J-S49011-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
               v.                              :
                                               :
                                               :
    ELDRIDGE HUDSON,                           :
                                               :
                      Appellant                :   No. 1533 WDA 2016

                Appeal from the PCRA Order September 12, 2016
              In the Court of Common Pleas of Washington County
               Criminal Division at No.: CP-63-CR-0002379-2011

BEFORE: DUBOW, J., SOLANO, J., and FITZGERALD J.*

MEMORANDUM BY DUBOW, J.:                               FILED AUGUST 15, 2017

        Appellant, Eldridge Hudson, appeals from the September 12, 2016

Order entered in the Washington County Court of Common Pleas dismissing

his first Petition filed under the Post Conviction Relief Act (“PCRA”), 42

Pa.C.S. §§ 9541-9546.         After careful review, we reverse the Order of the

PCRA court, vacate the Judgment of Sentence, vacate the original negotiated

guilty plea, and remand for further proceedings.1
____________________________________________


*
    Former Justice specially assigned to the Superior Court.
1
  We note that, although the PCRA Order from which this appeal is taken is
dated September 12, 2016, that Order was not entered on the docket until
September 15, 2016. However, the docket contains no notation of when the
clerk of courts of Washington County furnished a copy of the Order to the
parties. Such omission is in derogation of the mandate of Pa.R.Crim.P. 114,
which requires the clerk of courts to docket an order immediately and to
note on the docket that a copy of the order has been furnished to the
parties. See also Pa.R.A.P. 108(a) (specifying that the date of entry of an
order shall be the day the clerk of the court mails or delivers a copy of the
(Footnote Continued Next Page)
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        On June 10, 2013, Appellant entered a negotiated guilty plea to six

counts of Manufacture, Delivery, or Possession of a Controlled Substance

with Intent to Deliver (“PWID”) and one count of Criminal Use of a

Communication Facility.2 That same day, the trial court sentenced Appellant

to an aggregate term of 10 to 20 years’ imprisonment.3 On the three counts

                       _______________________
(Footnote Continued)

order to the parties); Pa.R.A.P. 301(a)(1) (providing that “no order of a
court shall be appealable until it has been entered upon the appropriate
docket in the lower court.”). Because neither the Order itself nor the docket
entries reflect the date that the Order dismissing Appellant’s PCRA Petition
was sent to him, we are unable to determine the precise date this PCRA
Order became a final and appealable Order. However, in the interest of
judicial economy, we will regard as done what should have been done, and
accept what all parties assume, i.e., that the PCRA Order was entered on
September 12, 2016, and Appellant’s Notice of Appeal was timely filed. We
further note that none of Appellant’s due process rights were impacted by
the Washington County court clerk’s laxity.

We remind the Washington County clerk of courts that the “procedural
requirements reflected in the rules serve to promote clarity, certainty and
ease of determination, so that an appellate court will immediately know
whether an appeal was perfected in a timely manner, thus eliminating the
need for a case-by-case factual determination.”          Frazier v. City of
Philadelphia, 735 A.2d 113, 115 (Pa. 1999) (citation omitted).
Significantly, the fact “that the parties may have received notice of the order
does not alter the formal date of its entry and the associated
commencement of the period allowed for appeal for purposes of the rules.”
Id. Accordingly, we strongly urge the clerks of courts to comply with the
mandates of our rules of procedure.
2
    35 P.S. § 780-113(a)(30) and 18 Pa.C.S. § 7512, respectively.
3
  The trial court imposed three concurrent sentences of 10 to 20 years’
incarceration on three of the PWID convictions. The trial court imposed no
further penalty on the conviction for Criminal Use of a Communication
Facility and determined that three of the PWID counts merged for sentencing
(Footnote Continued Next Page)


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of PWID, the trial court applied the mandatory minimum sentencing

provision set forth in 18 Pa.C.S. § 7508 (“Drug trafficking sentencing and

penalties”). See N.T., 6/10/13, at 4. Appellant did not file a direct appeal.

Appellant’s Judgment of Sentence, therefore, became final on July 10, 2013.

See 42 Pa.C.S. § 9545(b)(3); Pa.R.A.P. 903(a).

       Appellant filed the instant pro se PCRA Petition, his first, on June 6,

2014, challenging, inter alia, the legality of his mandatory minimum

sentences pursuant to Alleyne v. United States, 133 S.Ct. 2151 (U.S.

2013). The PCRA court appointed counsel, but later permitted Appellant to

represent himself pro se following a Grazier4 hearing. Appellant amended

his PCRA Petition on April 18, 2016.

       On August 2, 2016, the PCRA court filed a notice of its intent to

dismiss Appellant’s PCRA Petition without a hearing pursuant to Pa.R.Crim.P.

907. On September 12, 2016, the PCRA court dismissed the Petition.

       Appellant filed a timely Notice of Appeal on October 6, 2016.     Both

Appellant and the PCRA court complied with Pa.R.A.P. 1925.

       Appellant presents one issue for our review:




                       _______________________
(Footnote Continued)

purposes. The Commonwealth nolle prossed one count of Possession of
Drug Paraphernalia.
4
    Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).



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      Did Alleyne retroactively render Appellant’s mandatory
      minimum sentence of 7 years an illegal unconstitutional
      sentence?

Appellant’s Brief at 4.

      We review the denial of a PCRA Petition to determine whether the

record supports the PCRA court’s findings and whether its Order is otherwise

free of legal error.      Commonwealth v. Fears, 86 A.3d 795, 803 (Pa.

2014).    To be eligible for relief pursuant to the PCRA, Appellant must

establish, inter alia, that his conviction or sentence resulted from one or

more of the enumerated errors or defects found in 42 Pa.C.S. § 9543(a)(2).

Appellant must also establish that the issues raised in the PCRA petition

have not been previously litigated or waived. 42 Pa.C.S. § 9543(a)(3). An

allegation of error “is waived if the petitioner could have raised it but failed

to do so before trial, at trial, during unitary review, on appeal[,] or in a prior

state postconviction proceeding.” 42 Pa.C.S. § 9544(b).

      In his sole issue on appeal, Appellant claims that he is entitled to relief

because the court sentenced him pursuant to a mandatory minimum

sentencing    statute     that   was    rendered   unconstitutional   by   Alleyne.

Appellant’s Brief at 8-9.        The Commonwealth concedes that Appellant’s

sentence is, in fact, illegal and that Appellant is entitled to relief in this case.

Commonwealth’s Brief at 2-4.           In its Pa.R.A.P. 1925(a) Opinion, the trial

court concluded that it had erred in dismissing Appellant’s Petition and that

Appellant is entitled to relief pursuant to Commonwealth v. Ruiz, 131 A.3d


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54 (Pa. Super. 2015), given that Appellant’s June 10, 2013 Judgment of

Sentence was not final when Alleyne was decided on June 17, 2013, and he

later filed a timely PCRA Petition. See Trial Court Opinion, 4/6/17, at 7-9.

We agree with the trial court’s assessment in part.

      The certified record indicates that on June 10, 2013, the trial court

imposed three mandatory minimum sentences pursuant to 18 Pa.C.S. §

7508 for Appellant’s PWID convictions. N.T., 6/10/13, at 4, 16-19. Seven

days after Appellant’s sentencing hearing, on June 17, 2013, the United

States Supreme Court decided Alleyne v. United States, 133 S.Ct. 2151

(U.S. 2013), holding 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.

      In   interpreting   and   applying   Alleyne,     the   courts   of   this

Commonwealth have determined that 18 Pa.C.S. § 7508 is unconstitutional

because the language of that statute “permits the trial court, as opposed to

the jury, to increase a defendant’s minimum sentence based upon a

preponderance of the evidence” standard.     Commonwealth v. Newman,

99 A.3d 86, 98 (Pa. Super. 2014) (en banc).           See Commonwealth v.

Mosley, 114 A.3d 1072, 1091 (Pa. Super. 2015) (invalidating 18 Pa.C.S. §

7508).

      Generally, an Alleyne claim does not apply retroactively to cases on

collateral review. See Commonwealth v. Washington, 142 A.3d 810, 820


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(Pa. 2016). However, in Commonwealth v. Ruiz, 131 A.3d 54 (Pa. Super

2015), this Court recognized that an Alleyne claim constitutes a non-

waivable challenge to the legality of a sentence and may be raised for the

first time in a timely-filed PCRA petition if the petitioner’s judgment of

sentence was not final when Alleyne was decided. See Ruiz, supra at 60–

61.

      Here, the trial court sentenced Appellant on June 10, 2013, and his

Judgment of Sentence became final on July 10, 2013.         See 42 Pa.C.S. §

9545(b)(3). Alleyne was decided on June 17, 2013. Because Appellant’s

Judgment of Sentence was not final when Alleyne was decided and he

timely filed this PCRA Petition, Alleyne is applicable to Appellant’s case

retroactively. See Ruiz, supra at 60–61.

      Further, the PCRA court erred in failing to vacate Appellant’s

negotiated guilty plea and restore the case to its status prior to the entry of

the guilty plea consistent with Commonwealth v. Melendez-Negron, 123

A.3d 1087 (Pa. Super. 2015).

      In Melendez-Negron, Melendez-Negron was charged with a variety of

drug-related crimes.    In accordance with a negotiated plea agreement,

Melendez-Negron pleaded guilty to PWID. On November 15, 2013, the trial

court sentenced him to serve a term of five to ten years in prison, pursuant

to the mandatory minimum sentencing statute found at 42 Pa.C.S. § 9712.1.

Id. at 1089. Melendez-Negron did not file a direct appeal from his judgment


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of sentence. However, Melendez-Negron filed a timely PCRA petition, where

he claimed that “his sentence was unconstitutional, and therefore illegal, in

light of [Alleyne].”     Id.   Melendez-Negron requested that the PCRA court

vacate his sentence and remand the case for resentencing; he did not

request that the PCRA court permit him to withdraw his guilty plea. Id. at

1091 n.7.

         The PCRA court granted Melendez-Negron’s PCRA petition, vacated his

sentence, and remanded the case for resentencing.           The Commonwealth

filed a notice of appeal and claimed, amongst other things, that the PCRA

court erred when it merely vacated Melendez-Negron’s sentence and

remanded the case for resentencing.          Id. at 1090.     According to the

Commonwealth, if the PCRA court were going to grant Melendez-Negron

relief, the PCRA court was required to vacate Melendez-Negron’s entire guilty

plea and “[return the case] to the status quo prior to the entry of the guilty

plea.”    Id. at 1091.   As the Commonwealth argued:        “in consideration of

agreeing to a five-to-ten-year period of incarceration, [the Commonwealth]

gave up the opportunity to seek sentences on the drug paraphernalia and

small amount of marijuana charges.           By simply allowing resentencing

pursuant to the sentencing guidelines, the Commonwealth . . . [lost] the

benefit of its bargain.”       Id. at 1092 (internal quotations and citations

omitted).




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        This Court agreed with the Commonwealth and concluded that—even

though Melendez-Negron did not request that the court vacate his guilty

plea—the PCRA court erred when it failed to vacate the entirety of Melendez-

Negron’s guilty plea and restore the case to its status prior to the entry of

the guilty plea. Id. at 1091-92. Concluding that “the parties’ negotiations

began from an erroneous premise and therefore were fundamentally skewed

from the beginning[,]” this Court ultimately vacated the original guilty plea

and remanded for further proceedings. Id. at 1094.

        In this case, Appellant and the Commonwealth entered into plea

negotiations under “the shared misapprehension that the mandatory

minimum sentence required by [18 Pa.C.S. § 7508] applied to” Appellant’s

case.    Id.     See also N.T., 6/10/13, at 4, 16-19.   This misapprehension

“tainted the parties’ negotiations at the outset.” Melendez-Negron, supra

at 1094.       Therefore, consistent with Melendez-Negron, we conclude that

since “the parties’ negotiations began from [the] erroneous premise” that

Appellant was subject to the mandatory minimum sentencing statute found

at 18 Pa.C.S. § 7508, the PCRA court erred when it failed to vacate

Appellant’s guilty plea and restore the case to its status quo prior to the

entry of the negotiated guilty plea. Id.

        We direct the Honorable John F. DiSalle to provide a copy of this

decision to Frank Scandale, the Clerk of Courts of Washington County.




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     Order reversed. Judgment of Sentence vacated. Guilty plea vacated.

Case remanded for further proceedings. Jurisdiction relinquished.




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/15/2017




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