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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.

ELANTE OUTTERBRIDGE,

                            Appellant                    No. 3187 EDA 2015


                Appeal from the PCRA Order September 22, 2015
              In the Court of Common Pleas of Philadelphia County
    Criminal Division at No(s): CP-51-CR-0001809-2011, CP-51-CR-0012306-
                                      2012


BEFORE: SHOGAN, OTT, and STRASSBURGER,* JJ.

MEMORANDUM BY SHOGAN, J.:                           FILED SEPTEMBER 27, 2016

        Elante Outterbridge (“Appellant”) appeals, pro se, from the order

denying his petition for relief filed under the Post Conviction Relief Act

(“PCRA”), 42 Pa.C.S. §§ 9541–9546.             We reverse the PCRA order, vacate

the judgment of sentence and guilty plea, and remand for further

proceedings.

        Appellant was arrested on January 12, 2011, in connection with the

shooting of Ronnie Brown (“the victim”) during an altercation on November

13, 2010. Criminal Complaint, 11/15/10, at 1. Appellant was charged with,

inter alia, aggravated assault and possession of an instrument of crime with

____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
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intent to employ it criminally.   Id. at 2.   Appellant was arrested again on

August 30, 2012, in connection with his possession of a black, Browning

Arms .22 caliber handgun in his waistband. Criminal Complaint, 8/30/12, at

1.   Appellant was charged with, inter alia, possessing a firearm without a

license. Id. at 2.

      Appellant entered a negotiated plea on both criminal dockets, whereby

he pled guilty to aggravated assault, PIC, and possessing a firearm without a

license, and the Commonwealth nol prossed the remaining charges.        N.T.,

10/15/13; Written Guilty Plea Colloquy, 10/15/13. The trial court sentenced

Appellant the same day to incarceration for an aggregate term of five to

fifteen years. Appellant filed an untimely pro se motion for reconsideration

on March 19, 2014, which the trial court denied. Order, 5/1/14. Appellant

did not file a direct appeal.

      Appellant filed a timely pro se PCRA petition, averring he did not

receive credit for time served.    PCRA Petition, 9/29/14, at 4.   The PCRA

court appointed counsel on April 23, 2015. Three days later, counsel filed a

“no merit” letter pursuant to Commonwealth v. Finley, 550 A.2d 213 (Pa.

Super. 1988), and a motion to withdraw representation.          In response,

Appellant filed a pro se application for leave to amend his PCRA petition,

raising a legality-of-sentence issue premised on U.S. v. Alleyne, ___ U.S.

___, 133 S.Ct. 2151 (2013). Application for Leave to Amend, 5/5/15.




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      Without addressing Appellant’s request for permission to amend his

petition, the PCRA court sent a notice of its intent to dismiss Appellant’s

petition pursuant to Pa.R.Crim.P. 907 on July 7, 2015.           In response,

Appellant filed a pro se objection to the Rule 907 notice. Objection to Notice

of Intention to Dismiss, 7/21/15.     The PCRA court dismissed Appellant’s

petition and permitted counsel to withdraw, with no mention of Appellant’s

legality-of-sentence claim. Order, 9/22/15. This appeal followed. Appellant

and the PCRA court have complied with Pa.R.A.P. 1925.

      Appellant presents the following issues for our consideration:

             Is the appellant freely allowed to file an/or amended PCRA-
      petition, while the initial PCRA-petition was still pending so that
      appellant can achieve substantial justice?

             Is the appellant serving a mandatory minimum sentence
      that’s unconstitutional and illegal?

Appellant’s Brief at 7 (verbatim).

      When reviewing the propriety of an order denying PCRA relief, we

consider the record “in the light most favorable to the prevailing party at the

PCRA level.”   Commonwealth v. Stultz, 114 A.3d 865, 872 (Pa. Super.

2015) (quoting Commonwealth v. Henkel, 90 A.3d 16, 20 (Pa. Super.

2014) (en banc)). This Court is limited to determining whether the evidence

of record supports the conclusions of the PCRA court and whether the ruling

is free of legal error. Commonwealth v. Rykard, 55 A.3d 1177, 1183 (Pa.

Super. 2012). We grant great deference to the PCRA court’s findings that

are supported in the record and will not disturb them unless they have no

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support in the certified record.   Commonwealth v. Rigg, 84 A.3d 1080,

1084 (Pa. Super. 2014).

      Regarding Appellant’s first issue, amendment of a PCRA petition, the

Pennsylvania Supreme Court has stated:

             Our criminal procedural rules reflect that the PCRA judge
      “may grant leave to amend ... a petition for post-conviction
      collateral relief at any time,” and that amendment “shall be
      freely allowed to achieve substantial justice.” Pa.R.Crim.P.
      905(A); see Commonwealth v. Williams, 573 Pa. 613, 633,
      828 A.2d 981, 993 (2003) (noting that the criminal procedural
      rules contemplate a “liberal amendment” policy for PCRA
      petitions). Nevertheless, it is clear from the rule’s text that leave
      to amend must be sought and obtained, and hence,
      amendments are not “self-authorizing.” Commonwealth v.
      Porter, 613 Pa. 510, 523, 35 A.3d 4, 12 (2012). Thus, for
      example, a petitioner may not “simply ‘amend’ a pending
      petition with a supplemental pleading.” Id. Rather, Rule 905
      “explicitly states that amendment is permitted only by direction
      or leave of the PCRA Court.” Id. at 523–24, 35 A.3d at 12; see
      also Williams, 573 Pa. at 625, 828 A.2d at 988 (indicating that
      the PCRA court retains discretion whether or not to grant a
      motion to amend a post-conviction petition). It follows that
      petitioners may not automatically “amend” their PCRA petitions
      via responsive pleadings.

Commonwealth v. Baumhammers, 92 A.3d 708, 730–731 (Pa. 2014). In

sum, claims raised outside of a court-authorized PCRA petition are subject to

waiver. Commonwealth v. Reid, 99 A.3d 470, 484 (Pa. 2014). See also

Commonwealth v. Mason, 130 A.3d 601, 627 (Pa. 2015) (finding claim

waived for failure to raise it in an authorized amended PCRA petition).

      Here, despite being represented, Appellant sought, pro se, the PCRA

court’s permission to amend his petition with an Alleyne sentencing claim.

Application for Leave to Amend, 5/5/15. Without granting Appellant leave to

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amend, the PCRA court dismissed Appellant’s petition on the merits. 1 In its

Pa.R.A.P. 1925(a) opinion, however, the PCRA court expressly recognized

Appellant’s sentencing issue:            “Since [Appellant’s] motion to amend

challenges the legality of his sentence, the [c]ourt is treating his pro se

PCRA petition as having been properly amended.”           PCRA Court Opinion,

2/19/16, at 2 n.1.

       Pennsylvania jurisprudence recognizes that a legality-of-sentence issue

is not subject to the traditional waiver doctrine.     See Commonwealth v.

Wolfe, 140 A.3d 651, 660 (Pa. 2016) (“[T]his Court has previously found
____________________________________________


1
   As stated above, Appellant filed a pro se objection to the Rule 907 notice
on July 21, 2015, again challenging his sentence under Alleyne. Objection
to Notice of Intention to Dismiss, 7/21/15, at ¶ 2. Inexplicably, the record
suggests that two months later neither the PCRA court nor counsel were
aware of Appellant’s objection or the sentencing issue therein:

              THE COURT: What’s this here for?

              [DEFENSE COUNSEL]: Dismissal. The 907 notice went out.

             THE COURT: Okay. It’s a PCRA. At the last listing in July
       we were going to send out a 907 notice, which it looks like we
       did, on July 7th. Anybody hear back from the defendant?

              [PROSECUTOR]: No, Your Honor.

              [DEFENSE COUNSEL]: No, Your Honor.

             [THE COURT]: So, then, today we can just enter a formal
       dismissal?

              [PROSECUTOR]: That’s correct.

N.T., 9/22/15, at 4–5.



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that an asserted [Alleyne] violation implicated the legality of a sentence . . .

and that legality-of-sentence claims are not subject to the traditional waiver

doctrine.” (internal citations omitted)); Commonwealth v. Hopkins, 67

A.3d 817, 821 (Pa. Super. 2013) (“As a general rule, a challenge to the

application of a mandatory minimum sentence is a non-waivable challenge

to the legality of sentence.” (internal quotations omitted)).           Therefore,

despite the PCRA court’s failure to formally grant Appellant leave to amend

his petition to include a legality-of-sentence issue, we discern no abuse of

the PCRA court’s discretion in treating Appellant’s PCRA petition as properly

amended.

      Appellant’s second issue implicates the legality of his sentence.

According to Appellant, his sentence was imposed under the illegal

mandatory     minimum    sentencing   scheme    of   42   Pa.C.S.   §    9712(a).

Appellant’s Brief at 11 (citing Commonwealth v. Hopkins, 117 A.3d 247

(Pa. 2015)).     Contrarily, the Commonwealth asserts that “[Appellant]

negotiated the sentence the court imposed as part of his guilty plea, and the

sentence was not a mandatory minimum sentence. Alleyne does not apply.”

Commonwealth’s Brief at 6. In support of its position, the Commonwealth

asserts:

            [Appellant] made no proffer to the PCRA court – and offers
      none now on appeal – that a mandatory sentence under Section
      9712 was imposed. In fact, on the court’s October 15, 2013,
      Sentencing Order, the “No” box is checked under the heading
      “Mandatory Sentence”.       At the plea proceeding, the court
      explicitly stated on the record, “It’s my intention to impose the

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      sentence that was recommended by the DA and agreed to by the
      defense as part of the negotiated plea” (N.T. 10/15/13, 16),
      which [Appellant] confirmed when he “waived the ordering of a
      presentence investigation report in light of the negotiated
      agreement.” (N.T. 10/15/13, 17).

Id. at 7–8 (some internal citations omitted).

      In retrospect, the PCRA court found Appellant’s sentencing challenge

meritorious, opining, in relevant part, as follows:

            This matter falls into a very narrow category of cases
      wherein defendants entered into negotiated plea agreements
      shorty after Alleyne was decided which were premised on the
      application of Pennsylvania’s statutory mandatory minimum
      sentence scheme. As part of these plea agreements, as in the
      instant matter, the defendants admitted to the predicate act
      leading to the imposition of a mandatory minimum sentence.

            Alleyne held that any predicate fact that triggers an
      increase in the mandatory minimum sentence for a crime is
      necessarily an element of the offense and that such fact must be
      found “beyond a reasonable doubt” by a jury. ...

                                    * * *

            Alleyne, was decided on June 17, 2013, and, as noted
      above, [Appellant] was sentenced on October 15, 2013, some
      four months later. . . . Subsequently, our Supreme Court, in
      Commonwealth v. Newman, 99 A.3d 86 (Pa. 2014), held that
      in Pennsylvania, Alleyne was to be applied retroactively to any
      proceeding pending at the time Alleyne was decided.
      Therefore, [Appellant’s] sentence is subject to review under
      Alleyne. ...

      Before accepting [Appellant’s] plea the [PCRA court] engaged
      him in an extensive colloquy to ascertain whether or not his plea
      was in fact voluntary. During this colloquy, [Appellant], on the
      Bill of Information relating to the charge of Aggravated Assault
      and PIC, admitted to getting into an altercation with the [victim]
      who was known to him. [Appellant] also admitted that during
      the altercation he drew a silver hand gun from his waist and shot
      the [victim] once in the leg. (N.T. 10/15/[13], pgs. 11, 14)

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     [Appellant], on the Bill of Information relating to the charge of
     Carrying a Firearm Without a License, admitted to carrying a
     loaded gun without a license. (N.T. 10/15/[13], pgs. 13, 14) In
     light of [Appellant’s] admissions, the [c]ourt accepted
     [Appellant’s] plea.

           Prior to imposing [Appellant’s] negotiated aggregate
     sentence of 5 to 15 years incarceration, the [c]ourt reviewed the
     sentencing guidelines to determine if his negotiated sentence fell
     within the guidelines. ... [Appellant’s] sentence was clearly
     within the guidelines.

                                   * * *

           In considering [Appellant’s] negotiated plea, it is unclear
     what role the consideration of the imposition of the mandatory
     minimum sentence, pursuant to the provisions of 42 Pa.C.S.A.
     9712, played in negotiating [Appellant’s] plea. No reference was
     made to the imposition of a mandatory minimum sentence
     during the [c]ourt’s colloquy prior to accepting his plea. The
     only references on the record to §9712 appear in the Bill of
     Information wherein the Commonwealth put [Appellant] on
     notice that it would proceed pursuant to § 9712 and, at
     sentencing as an aside during the [c]ourt’s discussion of the
     sentencing guidelines with counsel. (N.T. 10/15/[13], pgs. 16,
     14).

                                   * * *

     The [c]ourt finds that, . . . at the very least, this matter should
     be remanded for resentencing without reference to § 9712, the
     mandatory minimum provision.

PCRA Court Opinion, 2/19/16, at 4–8.

     In suggesting the need for resentencing, the PCRA court relied heavily

on our decision in Commonwealth v. Melendez-Negron, 123 A.3d 1087,

1094 (Pa. Super. 2015), which, the PCRA court asserts, “addressed for the

first time the legality of a negotiated plea agreement in light of Alleyne.”

PCRA Court Opinion, 2/19/16, at 6. According to the PCRA court:

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           The defendant in Melendez-Negron, as part of his plea
     agreement, admitted to the possession of a firearm during a
     drug transaction. His negotiated sentence, premised on the
     application of § 9712.1, resulted in the imposition of a sentence
     which substantially exceeded the sentencing guidelines
     recommendations.     [The]    Melendez-Negron        [Court],  in
     declaring the defendant’s sentence illegal, in light of Alleyne,
     held that the shared misapprehension that the mandatory
     minimum sentence required by § 9712.1 applied to Melendez-
     Negron tainted the parties’ negotiations at the outset.
     Melendez-Negron makes it clear that any negotiated sentence
     premised on the consideration of the now discredited mandatory
     minimum sentence statutes is per se illegal.

PCRA Court Opinion, 2/19/16, at 6–7 (internal citation, quotation marks, and

footnote omitted).

     Upon review, we agree with the PCRA court that a remand is

necessary. We reach this conclusion based on several facts of record. First,

as part of his plea agreement, Appellant admitted to the predicate act for

imposition of a mandatory minimum sentence: possessing an instrument of

crime.   (N.T. 10/15/13, pgs. 11).   Appellant’s admission is “the functional

equivalent of a stipulation,” and therefore, it would not remedy an Alleyne

violation inherent to § 9712. Melendez-Negron, 123 A.3d at 1091 (citing

Commonwealth v. Cardwell, 105 A.3d 748, 754–755 (Pa. Super. 2014)).

     Second, as observed by the PCRA court, the record is unclear “what

role the consideration of the imposition of the mandatory minimum

sentence, pursuant to the provisions of 42 Pa.C.S.A. 9712, played in

negotiating [Appellant’s] plea.” PCRA Court Opinion, 2/19/16, at 7. On one

hand, the Commonwealth gave notice of its intention to seek a mandatory


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minimum sentence pursuant to 42 Pa.C.S. § 9712(a) (Sentences for

offenses committed with firearms).        Bills of Information, 3/1/11 and

11/26/12, at Count 1.     Then, at sentencing, the trial court inquired, “The

aggravated assault would be a mandatory minimum, right?” N.T., 10/15/13,

at 16.     On the other hand, Alleyne was decided four months before

Appellant entered the negotiated plea. Moreover, there was no reference to

section 9712 during the plea hearing, and as the Commonwealth submits,

the sentencing order indicates that the sentence imposed was not a

mandatory sentence. N.T., 10/15/13, 3–15; Commonwealth’s Brief at 7.

        Third, Appellant’s affirmation that the sentence was a negotiated one

does not reveal to what extent, if any, his plea was informed by section

9712.     Unlike the record in Melendez–Negron, the record at hand is

unclear as to whether Appellant and the Commonwealth entered into a

negotiated plea under the misapprehension that a mandatory minimum

sentencing statute applied. It is well settled that in plea negotiations, “both

parties to a negotiated plea agreement are entitled to receive the benefit of

their bargain.”   Melendez-Negron, 123 A.3d at 1093 (citations omitted).

Accordingly, if a shared misapprehension that the mandatory minimum

sentence required by § 9712 applied to Appellant tainted the parties’

negotiations at the outset, then “the parties’ negotiations began from an

erroneous premise and therefore were fundamentally skewed from the

beginning.” Id.


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      A   defendant    cannot   agree    to    an   illegal   sentence.     See

Commonwealth v. Gentry, 101 A.3d 813, 819 (Pa. Super. 2014) (“Our

cases clearly state that a criminal defendant cannot agree to an illegal

sentence, so the fact that the illegality was a term of his plea bargain is of

no legal significance.”) (citation omitted). Moreover, this Court must vacate

an illegal sentence. Commonwealth v. Orie Melvin, 103 A.3d 1, 52 (Pa.

Super. 2014).    Appellant’s negotiated sentence—if informed by an illegal

statute—would be illegal and mandate vacating it.

      Regarding disposition of Appellant’s sentence, the PCRA court opined:

      [I]t doesn’t appear that vacating [Appellant’s] negotiated
      sentence would result in any such loss of bargain to the
      Commonwealth,       as,     contrary     to    Melendez-Negron,
      [Appellant’s] sentence is clearly within the sentencing guidelines.
      Furthermore, in his various motions and pleadings, [Appellant]
      has consistently sought only the reconsideration or modification
      of his sentence and not its revocation.

PCRA Court Opinion, 2/19/16, at 7–8. We disagree.

      The appropriate remedy in a case where the parties have negotiated a

sentence that is illegal under Alleyne is to return the parties to their

positions prior to the entry of the guilty plea by vacating the plea.

Melendez–Negron, 123 A.3d at 1094.            We are compelled, therefore, to

reverse the order denying PCRA relief, vacate the judgment of sentence and

guilty plea, and remand for further proceedings.

      Order reversed. Judgment of sentence vacated. Guilty plea vacated.

Case remanded. Jurisdiction relinquished.


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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/27/2016




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