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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37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. :
:
MICHAEL TELLEED ROSS, :
:
Appellant : No. 2972 EDA 2015
Appeal from the PCRA Order September 4, 2015
in the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0009616-2013
BEFORE: FORD ELLIOTT, P.J.E., STABILE, and STRASSBURGER,* JJ.
MEMORANDUM BY STRASSBURGER, J.: FILED JANUARY 12, 2017
Michael Telleed Ross (Appellant) appeals from the order that dismissed
without a hearing his petition filed pursuant to the Post Conviction Relief Act
(PCRA), 42 Pa.C.S. §§ 9541-9546. We vacate the order and remand for
further proceedings consistent with this memorandum.
On September 18, 2013, Appellant entered a negotiated plea, under
which he pled guilty to possession with intent to deliver and conspiracy in
exchange for a sentence of one and one half to five years of incarceration
followed by five years of probation. He filed no direct appeal, 1 but timely
filed a PCRA petition on November 15, 2013. Counsel filed an amended
1
Appellant, pro se, filed a motion for reconsideration of sentence on
September 30, 2013. The docket does not reflect that it was forwarded to
counsel as required by Pa.R.Crim.P. 576(a)(4), and no action was taken on
the motion. However, Appellant does not present us with any claim
regarding the handling of that motion.
*Retired Senior Judge assigned to the Superior Court.
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petition on December 8, 2014. After issuing notice of its intent to dismiss
the petition without a hearing under Pa.R.Crim.P. 907, the PCRA court
dismissed Appellant’s petition by order of September 4, 2015. Appellant
timely filed a notice of appeal. Thereafter, Appellant and the PCRA court
both complied with Pa.R.A.P. 1925.
Appellant presents this Court with one issue: “Did the [PCRA] court err
in denying [A]ppellant an evidentiary hearing when [A]ppellant raised a
material issue of fact showing that trial defense counsel at the guilty plea
hearing was ineffective?” Appellant’s Brief at 2.
Our standard of review of a trial court 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 findings in the
certified record.
Commonwealth v. Perez, 103 A.3d 344, 347 (Pa. Super. 2014) (internal
citation and quotation marks omitted).
Appellant’s argument is that he is entitled to a hearing on his claim
that his sentence resulted from plea counsel’s ineffective assistance.
Appellant’s Brief at 5-8. We begin by noting that a “PCRA petitioner is not
entitled to an evidentiary hearing as a matter of right, but only where the
petition presents genuine issues of material fact.” Commonwealth v.
Keaton, 45 A.3d 1050, 1094 (Pa. 2012).
The following legal principles apply to Appellant’s claim.
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A criminal defendant has the right to effective counsel during a
plea process as well as during trial. A defendant is permitted to
withdraw his guilty plea under the PCRA if ineffective assistance
of counsel caused the defendant to enter an involuntary plea of
guilty.
We conduct our review of such a claim in accordance with the
three-pronged ineffectiveness test under section 9543(a)(2)(ii)
of the PCRA. The voluntariness of the plea depends on whether
counsel’s advice was within the range of competence demanded
of attorneys in criminal cases. In order for Appellant to prevail
on a claim of ineffective assistance of counsel, he must show, by
a preponderance of the evidence, ineffective assistance of
counsel which, in the circumstances of the particular case, so
undermined the truth-determining process that no reliable
adjudication of guilt or innocence could have taken place.
Appellant must demonstrate: (1) the underlying claim is of
arguable merit; (2) that counsel had no reasonable strategic
basis for his or her action or inaction; and (3) but for the errors
and omissions of counsel, there is a reasonable probability that
the outcome of the proceedings would have been different. The
petitioner bears the burden of proving all three prongs of the
test.
Commonwealth v. Patterson, 143 A.3d 394, 397–98 (Pa. Super. 2016)
(internal quotation marks and citations omitted).
Appellant’s claim revolves around the interplay of the mandatory
minimum sentencing statute implicated in his case and the United States
Supreme Court’s decision in Alleyne v. United States, 133 S.Ct. 2151, 186
L.Ed.2d 314 (2013).
In Alleyne, the Court held that because mandatory minimum statutes
create increased penalties as a matter of law, “any fact that increases the
mandatory minimum is an ‘element’ that must be submitted to the jury” to
be determined under the reasonable-doubt standard. Alleyne, 133 S. Ct. at
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2155. Section 7508 of the Crimes Code, referenced in the criminal
information filed against Appellant, provided different mandatory minimum
sentences for drug crimes, depending upon the type and weight of drug at
issue, as well as whether the defendant had prior convictions. For a person
who had a prior drug-trafficking conviction and possessed between two and
ten grams of cocaine, a three-to-six-year mandatory minimum sentence
applied. 18 Pa.C.S. § 7508(a)(3)(i).
Appellant, believing that he was facing three to six years of
imprisonment if convicted, agreed to plead guilty in exchange for a sentence
of one and one half to five years of confinement. In seeking collateral
review of this sentence, Appellant claims that his counsel was ineffective in
failing to advise him about the unconstitutionality of section 7508.
Specifically, Appellant claims that counsel did not tell him that he could “take
an open plea,” PCRA Petition, 11/15/2013, at ¶ 5, and that a non-negotiated
sentence entered pursuant to the sentencing guidelines applicable in lieu of
section 7508 would have been “more lenient.” Appellant’s Brief at 6.
In addressing Appellant’s claim, the PCRA court first noted that no
court had applied Alleyne to invalidate section 7508 before Appellant
entered his guilty plea and was sentenced on September 18, 2013. PCRA
Court Opinion, 12/2/2015, at 4. Thus, the PCRA court held Appellant’s
“claim that trial counsel should have anticipated this change in the law is
without merit.” Id. Further, the PCRA court, without holding a hearing to
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determine counsel’s basis for failing to advise Appellant of the implications of
the Alleyne decision, concluded that “it was not patently unreasonable of
counsel to advise his client based upon the sentencing schemes as they were
written and applied at the time of [Appellant’s] plea.” Id. Finally, the PCRA
court opined that Appellant failed to show prejudice because he received a
sentence below the mandatory minimum provided by section 7508 and, if
counsel had advised Appellant against accepting the Commonwealth’s offer,
Appellant would have received the higher mandatory minimum sentence.
Id.
The PCRA court’s analysis is legally erroneous. Alleyne was decided
on June 17, 2013. On August 6, 2013, the Commonwealth filed the criminal
information against Appellant, therein indicating that it intended to proceed
under the mandatory minimum sentencing provisions of section 7508.
Section 7508 stated that its provisions “shall not be an element of the
crime,” but, rather, “shall be determined at sentencing” by the judge “by a
preponderance of the evidence.” 18 Pa.C.S. § 7508(b). Thus, Alleyne
rendered section 7508 unconstitutionally infirm.
Alleyne, which was the applicable law for the duration of the
prosecution of Appellant’s case in the trial court, was itself the change in the
law, not the subsequent decisions that applied its holding to specific
Pennsylvania statutes that were in direct conflict. Counsel did not have to
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predict the future; rather, he had to be aware that the law applicable to his
client’s case had changed. Thus, the claim has arguable merit.
Furthermore, Appellant has averred that counsel’s ineffectiveness led
to his entering an unknowing and unintelligent guilty plea, and that he would
have received a less severe sentence had counsel rendered constitutionally-
adequate assistance. PCRA Petition, 11/15/2013, at ¶ 5; Appellant’s Brief at
6. These are sufficient allegations to create issues of material fact as to the
remaining prongs of Appellant’s claim.
Accordingly, we remand this case for a hearing on Appellant’s claim.
See Commonwealth v. Walls, 993 A.2d 289, 296–97 (Pa. Super. 2010)
(“[W]hen an arguable claim of ineffective assistance of counsel has been
made, and there has been no evidentiary hearing in the [PCRA court] to
permit the defendant to develop evidence on the record to support the
claim, and to provide the Commonwealth an opportunity to rebut the claim,
this Court will remand for such a hearing.”).
Order vacated. Case remanded for further proceedings consistent with
this memorandum. Jurisdiction relinquished.
P.J.E. Ford Elliott joins.
Judge Stabile files a dissenting memorandum.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/12/2017
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