J-S53007-15
2015 PA Super 205
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
v. :
:
JOSE MELENDEZ-NEGRON, JR., :
:
Appellee : No. 494 MDA 2015
Appeal from the PCRA Order March 4, 2015,
Court of Common Pleas, Berks County,
Criminal Division at No. CP-06-CR-0002879-2013
BEFORE: DONOHUE, OTT and MUSMANNO, JJ.
OPINION BY DONOHUE, J.: FILED SEPTEMBER 25, 2015
The Commonwealth of Pennsylvania appeals from the order of court
granting the petition filed under the Post Conviction Relief Act (“PCRA”),
42 Pa.C.S.A. §§ 9541–9546, by Jose Melendez-Negron, Jr. (“Melendez-
Negron”). Following our review, we find no error with the PCRA court’s
determination that Melendez-Negron was entitled to relief, and so we affirm
the PCRA court’s order. We further find, however, that the PCRA court erred
in the manner in which it granted relief. We therefore vacate Melendez-
Negron’s guilty plea and remand for further proceedings.
In April 2013, police officers in Berks County responded to a noise
complaint at Melendez-Negron’s residence. Melendez-Negron allowed the
officers to enter his home, at which time the officers observed a firearm on
Melendez-Negron, as well as multiple indicia, in plain view, of the
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consumption and sale of illegal substances. Following the execution of a
search warrant in his home, Melendez-Negron was charged with possession
of a controlled substance, possession of a controlled substance with the
intent to deliver (“PWID”), possession of a small amount of marijuana, and
possession of drug paraphernalia.1 On July 17, 2013, the Commonwealth
gave notice of its intention to invoke the mandatory minimum sentence
provision codified at 42 Pa.C.S.A. § 9721.1 based upon Melendez-Negron’s
possession of a firearm at the time of the offenses in question. On
November 15, 2013, Melendez-Negron entered a negotiated plea to PWID,
possession of a controlled substance, and possession of a small amount of
marijuana. N.T., 11/15/13, at 4. In accordance with § 9721.1, the trial
court sentenced Melendez-Negron to five to ten years of incarceration on the
PWID conviction, and one year of special probation and a fine of twenty-five
dollars on the remaining convictions. Id. at 10.
Melendez-Negron did not file a direct appeal. On July 7, 2014, he filed
a pro se PCRA petition. On December 23, 2014, appointed counsel filed an
amended PCRA petition, arguing that his sentence was unconstitutional, and
therefore illegal, in light of the United States Supreme Court’s decision in
U.S. v. Alleyne, __ U.S. __, 133 S. Ct. 2151 (2013), and this Court’s
decisions in Commonwealth v. Newman, 99 A.3d 86 (Pa. Super. 2014)
(en banc), and Commonwealth v. Valentine, 101 A.3d 801 (Pa. Super.
1
35 P.S. §§ 780-113(a)(16), (30), (31)(i), (32).
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2014). Amended PCRA Petition, 12/23/14, at 2-3. The PCRA court granted
Melendez-Negron’s petition, vacated his sentence and ordered that he be
resentenced.2 This timely appeal followed.3
The Commonwealth presents two issues for our review:
1. Did the PCRA court err in vacating [Melendez-
Negron’s] sentence and ordering a resentencing
based upon a claim of trial counsel ineffectiveness
for advising Melendez-Negron to plead guilty
instead of challenging the constitutionality of the
mandatory sentencing provision pursuant to
Alleyne v. United States, [] 133 S.Ct. [2151] []
(2013)?
2. Did the PCRA court err in vacating [Melendez-
Negron’s] sentence and ordering a resentencing
because as part of a negotiated guilty plea the
mere granting of a new sentence strips the
Commonwealth of the benefit of the plea bargain,
defeated the Commonwealth’s rightful
expectations in making the agreement, and
frustrated the quid pro quo of the plea bargain
process?
Commonwealth’s Brief at 4.
“Our standard of review of [an] order granting or denying relief under
the PCRA requires us to determine whether the decision of the PCRA court is
supported by the evidence of record and is free of legal error. The PCRA
court’s findings will not be disturbed unless there is no support for the
2
The PCRA court granted relief without a hearing, although the
Commonwealth did file a response to Melendez-Negron’s amended PCRA
petition.
3
We note that the resentencing was stayed pending the resolution of this
appeal.
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findings in the certified record.” Commonwealth v. Perez, 103 A.3d 344,
347 (Pa. Super. 2014) (citation omitted).
The Commonwealth first argues that the PCRA court erred in finding
that Melendez-Negron’s trial counsel (“Counsel”) was ineffective for allowing
Melendez to plead guilty to a sentence based on the mandatory minimum
sentencing enhancement, § 9721.1. It is well established that to prove
ineffective assistance of counsel, a PCRA petitioner must prove that the
underlying legal claim has arguable merit; counsel had no reasonable basis
for his or her action or omission; and that the petitioner suffered prejudice
as a result. Commonwealth v. Watkins, 108 A.3d 692, 702 (Pa. 2014).
In rejecting the Commonwealth’s claim, the PCRA court first notes this
Court found § 9721.1 unconstitutional in light of Alleyne, drolly cites the
Gregorian calendar,4 and then concludes that because Melendez-Negron’s
sentencing occurred five months after the decision in Alleyne was
announced, Counsel was ineffective for allowing Melendez-Negron to agree
to a sentence that was premised on the application of § 9721.1. PCRA Court
Opinion, 4/16/15, at 3-4 (discussing Commonwealth v. Newman, 99 A.3d
86 (Pa. Super. 2014) (en banc), and Commonwealth v. Cardwell, 105
A.3d 738 (Pa. Super. 2014)).
4
The court recited the respective dates of the decision in Alleyne and
Melendez-Negron’s plea and then stated, “[T]his court takes judicial notice
of the Gregorian calendar and finds as a fact that November 15, 2013
followed June 17, 2013.” PCRA Court Opinion, 4/16/15, at 4.
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The Commonwealth argues that although Alleyne was decided prior to
Melendez-Negron’s plea and sentencing, no Pennsylvania appellate court had
addressed the constitutionality of § 9721.1 at the time, and therefore
Counsel “cannot be deemed ineffective for failing to predict the changes or
developments in the law.” Commonwealth’s Brief at 14 (citing
Commonwealth v. Gribble, 863 A.2d 455 (Pa. 2004)). We cannot agree.
First, the Commonwealth is incorrect in that this Court issued an opinion
addressing Alleyne and the constitutionality of § 9721.1 on October 10,
2013. See Commonwealth v. Munday, 78 A.3d 661 (Pa. Super. 2013).5
This was more than one month prior to Melendez-Negron’s plea and
sentencing proceeding.
Second, in Alleyne, the United States Supreme Court found
mandatory minimum sentence enhancements unconstitutional where the
facts that increase a mandatory minimum sentence are not submitted to a
jury and are not required to be found beyond a reasonable doubt. Upon the
issuance of the Alleyne decision in June 2013, Counsel was on notice that
the constitutionality of such sentencing enhancements was in question.
There can be no reasonable basis for Counsel’s failure to recognize this and
to advise Melendez-Negron to reject a plea agreement that incorporated a
5
We note that in Munday, this Court found § 9721.1 unconstitutional as
applied to the appellant and we declined to consider whether § 9721.1 was
facially unconstitutional because the issue was not raised. Munday, 78 A.3d
at 666.
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sentence based upon § 9721.1. This is so especially in light of the fact that
the application of § 9721.1 resulted in a sentence that was more than double
the aggravated range sentence Melendez-Negron would have faced. See
N.T., 11/15/14, at 8-9.6 In a situation such as this, where the United States
Supreme Court has spoken, counsel need not wait for a pronouncement
from a Pennsylvania appellate court. By raising such a claim or at least
questioning the constitutionality § 9721.1 during plea negotiations, Counsel
would not be predicting changes in the law, as the Commonwealth contends,
but rather conscientiously advancing an argument based upon the logical
extension of Alleyne to protect his client’s interests.
Further, we are not swayed by the Commonwealth’s argument that
because Melendez-Negron admitted the element that would trigger the
application of § 9721.1 (possession of a firearm), there is no Alleyne
violation. Commonwealth’s Brief at 12. As this Court has previously
concluded,
we see no meaningful difference, for the purposes of
Newman and Valentine, between submitting the
element to the jury and accepting a stipulation from
a defendant. They both have the purpose of finding
a method to impose a mandatory minimum sentence
6
This large disparity between the sentence Melendez-Negron could have
received and the sentence he agreed to establishes prejudice for purposes of
the ineffective assistance of counsel standard. See Commonwealth v.
Meadows, 787 A.2d 312, 319 (Pa 2001) (holding that to establish
prejudice, an appellant must demonstrate “that there is a reasonable
probability that, but for the act or omission challenged, the outcome of the
proceeding would have been different.”).
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outside the statutory framework, but consistent with
Alleyne. However, both Newman and Valentine
unequivocally state that creating a new procedure in
an effort to impose a mandatory minimum sentence
is solely within the province of the legislature. []
While submission to a jury is a more formal and
involved procedure, we decline to fracture Newman
and Valentine further by concluding that when read
together, they only prohibit formal mandatory
minimum procedures, but permit informal ones.
Commonwealth v. Cardwell, 105 A.3d 748, 754-55 (Pa. Super. 2014).
Melendez-Negron’s admission that he possessed a firearm, which he made
for purposes of his plea, is the functional equivalent of a stipulation, and
pursuant to Cardwell, it does not remedy the Alleyne violation inherent to
§ 9721.1. Accordingly, the Commonwealth’s argument cannot succeed.
In its second issue, the Commonwealth argues that the case should
not be remanded for resentencing, but that Melendez-Negron “should be
returned to the status quo prior to the entry of the guilty plea.”
Commonwealth’s Brief at 22.7 The Commonwealth argues that in
consideration of agreeing to a five-to-ten-year period of incarceration, it
“gave up the opportunity to seek sentences” on the drug paraphernalia and
small amount of marijuana charges. Id. By simply allowing resentencing
pursuant to the sentencing guidelines, the Commonwealth contends, it is
losing the benefit of its bargain. The PCRA court did not agree, as it
reasoned that “the Commonwealth is not entitled to the benefit of a plea
7
Melendez-Negron did not seek to withdraw his plea, he only asked to be
resentenced pursuant to the Sentencing Guidelines.
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bargain entered into with a defendant who was misinformed by his attorney
and who believed at the time he entered his plea that an illegal mandatory
minimum sentencing provision was applicable.” PCRA Court Opinion,
4/16/15, at 4. For the following reasons, we agree with the Commonwealth.
We recognize “the importance of the plea bargaining process as a
significant part of the criminal justice system” and that “a defendant is
permitted to waive valuable rights in exchange for important concessions by
the Commonwealth when the defendant is facing a slim possibility of
acquittal.” Commonwealth v. Widmer, __ A.3d __, 2015 WL 4394268
(Pa. Super. July 20, 2015). The record here reveals that in negotiating the
terms of the plea agreement, both parties operated under the belief that
§ 9721.1 was in effect and that Melendez-Negron was subject to its terms.
N.T., 11/15/13, at 7-11. It is further evident that the sentencing court
believed that it applied, as well. Id. at 7. This Court addressed an
analogous situation in Commonwealth v. Hodges, 789 A.2d 764
(Pa. Super. 2002). In Hodges, the defendant entered a negotiated open
guilty plea to multiple crimes, including two counts of first-degree murder, in
exchange for the Commonwealth’s agreement not to seek the death penalty
on the murder charges. In accordance with that agreement, the trial court
sentenced the defendant to two consecutive life sentences on the murder
convictions, with concurrent sentences for two lesser convictions. He
subsequently moved to withdraw his plea.
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The thrust of [the defendant’s] argument
revolved around a mistake pertaining to [the
defendant’s] age. Although trial counsel and the
Commonwealth believed that [the defendant] was
born on May 7, 1980, [the defendant] was actually
born on May 7, 1982, making him fifteen years old at
the time of the crime. Because he was not yet
sixteen years of age at the time of the crime, he
could not be subjected to the death penalty.
Thompson v. Oklahoma, 487 U.S. 815, 108 S.Ct.
2687, 101 L.Ed.2d 702 (1988). [The defendant]
correctly asserted that because of his age, the death
penalty was never applicable. Therefore, because he
entered into his plea agreement in order to avoid the
death penalty, [the defendant] requested leave to
withdraw that plea.
Commonwealth v. Hodges, 789 A.2d at 765 (Pa. Super. 2002). The trial
court denied the defendant’s motion.
On review, this Court found that the shared misunderstanding as to
the possible extent of the defendant’s sentence fatally poisoned the
negotiations process:
[T]he plea was based on a maximum sentence
that the court had no authority to impose. The entire
process of plea negotiations, therefore, was affected
by this grave error. [The defendant] pled guilty in
order to avoid a maximum sentence which, by law,
could not be imposed. We hold that in the event the
maximum sentence communicated to a criminal
defendant is in fact an illegal sentence, the plea
process has been tainted from the outset and
manifest injustice is established.
The trial court stated that [the defendant]
received the benefit of his bargain; it is clear,
however, that [the defendant] did not strike a
legitimate bargain. While it is true that [he] was
aware that he could be sentenced to life, and that
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sentence was subsequently imposed, it cannot be
said that [the defendant] entered into this
agreement knowingly or voluntarily.
Id. at 767.
Another panel of this Court relied on this reasoning in a subsequent
case. In Commonwealth v. Lenhoff, 796 A.2d 338 (Pa. Super. 2002), the
defendant was charged with forgery graded as a second-degree felony and
unsworn falsifications to authorities graded as a second-degree
misdemeanor. The defendant pled guilty to one count of each in exchange
for a sentence of nine to twenty-three months of incarceration. At the plea
hearing, the trial court emphasized to the defendant that “forgery is a felony
of the second degree punishable by a maximum of [ten] years [of]
incarceration[,]” and the defendant acknowledged his understanding of this.
Id. at 340. In a post-sentence motion, the defendant argued that the
forgery charge should have been graded as a first-degree misdemeanor and
asked to withdraw his plea. The trial court agreed that the forgery was
incorrectly graded and adjusted it to a third-degree felony, but did not allow
the defendant to withdraw his plea. On appeal, the defendant challenged
both the grading of his forgery charge and the denial of his request to
withdraw his plea. After affirming the trial court’s decision to grade the
forgery as a third-degree felony, we considered the circumstances
surrounding the entry of the plea. Based upon the rationale espoused in
Hodges, we reasoned as follows:
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[The defendant] was charged with and entered
plea negotiations to avoid a sentence for a second
degree felony, not a third degree felony. Indeed,
[the defendant] observes that because the forgery
count was graded incorrectly, there are different
guideline scores applicable. This change, [he]
continues, may have “resulted in different plea offers
and negotiations and considerations of partial
confinement requested by the defendant.”
[Defendant’s] [B]rief at 15. [The defendant] was
charged with a second degree felony, carrying a ten-
year maximum. The maximum legal sentence that
[the defendant] faced when he entered plea
negotiations and the plea itself was, in fact, less than
ten years. He indicated on the record that he had
conducted research, knew that he faced a ten-year
sentence, and was seeking to avoid that sentence by
pleading guilty. Meanwhile, the court did not have
the legal authority to impose that sentence. The plea
was fatally flawed from the start, as in Hodges, by
the defendant's desire to avoid a sentence that the
court did not have the power to impose. Hence, we
agree with [the defendant’s] position that plea
negotiations were tainted at the outset by
misinformation about sentences. Therefore, it is clear
that [he] should be permitted to withdraw his guilty
plea.
Id. at 342-43.
This case is fundamentally akin to Hodges and Lenhoff; where it
differs is that it is the Commonwealth, not the defendant, who argues that it
is being deprived of the benefit of its bargain. We see no reason why the
rationale of Hodges and Lenhoff should be limited to criminal defendants.
Indeed, both parties to a negotiated plea agreement are entitled to receive
the benefit of their bargain. See Commonwealth v. Townsend, 693 A.2d
980, 983 (Pa. Super. 1997) (“[W]here the parties have reached a specific
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sentencing agreement … the court cannot later modify the terms of the
agreement without the consent of the Commonwealth” because “this would
deny the Commonwealth the full benefit of the agreement which it reached
… and the defendant, in turn, would receive a windfall.”); Commonwealth
v. Coles, 530 A.2d 453, 458 (Pa. Super. 1987) (holding that granting
defendant’s motion to modify negotiated plea sentence stripped
Commonwealth of the benefit of its bargain); see also Commonwealth v.
Ortiz, 854 A.2d 1280, 1284 (Pa. Super. 2004) (en banc) (holding that
where amount of restitution is agreed upon as part of negotiated plea,
Commonwealth cannot later seek to increase it). Accordingly, we conclude
that the shared misapprehension that the mandatory minimum sentence
required by § 9721.1 applied to Melendez-Negron tainted the parties’
negotiations at the outset. As in Hodges and Lenhoff, the parties’
negotiations began from an erroneous premise and therefore were
fundamentally skewed from the beginning. Thus, while we affirm the PCRA
court’s order vacating Melendez-Negron’s sentence, we further vacate his
guilty plea and remand for further proceedings. See Lenhoff, 796 A.2d at
343.
Order affirmed. Guilty plea vacated. Case remanded. Jurisdiction
relinquished.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/25/2015
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