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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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

VICTOR WILLIAMS,

                        Appellant                    No. 541 EDA 2016

           Appeal from the PCRA Order Entered January 7, 2016
            In the Court of Common Pleas of Delaware County
           Criminal Division at No(s): CP-23-CR-0002086-2008


BEFORE: BENDER, P.J.E., DUBOW, J., and SOLANO, J.

MEMORANDUM BY BENDER, P.J.E.:                       FILED MARCH 06, 2017

      Appellant, Victor Williams, appeals pro se from the post-conviction

court’s January 7, 2016 order denying his timely petition filed under the Post

Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546.      Appellant alleges

that both his direct appeal and PCRA counsels acted ineffectively, and that

he is serving an illegal mandatory minimum sentence. After careful review,

we vacate the PCRA court’s order and remand for further proceedings.

      The facts underlying Appellant’s convictions are not necessary to our

disposition of the issues he raises on appeal. Instead, we need only note the

following procedural history of this case. In January of 2012, Appellant was

tried before a jury and found guilty of aggravated assault, 18 Pa.C.S. §

2702, and possessing a firearm without a license, 18 Pa.C.S. § 6106. On

March 27, 2012, he was sentenced to an aggregate term of 5½ to 12 years’

incarceration, followed by 6 years’ of probation.    Appellant filed a timely
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appeal with this Court, and we affirmed his judgment of sentence on July 15,

2013. See Commonwealth v. Williams, 82 A.3d 1064 (Pa. Super. 2013)

(unpublished memorandum). Appellant did not file a petition for allowance

of appeal with our Supreme Court. Thus, his judgment of sentence became

final on August 14, 2013.      See 42 Pa.C.S. § 9545(b)(3) (stating that

judgment of sentence becomes final at the conclusion of direct review or the

expiration of the time for seeking the review); Pa.R.A.P. 1113(a) (stating, “a

petition for allowance of appeal shall be filed with the Prothonotary of the

Supreme Court within 30 days of the entry of the order of the Superior Court

sought to be reviewed”).

      On July 16, 2014, Appellant filed a timely, pro se PCRA petition. For

some unknown reason, that petition is not contained in the certified record.

However, Appellant asserts, and the Commonwealth acknowledges, that in

his pro se petition, he argued that: (1) his appellate counsel was ineffective

for not challenging, on direct appeal, the trial court’s denial of Appellant’s

Pa.R.Crim.P. 600 motion to dismiss, and (2) that a mandatory minimum

sentence, imposed in Appellant’s case pursuant to 42 Pa.C.S. § 9712

(Sentences for offenses committed with firearms), is illegal under Alleyne v.

United States, 133 S.Ct. 2151 (2013) (holding that “facts that increase




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mandatory minimum sentences must be submitted to the jury” and found

beyond a reasonable doubt).1

       The PCRA court appointed Scott D. Galloway, Esq., to represent

Appellant.     On October 1, 2015, Attorney Galloway filed a petition to

withdraw and a Turner/Finley2 “no-merit” letter. On October 5, 2015, the

PCRA court issued a Pa.R.Crim.P. 907 notice of its intent to dismiss

Appellant’s petition.       In that order, the court also granted Attorney

Galloway’s petition to withdraw. Appellant filed a timely, pro se response,

arguing, inter alia, that Attorney Galloway had acted ineffectively by

petitioning to withdraw.        On January 7, 2016, the PCRA court issued an

order dismissing Appellant’s petition.

       Appellant filed a timely, pro se notice of appeal.       He also timely

complied with the PCRA court’s order to file a Pa.R.A.P. 1925(b) statement,

and the court issued a responsive opinion on June 2, 2016.              Herein,

Appellant presents three issues for our review, which we have reordered for

ease of disposition:

       A. Is Appellant[’s] sentence unconstitutional in that it involved a
       mandatory minimum sentence in violation of Alleyne…?
____________________________________________


1
  In Commonwealth v. Valentine, 101 A.3d 801, 811-12 (Pa. Super.
2014), this Court held that 42 Pa.C.S. § 9712 is unconstitutional under
Alleyne.
2
  Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth
v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).




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      B. Was … direct appeal counsel, and PCRA counsel Scott D.
      Galloway, Esquire[,] ineffective for not arguing [a] violation of
      Pa.R.Crim.P. 600?

      C. Was the improper dismissal of Appellant’s PCRA [petition] by
      the lower court improper?

Appellant’s Brief at 4 (unnecessary capitalization omitted).

      Preliminarily, our standard of review regarding an order denying post-

conviction relief under the PCRA is whether the determination of the court is

supported    by   the   evidence   of   record   and   is   free   of   legal   error.

Commonwealth v. Ragan, 923 A.2d 1169, 1170 (Pa. 2007). This Court

grants great deference to the findings of the PCRA court, and we will not

disturb those findings merely because the record could support a contrary

holding.    Commonwealth v. Touw, 781 A.2d 1250, 1252 (Pa. Super.

2001).

      In regard to Appellant’s first issue challenging the legality of his

mandatory minimum sentence, both the PCRA court and the Commonwealth

acknowledge that this claim is meritorious and Appellant’s sentence must be

vacated.    See Commonwealth’s Brief at 7-10; PCRA Court Opinion (PCO),

6/2/16, at 6-7. We agree. In Commonwealth v. Ruiz, 131 A.3d 54 (Pa.

Super. 2015), this Court recognized the well-established principal that an

Alleyne claim constitutes a non-waivable challenge to the legality of a

sentence, and may be raised for the first time on direct appeal or in a

timely-filed PCRA petition. Id. at 60. We then held that Alleyne may be

applied to cases pending on collateral review if the petitioner’s judgment

of sentence was not final when Alleyne was decided. Id. at 59-60.

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       Here, Appellant’s case was pending on direct appeal when Alleyne

was decided on June 17, 2013. While Appellant’s counsel failed to challenge

Appellant’s sentence under Alleyne, that failure did not waive this legality-

of-sentence issue. Because Appellant’s judgment of sentence was not final

when Alleyne was decided, and he presented his challenge to the legality of

his sentence in a timely-filed PCRA petition, Ruiz directs that Appellant is

entitled to resentencing without application of the mandatory minimum

sentence set forth in 42 Pa.C.S. 9712. See Ruiz, 131 A.3d at 60-61.3

       In Appellant’s second issue, he maintains that his PCRA counsel,

Attorney Galloway, acted ineffectively by petitioning to withdraw, rather

than arguing that Appellant’s direct appeal counsel had acted ineffectively by

not challenging the denial of Appellant’s Rule 600 motion to dismiss.    See

Appellant’s Brief at 22. Appellant further contends that Attorney Galloway

failed to properly state this issue, and explain why it lacked merit, in his

____________________________________________


3
   We recognize that after Ruiz, our Supreme Court decided
Commonwealth v. Washington, 142 A.3d 810 (Pa. 2016), holding that
Alleyne does not apply retroactively to collateral attacks on mandatory
minimum sentences.        Washington, 142 A.3d at 819.           However,
Washington only addressed the applicability of Alleyne to sentences that
became final before Alleyne was decided; the Court did not consider the
unique procedural posture presented in this case and in Ruiz, where
Alleyne was decided during the pendency of the petitioner’s direct appeal.
Indeed, the Washington Court recognized that “a new rule of constitutional
law is generally retrospectively applicable … to cases pending on direct
appellate review.” Washington, 142 A.3d at 813. In sum, the holding of
Washington did not overrule Ruiz, nor did it preclude application of
Alleyne to Appellant’s case.



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Turner/Finley no-merit letter.            Id. at 23.        After reviewing Attorney

Galloway’s no-merit letter, we agree with Appellant that it was incomplete in

this regard.4      More specifically, Attorney Galloway only discussed trial

counsel’s handling of the Rule 600 issue, concluding that trial counsel “did

raise that issue and litigate the same” and, therefore, trial counsel was not

ineffective.      See     Turner/Finley          No-Merit   Letter,   10/1/15,   at   1

(unnumbered). However, Attorney Galloway at no point assessed whether

direct appeal counsel was ineffective for not challenging, on direct appeal,

the trial court’s denial of Appellant’s Rule 600 motion.

       It is well-established that before counsel is permitted to withdraw,

they “must, in the ‘no-merit’ letter, list each claim the petitioner wishes to

have reviewed, and detail the nature and extent of counsel’s review of the

merits of each of those claims….”              Commonwealth v. Friend, 896 A.2d

607, 615 (Pa. Super. 2006) (emphasis added), abrogated on other grounds

by Commonwealth v. Pitts, 981 A.2d 875 (Pa. 2009). Counsel also “must

set forth in the ‘no-merit’ letter an explanation of why the petitioner’s issues
____________________________________________


4
  The Commonwealth also acknowledges that Attorney Galloway’s no-merit
letter did not properly address Appellant’s claim that his direct appeal
counsel acted ineffectively by not raising the Rule 600 issue.      See
Commonwealth’s Brief at 10. Consequently, the Commonwealth states that
“this Court should remand this case so that PCRA counsel can address the
claim.” Id.




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are meritless….” Id. Here, Attorney Galloway failed to meet these technical

requirements for withdrawal, and Appellant preserved his claim that

Attorney Galloway acted ineffectively in this regard in his timely-filed

response to the PCRA court’s Rule 907 notice.        See Commonwealth v.

Ford, 44 A.3d 1190, 1198 (Pa. Super. 2012) (stating that “when counsel

files a Turner/Finley no-merit letter to the PCRA court, a petitioner must

allege any claims of ineffectiveness of PCRA counsel in a response to the

court’s notice of intent to dismiss”) (citing Pitts, 981 A.2d at 880 n.4).

Accordingly, we conclude that the PCRA court erred by granting Attorney

Galloway’s request to withdraw.

      Thus, having determined that the PCRA court erred by denying

Appellant’s petition, and that it also improperly granted Attorney Galloway’s

petition to withdraw, we reverse the PCRA court’s order, vacate Appellant’s

judgment of sentence, and remand for resentencing. We also direct the trial

court to appoint Appellant a new attorney to represent him at sentencing,

and to review his claim of ineffectiveness pertaining to his appellate

counsel’s failure to raise the Rule 600 issue on direct appeal.

      Order vacated.    Judgment of sentence vacated.      Case remanded for

proceedings consistent with this memorandum. Jurisdiction relinquished.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/6/2017




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