J-S54043-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
:
v. :
:
TROY BROADUS :
:
Appellant : No. 893 EDA 2015
Appeal from the PCRA Order March 12, 2015
In the Court of Common Pleas of Montgomery County
Criminal Division No(s).: CP-46-CR-0007849-2010
BEFORE: BOWES, PANELLA, and FITZGERALD,* JJ.
MEMORANDUM BY FITZGERALD, J.: FILED JUNE 09, 2016
Appellant, Troy Broadus, appeals pro se from the order entered in the
Montgomery County Court of Common Pleas dismissing his first, timely-filed
Post Conviction Relief Act1 (“PCRA”) petition. This case returns to us after
we granted panel reconsideration and withdrew our prior memorandum
decision. Appellant argues, inter alia, his sentence under 18 Pa.C.S. § 7508,
which imposes mandatory minimum sentences for possessing certain
weights of drugs, is illegal under 42 Pa.C.S. § 9756, which provides a
minimum sentence should not exceed one-half of the maximum sentence.
*
Former Justice specially assigned to the Superior Court.
1
42 Pa.C.S. §§ 9541-9546.
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We vacate the judgment of sentence, vacate the plea agreement, and
remand for further proceedings.
On October 8, 2013, Appellant entered negotiated guilty pleas to two
counts of possessing a controlled substance with intent to deliver.2 He
admitted to, inter alia, selling approximately 28 grams of cocaine and 111
grams of cocaine to undercover officers on separate occasions. N.T.,
10/8/13, at 10. The court immediately imposed the following negotiated
sentences on each count, to run concurrently: (1) three to six years’
imprisonment, and (2) seven to ten years’ imprisonment. For both
sentences, the court applied the mandatory sentence provisions of 18
Pa.C.S. § 7508.
Appellant did not file a post-sentence motion or a direct appeal. On
September 25, 2014,3 he filed a pro se, timely PCRA petition arguing, inter
alia, his mandatory minimum sentence was unconstitutional under Alleyne
v. United States, 133 S. Ct. 2151 (2013). Appellant’s PCRA Pet., 9/25/14,
at 2 (unpaginated). The PCRA court appointed Patrick J. McMenamin, Jr.,
Esq. (“Counsel”) to represent Appellant. Counsel then filed a “no merit”
2
35 P.S. § 780-113(a)(30).
3
The petition was postmarked this date. See generally Commonwealth
v. Wilson, 911 A.2d 942, 944 n.2 (Pa. Super. 2006) (discussing prisoner
mailbox rule).
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Finley4 letter to withdraw from representation. On February 13, 2015, the
court granted Counsel’s petition to withdraw and issued a Pa.R.Crim.P. 907
notice of intent to dismiss Appellant’s petition without a hearing. In
response to the notice, Appellant filed a pro se letter, arguing only that his
sentence was illegal because the minimum sentence exceeded one-half of
the maximum. The court dismissed the PCRA petition on March 13, 2015,
and Appellant filed a timely pro se notice of appeal and complied with the
court’s order to file a Pa.R.A.P. 1925(b) statement of matters complained of
on appeal.
The argument section in Appellant’s pro se brief, one and a half pages
in length, is not entirely clear and short in discussion. 5 Nevertheless, we
discern that one of Appellant’s claims is that his sentence of seven to ten
years is illegal because the minimum exceeds one-half the maximum. His
sole argument is, “Essentially, the court paid lip service to the requirement
of the statute 9756(b) and stated 7508 that this case of Hockenberry was
4
See Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en
banc).
5
See Pa.R.A.P. 2119(a) (requiring argument section to include “discussion
and citation of authorities as are deemed pertinent”); Commonwealth v.
Johnson, 985 A.2d 915, 924 (Pa. 2009) (holding claim is waived where
appellate brief fails to provide any discussion with citation to relevant
authority or fails to develop issue in any meaningful fashion capable of
review).
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different circumstances of how both petitioners argued their cases.”6 Id. at
8. We conclude he is entitled to relief.7
Initially, Appellant’s claim goes to the legality of sentence, see
Hockenberry, 689 A.2d at 288, and is therefore not waived. See
Commonwealth v. Concordia, 97 A.3d 366, 372 (Pa. Super. 2014)
(“[W]hile challenges to the legality of a defendant’s sentence cannot be
waived, they ordinarily must be raised within a timely PCRA petition.”);
Commonwealth v. Randal, 837 A.2d 1211, 1214 (Pa. Super. 2003)
(noting, “challenges to ‘[a]n illegal sentence can never be waived and may
be reviewed sua sponte by this Court.’ ‘An illegal sentence must be
vacated.’” (citations omitted)). “Issues relating to the legality of a sentence
are questions of law[.] . . . Our standard of review over such questions is de
novo and our scope of review is plenary.” Commonwealth v. Cardwell,
6
In Commonwealth v. Hockenberry, 689 A.2d 283 (Pa. Super. 1997),
the defendant, like Appellant in the case sub judice, received a sentence of
seven to ten years’ imprisonment pursuant to the mandatory minimum
sentencing provisions of 18 Pa.C.S. § 7508(a). See Hockenberry, 689
A.2d at 287. On appeal, the defendant “contend[ed] his sentence [was] in
violation of 42 Pa.C.S. § 9756(b), which provides that the court ‘shall impose
a minimum sentence of confinement which shall not exceed one-half of the
maximum sentence imposed.’” Id. at 289. This Court construed the
defendant’s claim as a challenge to the legality of his sentence, id. at 288,
and denied relief, reasoning Section 7508 crafted an exception to Section
9756. Id. at 289.
7
The Commonwealth concedes Appellant is entitled to relief. Com.’s Appl.
for Panel Recons., 3/1/16, at 2.
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105 A.3d 748, 750 (Pa. Super. 2014) (citation omitted), appeal denied, 121
A.3d 494 (Pa. Aug. 12, 2015).
On June 17, 2013, the United States Supreme Court decided Alleyne.
The Ruiz Court summarized the Alleyne holding as follows:
In Alleyne, the United States Supreme Court held
“[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.” In applying that
mandate, an en banc panel of this Court, in
Commonwealth v. Newman, supra, 99 A.3d 86 (Pa.
Super. 2014) (en banc), appeal denied, 121 A.3d 496 (Pa.
2015), held that Alleyne rendered the mandatory
minimum sentencing provision at 42 Pa.C.S. § 9712.1 . . .
unconstitutional.
* * *
We note the Newman Court instructed that Alleyne
applies only to cases pending on direct appeal as of June
27, 2013, the date of the Alleyne decision.
Commonwealth v. Ruiz, 131 A.3d 54, 57-58 (Pa. Super. Dec. 30, 2015)
(citations omitted). “The Newman Court also made clear that an Alleyne
claim is a non-waivable challenge to the legality of sentence. Such a claim
may be raised on direct appeal, or in a timely filed PCRA petition.” Id. at 60
(citations and footnote omitted). In Ruiz, the defendant was sentenced on
June 5, 2013, and because he did not file a direct appeal, his judgment of
sentence became final on July 5, 2013, after Alleyne was decided. “As
such, Ruiz’s case ‘was still pending on direct appeal when Alleyne was
handed down, and the decision may be applied to [Ruiz’s] case
retroactively.’” Id. at 59-60 (citations omitted). On November 25, 2014, in
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Cardwell, this Court held Section 7508 was facially unconstitutional in its
entirety under Alleyne. See Cardwell, 105 A.3d at 754. “If no statutory
authorization exists for a particular sentence, that sentence is illegal and
subject to correction.” Randal, 837 A.2d at 1214.
As noted above, on October 8, 2013, several months after Alleyne
was decided, the court sentenced Appellant. Appellant did not file a direct
appeal, but did file a timely PCRA petition invoking Alleyne. Cf. Ruiz, 131
A.3d at 60. Subsequently, the Cardwell Court invalidated Section 7508—
the section Appellant was sentenced under—as unconstitutional. See
Cardwell, 105 A.3d at 754. Because Appellant filed a timely PCRA petition
invoking Alleyne, and because the statute under which he was sentenced
was deemed unconstitutional, we conclude he is entitled to relief. See Ruiz,
131 A.3d at 60; Cardwell, 105 A.3d at 754.
We turn to the relief we should grant Appellant. We addressed this
issue in Commonwealth v. Melendez-Negron, 123 A.3d 1087 (Pa. Super.
2015). In that case, the defendant successfully obtained PCRA relief from
the PCRA court on his claim that his sentence under a negotiated guilty plea
was unconstitutional under Alleyne. Id. at 1089. The PCRA court vacated
the defendant’s sentence and ordered resentencing. Id. The
Commonwealth appealed, arguing, inter alia, “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
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of marijuana charges.” Id. at 1092. Thus, the Commonwealth insisted, the
defendant “should be returned to the status quo prior to the entry of the
guilty plea.” Id. at 1091 (citation omitted).
The Superior Court agreed with the Commonwealth:
This case is fundamentally akin to [Commonwealth v.
Hodges, 789 A.2d 764, 765 (Pa. Super. 2002)8] and
[Commonwealth v. Lenhoff, 796 A.2d 338 (Pa. Super.
2002)9]; 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 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, 365 Pa.
Super. 562, 530 A.2d 453, 458 (1987) (holding that
8
In Hodge, all parties and the court mistakenly believed the defendant
could be sentenced to death although “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.” Hodge, 789 A.2d at 765. This Court held the
defendant was entitled to withdraw his plea because “[t]he entire process of
plea negotiations . . . was affected by this grave error.” Id. at 767.
9
In Lenhoff, the parties negotiated a plea based on a mistaken belief that
the defendant was charged with a second-degree felony. Lenhoff, 796 A.2d
at 342. The defendant, however, actually committed a third-degree felony.
Id. The defendant thus pleaded guilty “to avoid [a] sentence . . . the court
did not have the legal authority to impose . . . .” Id. at 343. This Court
held that because “plea negotiations were tainted at the outset by
misinformation”, the defendant was entitled to withdraw his plea. Id.
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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 § 9712.1 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.
Id. at 1093-94. We agree with this reasoning. Accordingly, we reverse the
order dismissing Appellant’s PCRA petition, vacate Appellant’s judgment of
sentence, vacate Appellant’s guilty plea, and remand for further
proceedings.
Order reversed. Judgment of sentence vacated. Guilty plea vacated.
Case remanded. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/9/2016
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