Alleyne challenges implicate legality of sentence, and can be considered on direct appeal even if not properly raised

Commonwealth v. Barnes, 36 EAP 2015 (12/28/16)

Mr. Barnes was convicted of PWID and possession of a firearm, and was sentenced on the PWID to a five year mandatory pursuant to 42 Pa.C.S. §9712.1, which has since been declared unconstitutional. A few weeks after he was sentenced, the U.S. Supreme Court issued Alleyne, but counsel did not include the issue in his 1925(b) statement. (Issues regarding the legality of a sentence do not have to be raised in post-sentence motions to be preserved.) The Superior Court considered the Alleyne issue sua sponte, and concluded Alleyne did not apply.

The Supreme Court reversed, holding that a sentence imposed pursuant to a statute that violates Alleyne is illegal, and that Mr. Barnes’ sentence was illegal. The opinion however notes that Alleyne cannot be applied on collateral review pursuant to Commonwealth v. Washington, 142 A.3d 810 (Pa. 2016).

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