J-S36038-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                  IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                        Appellee

                   v.

VERTIS HENRY DILLON,

                        Appellant                  No. 1985 MDA 2015


               Appeal from the PCRA Order October 13, 2015
           In the Court of Common Pleas of Lackawanna County
 Criminal Division at No(s): CP-35-CR-0000033-2012; CP-35-CR-0000759-
                       2012; CP-35-CR-0000760-2013

BEFORE: MUNDY, J., DUBOW, J., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.:                        FILED MAY 09, 2016

     Vertis Henry Dillon (“Appellant”) appeals pro se from the order entered

in the Court of Common Pleas of Lackawanna County dismissing his first

petition under the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§

9541-9546.    He contends the court erroneously refused to vacate his

aggregated sentence despite conceding it contains an unconstitutional

mandatory minimum sentence in violation of Alleyne v United States, 133

S.Ct. 2151 (U.S. 2013).     The court took the position that vacating and

resentencing would have “no practical effect” since the two aggregated

sentences ran concurrently, were coterminous, and the companion sentence

was lawful.

     The record strongly suggests, however, that the negotiated plea

accepted by the court conformed the lawful companion sentence to the

*Former Justice specially assigned to the Superior Court.
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terms of the unlawful mandatory minimum sentence in order to create

coterminous, concurrently-run sentences. Because the unlawful mandatory

minimum sentence formed the centerpiece to the aggregated sentence, we

follow precedent calling for vacation of sentence and remand for a new guilty

plea hearing.

     The PCRA court aptly provides pertinent case history as follows:

     On April 16, 2014, [Appellant, with the assistance of counsel,]
     pled guilty and was sentenced in [cases 12-CR-33, for PWID,
     and 12-CR-759, for delivery of a controlled substance]. The
     court determined that [Appellant] would plead guilty to one
     count of possession with intent to deliver and one count of
     delivery of a controlled substance and in exchange the
     Commonwealth would drop the remaining charges as well as the
     charges in another case [N.T. Guilty Plea and Sentencing,
     4/16/14 at 5]. The parties also agreed that the Commonwealth
     would invoke a three[-]year mandatory minimum in 12-CR-33,
     that the Commonwealth was recommending that the sentence
     for each charge would be 3 to 10 years and that the sentences in
     the two cases would be concurrent to one another, and that the
     Commonwealth would not oppose making the sentences
     concurrent to the sentence at 13-CR-760. Id. at 5-7. The court
     imposed the agreed upon 3 to 10 year sentence for each charge
     and ordered that the sentences would be concurrent to each
     other and to the sentence previously imposed in 13-CR-760. Id.
     at 15.

     ***
     On January 9, 2015, [Appellant] filed a Petition for Post
     Conviction Collateral Relief, asserting improper computation of
     credit for time served. [Counsel was appointed to represent
     Appellant. On February 23, 2015, the Commonwealth filed a
     response to the PCRA petition. On March 30, 2015, counsel filed
     a Motion to Withdraw pursuant to a Turner-Finley Letter. On
     April 1, 2015, and July 5, 2015, Appellant responded. On
     September 1, 2015 the PCRA court issued a Memorandum and
     Notice of Intent to Dismiss the PCRA Petition, and it granted
     counsel’s motion to withdraw. On September 15, Appellant filed
     a pro se answer to the notice of intent to dismiss along with a

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     new PCRA petition] asserting that his sentence is unlawful
     pursuant to the United States Supreme Court decision in
     Alleyne v. United States. [The PCRA court] deemed the new
     petition [ ] an amendment to the original petition[] and
     dismissed the petition on October 13, 2015. . . .

PCRA Court Opinion, 12/22/16 at 4-5, 3.

     In its Pa.R.A.P. 1925(a) opinion, the PCRA court explains its rationale

for denying Appellant’s collateral appeal seeking vacation of his unlawful

sentence and resentencing:

     [Appellant] here received the sentences that he agreed to as
     part of his negotiated plea agreement. The sentences do not
     exceed the maximum sentences that could have been imposed,
     and are within the guidelines.        They are not excessive,
     particularly since [Appellant’s] prior record score was 5, and
     since they are concurrent to one another. While the sentence in
     12-CR-33 included a mandatory minimum, the sentence in 12-
     CR-759 did not. Thus, while [Appellant] is correct that the
     sentence in 12-CR-33 includes a mandatory minimum that is
     unlawful under Alleyne, the sentence is concurrent to the
     sentence in 12-CR-759 which did not include a mandatory
     minimum and is lawful. Thus, resentencing [Appellant] would
     have no practical effect.

Id. at 5. This timely appeal followed.

     “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

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

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

     In his brief, Appellant contends that he remains subject to both an

illegal sentence, which the PCRA court refused to vacate, and a concurrent

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sentence (at 12-CR-759) tailored specifically to conform to the illegal

sentence.   Our review of a challenge to the legality of a sentence is well-

established:

     If no statutory authorization exists for a particular sentence, that
     sentence is illegal and subject to correction. An illegal sentence
     must be vacated. In evaluating a trial court's application of a
     statute, our standard of review is plenary and is limited to
     determining whether the trial court committed an error of law.

Commonwealth v. Orie Melvin, 103 A.3d 1, 52 (Pa.Super. 2014).

     Although both the PCRA court and the Commonwealth concede that

the aggregate sentence at issue comprises the illegal sentence at 12-CR-33,

they claim resentencing is unnecessary since Appellant would still wind up

serving a three to ten year period of incarceration under the concurrently-

run sentence under at 12-CR-756, anyway. Our concern with this approach

stems from the central role the unlawful mandatory minimum sentence at

12-CR-33 appears to have played in negotiations that shaped an identical

sentence at 12-CR-756.

     In Commonwealth v. Melendez–Negron, 123 A.3d 1087 (Pa.Super.

2015), we held that remanding for a new guilty plea hearing—as opposed to

resentencing—was the proper remedy when a mandatory minimum sentence

later declared unconstitutional under Alleyne influenced a negotiated guilty

plea. As in the case sub judice, Melendez–Negron and the Commonwealth

entered into a negotiated plea under the misapprehension that a mandatory

minimum sentencing statute applied, and it is well settled that in plea

negotiations, “both parties to a negotiated plea agreement are entitled to

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receive the benefit of their bargain.”      Id. at 1093 (citations omitted).

Accordingly, we concluded “the shared misapprehension that the mandatory

minimum sentence required by § 97[12].1 applied to Melendez–Negron

tainted the parties' negotiations at the outset.    [T]he parties' negotiations

began from an erroneous premise and therefore were fundamentally skewed

from the beginning.” Id.

      In the present case, the parties and the trial court understood that

Appellant faced a three to ten year mandatory minimum sentence based on

the weight of crack cocaine he possessed with the intent to deliver at 12-CR-

33. This understanding provided the framework for all negotiations leading

to the negotiated plea agreement and, thus, served as a basis for the

agreement to an identical three to ten year sentence at 12-CR-759.

      It is axiomatic that a defendant cannot agree to an illegal sentence.

See Commonwealth v. Gentry, 101 A.3d 813, 819 (Pa.Super. 2014) (“Our

cases clearly state that a criminal defendant cannot agree to an illegal

sentence, so the fact that the illegality was a term of his plea bargain is of

no legal significance.”) (citation omitted). Appellant's sentence at 12-CR-33

was illegal, and this court must vacate an illegal sentence.     Orie Melvin,

supra.

      Moreover,   the   suggestion   of    both   the   PCRA   court   and   the

Commonwealth that the sentence at 12-CR-759 stands of its own accord is

simply not reconcilable with the record. Indeed, the sentence at 12-CR-759

comprises the same three to ten year term applicable in the mandatory

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minimum sentence precisely because it was intended to run with and expire

at the same time as the mandatory minimum sentence.1              Because the

sentence at 12-CR-759 was effectively based on the illegal sentence at 12-

CR-33, we must vacate this sentence as well.

       Accordingly, the appropriate remedy in a case such as this, where the

parties have negotiated an illegal sentence under Alleyne, is to return the

parties to their positions prior to the entry of the guilty plea by vacating the

plea. Melendez–Negron, supra. We are compelled, therefore, to reverse

the order denying PCRA relief, vacate the guilty plea, and remand for further

proceedings.2




____________________________________________


1
  In this regard, it is noteworthy that Appellant agreed to a three to ten year
sentence at 12-CR-759 even though it represented an upward departure
sentence from the aggravated range.            The Basic Sentencing Matrix
applicable to Appellant’s November, 2011, delivery of less than 2.5 grams of
cocaine, which carried an offense gravity score of 6 and a prior record score
of 5, set the standard range sentence at 21 to 27 months’ incarceration,
with +/- 6 months for the aggravating or mitigating range. See 42 Pa.C.S.A.
§ 9721, 204 Pa.Code § 303.16 (Amended Feb. 9, 2005, applicable to
offenses committed on or after June 3, 2005, 35 Pa.B. 1508. Readopted
Sept. 6, 2008, applicable to offenses committed on or after Dec. 5, 2008, 38
Pa.B. 4971.).
2
  Because Appellant has established his indigence in order to proceed IFP,
the trial court upon remand shall appoint counsel to represent Appellant.



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      Order reversed.     Guilty plea vacated.   Case remanded.   Jurisdiction

relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/9/2016




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