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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37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.                    :
                                          :
MICHAEL TELLEED ROSS,                     :
                                          :
                 Appellant                :     No. 2972 EDA 2015

               Appeal from the PCRA Order September 4, 2015
            in the Court of Common Pleas of Philadelphia County
            Criminal Division at No(s): CP-51-CR-0009616-2013

BEFORE:     FORD ELLIOTT, P.J.E., STABILE, and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.:                  FILED JANUARY 12, 2017

      Michael Telleed Ross (Appellant) appeals from the order that dismissed

without a hearing his petition filed pursuant to the Post Conviction Relief Act

(PCRA), 42 Pa.C.S. §§ 9541-9546.       We vacate the order and remand for

further proceedings consistent with this memorandum.

      On September 18, 2013, Appellant entered a negotiated plea, under

which he pled guilty to possession with intent to deliver and conspiracy in

exchange for a sentence of one and one half to five years of incarceration

followed by five years of probation.   He filed no direct appeal, 1 but timely

filed a PCRA petition on November 15, 2013.        Counsel filed an amended


1
  Appellant, pro se, filed a motion for reconsideration of sentence on
September 30, 2013. The docket does not reflect that it was forwarded to
counsel as required by Pa.R.Crim.P. 576(a)(4), and no action was taken on
the motion.    However, Appellant does not present us with any claim
regarding the handling of that motion.

*Retired Senior Judge assigned to the Superior Court.
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petition on December 8, 2014. After issuing notice of its intent to dismiss

the petition without a hearing under Pa.R.Crim.P. 907, the PCRA court

dismissed Appellant’s petition by order of September 4, 2015.        Appellant

timely filed a notice of appeal.   Thereafter, Appellant and the PCRA court

both complied with Pa.R.A.P. 1925.

      Appellant presents this Court with one issue: “Did the [PCRA] court err

in denying [A]ppellant an evidentiary hearing when [A]ppellant raised a

material issue of fact showing that trial defense counsel at the guilty plea

hearing was ineffective?” Appellant’s Brief at 2.

             Our standard of review of a trial court order granting or
      denying relief under the PCRA requires us to determine whether
      the decision of the PCRA court is supported by the evidence of
      record and is free of legal error. The PCRA court’s findings will
      not be disturbed unless there is no support for the findings in the
      certified record.

Commonwealth v. Perez, 103 A.3d 344, 347 (Pa. Super. 2014) (internal

citation and quotation marks omitted).

      Appellant’s argument is that he is entitled to a hearing on his claim

that his sentence resulted from plea counsel’s ineffective assistance.

Appellant’s Brief at 5-8. We begin by noting that a “PCRA petitioner is not

entitled to an evidentiary hearing as a matter of right, but only where the

petition presents genuine issues of material fact.”       Commonwealth v.

Keaton, 45 A.3d 1050, 1094 (Pa. 2012).

      The following legal principles apply to Appellant’s claim.



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     A criminal defendant has the right to effective counsel during a
     plea process as well as during trial. A defendant is permitted to
     withdraw his guilty plea under the PCRA if ineffective assistance
     of counsel caused the defendant to enter an involuntary plea of
     guilty.

     We conduct our review of such a claim in accordance with the
     three-pronged ineffectiveness test under section 9543(a)(2)(ii)
     of the PCRA. The voluntariness of the plea depends on whether
     counsel’s advice was within the range of competence demanded
     of attorneys in criminal cases. In order for Appellant to prevail
     on a claim of ineffective assistance of counsel, he must show, by
     a preponderance of the evidence, ineffective assistance of
     counsel which, in the circumstances of the particular case, so
     undermined the truth-determining process that no reliable
     adjudication of guilt or innocence could have taken place.
     Appellant must demonstrate: (1) the underlying claim is of
     arguable merit; (2) that counsel had no reasonable strategic
     basis for his or her action or inaction; and (3) but for the errors
     and omissions of counsel, there is a reasonable probability that
     the outcome of the proceedings would have been different. The
     petitioner bears the burden of proving all three prongs of the
     test.

Commonwealth v. Patterson, 143 A.3d 394, 397–98 (Pa. Super. 2016)

(internal quotation marks and citations omitted).

     Appellant’s claim revolves around the interplay of the mandatory

minimum sentencing statute implicated in his case and the United States

Supreme Court’s decision in Alleyne v. United States, 133 S.Ct. 2151, 186

L.Ed.2d 314 (2013).

     In Alleyne, the Court held that because mandatory minimum statutes

create increased penalties as a matter of law, “any fact that increases the

mandatory minimum is an ‘element’ that must be submitted to the jury” to

be determined under the reasonable-doubt standard. Alleyne, 133 S. Ct. at


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2155.     Section 7508 of the Crimes Code, referenced in the criminal

information filed against Appellant, provided different mandatory minimum

sentences for drug crimes, depending upon the type and weight of drug at

issue, as well as whether the defendant had prior convictions. For a person

who had a prior drug-trafficking conviction and possessed between two and

ten grams of cocaine, a three-to-six-year mandatory minimum sentence

applied. 18 Pa.C.S. § 7508(a)(3)(i).

        Appellant, believing that he was facing three to six years of

imprisonment if convicted, agreed to plead guilty in exchange for a sentence

of one and one half to five years of confinement.         In seeking collateral

review of this sentence, Appellant claims that his counsel was ineffective in

failing to advise him about the unconstitutionality of section 7508.

Specifically, Appellant claims that counsel did not tell him that he could “take

an open plea,” PCRA Petition, 11/15/2013, at ¶ 5, and that a non-negotiated

sentence entered pursuant to the sentencing guidelines applicable in lieu of

section 7508 would have been “more lenient.” Appellant’s Brief at 6.

        In addressing Appellant’s claim, the PCRA court first noted that no

court had applied Alleyne to invalidate section 7508 before Appellant

entered his guilty plea and was sentenced on September 18, 2013. PCRA

Court Opinion, 12/2/2015, at 4.        Thus, the PCRA court held Appellant’s

“claim that trial counsel should have anticipated this change in the law is

without merit.” Id. Further, the PCRA court, without holding a hearing to


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determine counsel’s basis for failing to advise Appellant of the implications of

the Alleyne decision, concluded that “it was not patently unreasonable of

counsel to advise his client based upon the sentencing schemes as they were

written and applied at the time of [Appellant’s] plea.” Id. Finally, the PCRA

court opined that Appellant failed to show prejudice because he received a

sentence below the mandatory minimum provided by section 7508 and, if

counsel had advised Appellant against accepting the Commonwealth’s offer,

Appellant would have received the higher mandatory minimum sentence.

Id.

      The PCRA court’s analysis is legally erroneous. Alleyne was decided

on June 17, 2013. On August 6, 2013, the Commonwealth filed the criminal

information against Appellant, therein indicating that it intended to proceed

under the mandatory minimum sentencing provisions of section 7508.

Section 7508 stated that its provisions “shall not be an element of the

crime,” but, rather, “shall be determined at sentencing” by the judge “by a

preponderance of the evidence.”       18 Pa.C.S. § 7508(b).     Thus, Alleyne

rendered section 7508 unconstitutionally infirm.

      Alleyne, which was the applicable law for the duration of the

prosecution of Appellant’s case in the trial court, was itself the change in the

law, not the subsequent decisions that applied its holding to specific

Pennsylvania statutes that were in direct conflict. Counsel did not have to




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predict the future; rather, he had to be aware that the law applicable to his

client’s case had changed. Thus, the claim has arguable merit.

      Furthermore, Appellant has averred that counsel’s ineffectiveness led

to his entering an unknowing and unintelligent guilty plea, and that he would

have received a less severe sentence had counsel rendered constitutionally-

adequate assistance. PCRA Petition, 11/15/2013, at ¶ 5; Appellant’s Brief at

6. These are sufficient allegations to create issues of material fact as to the

remaining prongs of Appellant’s claim.

      Accordingly, we remand this case for a hearing on Appellant’s claim.

See Commonwealth v. Walls, 993 A.2d 289, 296–97 (Pa. Super. 2010)

(“[W]hen an arguable claim of ineffective assistance of counsel has been

made, and there has been no evidentiary hearing in the [PCRA court] to

permit the defendant to develop evidence on the record to support the

claim, and to provide the Commonwealth an opportunity to rebut the claim,

this Court will remand for such a hearing.”).

      Order vacated. Case remanded for further proceedings consistent with

this memorandum. Jurisdiction relinquished.

      P.J.E. Ford Elliott joins.

      Judge Stabile files a dissenting memorandum.




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Judgment Entered.




Joseph D. Seletyn, Esq.

Prothonotary



Date: 1/12/2017




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