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                                2015 PA Super 205

COMMONWEALTH OF PENNSYLVANIA,             :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                    Appellant             :
                                          :
            v.                            :
                                          :
JOSE MELENDEZ-NEGRON, JR.,                :
                                          :
                    Appellee              :   No. 494 MDA 2015

                    Appeal from the PCRA Order March 4, 2015,
                      Court of Common Pleas, Berks County,
                 Criminal Division at No. CP-06-CR-0002879-2013

BEFORE: DONOHUE, OTT and MUSMANNO, JJ.

OPINION BY DONOHUE, J.:                        FILED SEPTEMBER 25, 2015

     The Commonwealth of Pennsylvania appeals from the order of court

granting the petition filed under the Post Conviction Relief Act (“PCRA”),

42 Pa.C.S.A. §§ 9541–9546, by Jose Melendez-Negron, Jr. (“Melendez-

Negron”).   Following our review, we find no error with the PCRA court’s

determination that Melendez-Negron was entitled to relief, and so we affirm

the PCRA court’s order. We further find, however, that the PCRA court erred

in the manner in which it granted relief.     We therefore vacate Melendez-

Negron’s guilty plea and remand for further proceedings.

     In April 2013, police officers in Berks County responded to a noise

complaint at Melendez-Negron’s residence.       Melendez-Negron allowed the

officers to enter his home, at which time the officers observed a firearm on

Melendez-Negron, as well as multiple indicia, in plain view, of the
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consumption and sale of illegal substances.        Following the execution of a

search warrant in his home, Melendez-Negron was charged with possession

of a controlled substance, possession of a controlled substance with the

intent to deliver (“PWID”), possession of a small amount of marijuana, and

possession of drug paraphernalia.1      On July 17, 2013, the Commonwealth

gave notice of its intention to invoke the mandatory minimum sentence

provision codified at 42 Pa.C.S.A. § 9721.1 based upon Melendez-Negron’s

possession of a firearm at the time of the offenses in question.            On

November 15, 2013, Melendez-Negron entered a negotiated plea to PWID,

possession of a controlled substance, and possession of a small amount of

marijuana.     N.T., 11/15/13, at 4.   In accordance with § 9721.1, the trial

court sentenced Melendez-Negron to five to ten years of incarceration on the

PWID conviction, and one year of special probation and a fine of twenty-five

dollars on the remaining convictions. Id. at 10.

        Melendez-Negron did not file a direct appeal. On July 7, 2014, he filed

a pro se PCRA petition. On December 23, 2014, appointed counsel filed an

amended PCRA petition, arguing that his sentence was unconstitutional, and

therefore illegal, in light of the United States Supreme Court’s decision in

U.S. v. Alleyne, __ U.S. __, 133 S. Ct. 2151 (2013), and this Court’s

decisions in Commonwealth v. Newman, 99 A.3d 86 (Pa. Super. 2014)

(en banc), and Commonwealth v. Valentine, 101 A.3d 801 (Pa. Super.


1
    35 P.S. §§ 780-113(a)(16), (30), (31)(i), (32).


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2014). Amended PCRA Petition, 12/23/14, at 2-3. The PCRA court granted

Melendez-Negron’s petition, vacated his sentence and ordered that he be

resentenced.2 This timely appeal followed.3

     The Commonwealth presents two issues for our review:

           1. Did the PCRA court err in vacating [Melendez-
              Negron’s] sentence and ordering a resentencing
              based upon a claim of trial counsel ineffectiveness
              for advising Melendez-Negron to plead guilty
              instead of challenging the constitutionality of the
              mandatory sentencing provision pursuant to
              Alleyne v. United States, [] 133 S.Ct. [2151] []
              (2013)?

           2. Did the PCRA court err in vacating [Melendez-
              Negron’s] sentence and ordering a resentencing
              because as part of a negotiated guilty plea the
              mere granting of a new sentence strips the
              Commonwealth of the benefit of the plea bargain,
              defeated     the     Commonwealth’s      rightful
              expectations in making the agreement, and
              frustrated the quid pro quo of the plea bargain
              process?

Commonwealth’s Brief at 4.

     “Our standard of review of [an] 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


2
     The PCRA court granted relief without a hearing, although the
Commonwealth did file a response to Melendez-Negron’s amended PCRA
petition.
3
  We note that the resentencing was stayed pending the resolution of this
appeal.


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findings in the certified record.” Commonwealth v. Perez, 103 A.3d 344,

347 (Pa. Super. 2014) (citation omitted).

     The Commonwealth first argues that the PCRA court erred in finding

that Melendez-Negron’s trial counsel (“Counsel”) was ineffective for allowing

Melendez to plead guilty to a sentence based on the mandatory minimum

sentencing enhancement, § 9721.1.      It is well established that to prove

ineffective assistance of counsel, a PCRA petitioner must prove that the

underlying legal claim has arguable merit; counsel had no reasonable basis

for his or her action or omission; and that the petitioner suffered prejudice

as a result. Commonwealth v. Watkins, 108 A.3d 692, 702 (Pa. 2014).

     In rejecting the Commonwealth’s claim, the PCRA court first notes this

Court found § 9721.1 unconstitutional in light of Alleyne, drolly cites the

Gregorian calendar,4 and then concludes that because Melendez-Negron’s

sentencing occurred five months after the decision in Alleyne was

announced, Counsel was ineffective for allowing Melendez-Negron to agree

to a sentence that was premised on the application of § 9721.1. PCRA Court

Opinion, 4/16/15, at 3-4 (discussing Commonwealth v. Newman, 99 A.3d

86 (Pa. Super. 2014) (en banc), and Commonwealth v. Cardwell, 105

A.3d 738 (Pa. Super. 2014)).



4
  The court recited the respective dates of the decision in Alleyne and
Melendez-Negron’s plea and then stated, “[T]his court takes judicial notice
of the Gregorian calendar and finds as a fact that November 15, 2013
followed June 17, 2013.” PCRA Court Opinion, 4/16/15, at 4.


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     The Commonwealth argues that although Alleyne was decided prior to

Melendez-Negron’s plea and sentencing, no Pennsylvania appellate court had

addressed the constitutionality of § 9721.1 at the time, and therefore

Counsel “cannot be deemed ineffective for failing to predict the changes or

developments    in   the   law.”      Commonwealth’s     Brief   at    14     (citing

Commonwealth v. Gribble, 863 A.2d 455 (Pa. 2004)). We cannot agree.

First, the Commonwealth is incorrect in that this Court issued an opinion

addressing Alleyne and the constitutionality of § 9721.1 on October 10,

2013. See Commonwealth v. Munday, 78 A.3d 661 (Pa. Super. 2013).5

This was more than one month prior to Melendez-Negron’s plea and

sentencing proceeding.

     Second,   in    Alleyne,   the    United   States   Supreme      Court   found

mandatory minimum sentence enhancements unconstitutional where the

facts that increase a mandatory minimum sentence are not submitted to a

jury and are not required to be found beyond a reasonable doubt. Upon the

issuance of the Alleyne decision in June 2013, Counsel was on notice that

the constitutionality of such sentencing enhancements was in question.

There can be no reasonable basis for Counsel’s failure to recognize this and

to advise Melendez-Negron to reject a plea agreement that incorporated a



5
  We note that in Munday, this Court found § 9721.1 unconstitutional as
applied to the appellant and we declined to consider whether § 9721.1 was
facially unconstitutional because the issue was not raised. Munday, 78 A.3d
at 666.


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sentence based upon § 9721.1. This is so especially in light of the fact that

the application of § 9721.1 resulted in a sentence that was more than double

the aggravated range sentence Melendez-Negron would have faced.          See

N.T., 11/15/14, at 8-9.6 In a situation such as this, where the United States

Supreme Court has spoken, counsel need not wait for a pronouncement

from a Pennsylvania appellate court.      By raising such a claim or at least

questioning the constitutionality § 9721.1 during plea negotiations, Counsel

would not be predicting changes in the law, as the Commonwealth contends,

but rather conscientiously advancing an argument based upon the logical

extension of Alleyne to protect his client’s interests.

      Further, we are not swayed by the Commonwealth’s argument that

because Melendez-Negron admitted the element that would trigger the

application of § 9721.1 (possession of a firearm), there is no Alleyne

violation.   Commonwealth’s Brief at 12.        As this Court has previously

concluded,

             we see no meaningful difference, for the purposes of
             Newman and Valentine, between submitting the
             element to the jury and accepting a stipulation from
             a defendant. They both have the purpose of finding
             a method to impose a mandatory minimum sentence


6
  This large disparity between the sentence Melendez-Negron could have
received and the sentence he agreed to establishes prejudice for purposes of
the ineffective assistance of counsel standard. See Commonwealth v.
Meadows, 787 A.2d 312, 319 (Pa 2001) (holding that to establish
prejudice, an appellant must demonstrate “that there is a reasonable
probability that, but for the act or omission challenged, the outcome of the
proceeding would have been different.”).


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           outside the statutory framework, but consistent with
           Alleyne. However, both Newman and Valentine
           unequivocally state that creating a new procedure in
           an effort to impose a mandatory minimum sentence
           is solely within the province of the legislature. []
           While submission to a jury is a more formal and
           involved procedure, we decline to fracture Newman
           and Valentine further by concluding that when read
           together, they only prohibit formal mandatory
           minimum procedures, but permit informal ones.

Commonwealth v. Cardwell, 105 A.3d 748, 754-55 (Pa. Super. 2014).

Melendez-Negron’s admission that he possessed a firearm, which he made

for purposes of his plea, is the functional equivalent of a stipulation, and

pursuant to Cardwell, it does not remedy the Alleyne violation inherent to

§ 9721.1. Accordingly, the Commonwealth’s argument cannot succeed.

     In its second issue, the Commonwealth argues that the case should

not be remanded for resentencing, but that Melendez-Negron “should be

returned to the status quo prior to the entry of the guilty plea.”

Commonwealth’s    Brief at 22.7      The    Commonwealth   argues that    in

consideration of agreeing to a five-to-ten-year period of incarceration, it

“gave up the opportunity to seek sentences” on the drug paraphernalia and

small amount of marijuana charges.    Id.   By simply allowing resentencing

pursuant to the sentencing guidelines, the Commonwealth contends, it is

losing the benefit of its bargain.   The PCRA court did not agree, as it

reasoned that “the Commonwealth is not entitled to the benefit of a plea


7
   Melendez-Negron did not seek to withdraw his plea, he only asked to be
resentenced pursuant to the Sentencing Guidelines.


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bargain entered into with a defendant who was misinformed by his attorney

and who believed at the time he entered his plea that an illegal mandatory

minimum sentencing provision was applicable.”             PCRA Court Opinion,

4/16/15, at 4. For the following reasons, we agree with the Commonwealth.

      We recognize “the importance of the plea bargaining process as a

significant part of the criminal justice system” and that “a defendant is

permitted to waive valuable rights in exchange for important concessions by

the Commonwealth when the defendant is facing a slim possibility of

acquittal.”   Commonwealth v. Widmer, __ A.3d __, 2015 WL 4394268

(Pa. Super. July 20, 2015). The record here reveals that in negotiating the

terms of the plea agreement, both parties operated under the belief that

§ 9721.1 was in effect and that Melendez-Negron was subject to its terms.

N.T., 11/15/13, at 7-11.         It is further evident that the sentencing court

believed that it applied, as well.        Id. at 7.   This Court addressed an

analogous     situation    in   Commonwealth     v.   Hodges,   789   A.2d   764

(Pa. Super. 2002).        In Hodges, the defendant entered a negotiated open

guilty plea to multiple crimes, including two counts of first-degree murder, in

exchange for the Commonwealth’s agreement not to seek the death penalty

on the murder charges. In accordance with that agreement, the trial court

sentenced the defendant to two consecutive life sentences on the murder

convictions, with concurrent sentences for two lesser convictions.           He

subsequently moved to withdraw his plea.



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                 The thrust of [the defendant’s] argument
           revolved around a mistake pertaining to [the
           defendant’s] age. Although trial counsel and the
           Commonwealth believed that [the defendant] was
           born on May 7, 1980, [the defendant] was actually
           born on May 7, 1982, making him fifteen years old at
           the time of the crime. Because he was not yet
           sixteen years of age at the time of the crime, he
           could not be subjected to the death penalty.
           Thompson v. Oklahoma, 487 U.S. 815, 108 S.Ct.
           2687, 101 L.Ed.2d 702 (1988). [The defendant]
           correctly asserted that because of his age, the death
           penalty was never applicable. Therefore, because he
           entered into his plea agreement in order to avoid the
           death penalty, [the defendant] requested leave to
           withdraw that plea.

Commonwealth v. Hodges, 789 A.2d at 765 (Pa. Super. 2002). The trial

court denied the defendant’s motion.

     On review, this Court found that the shared misunderstanding as to

the possible extent of the defendant’s sentence fatally poisoned the

negotiations process:

                 [T]he plea was based on a maximum sentence
           that the court had no authority to impose. The entire
           process of plea negotiations, therefore, was affected
           by this grave error. [The defendant] pled guilty in
           order to avoid a maximum sentence which, by law,
           could not be imposed. We hold that in the event the
           maximum sentence communicated to a criminal
           defendant is in fact an illegal sentence, the plea
           process has been tainted from the outset and
           manifest injustice is established.

                  The trial court stated that [the defendant]
           received the benefit of his bargain; it is clear,
           however, that [the defendant] did not strike a
           legitimate bargain. While it is true that [he] was
           aware that he could be sentenced to life, and that



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               sentence was subsequently imposed, it cannot be
               said that [the defendant] entered into this
               agreement knowingly or voluntarily.

Id. at 767.

      Another panel of this Court relied on this reasoning in a subsequent

case. In Commonwealth v. Lenhoff, 796 A.2d 338 (Pa. Super. 2002), the

defendant was charged with forgery graded as a second-degree felony and

unsworn       falsifications   to   authorities    graded   as   a     second-degree

misdemeanor. The defendant pled guilty to one count of each in exchange

for a sentence of nine to twenty-three months of incarceration. At the plea

hearing, the trial court emphasized to the defendant that “forgery is a felony

of the second degree punishable by a maximum of [ten] years [of]

incarceration[,]” and the defendant acknowledged his understanding of this.

Id. at 340.       In a post-sentence motion, the defendant argued that the

forgery charge should have been graded as a first-degree misdemeanor and

asked to withdraw his plea.         The trial court agreed that the forgery was

incorrectly graded and adjusted it to a third-degree felony, but did not allow

the defendant to withdraw his plea.           On appeal, the defendant challenged

both the grading of his forgery charge and the denial of his request to

withdraw his plea.       After affirming the trial court’s decision to grade the

forgery   as    a   third-degree    felony,   we   considered    the   circumstances

surrounding the entry of the plea.         Based upon the rationale espoused in

Hodges, we reasoned as follows:



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                 [The defendant] was charged with and entered
           plea negotiations to avoid a sentence for a second
           degree felony, not a third degree felony. Indeed,
           [the defendant] observes that because the forgery
           count was graded incorrectly, there are different
           guideline scores applicable. This change, [he]
           continues, may have “resulted in different plea offers
           and negotiations and considerations of partial
           confinement     requested     by    the     defendant.”
           [Defendant’s] [B]rief at 15. [The defendant] was
           charged with a second degree felony, carrying a ten-
           year maximum. The maximum legal sentence that
           [the defendant] faced when he entered plea
           negotiations and the plea itself was, in fact, less than
           ten years. He indicated on the record that he had
           conducted research, knew that he faced a ten-year
           sentence, and was seeking to avoid that sentence by
           pleading guilty. Meanwhile, the court did not have
           the legal authority to impose that sentence. The plea
           was fatally flawed from the start, as in Hodges, by
           the defendant's desire to avoid a sentence that the
           court did not have the power to impose. Hence, we
           agree with [the defendant’s] position that plea
           negotiations were tainted at the outset by
           misinformation about sentences. Therefore, it is clear
           that [he] should be permitted to withdraw his guilty
           plea.

Id. at 342-43.

     This case is fundamentally akin to Hodges and Lenhoff; where it

differs is that it is the Commonwealth, not the defendant, who argues that it

is being deprived of the benefit of its bargain. We see no reason why the

rationale of Hodges and Lenhoff should be limited to criminal defendants.

Indeed, both parties to a negotiated plea agreement are entitled to receive

the benefit of their bargain. See Commonwealth v. Townsend, 693 A.2d

980, 983 (Pa. Super. 1997) (“[W]here the parties have reached a specific



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sentencing agreement … the court cannot later modify the terms of the

agreement without the consent of the Commonwealth” because “this would

deny the Commonwealth the full benefit of the agreement which it reached

… and the defendant, in turn, would receive a windfall.”); Commonwealth

v. Coles, 530 A.2d 453, 458 (Pa. Super. 1987) (holding that granting

defendant’s     motion    to    modify    negotiated   plea    sentence    stripped

Commonwealth of the benefit of its bargain); see also Commonwealth v.

Ortiz, 854 A.2d 1280, 1284 (Pa. Super. 2004) (en banc) (holding that

where amount of restitution is agreed upon as part of negotiated plea,

Commonwealth cannot later seek to increase it). Accordingly, we conclude

that the shared misapprehension that the mandatory minimum sentence

required by § 9721.1 applied to Melendez-Negron tainted the parties’

negotiations at the outset.          As in Hodges and Lenhoff, the parties’

negotiations    began    from   an    erroneous   premise     and   therefore   were

fundamentally skewed from the beginning. Thus, while we affirm the PCRA

court’s order vacating Melendez-Negron’s sentence, we further vacate his

guilty plea and remand for further proceedings. See Lenhoff, 796 A.2d at

343.

       Order affirmed.    Guilty plea vacated.     Case remanded.       Jurisdiction

relinquished.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 9/25/2015




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