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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
ODLEY LOUIS,
Appellant No. 1125 MDA 2015
Appeal from the PCRA Order June 1, 2015
In the Court of Common Pleas of Berks County
Criminal Division at No(s): CP-06-CR-0000776-2010
BEFORE: GANTMAN, P.J., BOWES, AND MUSMANNO, JJ.
MEMORANDUM BY BOWES, J.: FILED MAY 16, 2016
Odley Louis appeals pro se from the June 1, 2015 order denying him
PCRA relief. We vacate the June 1, 2015 order and Appellant’s February 14,
2012 judgment of sentence. We remand for the appointment of counsel and
re-sentencing.
On October 23, 2009, Reading Police Officer Christopher A. Cortazzo
stopped Appellant’s vehicle because it had tinted passenger windows that
prevented him from seeing inside it and because Appellant changed lanes
without signaling. Based upon Appellant’s nervousness, hand movements,
and failure to produce a driver’s license, Officer Cortazzo conducted a pat
down search of Appellant and discovered a large chunk of solid crack cocaine
weighing 48.1 grams. On February 2, 2012, a jury convicted Appellant of
possession of a controlled substance with intent to deliver (“PWID”) and
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possession of a controlled substance. The trial court found Appellant guilty
of summary traffic offenses relating to the lane change without a traffic
signal and the tinted windows.
The matter proceeded to sentencing on February 14, 2012. Appellant
was sentenced on the PWID conviction to a mandatory minimum sentence of
five years imprisonment and a mandatory fine of $30,000 due to the weight
of the drugs and a prior conviction of PWID in 2002. N.T. Sentencing,
2/14/12, at 7, 12; 18 Pa.C.S. § 7508(a)(3)(ii) (relating to mandatory
minimum sentence for possession of cocaine). The two summary traffic
offenses were dismissed at sentencing.
On appeal, we affirmed. Commonwealth v. Louis, 63 A.3d 838
(Pa.Super. 2012) (unpublished memorandum). We rejected Appellant’s
contentions that the traffic stop and pat down search were unconstitutional
and that the trial court improperly precluded Appellant from presenting
certain evidence on those issues. On November 15, 2013, our Supreme
Court denied allowance of appeal. Commonwealth v. Louis, 80 A.3d 775
(Pa. 2013).
Appellant filed a timely PCRA petition on May 23, 2014. He raised two
positions. First, pre-trial and trial counsel were ineffective for failing to
obtain a copy of the dashboard camera videotape of his traffic stop from
Officer Cortazzo’s cruiser in order to disprove the officer’s claim that
Appellant’s vehicle had passenger windows that were tinted so heavily that
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the officer could not view inside. Appellant also averred that his sentence
was illegal and void under Alleyne v. United States, 133 S.Ct. 2151, 2155
(2013), wherein the United States Supreme Court held that “[a]ny fact that,
by law, increases the penalty for a crime is an ‘element’ that must be
submitted to the jury and found beyond a reasonable doubt.” Pursuant to
Alleyne, the defendant has a constitutional right to have a jury decide the
existence of any fact, other than a prior conviction, beyond a reasonable
doubt if that fact triggers application of a mandatory minimum sentence. In
his PCRA petition, Appellant maintained that he was entitled to be sentenced
without application of the mandatory minimum sentence outlined in 18
Pa.C.S. § 7508 in that the weight of the drugs that he possessed for
purposes of application of § 7508 was determined at sentencing by the court
by a preponderance of the evidence, in derogation of Alleyne.
Counsel was appointed, but was permitted to withdraw pursuant to
Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and
Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc).1
Counsel concluded that Alleyne was not applicable retroactively in this post-
conviction setting and that the contents of a videotape, if one existed, would
merely have been cumulative to pictures of Appellant’s vehicle admitted into
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1
On appeal, Appellant does not raise any issue pertaining to the withdrawal.
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evidence. The PCRA court issued notice of its intent to dismiss the PCRA
petition without a hearing as required by Pa.R.Crim.P. 907.
Appellant filed responses both to PCRA counsel’s petition to withdraw
and the Pa.R.Crim.P. 907 notice. As to the no-merit letter, Appellant
averred that counsel erred in concluding that he was not entitled to re-
sentencing since § 7508 was unconstitutional and void pursuant to Alleyne
and Superior Court case law interpreting that decision. In response to the
Pa.R.Crim.P. 907 notice, Appellant re-iterated the same position and
observed that this Court held § 7508 unconstitutional in a case where the
weight of the drugs was determined by the sentencing court rather than at
trial. Commonwealth v. Thompson, 93 A.3d 478 (Pa.Super. 2014); see
also Commonwealth v. Mosley, 114 A.3d 1072 (Pa.Super. 2015).
Appellant additionally claimed that, since Alleyne was decided on June 17,
2013, while his direct appeal was still pending, he was entitled to have it
applied herein. In neither document did Appellant argue that PCRA counsel
was ineffective concerning her analysis of the suppression issue.
Appellant’s PCRA petition was denied on June 1, 2015, and this appeal
followed. Appellant’s brief contains a lengthy and obtuse statement of
issues involved in this appeal. Appellant’s brief at 5-6. That statement can
be distilled into two positions: 1) his first five issues pertain to whether
Appellant is entitled to be re-sentenced without application of the mandatory
minimum sentence; and 2) his sixth and final averment is that suppression
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counsel and trial counsel should have obtained the dashboard camera
videotape of the traffic stop to refute the testimony of Officer Cortazzo that
Appellant had tinted windows on his vehicle that were opaque. We address
the contentions in reverse order since Appellant would be entitled to a new
trial rather than merely resentencing if his first position were found to be
meritorious.
Initially, we observe that, “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.” Commonwealth v. Melendez-Negron, 123 A.3d 1087,
1090 (Pa.Super. 2015) (citation omitted). Appellant avers that suppression
and trial counsel rendered ineffective assistance. “To plead and prove
ineffective assistance of counsel a petitioner must establish: (1) that the
underlying issue has arguable merit; (2) counsel's actions lacked an
objective reasonable basis; and (3) actual prejudice resulted from counsel's
act or failure to act.” Commonwealth v. Stewart, 84 A.3d 701, 706
(Pa.Super. 2013) (en banc). The failure to meet any of these aspects of the
ineffectiveness test results in the claim failing. Id.
Herein, as PCRA counsel observed, the record contains pictures of
Appellant’s truck, which had windows on either side of the rear passenger
seats that are tinted so darkly that one cannot view inside the vehicle.
Hence, any videotape made of the traffic stop would have been cumulative
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to the pictures submitted by Appellant. Thus, prior counsel were not
ineffective in this respect.
However, we do conclude that Appellant is entitled to relief under
Alleyne. Our decision in Commonwealth v. Ruiz, 131 A.3d 54 (Pa.Super.
2015), is controlling. The defendant therein was denied PCRA relief
pursuant to a timely-filed PCRA petition. On appeal, the defendant, who was
sentenced under a mandatory minimum ruled unconstitutional by this Court
pursuant to Alleyne, claimed to be entitled to be re-sentencing under
Alleyne and our decision. We agreed with that contention, vacated the
judgment of sentence, and remanded for resentencing.
The Ruiz Court concluded that Ruiz was entitled to be re-sentenced
since he filed a timely PCRA petition and since Alleyne had been decided
when his judgment of sentence was not final, as defined by the PCRA.
Specifically, Ruiz did not file a direct appeal, but Alleyne was issued within
the thirty-day window for filing one.
In Ruiz, we specifically distinguished Commonwealth v. Riggle, 119
A.3d 1058 (Pa.Super. 2015), which held that a PCRA petitioner is not
entitled to retroactive application of the Alleyne decision. The Ruiz Court
concluded that Riggle was inapplicable because Alleyne was issued after
Riggle’s sentence was final, as defined by the PCRA. In so doing, we
observed that in Commonwealth v. Newman, 99 A.3d 86 (Pa.Super.
2014) (en banc), we held that Alleyne applies to any case pending on direct
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appeal when Alleyne was filed. See Schriro v. Summerlin, 542 U.S. 348,
351 (2004) (“When a decision of this Court results in a ‘new rule,’ that rule
applies to all criminal cases still pending on direct review.”).2
Our conclusion in Ruiz was that, if a defendant’s direct appeal was
pending when Alleyne was filed, the defendant is entitled to relief pursuant
to a timely PCRA petition since an Alleyne claim is a non-waivable challenge
to the legality of sentence, which is cognizable under the PCRA. See
Newman, supra at 90 (“challenge to a sentence premised upon Alleyne . .
. implicates the legality of the sentence,” and such a challenge cannot be
waived); Commonwealth v. Beck, 848 A.2d 987, 989 (Pa.Super. 2004)
(“Issues concerning the legality of sentence are cognizable under the
PCRA.”). Under Ruiz, a defendant is entitled to relief pursuant to Alleyne if
the defendant’s judgment of sentence was still pending on direct review, as
determined by reference to § 9545(b)(3) of the PCRA, when Alleyne was
filed.
We find Ruiz controlling. Appellant’s judgment of sentence was still
pending on direct review when Alleyne was issued. Section 9545(b)(3)
states, “For purposes of this subchapter, a judgment becomes final at the
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2
Alleyne is a new rule of law in that it overruled existing Supreme Court
precedent that provided that any fact necessary to trigger application of a
mandatory minimum sentence did not have to be submitted to a jury and
proven beyond a reasonable doubt. See Harris v. United States, 536 U.S.
545 (2002); McMillan v. Pennsylvania, 477 U.S. 79 (1986).
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conclusion of direct review, including discretionary review in the Supreme
Court of the United States and the Supreme Court of Pennsylvania, or at the
expiration of time for seeking the review.” 42 Pa.C.S. § 9545(b)(3). Our
Supreme Court denied allowance of appeal from our affirmance of
Appellant’s judgment of sentence on November 15, 2013. Alleyne was
issued on June 17, 2013, while Appellant’s direct appeal was pending, and
he therefore is entitled to application of Alleyne, Thompson, and Moseley.
The June 1, 2015 PCRA order and the February 14, 2012 judgment of
sentence are vacated. Case remanded for resentencing. Counsel is to be
appointed to Appellant for purposes of the new sentencing hearing.
Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/16/2016
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