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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA              :     IN THE SUPERIOR COURT OF
                                          :           PENNSYLVANIA
                     v.                   :
                                          :
ABEL TINOCO,                              :          No. 3006 EDA 2014
                                          :
                          Appellant       :


                 Appeal from the PCRA Order, October 9, 2014,
                in the Court of Common Pleas of Chester County
               Criminal Division at Nos. CP-15-CR-0000914-2013,
                            CP-15-CR-0000924-2013


BEFORE: FORD ELLIOTT, P.J.E., STABILE AND FITZGERALD,* JJ.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:             FILED SEPTEMBER 28, 2016

        Abel Tinoco appeals from the order of October 9, 2014, dismissing his

PCRA1 petition without a hearing.       After careful review, we reverse and

remand for further proceedings.

        On July 18, 2013, appellant entered into a negotiated guilty plea to

3 counts of possession with intent to deliver (“PWID”), and 1 count of

dealing in proceeds of unlawful activities. On Count 1, the Commonwealth

invoked the 7 to 14-year mandatory minimum sentence and $50,000 fine




*
    Former Justice specially assigned to the Superior Court.
1
    Post-Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-9546.
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pursuant to 18 Pa.C.S.A. § 7508(a)(3)(iii).2 The Commonwealth agreed to

waive the mandatory minimum sentences on Counts 2 and 3 in exchange for


2
     § 7508. Drug trafficking sentencing and penalties

     (a)   General rule.--Notwithstanding any other provisions of this or any
           other act to the contrary, the following provisions shall apply:

           (3)   A person who is convicted of violating section
                 13(a)(14), (30) or (37) of The Controlled Substance,
                 Drug, Device and Cosmetic Act where the controlled
                 substance is coca leaves or is any salt, compound,
                 derivative or preparation of coca leaves or is any salt,
                 compound, derivative or preparation which is
                 chemically equivalent or identical with any of these
                 substances or is any mixture containing any of these
                 substances except decocainized coca leaves or
                 extracts of coca leaves which (extracts) do not
                 contain cocaine or ecgonine shall, upon conviction, be
                 sentenced to a mandatory minimum term of
                 imprisonment and a fine as set forth in this
                 subsection:

                 (iii)   when the aggregate weight of the
                         compound or mixture of the substance
                         involved is at least 100 grams; four
                         years in prison and a fine of $25,000 or
                         such larger amount as is sufficient to
                         exhaust the assets utilized in and the
                         proceeds from the illegal activity;
                         however, if at the time of sentencing
                         the defendant has been convicted of
                         another drug trafficking offense: seven
                         years in prison and $50,000 or such
                         larger amount as is sufficient to exhaust
                         the assets utilized in and the proceeds
                         from the illegal activity.

     (b)   Proof of sentencing.--Provisions of this section shall not be an
           element of the crime. Notice of the applicability of this section to
           the defendant shall not be required prior to conviction, but
           reasonable notice of the Commonwealth’s intention to proceed
           under this section shall be provided after conviction and before
           sentencing. The applicability of this section shall be determined at
           sentencing. The court shall consider evidence presented at trial,
           shall afford the Commonwealth and the defendant an opportunity
           to present necessary additional evidence and shall determine, by a
           preponderance of the evidence, if this section is applicable.


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appellant’s plea. (Notes of testimony, 7/18/13 at 6.) The plea agreement

was for an aggregate sentence of 9 to 18 years’ incarceration. (Id. at 7.)

The trial court accepted appellant’s plea and imposed the agreed-upon

sentence. (Id. at 12-13.)

        Appellant filed an untimely pro se motion for reconsideration of

sentence on December 23, 2013, which was denied on December 30, 2013.

On May 12, 2014, appellant filed a timely pro se PCRA petition.        Counsel

was appointed, and filed a petition to withdraw and Turner/Finley

“no merit” letter.3 Appellant filed an answer to counsel’s withdrawal petition

on July 31, 2014. On September 8, 2014, the PCRA court issued Rule 907 4

notice of its intention to dismiss the petition without a hearing within

20 days.    Appellant filed a response to Rule 907 notice on September 25,

2014.     On October 9, 2014, appellant’s PCRA petition was dismissed.       A

timely pro se notice of appeal was filed on October 22, 2014.                On

October 30, 2014, appellant was ordered to file a concise statement of

errors     complained     of   on   appeal   within   21   days   pursuant   to

Pa.R.A.P. 1925(b).      On November 15, 2014, appellant filed a Rule 1925(b)




3
  Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth
v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc).
4
    Pa.R.Crim.P. 907.


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statement.5 On November 17, 2014, appointed counsel was granted leave

to withdraw. On November 25, 2014, the PCRA court filed a Rule 1925(a)

opinion, relying on its opinion and order of September 8, 2014.

      Appellant has raised the following issues for this court’s review:

            I.     Whether the lower court erred in denying relief
                   based on counsel’s ineffective assistance in
                   negotiating  and    recommending      a   plea
                   agreement with a mandatory minimum
                   sentence for a second conviction where the
                   mandatory sentence did not apply[?]

            II.    Whether the lower court erred in denying relief
                   based on counsel’s ineffective assistance in
                   negotiating  and    recommending      a   plea
                   agreement with a mandatory minimum
                   sentence which was unconstitutional[?]

Appellant’s brief at 2.

            This Court’s standard of review regarding an order
            denying a petition under the PCRA is whether the
            determination of the PCRA court is supported by the
            evidence of record and is free of legal error.
            Commonwealth v. Halley, 582 Pa. 164, 870 A.2d
            795, 799 n. 2 (2005). The PCRA court’s findings will
            not be disturbed unless there is no support for the
            findings in the certified record. Commonwealth v.
            Carr, 768 A.2d 1164, 1166 (Pa.Super.2001).




5
   Appellant’s Rule 1925(b) statement was actually time-stamped and
docketed on November 24, 2014. (Docket #25.) However, we are mindful
of the so-called “prisoner mailbox rule,” pursuant to which a document is
deemed filed on the date that a prisoner delivers it to prison authorities for
mailing. Commonwealth v. Jones, 700 A.2d 423, 426 (Pa. 1997). Here,
the record indicates that appellant’s concise statement was mailed on
November 15, 2014.


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Commonwealth v. Turetsky, 925 A.2d 876, 879 (Pa.Super. 2007),

appeal denied, 940 A.2d 365 (Pa. 2007).

            [T]he right to an evidentiary hearing on a
            post-conviction     petition   is    not    absolute.
            Commonwealth v. Jordan, 772 A.2d 1011, 1014
            (Pa.Super.2001).     It is within the PCRA court’s
            discretion to decline to hold a hearing if the
            petitioner’s claim is patently frivolous and has no
            support either in the record or other evidence. Id.
            It is the responsibility of the reviewing court on
            appeal to examine each issue raised in the PCRA
            petition in light of the record certified before it in
            order to determine if the PCRA court erred in its
            determination that there were no genuine issues of
            material fact in controversy and in denying relief
            without     conducting    an   evidentiary   hearing.
            Commonwealth v. Hardcastle, 549 Pa. 450, 454,
            701 A.2d 541, 542-543 (1997).

Id. at 882, quoting Commonwealth v. Khalifah, 852 A.2d 1238, 1239-

1240 (Pa.Super. 2004).

      First, we note that although appellant frames his issues in terms of

ineffectiveness of trial counsel, he is really challenging the legality of his

sentence.   See, e.g., Commonwealth v. Edrington, 780 A.2d 721, 723

(Pa.Super. 2001), citing Commonwealth v. Vasquez, 744 A.2d 1280 (Pa.

2000) (application of a mandatory sentencing provision implicates the

legality of the sentence, not the discretionary aspects of the sentence).

Legality of sentencing challenges are non-waivable and present a pure

question of law.   As such, it is not necessary for appellant to argue trial

counsel ineffectiveness in connection with the entry of his guilty plea. See

Commonwealth v. Main, 6 A.3d 1026, 1028 (Pa.Super. 2010) (“[T]he


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determination as to whether the trial court imposed an illegal sentence is a

question of law; our standard of review in cases dealing with questions of

law is plenary.”) (citations omitted); Commonwealth v. Snavely, 982 A.2d

1244, 1246 (Pa.Super. 2009) (“Challenges to an illegal sentence cannot be

waived and may be reviewed sua sponte by this Court.”) (citation omitted).

      In his first issue on appeal, appellant claims that the mandatory

minimum sentence of 7-14 years imposed pursuant to 18 Pa.C.S.A.

§ 7508(a)(3)(iii) where the aggregate weight of the cocaine is at least

100 grams and the defendant has a prior drug trafficking conviction does not

apply because all his convictions were brought in the same indictment. Prior

to entering his plea, appellant had no previous convictions for drug

trafficking. (Appellant’s brief at 6.) Appellant pled guilty to all three counts

of PWID at the same time and within the same plea agreement.               (Id.)

Therefore, appellant argues that he did not have a prior drug trafficking

conviction at time of sentencing as required by Section 7508(a)(3)(iii).

      We need not address this issue, given our disposition of appellant’s

second issue as discussed infra.     However, we observe that Section 7508

requires only that the defendant be convicted of another drug trafficking

offense at time of sentencing.    It does not require that the convictions be

sequential. Commonwealth v. Vasquez, 753 A.2d 807, 809 (Pa. 2000) (a

conviction in a multiple count complaint can be counted as a prior conviction

triggering the enhancement provision of 18 Pa.C.S.A. § 7508); see also



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Commonwealth v. Williams, 652 A.2d 283 (Pa. 1994) (rejecting the

argument that the mandatory minimum sentence pursuant to 18 Pa.C.S.A.

§ 7508(a)(3)(i) applies only if the defendant has a prior drug trafficking

conviction at the time he committed the offense).

      Next, appellant argues that his sentence is illegal in light of Alleyne v.

United States,       U.S.     , 133 S.Ct. 2151 (2013) (holding that any fact

that, by law, increases the penalty for a crime is required to be treated as an

element of the offense, submitted to a jury, rather than a judge, and found

beyond a reasonable doubt). We agree.

            At the outset, we note that issues pertaining to
            Alleyne go directly to the legality of the sentence.
            Commonwealth v. Lawrence, 99 A.3d 116, 123
            (Pa.Super.2014). With this in mind, we begin by
            noting our well-settled standard of review.          “A
            challenge to the legality of a sentence . . . may be
            entertained as long as the reviewing court has
            jurisdiction.” Commonwealth v. Borovichka, 18
            A.3d 1242, 1254 n. 8 (Pa.Super.2011) (citation
            omitted). It is also well-established that “[i]f no
            statutory authorization exists for a particular
            sentence, that sentence is illegal and subject to
            correction.” Commonwealth v. Rivera, 95 A.3d
            913, 915 (Pa.Super.2014) (citation omitted). “An
            illegal sentence must be vacated.” Id. “Issues
            relating to the legality of a sentence are questions of
            law [.] . . . Our standard of review over such
            questions is de novo and our scope of review is
            plenary.” Commonwealth v. Akbar, 91 A.3d 227,
            238 (Pa.Super.2014) (citations omitted).




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Commonwealth v. Cardwell, 105 A.3d 748, 750 (Pa.Super. 2014),

appeal denied, 121 A.3d 494 (Pa. 2015).6

     For the reasons discussed in Commonwealth v. Fennell, 105 A.3d

13 (Pa.Super. 2014), appeal denied, 121 A.3d 494 (Pa. 2015), and

Cardwell, supra, this court has determined Section 7508 to be facially

unconstitutional in its entirety.     See also, e.g., Commonwealth v.

Newman, 99 A.3d 86 (Pa.Super. 2014) (en banc), appeal denied, 121

A.3d 496 (Pa. 2015) (concluding that 42 Pa.C.S.A. § 9712.1, regarding the

distance between drugs and guns, must be struck down in its entirety as

unconstitutional in light of Alleyne, as its subsections are not severable);

Commonwealth v. Valentine, 101 A.3d 801 (Pa.Super. 2014), appeal

denied, 124 A.3d 309 (Pa. 2015) (by allowing the jury to determine beyond

a reasonable doubt the elements of the mandatory minimum sentencing

provisions of 42 Pa.C.S.A. §§ 9712 and 9713, the trial court performed an

impermissible   legislative   function,   effectively   determining   that   the

unconstitutional provisions were severable).

     It is important to note that Alleyne was decided on June 17, 2013,

and appellant was sentenced on July 18, 2013; therefore, retroactivity is not

an issue.   See Commonwealth v. Ruiz, 131 A.3d 54, 59-60 (Pa.Super.



6
  We note that our supreme court has granted allocatur to determine
whether an Alleyne violation renders a sentence illegal for issue
preservation purposes. See Commonwealth v. Barnes, 122 A.3d 1034,
1034-1035 (Pa. 2015) (per curiam).


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2015) (a defendant can raise an Alleyne challenge in a timely PCRA petition

so long as his judgment of sentence was not yet final when Alleyne was

decided on June 17, 2013). Cf. Commonwealth v. Riggle, 119 A.3d 1058

(Pa.Super. 2015) (holding that Alleyne did not apply retroactively in a PCRA

setting, where Riggle’s judgment of sentence became final 15 months before

the Supreme Court decided Alleyne in June of 2013).7

     In this case, all parties, including the trial court, understood that

appellant faced a 7 to 14-year mandatory minimum sentence under

Section 7508 for possessing in excess of 100 grams of cocaine with intent to

deliver. All parties were under the impression that Section 7508 applied due

to the amount of the drugs possessed, which provided the framework for

plea negotiations. The appropriate remedy in a case such as this, where the

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


7
  Recently, the Pennsylvania Supreme Court decided that Alleyne does not
apply retroactively to collateral attacks on mandatory minimum sentences
advanced in post-conviction relief proceedings.         Commonwealth v.
Washington,         A.3d    , 2016 WL 3909088 (Pa. July 19, 2016) (Alleyne
was not a groundbreaking, “watershed” rule of criminal procedure that
applies retroactively on collateral review); see Teague v. Lane, 489 U.S.
288 (1989) (plurality) (a new constitutional rule of criminal procedure does
not generally apply to convictions that were final when the new rule was
announced). However, this case is distinguishable from Washington, which
concerned the retroactive application of Alleyne to cases where the
defendant’s judgment of sentence had already become final before Alleyne
was decided. See Washington, 2016 WL 3909088 at *3 (“a new rule of
law does not automatically render final, pre-existing sentences illegal”).
Washington did not consider the unique procedural posture presented in
Ruiz or the case sub judice, where a defendant raises an Alleyne
challenge in a timely PCRA petition but his judgment of sentence was not yet
final at the time Alleyne was handed down.


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status quo prior to the entry of the guilty plea by vacating the plea.      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)); Commonwealth v. Melendez-

Negron, 123 A.3d 1087, 1093-1094 (Pa.Super. 2015) (since in plea

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

receive the benefit of their bargain,” “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.”).

      To reiterate, Section 7508 is unconstitutional in its entirety in light of

Alleyne, and any sentence imposed thereunder is illegal and must be

vacated. As such, we are compelled to reverse the order denying appellant

PCRA relief, vacate the guilty plea, and remand for further proceedings.

      Order reversed.    Guilty plea vacated.    Case remanded.     Jurisdiction

relinquished.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 9/28/2016




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