J-S17007-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

SHAWN RYAN CARR

                            Appellant                  No. 430 WDA 2015


                Appeal from the PCRA Order February 4, 2015
              In the Court of Common Pleas of Jefferson County
             Criminal Division at No(s): CP-33-CR-0000026-2009;
             CP-33-CR-0000125-2009; CP-33-CR-0000126-2009;
                            CP-33-CR-0000127-2009


BEFORE: GANTMAN, P.J., SHOGAN, J., and FITZGERALD, J.*

MEMORANDUM BY GANTMAN, P.J.:                           FILED APRIL 14, 2016

        Appellant, Shawn Ryan Carr, appeals from the order entered in the

Jefferson County Court of Common Pleas, which denied his first petition filed

pursuant to the Post Conviction Relief Act (“PCRA”).1 We affirm.

        The relevant facts and procedural history of this case as follows:

           On February 17, 2010, Appellant pled guilty to four (4)
           counts of delivery of a controlled substance in Jefferson
           County.1   That same day, the Jefferson County court
           sentenced Appellant on each count to fourteen (14)
           months’ to three (3) years’ imprisonment, followed by two
           (2) years’ probation, with all sentences to run
           concurrently.     While under supervision, Appellant
           committed new crimes in Clarion County. On August 14,
____________________________________________


1
    42 Pa.C.S.A. §§ 9541-9546.


_____________________________

*Former Justice specially assigned to the Superior Court.
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          2013, Appellant pled guilty in the Clarion County Court of
          Common Pleas to delivery of a controlled substance, drug
          delivery resulting in death, criminal use of communication
          [facility], and abuse of a corpse.2 The Clarion County
          court sentenced Appellant to eight (8) to sixteen (16)
          years’ imprisonment.
              1
                  35 P.S. § 780-113(a)(30)
              2
                35 P.S. § 780-113(a)(30), 18 Pa.C.S.A.            §§
              2506(a), 7512(a), and 5510, respectively.

          The Jefferson County court held a Gagnon II[2] revocation
          hearing on September 18, 2013, in which the court took
          judicial notice of Appellant’s plea and sentence in Clarion
          County, and revoked his probation. The Jefferson County
          court resentenced Appellant to five (5) to (15) years’
          imprisonment on each count of delivery of a controlled
          substance, to run consecutively, for an aggregate of
          twenty (20) to sixty (60) years’ imprisonment.         The
          Jefferson County court also ordered the sentence to run
          consecutively to Appellant’s Clarion County sentence.

          Appellant filed a post-sentence motion for reconsideration
          on September 26, 2013, which the Jefferson County court
          denied on October 10, 2013. … Appellant filed a timely
          notice of appeal on October 18, 2013.

Commonwealth            v.   Carr,   S.,   No.   1699   WDA   2013,   unpublished

memorandum at 1-3 (Pa.Super. filed June 16, 2014) (affirming Appellant’s

judgment of sentence). Appellant did not seek further direct review.

       On December 11, 2014, Appellant timely filed a pro se PCRA petition.

The PCRA court appointed counsel, who filed a petition to withdraw and “no-

merit” letter on January 9, 2015. On that same date, the court permitted
____________________________________________


2
  Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656
(1973).



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counsel to withdraw and issued notice of its intent to dismiss Appellant’s

petition without a hearing, pursuant to Pa.R.Crim.P. 907. Appellant filed a

response on January 29, 2015. The court dismissed the petition on February

4, 2015.    On February 23, 2015, Appellant timely filed a pro se notice of

appeal.    The court ordered Appellant to file a concise statement of errors

complained of on appeal per Pa.R.A.P. 1925(b), and Appellant timely

complied.

       Appellant raises the following issues for our review:

           DID THE [TRIAL] COURT COMMIT AN [ERROR] OF LAW IN
           [ITS] REVOCATION HEARING/RESENTENCING APPELLANT
           OUTSIDE THE PLEA AGREEMENT INITIALLY IMPOSED?

           IS    APPELLANT[’S] SENTENCE      ILLEGAL     AND
           UNCONSTITUTIONAL SINCE 18 PA.C.S.A. § 7508 HAS
           BEEN DECLARED UNCONSTITUTIONAL IN [ITS] ENTIRETY?

(Appellant’s Brief at 4).

       In his first issue, Appellant argues the court improperly resentenced

him in violation of the terms of his original plea agreement.              Appellant

asserts the court had no authority to impose consecutive sentences upon

revocation because the court had originally imposed concurrent sentences

pursuant to the plea agreement.                Appellant concludes this Court should

vacate his sentence and remand for resentencing. We cannot agree.3

____________________________________________


3
  Appellant also argues his revocation sentence is manifestly excessive; the
court failed to consider the applicable sentencing factors; and the court
imposed a sentence outside of the Sentencing Guidelines without stating
(Footnote Continued Next Page)


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      Our standard of review of the denial of a PCRA petition is limited to

examining whether the record evidence supports the court’s determination

and whether the court’s decision is free of legal error. Commonwealth v.

Ford, H., 947 A.2d 1251 (Pa.Super. 2008), appeal denied, 598 Pa. 779, 959

A.2d 319 (2008). This Court grants great deference to the findings of the

PCRA court if      the      record contains any support for     those   findings.

Commonwealth v. Carr, M., 768 A.2d 1164 (Pa.Super. 2001). We give no

deference, however, to the court’s legal conclusions.      Commonwealth v.

Ford, J., 44 A.3d 1190, 1194 (Pa.Super. 2012). A petitioner is not entitled

to a PCRA hearing as a matter of right; the PCRA court can decline to hold a

hearing if there is no genuine issue concerning any material fact, the

                       _______________________
(Footnote Continued)

appropriate reasons on the record. Appellant’s arguments challenge the
discretionary aspects of his sentence and are not cognizable under the PCRA.
See Commonwealth v. Hyland, 875 A.2d 1175 (Pa.Super. 2005), appeal
denied, 586 Pa. 723, 890 A.2d 1057 (2005) (stating claim that sentencing
court failed to consider mitigating factors challenges discretionary aspects of
sentencing); Commonwealth v. Lutes, 793 A.2d 949 (Pa.Super. 2002)
(stating claim that sentence is manifestly excessive challenges discretionary
aspects of sentencing); Commonwealth v. Davis, 737 A.2d 792 (Pa.Super.
1999) (stating claim that court imposed sentence outside of guidelines
without placing sufficient explanation on record implicates discretionary
aspects of sentencing). See also Commonwealth v. Wrecks, 934 A.2d
1287 (Pa.Super. 2007) (stating challenges to discretionary aspects of
sentencing are not cognizable under PCRA). Moreover, this Court resolved
all of Appellant’s discretionary sentencing claims on the merits in his direct
appeal. See Carr, S., supra. See also Commonwealth v. Turetsky, 925
A.2d 876, 879 (Pa.Super. 2007), appeal denied, 596 Pa. 707, 940 A.2d 365
(2007) (stating: “[T]o be entitled to PCRA relief, a petitioner must plead and
prove, inter alia, that the allegation of error has not been previously litigated
or waived”). Therefore, we give those claims no further attention.



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petitioner is not entitled to PCRA relief, and no purpose would be served by

any further proceedings. Commonwealth v. Hardcastle, 549 Pa. 450, 701

A.2d 541 (1997).

      “An issue is waived if it could have been raised prior to the filing of the

PCRA petition, but was not.” Commonwealth v. Berry, 877 A.2d 479, 482

(Pa.Super. 2005) (en banc), appeal denied, 591 Pa. 688, 917 A.2d 844

(2007). See also 42 Pa.C.S.A. § 9544(b). Nevertheless, “claims pertaining

to the legality of sentence are non-waivable[.]” Commonwealth v. Foster,

960 A.2d 160, 163 (Pa.Super. 2008).         A defendant’s claim that he was

sentenced in violation of his plea agreement does not implicate the legality

of the sentence, where the defendant fails to identify any statutory reason or

double jeopardy basis for declaring the sentence illegal.        Berry, supra

(holding PCRA petitioner waived claim that his sentence violated terms of

plea agreement by failing to raise issue on direct appeal). Further,

         It is clearly stated in the Sentencing Code not only that the
         court may revoke a defendant’s probation if appropriate,
         but also that “[u]pon revocation the sentencing
         alternatives available to the court shall be the same as
         were available at the time of initial sentencing.” 42
         Pa.C.S. § 9771 (emphasis added).             Likewise, [the
         Pennsylvania Supreme] Court has explicitly stated that
         “upon revocation of probation, the court possesses the
         same sentencing alternatives that it had at the time of the
         initial sentencing.” Commonwealth v. Pierce, 497 Pa.
         437, [440], 441 A.2d 1218, 1219 (1982). As it is well
         established that the sentencing alternatives available to a
         court at the time of initial sentencing are all of the
         alternatives statutorily available under the Sentencing
         Code, these authorities make clear that at any revocation
         of probation hearing, the court is similarly free to impose

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          any sentence permitted under the Sentencing Code and is
          not restricted by the bounds of a negotiated plea
          agreement between a defendant and prosecutor.

Commonwealth v. Wallace, 582 Pa. 234, 241-42, 870 A.2d 838, 842-43

(2005) (footnotes omitted).         See also Commonwealth v. Raphael, 879

A.2d 1264 (Pa.Super. 2005), appeal denied, 587 Pa. 712, 898 A.2d 1070

(2006) (holding imposition of consecutive sentences upon revocation of

defendant’s probation, rather than concurrent sentences according to terms

of plea agreement, was not improper).

       Instantly, on direct appeal, Appellant could have raised his claim that

the   trial    court   improperly    imposed      consecutive   sentences   following

revocation of Appellant’s probation, purportedly in violation of the original

plea agreement, which called for concurrent sentences. Appellant failed to

do so.        Further, as presented, Appellant’s claim does not implicate the

legality of his sentence.       Thus, Appellant’s claim is waived.      See Berry,

supra. Moreover, after the court revoked Appellant’s probation, it was free

to impose any of the sentencing alternatives available at the time of initial

sentencing, regardless of the terms of Appellant’s plea agreement.4             See

Wallace, supra; Raphael, supra.                Therefore, even if Appellant had not

waived the issue, it would merit no relief.

       In his second issue, Appellant argues the court unlawfully imposed
____________________________________________


4
 Appellant cites contrary case law expressly overruled by the Pennsylvania
Supreme Court in Wallace, supra.



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five-year mandatory minimum terms of incarceration under 18 Pa.C.S.A. §

7508, in violation of Alleyne v. United States, ___ U.S. ___, 133 S.Ct.

2151, 186 L.Ed.2d 314 (2013), and its Pennsylvania progeny.       Appellant

concludes he is entitled to resentencing without application of a mandatory

minimum term. We cannot agree.

     A sentencing challenge premised on Alleyne implicates the legality of

the sentence and cannot be waived. Commonwealth v. Newman, 99 A.3d

86 (Pa.Super. 2014) (en banc), appeal denied, ___ Pa. ___, 121 A.3d 496

(2015).     In Alleyne, the United States Supreme Court held that any fact

increasing the mandatory minimum sentence for a crime is considered an

element of the crime to be submitted to the fact-finder and found beyond a

reasonable doubt.      See id.   Section 7508(b) states that its statutory

provisions shall not be an element of the crime and applicability of the

statute shall be determined at sentencing by a preponderance of the

evidence.     In Newman, this Court addressed the constitutionality of a

similar statute, 42 Pa.C.S.A. § 9712.1, in light of Alleyne. Newman held

that Section 9712.1 can no longer pass constitutional muster as it “permits

the trial court, as opposed to the jury, to increase a defendant’s minimum

sentence based upon a preponderance of the evidence that the defendant

was dealing drugs and possessed a firearm, or that a firearm was in close

proximity to the drugs.” Newman, supra at 98. Subsequently, this Court

directly addressed the constitutionality of Section 7508 in Commonwealth


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v. Vargas, 108 A.3d 858 (Pa.Super. 2014) (en banc), appeal denied, ___

Pa. ___, 121 A.3d 496 (2015), where the trial court imposed a mandatory

minimum sentence for the defendant’s conviction for possession with intent

to deliver a controlled substance, pursuant to Section 7508(a)(7)(iii).     On

appeal, this Court emphasized that Section 7508 is structured in the same

manner as the statute at issue in Newman.         Id. at 876-77.    This Court

concluded that Section 7508 is likewise unconstitutional in its entirety. Id.

      Instantly, Appellant could have but failed to raise his Alleyne

challenge on direct appeal, or in his PCRA petition.    Nevertheless, we will

address the issue on the merits because it is a non-waivable challenge to the

legality of Appellant’s sentence.   See Newman, supra.        Here, the court

resentenced Appellant to a term of five (5) to fifteen (15) years’

incarceration for each count of delivery of a controlled substance. Appellant

assumes the court applied Section 7508 simply because the statute sets

forth a mandatory minimum term of five years’ incarceration for certain drug

offenses.   Careful review of the record, however, reveals that the court

applied no mandatory minimum sentence. As Appellant concedes, the court

made no mention of a mandatory minimum at sentencing.           Moreover, the

sentencing order and court commitment form indicate no mandatory

minimum term was imposed. Therefore, Alleyne is not implicated, and no

relief is due. Accordingly, we affirm.

      Order affirmed.


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     Fitzgerald, J. concurs in the result.

     Shogan, J. files a concurring and dissenting memorandum.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/14/2016




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