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Commonwealth v. Rivera

Superior Court of Pennsylvania

January 18, 2017

COMMONWEALTH OF PENNSYLVANIA Appellant
v.
ANDRE RIVERA Appellee

         Appeal from the PCRA Order May 8, 2015 In the Court of Common Pleas of Chester County Criminal Division at No(s): CP-15-CR-0001917-2013 CP-15-CR-0001918-2013

          BEFORE: GANTMAN, P.J., FORD ELLIOTT, P.J.E., BENDER, P.J.E., BOWES, J., PANELLA, J., SHOGAN, J., LAZARUS, J., OLSON, J., and OTT, J.

          OPINION

          OTT, J.

         The Commonwealth appeals from the order entered May 8, 2015, in the Chester County Court of Common Pleas granting Andre Rivera's petition for collateral relief filed pursuant to the Post Conviction Relief Act ("PCRA"), [1]and reinstating Rivera's post-sentence motion and direct appeal rights nunc pro tunc. Rivera sought relief from the judgment of sentence of an aggregate term of four and one-half to nine years' imprisonment imposed on January 23, 2014, following his negotiated guilty plea to three counts of possession with intent to deliver ("PWID") heroin and one count of possession of marijuana.[2] On appeal, the Commonwealth contends the PCRA court erred in reinstating Rivera's post-sentence and direct appeal rights based upon trial counsel's failure to consult with Rivera as to whether or not he wished to file a direct appeal. For the reasons below, we affirm.

         The relevant facts and procedural history underlying this appeal are as follows. At Docket No. 1917-2013, Rivera was charged with three counts each of PWID (heroin), possession of heroin, possession of drug paraphernalia, and criminal use of a communication facility, [3] after he sold heroin to a confidential informant on three occasions in August and October of 2012. The last controlled buy was for 2.1 grams of heroin. At Docket No. 1918-2013, Rivera was charged with one count each of PWID (marijuana), possession of marijuana and possession of drug paraphernalia, when he was searched incident to arrest, on March 3, 2013, for the crimes at Docket No. 1917-2013.

         On January 23, 2014, Rivera entered a negotiated guilty in both cases. At Docket No. 1917-2013, he pled guilty to three counts of PWID (heroin), and, at Docket No. 1918-2013, he pled guilty to one count of possession of marijuana. In accordance with the terms of the negotiated agreement, the trial court imposed the following sentence. At Docket No. 1917-2013, the court sentenced Rivera to: (1) a mandatory minimum term of three to six years' imprisonment for the charge of PWID of 2.1 grams of heroin pursuant to 18 Pa.C.S. § 7508(a)(7)(i);[4] (2) a consecutive term of 18 to 36 months' imprisonment for a second count of PWID, and (3) a concurrent term of 18 to 36 months' imprisonment for the third count of PWID. At Docket No. 1918-2013, the court imposed a concurrent term of 12 months' probation for possession of marijuana. Accordingly, the aggregate sentence imposed was a term of four and one-half to nine years' imprisonment. No post-sentence motion or direct appeal was filed.

         On November 18, 2014, Rivera wrote a letter to the trial court expressing his desire to appeal his sentence. See Letter, 11/18/2014. The court treated Rivera's letter as a timely-filed PCRA petition, and entered an order appointing counsel to represent him. Nonetheless, on December 10, 2014, Rivera filed a pro se petition, asserting his mandatory minimum sentence was illegal pursuant to Alleyne v. United States, 133 S.Ct. 2151 (U.S. 2013), [5] and plea counsel was ineffective for advising him to enter a guilty plea and for failing to file a direct appeal. Thereafter, on January 30, 2015, appointed counsel filed a petition to withdraw and accompanying Turner/Finley[6] "no merit" letter. Counsel asserted Alleyne was inapplicable because Rivera entered a guilty plea and admitted the facts that enhanced his sentence. See "No Merit" Letter, 1/20/2015, at 2. Nevertheless, the PCRA court scheduled an evidentiary hearing, limited to the following issue:

[W]hether plea counsel was ineffective for allegedly advising [Rivera] to plead guilty to facts permitting the imposition of a mandatory minimum in order to avoid the potential for more mandatory minimums that may not have been constitutional to impose under Alleyne … in the absence of admitted facts, i.e., in the event [Rivera] exercised his right to a jury or bench trial instead of tendering a plea.

Order, 2/11/2015. Thereafter, on February 17, 2015, Rivera filed a pro se objection to counsel's "no merit" letter, again claiming plea counsel was ineffective for "advising [him] to plead to an unlawful mandatory minimum sentence" in light of Alleyne, and for failing to file a direct appeal. See Objections to No-Merit Letter, 2/17/2015, at 1. In response, the PCRA court entered an order on February 19, 2015, directing, in relevant part: "[I]n addition to the issue specified in our previous Order dated February 11, 2015, the parties shall also litigate at the scheduled [PCRA] hearing the issue of whether plea counsel was ineffective for failing to file a direct appeal on behalf of [Rivera]." Order, 2/19/2015.

         The PCRA court conducted an evidentiary hearing on April 15, 2015. Thereafter, on May 7, 2015, the court entered an order granting Rivera PCRA relief. Specifically, the court found plea counsel was ineffective for failing to consult, sua sponte, with Rivera regarding whether he wished to file a direct appeal. See Order 5/7/2015, at n.1. Accordingly, the PCRA court reinstated Rivera's post-sentence and direct appeal rights nunc pro tunc. The court explained it reinstated Rivera's post-sentence rights because of "the nature of the non-frivolous issue that [Rivera] raises and the fact that [Rivera's] sentence was the product of a negotiated plea[.]" Order, 5/7/2015 at n.1. This timely Commonwealth appeal followed.[7]

          The Commonwealth frames the issue on review as follows:

Whether the [PCRA] court erred in granting [Rivera's] PCRA petition by reinstating the right to file a post-sentence motion and direct appeal nunc pro tunc where [Rivera] pled guilty and received an agreed upon sentence?

Commonwealth's Brief at 5.

         THE PCRA COURT'S DECISION:

         Before we address the Commonwealth's argument, by way of background, we must first summarize the PCRA court's findings with respect to all of the claims raised in Rivera's petition. First, the court concluded Rivera failed to establish plea counsel was ineffective for advising him to enter a guilty plea that included a Section 7508 mandatory minimum sentence. PCRA Court Opinion, 6/23/2015, at 7. Despite the fact the Alleyne decision had been filed seven months earlier, plea counsel testified at the evidentiary hearing it was her understanding Alleyne "didn't apply" since the "state of the law in Pennsylvania at the time [Rivera entered his plea] was that the mandatory minimums were still in effect." N.T., 4/15/2015, at 33-34. Likewise, the PCRA court explained:

[A]t the time [Rivera] was sentenced on January 23, 2014 and throughout the period available to him to seek direct review, no appellate court had yet declared 18 Pa.C.S.A. § 7508 unconstitutional in its entirety and incapable of severance; thus, pleading to a mandatory sentence under that section was still a viable option in this Commonwealth.

PCRA Court Opinion, 6/23/2015, at 7.

         The PCRA court also emphasized the benefit Rivera received by accepting the plea agreement. In exchange for his guilty plea to three counts of PWID and one count of possession of marijuana, the Commonwealth withdrew eleven other charges. See id. at 7. Moreover, although the plea agreement included the aforementioned mandatory minimum sentence, the court observed "it saved [Rivera] from potential consecutive sentences, if convicted on all fifteen charges at trial, that would have far exceeded the four and one-half (4½) to nine (9) years he received as a result of the plea." Id. at 8. Indeed, the three PWID heroin charges alone each carried a statutory maximum sentence of 30 years' imprisonment. See id. Accordingly, the PCRA court found because Rivera could legally enter a plea that included a Section 7508 mandatory minimum sentence at the time of his colloquy, and counsel had a reasonable basis for advising Rivera to accept the plea offered, Rivera failed to demonstrate plea counsel was ineffective. See id. at 8-9.

         The PCRA court also found Rivera failed to establish counsel was ineffective for neglecting to file a requested direct appeal. See id. at 9. Rivera claimed he sent a letter to counsel less than a week after entering his plea, requesting she file a motion to modify his sentence and an appeal. See N.T., 4/15/2015, at 13. He also introduced into evidence a copy of that purported letter. See id. However, counsel testified she never received the letter, and that if she had, she would have "[a]bsolutely" contacted Rivera to discuss his options. Id. at 31. The PCRA court found Rivera failed to demonstrate he mailed the purported letter to counsel, and credited counsel's testimony that she never received a letter directing her to file an appeal. See PCRA Court Opinion, 6/23/2015, at 9. Consequently, the court concluded Rivera failed to demonstrate counsel disregarded his request to file a direct appeal.

         Nevertheless, the PCRA court found Rivera's constitutional rights were violated "by plea counsel's failure to consult sua sponte with [Rivera] regarding whether he wished to file a direct appeal because there was a non-frivolous issue that [he] could have raised regarding the constitutionality of his plea under Alleyne, supra." Id. at 10. Although no Pennsylvania court had invalidated Section 7508 before Rivera's direct appeal time period had expired, the PCRA court explained:

It cannot be gainsaid, in the light of the the quickly developing history of ensuing appellate decisional law on the
constitutionality of mandatory minimums after Alleyne, supra that a challenge to the imposition of the mandatory minimum in section 7508 of the Crimes Code in the context of a plea bargain would have arguable legal merit.

Id. at 11. Further, the court emphasized it was not "holding counsel responsible for failing to anticipate a change in the law, " but rather, "[t]he writing, so to speak, was already on the wall." Id. at 12. The PCRA court summarized its ruling as follows:

The basis for our decision is a narrow one; it is not the underlying merit of [Rivera's] legality of sentence claim, but it is only the efficacy of counsel's stewardship in connection with her post-sentence responsibilities towards [Rivera]. The grievance is one relating to the compromise of [Rivera's] direct appeal rights, not whether [Rivera's] non-frivolous issue concerning the constitutionality of the application by the Commonwealth of a "constitutionally infirm" mandatory minimum to induce a guilty plea by [Rivera] is or should be declared right or wrong.

Id. at 12-13. In addition, the court also (1) restored Rivera's right to file a post-sentence motion, "[b]ecause some issues that he may want to raise, such as a motion to withdraw his guilty plea, are dependent upon their preservation in the lower court[;]" and (2) refused to unilaterally reduce Rivera's sentence because it was the product of a negotiated plea agreement, the terms of which were agreed to, and relied upon, by both parties. Id. at 13-14. With this background in mind, we proceed to an examination of the Commonwealth's argument on appeal.

         COMMONWEALTH'S ARGUMENT

         The Commonwealth contends the PCRA court erred in restoring Rivera's post-sentence and direct appeal rights nunc pro tunc because Rivera knowingly and voluntarily entered a negotiated guilty plea. Specifically, it asserts the court's determination that counsel had a duty to consult with Rivera, sua sponte, about the filing of a direct appeal, conflicts with the court's concomitant finding that counsel had a reasonable basis for advising Rivera to accept the plea agreement.[8] See Commonwealth's Brief at 27. Indeed, the Commonwealth emphasizes there was no change in the law regarding the effect of Alleyne on Pennsylvania's mandatory minimum sentencing statutes during the 30-day period between the imposition of Rivera's sentence and the expiration of the time period for filing a direct appeal. See id.

         Further, the Commonwealth insists Rivera cannot challenge his negotiated sentence where, as here, he received "the sentence bargained for." Id. at 31. It asserts: "There is no authority to permit a challenge to the discretionary aspects of a sentence, where there is a plea agreement, which contains a negotiated sentence, which is accepted and imposed by the sentencing court." Id. at 30. Rather, Rivera's only opportunity for relief was to seek to withdraw his guilty plea, which, the Commonwealth notes, is limited to "challenges to voluntariness, jurisdiction of the court, and the lawfulness of the sentence." Id. at 28-29. Moreover, the Commonwealth contends all of those issues could "be all litigated within the context of a PCRA petition without the need to file a post-sentence motion and/or direct appeal nunc pro tunc." Id. at 29.

         With regard to the PCRA court's specific finding that plea counsel had a duty to consult with Rivera, the Commonwealth maintains Rivera's only objective was to reduce his negotiated sentence, and, under the relevant case law, a court should consider "whether the defendant received the sentence bargained for as part of the plea[.]" Id. at 31, 34, citing Roe v. Flores-Ortega, 528 U.S. 470 (2000), and Commonwealth v. Maynard, 900 A.2d 395 (Pa. 2006). Because Rivera did so in the present case, the Commonwealth argues counsel was not required to perform what would have been "a useless act." Id. at 31.

         Moreover, the Commonwealth maintains the PCRA court's ruling improperly imposes upon counsel a duty to anticipate a change in the law. See id. at 42. Indeed, early decisions of this Court applying Alleyne, did not address the severability of the mandatory minimum statutes, and found no constitutional violation if the facts necessary to establish the application of the mandatory minimum sentence were either determined by a jury or stipulated to by the defendant. See id. at 39-41, citing Commonwealth v. Munday, 78 A.3d 661, 666 (Pa. Super. 2013) (declining to address, sua sponte, whether mandatory minimum statute at 42 Pa.C.S. § 9712.1 was facially invalid in light of Alleyne); Commonwealth v. Watley, 81 A.3d 108, 120-121 (Pa. Super. 2013) (en banc) (finding no Alleyne violation when jury convicted defendant of firearms charges, which established facts necessary for application of mandatory minimum), appeal denied, 95 A.3d 277 (Pa. 2014); Commonwealth v. Tobin, 89 A.3d 663, 665 n.1 (Pa. Super. 2014) (commenting that Alleyne did not invalidate defendant's mandatory minimum sentence because defendant "pled guilty and admitted to possession of twenty marijuana plants"); Commonwealth v. Matteson, 96 A.3d 1064, 1066 (Pa. Super. July 18, 2014) (finding no violation of Alleyne when the jury found beyond a reasonable doubt the triggering fact for imposition of mandatory minimum by virtue of the crime charge, that is, victim was under age of 13). The Commonwealth summarizes:

[A]t the time of [Rivera's] plea and sentencing, and for a period of time thereafter, there was Superior Court and other authority that if the facts implicating the mandatory sentence were the result of a plea agreement or submitted to the jury there was no Alleyne issue.
. . . .
Counsel cannot be deemed ineffective for failing to anticipate a change or development in the law.

         Commonwealth's Brief at 42.

         Finally, the Commonwealth contends this Court's recent decision in Commonwealth v. Melendez-Negron, 123 A.3d 1087 (Pa. 2015), is not controlling because it is "inconsistent" with prior cases cited above.[9]Commonwealth's Brief at 45. Moreover, it insists that, unlike here, the prejudice the defendant suffered in Melendez-Negron was apparent, since the mandatory minimum sentence he received was "double the aggravated range sentence" he would have faced had a mandatory minimum provision not been applied.[10] Id. at 44, citing Melendez-Negron, supra, 123 A.3d at 1091.

         Accordingly, the Commonwealth argues the PCRA court erred in granting Rivera PCRA relief by reinstating both his post-sentence and direct appeal rights nunc pro tunc.

         ANALYSIS

         We begin our analysis of the Commonwealth's argument with our standard of review. When reviewing an order granting PCRA relief, we must "determine whether the decision of the PCRA court is supported by the evidence of record and is free of legal error." Melendez-Negron, supra, 123 A.3d at 1090 (citation omitted). Moreover, we will not disturb the findings of the PCRA court unless those findings have no support in the certified record. Id. (citation omitted).

         The PCRA court's ruling is based upon trial counsel's failure to consult with Rivera regarding whether Rivera wanted to file a direct appeal. In Roe v. Flores-Ortega, supra, the United States Supreme Court considered trial counsel's duty in those cases where a defendant does not clearly convey to ...


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