J-S71041-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA,                   IN THE SUPERIOR COURT
                                                              OF
                                                         PENNSYLVANIA
                             Appellee

                        v.

    ALDALBERTO RIVERA,

                             Appellant                 No. 1240 EDA 2017


                   Appeal from the PCRA Order April 10, 2017
              in the Court of Common Pleas of Philadelphia County
               Criminal Division at Nos.: CP-51-CR-0013645-2012
                            CP-51-CR-0014695-2012


BEFORE: PANELLA, J., STABILE, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                          FILED DECEMBER 13, 2017

        Appellant, Aldalberto Rivera, appeals from the order denying his petition

filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-

9546. We affirm.

        We take the following facts and procedural background from our

independent review of the certified record. On September 20, 2013, Appellant

entered a negotiated guilty plea to two counts of possession with intent to

deliver a controlled substance (PWID) and conspiracy to commit PWID at case



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*   Retired Senior Judge assigned to the Superior Court.
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number 13645-2012 and 14695-2012.1 On December 6, 2013, pursuant to

the plea agreement’s terms, the trial court imposed a sentence on Appellant

of not less than five nor more than ten years’ imprisonment. Appellant did

not file a direct appeal.

       On July 25, 2014, Appellant filed a timely pro se PCRA petition.

Appointed counsel filed an amended petition on November 15, 2015.            On

March 6, 2017, the PCRA court sent Appellant notice of its intent to dismiss

the petition without a hearing. See Pa.R.Crim.P. 907(1). The court formally

dismissed the petition on April 10, 2017, and Appellant timely appealed. 2

       Appellant raises one issue for our review: “Was counsel ineffective for

failing to raise the issue of the [his] being subject to an illegal mandatory

minimum sentence?” (Appellant’s Brief, at 9).

       Our standard of review of appeals from PCRA court decisions is well-

settled:

              This Court analyzes PCRA appeals in the light most favorable
       to the prevailing party at the PCRA level. Our review is limited to
       the findings of the PCRA court and the evidence of record and we
       do not disturb a PCRA court’s ruling if it is supported by evidence
       of record and is free of legal error. Similarly, [w]e grant great
       deference to the factual findings of the PCRA court and will not
       disturb those findings unless they have no support in the record.
       However, we afford no such deference to its legal conclusions.


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1 In consideration of the plea, the Commonwealth nolle prossed a charge of
possession of a controlled substance.
2 On May 24, 2017, Appellant filed a timely statement of errors complained of

on appeal pursuant to the PCRA court’s order. The court filed an opinion on
June 26, 2017. See Pa.R.A.P. 1925.

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       [W]here the petitioner raises questions of law, our standard of
       review is de novo and our scope of review is plenary. . . .

Commonwealth v. Rigg, 84 A.3d 1080, 1084 (Pa. Super. 2014) (citations

and quotation marks omitted).

       [T]o succeed on an ineffectiveness claim, a petitioner must
       demonstrate that: the underlying claim is of arguable merit;
       counsel had no reasonable basis for the act or omission in
       question; and he suffered prejudice as a result, i.e., there is a
       reasonable probability that, but for counsel’s error, the outcome
       of the proceeding would have been different. A reasonable
       probability is a probability sufficient to undermine confidence in
       the outcome of the proceeding.

Commonwealth v. Laird, 119 A.3d 972, 978 (Pa. 2015) (citations omitted).

“Counsel’s assistance is deemed constitutionally effective once this Court

determines that the defendant has not established any one of the prongs of

the ineffectiveness test.” Commonwealth v. Rolan, 964 A.2d 398, 406 (Pa.

Super. 2008) (citation and emphasis omitted).

       Here, Appellant maintains that counsel was ineffective for failing to raise

a claim that [his] mandatory minimum sentence violated Alleyne v. United

States, 570 U.S. 99 (2013).3 This issue does not merit relief.

       First, we observe that, the Pennsylvania Supreme Court expressly held

“that Alleyne does not apply retroactively to cases pending on collateral


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3 “[T]he Alleyne decision . . . renders those Pennsylvania mandatory minimum
sentencing statutes that do not pertain to prior convictions constitutionally
infirm insofar as they permit a judge to automatically increase a defendant’s
sentence based on a preponderance of the evidence standard.”
Commonwealth v. Valentine, 101 A.3d 801, 809 (Pa. Super. 2014), appeal
denied, 124 A.3d 309 (Pa. 2015) (citations omitted).

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review[.]” Commonwealth v. Washington, 142 A.3d 810, 820 (Pa. 2016).

Accordingly, Appellant cannot obtain relief on his claim.

      Additionally, even assuming arguendo that Alleyne could be applied in

the PCRA context, Appellant’s ineffective assistance of counsel claim would

lack merit. A review of the record reveals that Appellant’s sentence of not

less than five nor more than ten years’ imprisonment was not a mandatory

minimum term of imprisonment.           Instead, the court sentenced Appellant

pursuant to a negotiated guilty plea to three charges.       (See PCRA Court

Opinion, 6/26/17, at 5; Trial Disposition and Dismissal Form, 9/20/13; Written

Guilty Plea Colloquy, 9/20/13, at 1).

      Therefore, Appellant has failed to prove the first prong of the

ineffectiveness test, the merit of his underlying claim, and his contention

would fail. See Commonwealth v. Rivera, 108 A.3d 779, 789 (Pa. 2014)

(“[C]ounsel cannot be deemed ineffective for failing to raise a meritless

claim.”) (citation omitted); see also Laird, supra at 978; Rolan, supra at

406. Hence, the PCRA court properly denied Appellant’s petition where, even

if he could raise an Alleyne claim, it would not merit relief. See Rigg, supra

at 1084.

      Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/13/2017




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