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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
SYLVESTER DION TATE, :
:
Appellant : No. 183 WDA 2015
Appeal from the PCRA Order January 21, 2015,
Court of Common Pleas, Erie County,
Criminal Division at No(s): CP-25-CR-0000447-2014
and CP-25-CR-0003018-2008
BEFORE: PANELLA, DONOHUE and WECHT, JJ.
MEMORANDUM BY DONOHUE, J.: FILED AUGUST 18, 2015
Sylvester Dion Tate (“Tate”) appeals pro se from the January 21, 2015
order entered by the Erie County Court of Common Pleas dismissing his
petition filed pursuant to the Post Conviction Relief Act, 42 Pa.C.S.A. §§
9541-9546 (“PCRA”). Upon review, we reverse the PCRA court’s order,
vacate Tate’s judgment of sentence and remand for resentencing.
On July 3, 2014, Tate entered a negotiated guilty plea to the charge of
possession of a controlled substance with intent to deliver.1 Pursuant to the
plea agreement, the Commonwealth nol prossed additional charges pending
against him,2 reduced the amount of cocaine he was accused of possessing
1
35 P.S. § 780-113(a)(30).
2
Tate was also facing charges of criminal conspiracy (18 Pa.C.S.A. §
903(c)) and three counts of criminal use of a communication facility (18
Pa.C.S.A. § 7512(a)).
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from 31.5 grams to 9.9 grams, and recommended that the trial court
sentence Tate to the mandatory minimum sentence in effect at that time.
See 18 Pa.C.S.A. § 7508(a)(3)(i), held unconstitutional by Commonwealth
v. Cardwell, 105 A.3d 748, 750 (Pa. Super. 2014). The plea court accepted
Tate’s guilty plea and sentenced him in accordance with the negotiated
agreement to three to six years of incarceration immediately following the
entry of his plea.3
Tate did not file any post-sentence motions or a direct appeal. On
September 14, 2014, Tate filed a pro se PCRA petition raising challenges to
the plea court’s subject matter jurisdiction and ineffective assistance of
counsel based upon plea counsel’s failure to file post-sentence motions or a
direct appeal on Tate’s behalf. The PCRA court appointed counsel (“PCRA
counsel”). On November 3, 2014, PCRA counsel filed a Turner/Finley4 “no-
merit” letter and requested to withdraw as counsel. Therein, PCRA counsel
concluded that Tate’s jurisdictional claims were meritless, but did not
address Tate’s assertion that prior counsel was ineffective for failing to file
post-sentence motions or a direct appeal. Curiously, at the conclusion of
PCRA counsel’s “no-merit” letter, PCRA counsel identified a “legally viable
claim possessed of arguable merit that would compel the striking of the
3
Tate had a prior conviction of possession of a controlled substance with
intent to deliver.
4
Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988).
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sentence and resentencing,” to wit, that Tate’s mandatory minimum
sentence was illegal pursuant to the United States Supreme Court’s decision
in Alleyne v. U.S., __ U.S. __, 133 S. Ct. 2151 (2013). Turner/Finley
Letter, 11/3/14, at 2.
On December 29, 2014, the PCRA court issued an opinion and notice
of its intent to dismiss Tate’s pro se PCRA petition pursuant to Pa.R.Crim.P.
907. The PCRA court did not address Tate’s claim of ineffective assistance of
counsel based upon prior counsel’s failure to file post-sentence motions or a
direct appeal on his behalf. It found his jurisdictional challenges to be
meritless. It further found his legality of sentencing claim to be meritless.
With respect to this final issue, the PCRA court based its decision on the fact
that Tate was sentenced following the entry of a guilty plea and thus
“concede[d] the factual predicates that implicate the mandatory minimum
sentence.” PCRA Court Opinion, 12/29/14, at 4. The PCRA court further
found that cases decided by this Court interpreting the Alleyne decision did
not entitle Tate to relief, as this Court decided those cases after Tate’s
sentencing proceeding. Relying on Commonwealth v. Newman, 99 A.3d
86, 90 (Pa. Super. 2014) (en banc), the PCRA court stated that Superior
Court decisions interpreting Alleyne “are not retroactive” and therefore,
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“they offer [Tate] no assistance.” Id. The PCRA court ultimately dismissed
Tate’s PCRA petition without a hearing on January 21, 2015.5
Tate filed a timely pro se notice of appeal. The PCRA court did not
order Tate to file a concise statement of errors complained of on appeal, and
issued a statement that it relied upon its December 29, 2014 opinion on
appeal.
On appeal, Tate raises the following issues for our review:
[1.] When sentencing counsel and PCRA counsel
failed to preserve [Tate]’s appellate rights, doesn’t
this deprive [Tate] of the effective assistance of
counsel as guaranteed under the U.S. and Pa.
Constitutions; and amount to plea/sentencing
counsel abandoning [Tate] – which thereafter [Tate]
filed a timely PCRA [petition] to raise his ALLEYNE
(illegal sentence) and subsequent PCRA counsel[’]s
failure to preserve the issues of plea/sentencing
counsel[’]s failure to preserve his direct appeal rights
for the illegal sentence and amend his PCRA petition
to include these issues?
[2.] Wasn’t [Tate] deprived of his right to file a direct
appeal based on sentencing counsel’s failure to file to
[sic] requested appeal? And wasn’t [Tate] denied
the assistance of counsel when PCRA counsel failed
to raise, preserve, and brief sentencing counsel[’]s
5
We note that the PCRA court did not address PCRA counsel’s request to
withdraw. This is problematic, as PCRA counsel has never been given
permission to withdraw, and absent such permission, Tate is entitled to
representation on appeal. See Pa.R.Crim.P. 904(C) (indigent PCRA
petitioners entitled to appointment of counsel for first PCRA petition).
Nonetheless, because we conclude that Tate is serving an illegal sentence,
which is an issue that may be raised by this Court sua sponte, see
Commonwealth v. Melvin, 103 A.3d 1, 52 (Pa. Super. 2014), we
conclude, for the sake of judicial efficiency, that we need not remand the
case for the PCRA court to rule upon PCRA counsel’s request.
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failure to file his direct appeal; amounting to a total
and constructive denial of counsel and a violation of
his rights under the Constitutions for the United
States and Pennsylvania?
Tate’s Brief at 3.
We need only address the legality of Tate’s sentence. See
Commonwealth v. Ali, 112 A.3d 1210, 1225 (Pa. Super. 2015) (“Alleyne
challenges implicate the legality of a sentence.”). A challenge to the legality
of a defendant’s sentence is not waivable and may be decided as long as we
have jurisdiction to decide the case. Id. “An illegal sentence must be
vacated.” Id. A legality of sentence claim presents a question of law over
which our standard of review is de novo and our scope of review is plenary.
Id.
We begin with a brief discussion of the pertinent law underlying the
issue. The sentencing statute in question, section 7508, states, in relevant
part:
(a) General rule.--Notwithstanding any other
provisions of this or any other act to the contrary,
the following provisions shall apply:
* * *
(3) A person who is convicted of violating section
13(a)(14), (30) or (37) of The Controlled
Substance, Drug, Device and Cosmetic Act where
the controlled substance is coca leaves or is any
salt, compound, derivative or preparation of coca
leaves or is any salt, compound, derivative or
preparation which is chemically equivalent or
identical with any of these substances or is any
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mixture containing any of these substances
except decocainized coca leaves or extracts of
coca leaves which (extracts) do not contain
cocaine or ecgonine shall, upon conviction, be
sentenced to a mandatory minimum term of
imprisonment and a fine as set forth in this
subsection::
(i) when the aggregate weight of the
compound or mixture containing the substance
involved is at least 2.0 grams and less than ten
grams; one year in prison and a fine of $5,000
or such larger amount as is sufficient to
exhaust the assets utilized in and the proceeds
from the illegal activity; however, if at the
time of sentencing the defendant has
been convicted of another drug trafficking
offense: three years in prison and $10,000
or such larger amount as is sufficient to
exhaust the assets utilized in and the
proceeds from the illegal activity [.]
* * *
(b) Proof of sentencing.--Provisions of this section
shall not be an element of the crime. Notice of the
applicability of this section to the defendant shall not
be required prior to conviction, but reasonable notice
of the Commonwealth’s intention to proceed under
this section shall be provided after conviction and
before sentencing. The applicability of this
section shall be determined at sentencing. The
court shall consider evidence presented at trial,
shall afford the Commonwealth and the
defendant an opportunity to present necessary
additional evidence and shall determine, by a
preponderance of the evidence, if this section is
applicable.
18 Pa.C.S.A. § 7508(a)(3)(i), (b) (emphasis added). On June 17, 2013, the
United States Supreme Court decided Alleyne v. U.S., wherein it held that
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“facts that increase mandatory minimum sentences must be submitted to
the jury.” Alleyne, 133 S.Ct. at 2163.
On November 25, 2014, in Commonwealth v. Cardwell this Court
held that pursuant to Alleyne, section 7508 was facially unconstitutional in
its entirety. Cardwell, 105 A.3d at 754-55. The defendant in Cardwell
stipulated at trial to the weight of the drugs recovered. Id. at 754. The trial
court in Cardwell concluded that the Commonwealth proved the weight of
the drugs beyond a reasonable doubt, alleviating any Alleyne-related
problem. Id. On appeal, we disagreed, stating that section 7508(b) was
not severable from the rest of the statute. Id. Further, relying on this
Court’s prior decisions in Commonwealth v. Newman6 and
Commonwealth v. Valentine, 101 A.3d 801 (Pa. Super. 2014),7 the
Cardwell Court stated, “[C]reating a new procedure in an effort to impose a
6
In Newman, we rejected the Commonwealth’s suggestion that we
remand for a sentencing jury to make the required determination, stating
“that it is manifestly the province of the General Assembly to determine
what new procedures must be created in order to impose mandatory
minimum sentences in Pennsylvania following Alleyne.” Newman, 99 A.3d
at 102.
7
In Valentine, we held that the mandatory sentencing provisions
contained in sections 9712 and 9713 of the Sentencing Code were
unconstitutional pursuant to Alleyne, as both sections required the trial
court to determine by a preponderance of the evidence factors triggering the
implementation of a mandatory minimum sentence. Valentine, 101 A.3d at
809, 812. Although in Valentine, the jury, not the trial court, determined
on the verdict slip the existence of the factors triggering the application of
sections 9712 and 9713, we concluded that pursuant to Newman, “the trial
court performed an impermissible legislative function by creating a new
procedure in an effort to impose the mandatory minimum sentences in
compliance with Alleyne.” Id. at 811.
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mandatory minimum sentence is solely within the province of the
legislature.” Cardwell, 105 A.3d at 754-55 (emphasis supplied). This
Court thus concluded that the trial court erred by imposing the mandatory
minimum provided for in section 7508. Id. at 755.
Turning to the decision in the case at bar, we disagree with the PCRA
court’s conclusion that the Pennsylvania Superior Court cases interpreting
the Alleyne decision that were decided after Tate’s sentencing hearing
cannot be applied to this case.8 See PCRA Court Opinion, 12/29/14, at 4.
In so finding, the PCRA court relies upon the following excerpt from the
Newman decision:
To be entitled to the retroactive application of a new
constitutional rule, a defendant must have raised
and preserved the issue in the court below:
[W]here an appellate decision overrules prior law
and announces a new principle, unless the decision
specifically declares the ruling to be prospective only,
the new rule is to be applied retroactively to cases
where the issue in question is properly preserved at
all stages of adjudication up to and including any
direct appeal.
Newman, 99 A.3d at 90 (quoting Commonwealth v. Cabeza, 469 A.2d
146, 148 (Pa. 1983)) (emphasis omitted); see PCRA Court Opinion,
12/29/14, at 4. The cases decided by the Superior Court interpreting the
8
We note that in lieu of filing a responsive brief on appeal, the
Commonwealth submitted a letter to this Court, stating, in relevant part:
“This Honorable Court has jurisdiction to address [Tate]’s timely allegation of
the imposition of an illegal sentence and the case should be remanded for
re-sentencing.” Letter from the Commonwealth, 6/29/15.
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Alleyne decision, however, do not announce a new constitutional rule. They
simply apply the new constitutional rule announced by the United States
Supreme Court in Alleyne to the Pennsylvania sentencing statutes
concerning mandatory minimum sentences. We routinely rely upon cases
decided subsequent to the entry of the judgment of sentence interpreting
relevant areas of the law. See, e.g., Cardwell, 105 A.3d at 755 (although
the judgment of sentence in Cardwell was entered on June 18, 2013, the
Cardwell Court relied upon the holdings in Newman, decided on August
20, 2014, and Valentine, decided on October 3, 2014, in reaching its
decision that the defendant was serving an illegal sentence pursuant to
Alleyne).
Even if these cases were inapplicable, the PCRA court’s conclusion that
Tate is not entitled to resentencing is incorrect. As stated above, Alleyne
was decided prior to Tate’s guilty plea and sentencing hearing. Thus, the
holding of Alleyne unquestionably applies to Tate’s case. The Alleyne
decision clearly renders the mandatory sentencing scheme contained in
section 7508 unconstitutional, as section 7508 does not require facts that
increase mandatory minimum sentence for convictions of possession with
intent to deliver, i.e., the weight of the drugs recovered, to be submitted to
a jury. See Alleyne, 133 S.Ct. at 2163; 18 Pa.C.S.A. § 7508(a)(3)(ii), (b).
Pursuant to the United States Supreme Court’s decision in Alleyne
and the decision by this Court in Cardwell interpreting Alleyne, Tate’s
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sentence pursuant to the mandatory sentencing provision contained in
section 7508 is illegal. See Alleyne, 133 S.Ct. at 2163; see also
Cardwell, 105 A.3d at 755. That Tate pled guilty and admitted the facts
underlying the applicability of the mandatory minimum sentencing provision
of section 7508 is irrelevant. See Cardwell, 105 A.3d at 754-55.
We therefore vacate Tate’s judgment of sentence and remand the case
for resentencing without consideration of the mandatory minimum sentence
contained in section 7508. The trial court shall appoint counsel to represent
Tate at the resentencing hearing. Following resentencing, if Tate wishes to
file a direct appeal, he shall be entitled to do so, limited to raising issues
permitted following the entry of a guilty plea.
Order reversed. Judgment of sentence vacated. Case remanded with
instructions. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/18/2015
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