[J-24-2016] [MO: Saylor, C.J.] IN THE SUPREME COURT OF PENNSYLVANIA

MIDDLE DISTRICT

**COMMONWEALTH OF PENNSYLVANIA, Appellant** 

**v.**

**MATTHEW BRYAN WOLFE, Appellee**  **: :**  **: :**  **: :**  **: :**  **: :**  **: :**  **: No. 68 MAP 2015**  **Appeal from the Order of the Superior Court at No. 1962 MDA 2013 dated**  **December 24, 2014 Vacating and Remanding the Judgment of Sentence**  **of the Lancaster County Court of Common Pleas, Criminal Division, at**  **No. CP-36-CR-5791-2012 dated October 1, 2013.** 

**ARGUED: November 18, 2015 RESUBMITTED: January 20, 2016** 

CONCURRING OPINION

JUSTICE BAER DECIDED: June 20, 2016 **I join the learned majority opinion in full with th e exception of its discussion of**  **whether a challenge to a mandatory minimum sentence based on Alleyne v. United**  **States, ___ U.S. ___, 133 S. Ct. 2151 (2013), impli cates legality of sentence and is** 

**therefore non-waivable. I believe this to be a thre shold issue that we should decide**  **before proceeding to the merits of the Commonwealth’s appeal. In my view, the fact** 

**that the Commonwealth fails to address the correct line of cases pertinent to this**  **threshold issue does not prevent us from deciding it. I f Alleyne challenges are**  **waivable, then we would be constrained to reverse the Superior Court’s action in**  **addressing the Alleyne challenge** sua sponte **because Appellee failed to preserve the issue at the first instance. Rather than defer the issue,**  **I would hold that a challenge to [J-24-2016] [MO: Saylor, C.J.] - 2** 

**a mandatory minimum sentence based on Alleyne does impl icate legality and is, thus,** 

**non-waivable. As the majority notes, this Court addressed whether chal**  **lenges to a mandatory**

**minimum sentence were waivable in Commonwealth v. Fo ster, 17 A.3d 332 (Pa. 2011),**  **which resulted in a plurality opinion. However, a ma jority of justices in Foster agreed**  **that a challenge to the application of a mandatory m inimum sentence was not waivable.**  **The split among the Court involved the reasoning as to why the issue was non** 

**waivable. In my expression in Foster, I concluded that because a s**  **entencing court loses its authority to exercise discretion when a mandatory minim**  **um sentence applies, the question of the propriety of applying a mandatory mi**  **nimum sentencing provision implicates legality. Similarly, several panels of the**  **Superior Court have determined that an Alleyne challenge implicates legality of sentence and**  **therefore is non-waivable. See, e.g., Commonwealth v. Watley, 81 A.3d 108, 118**  **(Pa. Super. 2013) (** en banc **) (citing Foster for the proposition that “[a]pplication**  **of a mandatory minimum sentence gives rise to illegal sentence concerns,” and thus a cha**  **llenge 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 se**  **ntence is a non-waivable challenge to the legality of sentence.” (internal quot**  **ations omitted)); Commonwealth v.**  **Newman, 99 A.3d 86, 90 (Pa. Super. 2014) (** en banc **) (same). Accordingly, I would simply decide the threshold waiver**  **issue in conformity with the view I expressed in Foster as well as that taken by**  **the Superior Court and find that a challenge based on Alleyne involves the legality of**  **one’s sentence and is not waivable. Therefore, the fact that Appellee did no**  **t preserve the issue does not preclude [J-24-2016] [MO: Saylor, C.J.] - 3** 

**him from obtaining the relief afforded to him by th e Superior Court, which the majority**  **opinion skillfully and correctly affirms. Justice Wecht joins this concurring opinion.**