from the PCRA Order May 8, 2015 In the Court of Common Pleas
of Chester County Criminal Division at No(s):
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.
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"),
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. 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.
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,  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.
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); (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
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),  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 "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
[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]."
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.
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
Commonwealth's Brief at 5.
PCRA COURT'S DECISION:
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.
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.
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
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
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
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. 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.
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.
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.
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.
Brief at 42.
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.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. Id.
at 44, citing Melendez-Negron, supra, 123
A.3d at 1091.
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.
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).
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 ...