

sentence is illegal, regardless of whether he pled guilty or was convicted 

following trial. Id.

Our scope and standard of review is well-settled:

In PCRA appeals, our scope of review is limited to the 

findings of the PCRA court and the evidence on the record of 

the PCRA court's hearing, viewed in the light most favorable 

to the prevailing party. Because most PCRA appeals involve 

questions of fact and law, we employ a mixed standard of 

review. We defer to the PCRA court's factual findings and 

credibility determinations supported by the record. In 

contrast, we review the PCRA court's legal conclusions de 

novo.

Commonwealth v. Reyes-Rodriguez, 111 A.3d 775, 779 (Pa. Super. 

2015) (internal citations and quotations omitted).

Here, the trial court imposed a five-year mandatory minimum 

sentence, pursuant to 42 Pa.C.S.A. § 9712, based upon its finding that 

Appellant brandished a firearm during the commission of a robbery. The 

PCRA court subsequently denied Appellant’s requested relief under Alleyne

on two grounds. First, the PCRA court determined that Alleyne and its 

progeny are “not applicable in the [guilty] plea setting because the 

defendant concedes the factual predicates that implicate the mandatory 
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minimum sentence.” PCRA Court Opinion, 12/24/2014, at 3. Second, the 

PCRA court determined that Appellant was not entitled to retroactive 

application of Alleyne. Id.

This Court has held Section 9712 to be unconstitutional, in its entirety, 

in light of Alleyne. Commonwealth v. Valentine, 101 A.3d at 812; see 

also Commonwealth v. Hopkins, 117 A.3d 247, 262 (Pa. 2015) (holding a 

statute is unconstitutional in its entirety when the remaining unoffending 

provisions of that statute are incapable of severance). Because Section 

9712 is unconstitutional in its entirety, any sentence imposed pursuant to 

that section is illegal and must be vacated, as no statutory authority for such 

a penalty exists. Commonwealth v. Fennell, 105 A.3d 13, 15-20 (Pa. 

Super. 2014) (emphasis added) (explaining “if no statutory authorization 

exists for a particular sentence, that sentence is illegal and subject to 

correction” and holding a defendant’s stipulation to the fact that resulted in 

the imposition of a mandatory minimum sentence did not satisfy the dictates 

of Alleyne). 

In view of these principles, we reject the PCRA court’s conclusion that 

Alleyne “is not applicable in the plea setting because the defendant 

concedes the factual predicates that implicate the mandatory minimum 

sentence.” PCRA Court Opinion, 12/24/2014, at 3; see Fennell, supra

(because mandatory minimum sentencing statute is unconstitutional in its 

entirety, the court rejected stipulations of fact regarding the weight of 

narcotics recovered as grounds for distinguishing Alleyne); see also
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Commonwealth v. Vargas, 108 A.3d 858, 877 (Pa. Super. 2014) (en 

banc) (same). Any sentence, regardless of the result of a plea or a trial, 

imposed pursuant to Section 9712 is illegal in the wake of Alleyne. 

We now consider whether Appellant’s challenge to the legality of 

sentence under Alleyne, under the specific circumstances presented here, 

implicates the policy against retroactive application of that decision. In 

Commonwealth v. Newman, 99 A.3d 86, 90 (Pa. Super. 2014) (en banc), 

we held that Alleyne does not apply retroactively to all cases, but does 

apply to cases that were pending on direct appeal when the United States 

Supreme Court announced its decision on June 27, 2013. Id.; see also 

Commonwealth v. Cunningham, 81 A.3d 1, 6 (Pa. 2013) (Miller does not 

apply retroactively to a case in which defendant's judgment of sentence for 

murder became final more than six years prior to Alleyne); 

Commonwealth v. Riggle, 2015 WL 4094427, *5-7 (Pa. Super. 2015) 

(neither the Pennsylvania Supreme Court nor the United States Supreme 

Court has declared that Alleyne should be applied retroactively on collateral 

review to cases wherein the judgment of sentence become final prior to 

Alleyne); Commonwealth v. Miller, 102 A.3d 988, 995 (Pa. Super. 2014) 

(same). We infer from these holdings that collateral relief is available only 

where a defendant’s judgment of sentence was not final at the time Alleyne

was decided. 

In this case, Appellant pled guilty on November 1, 2013. The trial 

court sentenced Appellant on December 17, 2013. Thus, because Alleyne
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became the law on June 27, 2013, before Appellant pled guilty and received 

his sentence, we see no impediment to applying Alleyne under the present 

circumstances before us.

The PCRA “provides for an action by which persons convicted of crimes 

they did not commit and persons serving illegal sentences may obtain 

collateral relief.” 42 Pa.C.S.A. § 9542 (emphasis added). A sentence 

imposed in violation of Alleyne is illegal and the issue cannot be waived. 

Commonwealth v. Wolfe, 106 A.3d 800, 801 (Pa. Super. 2014). “A 

challenge to the legality of a sentence ... may be entertained as long as the 

reviewing court has jurisdiction.” Id. A challenge to the legality of sentence 

is cognizable under the PCRA. Commonwealth v. Jackson, 30 A.3d 516, 

521 (Pa. Super. 2011). The PCRA court has jurisdiction to hear PCRA 

petitions filed within one year of the date the judgment becomes final.2 42 

Pa.C.S.A. § 9545. 

In this case, the PCRA court erred as a matter of law in denying 

Appellant relief. Appellant presented a legality of sentence claim in a timely 

PCRA petition. Alleyne was controlling at the time Appellant entered his 

plea and received his sentence. Thus, we are constrained to reverse the 

PCRA court’s order, vacate the judgment of sentence, and remand for a new 

sentence in accordance with Alleyne and Valentine. 

____________________________________________

2

 There is no dispute that Appellant filed a timely PCRA petition.
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Order reversed. Judgment of sentence vacated. Case remanded for 

resentencing consistent with this memorandum. Jurisdiction relinquished. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 12/14/2015