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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
RAFAEL R. SANCHES, JR. :
:
Appellant : No. 768 WDA 2017
Appeal from the Order July 26, 2016
In the Court of Common Pleas of Erie County Criminal Division at No(s):
CP-25-CR-0001914-2013
BEFORE: BOWES, J., RANSOM, J., and STEVENS*, P.J.E.
MEMORANDUM BY STEVENS, P.J.E.: FILED DECEMBER 06, 2017
Appellant, Rafael Sanches, appeals from the July 26, 2016, order
dismissing his petition filed pursuant to the Post Conviction Relief Act
(PCRA), 42 Pa.C.S.A. §§ 9541-9546. Sentenced to an aggregate 30 to 60
months’ incarceration following his entry of a guilty plea to charges of
possession with intent to deliver marijuana (PWID), conspiracy to commit
PWID, possession of a controlled substance, possession of drug
paraphernalia, and criminal use of a communication facility,1 Appellant
claims plea counsel ineffectively advised him to plead in exchange for the
Commonwealth’s agreement to waive application of the mandatory minimum
sentencing statute, 18 Pa.C.S. § 7508, where the United States Supreme
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1
35 P.S. 780-113(a)(30), 18 P.S. 903, 35 P.S. 780-113(a)(16), 35 P.S.
780-113(a)(32), and 18 P.S. 7512(a).
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* Former Justice specially assigned to the Superior Court.
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Court had decided, just one month earlier in Alleyne v. United States, 133
S.Ct. 2151 (2013), that mandatory minimums triggered by judicial fact-
finding during sentencing were unconstitutional.2 We affirm.
On January 15, 2014, Appellant entered into a plea agreement
whereby he would plead guilty to the above-mentioned offenses in exchange
for the Commonwealth’s promise to reduce the weight of the marijuana
charged in the criminal information from 10.6 to 9.9 pounds and to waive
the mandatory minimum sentence applicable to the PWID charge. On April
15, 2014, the court sentenced Appellant to the aforementioned sentence of
30 to 60 months’ incarceration with a 36-month probationary tail. Appellant
filed a motion for modification of sentence, which the trial court denied on
April 23, 2014. Appellant appealed the judgment of sentence, raising
challenges to the order denying his motion to suppress evidence and to the
legality of this sentence. On September 17, 2015, this Court affirmed
judgment of sentence.
On November 16, 2015, Appellant filed a pro se PCRA petition, his
first. In his petition, Appellant argued his plea was involuntary because he
was induced to enter it in order to avoid exposure to a mandatory minimum
sentencing scheme that, unbeknownst to him, had been declared
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2
In Alleyne, the United States Supreme Court decided that any fact
increasing the penalty for a crime beyond the prescribed statutory minimum
sentence must be submitted to a jury as an element of the crime to be
proven beyond a reasonable doubt.
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unconstitutional by the United States Supreme Court in Alleyne. Counsel
was appointed, and he subsequently filed an amended PCRA petition. On
March 11, 2016, the PCRA court presided over an evidentiary hearing at
which Appellant and plea counsel testified.
On June 29, the PCRA court filed a Pa.R.Crim.P. 907 Notice of Intent to
Dismiss PCRA based on the evidence adduced at the hearing.3 On July 26,
2016, the court entered its order dismissing Appellant’s PCRA petition.
Appellant, thereafter, filed pro se a timely notice of appeal. In our
memorandum decision Commonwealth v. Sanches, No. 1164 WDA 2016,
unpublished memorandum at 3-4, filed on May 2, 2017, we determined
there was no indication in either the record or court docket suggesting that
counsel withdrew his appearance or that Appellant affirmatively waived his
right to counsel. Given counsel’s apparent abandonment of Appellant, we
remanded the matter so that the court could either direct counsel to
continue representation, allow counsel to withdraw and appoint new counsel,
or conduct a Grazier4 hearing if Appellant wished to proceed pro se. On
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3
The PCRA court issued a notice of intent to dismiss Appellant's petition
pursuant to Pa.R.Crim.P. 907. However, that procedure is improper as Rule
907 controls only when the PCRA court determines that no hearing is
required to dispose of the PCRA petition. The court was permitted to dismiss
Appellant's PCRA petition following a hearing pursuant to Pa.R.Crim.P.
908(D)(1).
4
Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).
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remand, the PCRA court appointed new counsel, who filed a notice of appeal
nunc pro tunc on May 26, 2017.
Appellant presents the following questions for our review:
1. [DID] THE LOWER COURT COMMIT[] LEGAL ERROR AND
ABUSE[] ITS DISCRETION IN FAILING TO FIND THAT THE
GUILTY PLEAS AS ENTERED WERE INVALID IN THAT THE
COMMONWEALTH USED THE REPRESENTATION THAT IT
WOULD AGREE TO WAIVE THE MANDATORY MINIMUM
SENTENCE AS AN INDUCNEMENT [SIC] TO ACCEPT THE PLEA
AGREEMENT WHEREIN THE COMMONWEALTH LACKED ANY
LEGAL AUTHORITY TO PURSUE THE MANDATORY MINIMUM
SENTENCE GIVEN THE ISSUANCE OF THE SUPREME COURT
DECISION IN UNITED STATES V. ALLEYNE?
2. [WAS] THE APPELLANT [] AFFORDED INEFFECTIVE
ASSISTANCE OF COUNSEL IN THAT DEFENSE COUNSEL
FAILED TO PROPERLY ADVISE AND COUNSEL THE APPELLANT
AS TO THE TERMS OF THE PLEA AGREEMENT IN THE CONTET
OF THE HOLDING OF UNITED STATES V. ALLEYNE AND
DEFENSE COUNSEL ALSO SERVED TO INDUCE THE ENTRY OF
GUILTY PLEAS BY REPRESENTING THAT THE WAIVER OF THE
MANDATORY MINIMUM WAS OF SIGNIFICANCE AND
CONSTITUTED A FAVORABLE ELEMENT OF THE PLEA
AGREEMENT?
Appellant’s brief at 2.
Our review of an order denying PCRA relief is well-established:
This Court reviews a PCRA court's decision in the light most
favorable to the prevailing party. Commonwealth v. Hanible,
612 Pa. 183, 30 A.3d 426, 438 (2011). Our review is limited to
a determination of whether the record supports the PCRA court's
factual findings and whether its legal conclusions are free from
error. Id. “A PCRA court's credibility findings are to be
accorded great deference, and where supported by the record,
such determinations are binding on a reviewing court.”
Commonwealth v. Treiber, ––– Pa. ––––, 121 A.3d 435, 444
(2015) (citing Commonwealth v. Dennis, 609 Pa. 442, 17
A.3d 297, 301 (2011)). We review the PCRA court's legal
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conclusions de novo. Commonwealth v. Roney, 622 Pa. 1, 79
A.3d 595, 603 (2013).
Commonwealth v. Williams, 141 A.3d 440, 452 (Pa. 2016). Furthermore,
to be eligible for relief under the PCRA, a petitioner must plead and prove by
a preponderance of the evidence: “[t]hat the allegation of error has not been
previously litigated or waived.” 42 Pa.C.S.A. § 9543(a)(3).
First, Appellant challenges the validity of his guilty plea as a stand-
alone claim, discrete from the related ineffective assistance of counsel claim
raised in his second issue. Specifically, he contends here that because his
plea was based on a mistaken belief—fostered by both the trial court and the
Commonwealth without due regard for Alleyne—that the waiver of the
mandatory minimum sentence conferred a benefit to Appellant in exchange
for his plea, his plea was invalid. We find this issue is waived.
To obtain post-conviction relief, a petitioner is required to plead and
prove that “the allegation of error has not been previously litigated or
waived.” 42 Pa.C.S. § 9543(a)(3). An issue is waived if it could have been
raised before trial, at trial, on direct appeal, or in a prior state post-
conviction proceeding. 42 Pa.C.S. § 9544(b). In order to preserve a
challenge to his guilty plea, a defendant must either make a timely objection
during the plea colloquy or raise the claim in a post-sentence motion.
Commonwealth v. D'Collanfield, 805 A.2d 1244, 1246 (Pa.Super. 2002)
(instructing that claim challenging validity of guilty plea waived where
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appellant neither objected during colloquy nor challenged it in post-sentence
motion); Pa.R.Crim.P. 720.
Here, Appellant did not object to the guilty plea during his colloquy or
challenge the plea in a post-sentence motion. Therefore, Appellant's stand-
alone claim that his guilty plea was invalid, raised for the first time on
collateral review, is waived. 42 Pa.C.S. § 9544(b).
Appellant’s second issue, however, challenges the invalidity of his
guilty plea as a function of plea counsel’s ineffectiveness in failing to advise
him that he may not have been subject to Pennsylvania’s mandatory
minimum sentencing scheme for PWID given the United States Supreme
Court’s then-recent decision in Alleyne. When considering a claim asserting
trial counsel's ineffectiveness, we must bear in mind:
“In order to obtain relief under the PCRA premised upon a claim
that counsel was ineffective, a petitioner must establish beyond
a preponderance of the evidence that counsel's ineffectiveness
‘so undermined the truth-determining process that no reliable
adjudication of guilt or innocence could have taken place.’”
Commonwealth v. Payne, 794 A.2d 902, 905 (Pa. Super.
2002), quoting 42 Pa.C.S.A. § 9543(a)(2)(ii). When considering
such a claim, courts presume that counsel was effective, and
place upon the appellant the burden of proving otherwise. Id. at
906. “Counsel cannot be found ineffective for failure to assert a
baseless claim.” Id.
To succeed on a claim that counsel was ineffective, Appellant
must demonstrate that: (1) the claim is of arguable merit; (2)
counsel had no reasonable strategic basis for his or her action or
inaction; and (3) counsel's ineffectiveness prejudiced him.
Commonwealth v. Allen, 833 A.2d 800, 802 (Pa. Super.
2003).
Commonwealth v. Michaud, 70 A.3d 862, 867 (Pa. Super. 2013).
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Here, Appellant fails to establish that counsel had no reasonable basis
upon which to recommend pleading guilty, where the Commonwealth offered
not only to waive the mandatory minimum sentence for PWID but also to
decrease the weight of marijuana charged in the information to an amount
that would reduce the offense gravity score and, consequently, the standard
range sentence for Appellant’s PWID by 12 months. The reduction of weight
likewise reduced the sentencing guidelines for the related charge of
Conspiracy to Commit PWID. As such, Appellant’s sentencing exposure was
significantly reduced independent of the Commonwealth’s offer to waive the
mandatory minimum, and counsel explained at the PCRA hearing that he
based his advice in part on the benefits attendant to the reduction of the
drug weight charged in the information. See N.T. 7/26/17 at 20-22.
Accordingly, even considering the effect of Alleyne, which, it must be
said, was still unresolved by this Court in early interpretive decisions filed
prior to the time counsel advised Appellant to plead,5 we conclude that
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5
Early decisions interpreting Alleyne “implied that [a defendant] could
legally stipulate to the amount of drugs recovered, and agree to the
imposition of the mandatory minimum sentence under Section 7508.”
Commonwealth v. Rivera, 154 A.3d 370, 379 (Pa.Super. 2017) (en banc).
The Rivera panel further espoused:
Indeed, it was not until our decision in [Commonwealth v.
Newman, [99 A.3d 86 (Pa.Super. 2014)], filed in August of
2014, that an en banc panel held Pennsylvania's mandatory
minimum sentencing statutes, which permitted a trial court to
increase a defendant's minimum sentence based upon a
preponderance of the evidence standard, were unconstitutional
(Footnote Continued Next Page)
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counsel had a reasonable basis for advising Appellant to accept the
Commonwealth’s offer and plead guilty. Because Appellant has, therefore,
failed to prove the “reasonable basis” prong of his ineffective assistance of
counsel claim, his appeal fails.
Order is AFFIRMED.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/6/17
_______________________
(Footnote Continued)
under Alleyne and incapable of severance. After Newman, this
Court consistently rejected any harmless error analysis that
attempted to circumvent the plain language of the statutes.
Id. at 378.
In Rivera, the defendant entered a negotiated guilty plea, which included
the imposition of a mandatory minimum sentence, after Alleyne was filed,
but before Newman was decided. In concluding plea counsel was not
ineffective, the Rivera panel found “the PCRA court properly determined
counsel had a reasonable basis for advising Rivera to accept the plea, based
upon the harsher sentence Rivera would have faced had he proceeded to
trial.” Id. at 379.
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