J-S76013-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

DAVID MORA

                            Appellant                  No. 377 EDA 2016


                  Appeal from the PCRA Order January 8, 2016
                In the Court of Common Pleas of Chester County
                Criminal Division at No: CP-16-CR-0002776-2013


BEFORE: STABILE, DUBOW, JJ., and STEVENS, P.J.E.*

MEMORANDUM BY STABILE, J.:                        FILED DECEMBER 30, 2016

        Appellant, David Mora, appeals pro se from the January 8, 2016 order

entered in the Court of Common Pleas of Chester County (“PCRA court”)

denying relief under the Post-Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§

9541-46. Upon review, we affirm.

        The PCRA court summarized the factual and procedural history as

follows.
              On November 1, 2013, [Appellant] entered an open guilty
        plea to 5 counts of possession with the intent to deliver cocaine
        (PWID); 1 count of possession with intent to deliver marijuana;
        1 count of criminal use of a communication facility; 1 count of
        dealing in unlawful proceeds; and 1 count of conspiracy to
        deliver cocaine. [Appellant] was sentenced on October 1, 2014.
        Although [Appellant] had previously entered into an open guilty
        plea, on the date of sentencing, [Appellant], through his
____________________________________________


*
    Former Justice specially assigned to the Superior Court.
J-S76013-16


        attorney, agreed with the sentence recommended by the
        Commonwealth. This sentence was based upon [Appellant’s]
        cooperation with the Commonwealth and [Appellant’s] almost
        immediate admission that he was involved with drug trafficking.

              [Appellant was sentenced to a total of 13-26 years’
        incarceration.]

        ...

               [Appellant] received credit for time served from July 2,
        2013 to October 1, 2014. The Commonwealth did not pursue
        any mandatory minimum sentences. The sentence included
        eligibility for the RRRI program after [Appellant] served 10 years
        and 10 months incarceration. [Appellant] was represented by
        Evan J. Kelly, Esquire, when he entered the open guilty plea and
        was represented by Phillip D. Press, Esquire, at sentencing.

             [Appellant] filed a pro se motion pursuant to the [PCRA]
        on September 24, 2015. By [o]rder dated October 5, 2015, the
        [PCRA court] appointed Robert P. Brendza, Esquire, to represent
        [Appellant] with regard to his PCRA motion. On November 10,
        2015, Mr. Brendza filed a [p]etition for [l]eave to [w]ithdraw as
        PCRA [c]ounsel, including a letter to [Appellant] pursuant to
        Commonwealth v. Turner, 544 A.2d 922 (1988) and
        Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988).

PCRA Court Order, 12/3/2015, at 1 n.1 (citations omitted).

        The PCRA court issued a Pa.R.Crim.P. 907(1) notice on December 3,

2015. Appellant, pro se, filed objections to the 907(1) notice on January 4,

2016.    The PCRA court dismissed Appellant’s petition on January 8, 2016.

Appellant filed the instant appeal on January 29, 2016.        On February 2,

2016, the PCRA court directed Appellant to file a Pa.R.A.P. 1925(b)

statement. Appellant complied and filed a 1925(b) statement on February

18, 2016.

        Appellant raises two issues on appeal, which we quote verbatim.



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       I.     Did the Honorable PCRA Court err by dismissing
              Appellant’s PCRA Petition for failure to provide any basis
              for the relief requested, when Appellant was sentenced
              pursuant to 18 Pa.C.S.A. § 7508(a)(3)(iii), then held
              unconstitutional in Commonwealth v. Cardwell, 105
              A.3d 748, 750 (Pa. Super. 2014).

       II.    Did the Honorable PCRA Court err by dismissing
              Appellant’s PCRA Petition when the record is clear that
              Appellant was sentenced to more counts than all parties
              agreed to, when Appellant signed the Plea Agreement,
              contrary to the Negotiated Plea Agreement and breaching
              the contract made and signed into by all parties.

Appellant’s Brief at 4.

       Appellant’s first argument is a challenge to his sentence based upon

Alleyne v. United States, 133 S. Ct. 2151 (2013).                  In Alleyne the

Supreme Court held that any fact other than a prior conviction requiring

imposition of a mandatory minimum sentence must be found beyond a

reasonable doubt by the trier of fact.           Id. at 2155.   Appellant cites to a

number of cases detailing the application of Alleyne and the imposition of a

mandatory minimum sentence; however, Appellant’s argument is fatally

flawed. Appellant was not sentenced to a mandatory minimum; 1 therefore,

Alleyne is inapplicable to Appellant’s case. Appellant’s first claim fails.

       Next, Appellant claims that he was not sentenced according to the plea

agreement.      Specifically, Appellant argues that his plea agreement was

violated because the PCRA court sentenced Appellant on count 5 (3-6 years
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1
  The Commonwealth specifically did not seek any mandatory minimums in
this case because of a possible Alleyne challenge. See N.T. Sentencing,
10/1/2014, at 5.



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incarceration)     consecutively      to   count   4   (3-6   years   incarceration).

Appellant’s claim lacks merit. Generally, sentencing is vested in the sound

discretion of the trial court.      Commonwealth v. Daniels, 656 A.2d 539,

543 (Pa. Super. 1995). However,

              [u]pon acceptance of a plea agreement, [] the trial court is
              bound to comply with the terms of that agreement. A
              sentence recommendation is among the “terms” of a plea
              bargain. Therefore, a negotiated sentence is binding on
              the court where the sentence is plainly set forth on the
              record, understood and agreed to by the parties and
              approved by the trial court.

Id. (quoting Commonwealth v. Anderson, 643 A.2d 109, 113 (Pa. Super.

1994)) (internal citations omitted).

       On November 21, 2013, Appellant entered an open plea to nine

separate counts including counts 4 and 5.          On October 1, 2014, Appellant

and the Commonwealth agreed on a total sentence of 13-26 years

incarceration.     Reviewing the transcripts of sentencing, it is clear that

Appellant was sentenced to the agreed upon sentence.                      See N.T.

Sentencing, 10/1/2014, at 6, 10-12.2 Therefore, Appellant’s claim that his

sentence violated his plea agreement fails.
____________________________________________


2
  Appellant was sentenced to 1-2 years on count 1, 3-6 years on count 2
(concurrent to count 1), 9 months to 2 years on count 3 (concurrent to
count 2), 3-6 years on count 4 (concurrent to count 2), 3-6 years on count 5
(consecutive to count 4), 4-8 years on count 6 (consecutive to count 5), 9
months to 2 years on count 13 (concurrent to count 2), 1-2 years on count
19 (concurrent to count 2), and 3-6 years on count 25 (consecutive to count
6).   These sentences reach an aggregate sentence of 13-26 years of
incarceration.



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     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/30/2016




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