J-S17012-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

DAVID R. DARCANGELO

                            Appellant                  No. 694 WDA 2015


                   Appeal from the PCRA Order April 7, 2015
               In the Court of Common Pleas of Cambria County
              Criminal Division at No(s): CP-11-CR-0001041-2010


BEFORE: GANTMAN, P.J., SHOGAN, J., and FITZGERALD, J.*

MEMORANDUM BY GANTMAN, P.J.:                     FILED SEPTEMBER 02, 2016

        Appellant, David R. Darcangelo, appeals from the order entered in the

Cambria County Court of Common Pleas, which denied his petition filed

pursuant to the Post Conviction Relief Act (“PCRA”).1 We affirm in part and

reverse in part the order denying PCRA relief, vacate the judgment of

sentence, and remand for resentencing.

        The relevant facts and procedural history of this case are as follows.

The Commonwealth charged Appellant with various drug-related offenses for

his involvement in a cocaine trafficking operation over a period of

approximately two years.         On the eve of trial, the Commonwealth offered

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1
    42 Pa.C.S.A. §§ 9541-9546.


_____________________________

*Former Justice specially assigned to the Superior Court.
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Appellant a plea deal of an aggregate term of five (5) to ten (10) years’

incarceration, which Appellant rejected.            On November 10, 2010, a jury

convicted Appellant of multiple counts of possession of a controlled

substance with intent to deliver (“PWID”), delivery of a controlled substance,

criminal use of communication facility, and conspiracy. The court sentenced

Appellant on March 30, 2011, to consecutive mandatory minimum terms of

incarceration of five (5) to ten (10) years for PWID count one and seven (7)

to ten (10) years for PWID count four, pursuant to 18 Pa.C.S.A. § 7508.2

The court ran sentences for eighteen other charges concurrently and

imposed no further penalty for the remaining charges.               Thus, Appellant

received an aggregate sentence of twelve (12) to twenty (20) years’

imprisonment. This Court affirmed the judgment of sentence on October 3,

2012, and the Pennsylvania Supreme Court denied allowance of appeal on

May 15, 2013. See Commonwealth v. Darcangelo, No, 857 WDA 2011,

unpublished memorandum (Pa.Super. filed October 3, 2012), appeal denied,

620 Pa. 695, 67 A.3d 793 (2013).               On August 12, 2014, Appellant timely
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2
  Appellant’s term of seven (7) to ten (10) years’ incarceration for PWID
count four did not violate 42 Pa.C.S.A. § 9756(b), even though the minimum
term of incarceration exceeded the maximum term by more than one-half.
See 42 Pa.C.S.A. § 9756(b)(1) (stating: “The court shall impose a minimum
sentence of confinement which shall not exceed one-half of the maximum
sentence imposed”); Commonwealth v. Hockenberry, 689 A.2d 283
(Pa.Super. 1997), appeal denied, 548 Pa. 645, 695 A.2d 784 (1997)
(holding defendant’s sentence of seven to ten years’ incarceration was
permissible under Section 7508 because prefatory language in Section 7508
carved out exception to general rule set forth in Section 9756(b)).



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filed a pro se PCRA petition. The PCRA court appointed counsel, who filed an

amended petition. Following a hearing, the court denied Appellant’s petition

on April 7, 2015. Appellant filed a timely notice of appeal on April 23, 2015.

The PCRA court ordered Appellant to file a concise statement of errors

complained of on appeal per Pa.R.A.P. 1925(b), and Appellant timely

complied.

      Appellant raises the following issue for our review:

         WHETHER THE PCRA COURT ERRED WHEN IT FOUND THAT
         TRIAL COUNSEL WAS NOT INEFFECTIVE FOR FAILING TO
         PROVIDE [APPELLANT] WITH A COPY OF DISCOVERY
         MATERIALS PRIOR TO TRIAL?

(Appellant’s Brief at 1).

      Appellant argues trial counsel failed to let him view or obtain a copy of

the discovery packet turned over by the Commonwealth prior to trial.

Appellant   contends    counsel’s   withholding   of   the   discovery   materials

prevented Appellant from making an informed decision as to whether to

accept the Commonwealth’s plea offer of five to ten years’ incarceration.

Appellant asserts trial counsel had no reasonable basis for denying him

access to the discovery materials. Appellant submits there was no real risk

of public dissemination of the information because the Commonwealth

already had access to and knowledge of the contents.           Appellant likewise

maintains there was no risk of loss of the discovery packet because it was on

a CD, which counsel could have easily copied and given to Appellant.

Appellant claims he would have accepted the Commonwealth’s plea offer and

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not gone to trial if he had known the extent of the evidence against him as

reflected in the discovery packet.            Appellant concludes counsel was

ineffective for failing to provide him with a copy of the discovery materials.

We disagree.

      Our standard of review of the denial of a PCRA petition is limited to

examining    whether    the   evidence    of     record    supports     the     court’s

determination     and   whether   its    decision    is   free   of     legal    error.

Commonwealth v. Conway, 14 A.3d 101, 108 (Pa.Super. 2011), appeal

denied, 612 Pa. 687, 29 A.3d 795 (2011). This Court grants great deference

to the findings of the PCRA court if the record contains any support for those

findings. Commonwealth v. Boyd, 923 A.2d 513, 515 (Pa.Super. 2007),

appeal denied, 593 Pa. 754, 932 A.2d 74 (2007).            We owe no deference,

however, to the court’s legal conclusions.        Commonwealth v. Ford, 44

A.3d 1190, 1194 (Pa.Super. 2012).

      The   law   presumes    counsel    has    rendered    effective     assistance.

Commonwealth v. Williams, 597 Pa. 109, 950 A.2d 294 (2008).                      When

asserting a claim of ineffective assistance of counsel, a petitioner is required

to make the following showing: (1) the underlying claim is of arguable merit;

(2) counsel had no reasonable strategic basis for his action or inaction; and,

(3) but for the errors and omissions of counsel, there is a reasonable

probability that the outcome of the proceedings would have been different.

Commonwealth v. Kimball, 555 Pa. 299, 312, 724 A.2d 326, 333 (1999).


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The failure to satisfy any prong of the test for ineffectiveness will cause the

claim to fail. Williams, supra.

      “The threshold inquiry in ineffectiveness claims is whether the

issue/argument/tactic which counsel has foregone and which forms the basis

for the assertion of ineffectiveness is of arguable merit….” Commonwealth

v. Pierce, 537 Pa. 514, 524, 645 A.2d 189, 194 (1994). “Counsel cannot

be found ineffective for failing to pursue a baseless or meritless claim.”

Commonwealth v. Taylor, 933 A.2d 1035, 1042 (Pa.Super. 2007), appeal

denied, 597 Pa. 715, 951 A.2d 1163 (2008) (quoting Commonwealth v.

Poplawski, 852 A.2d 323, 327 (Pa.Super. 2004)).

         Once this threshold is met we apply the “reasonable basis”
         test to determine whether counsel’s chosen course was
         designed to effectuate his client’s interests. If we conclude
         that the particular course chosen by counsel had some
         reasonable basis, our inquiry ceases and counsel’s
         assistance is deemed effective.

Pierce, supra at 524, 645 A.2d at 194-95 (internal citations omitted).

         Prejudice is established when [a defendant] demonstrates
         that counsel’s chosen course of action had an adverse
         effect on the outcome of the proceedings. The defendant
         must show that there is a reasonable probability that, but
         for counsel’s unprofessional errors, the result of the
         proceeding would have been different.             A reasonable
         probability is a probability sufficient to undermine
         confidence in the outcome. In [Kimball, supra], we held
         that a “criminal defendant alleging prejudice must show
         that counsel’s errors were so serious as to deprive the
         defendant of a fair trial, a trial whose result is reliable.”

Commonwealth v. Chambers, 570 Pa. 3, 21-22, 807 A.2d 872, 883

(2002) (some internal citations and quotation marks omitted).

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       Pennsylvania Rule of Criminal Procedure 573(B)(1) provides:

          Rule 573. Pretrial Discovery and Inspection

                                       *       *   *

          (B) Disclosure by the Commonwealth.

          (1) Mandatory. In all court cases, on request by the
          defendant, and subject to any protective order which the
          Commonwealth might obtain under this rule, the
          Commonwealth shall disclose to the defendant’s attorney
          all…requested items or information, provided they are
          material to the instant case. The Commonwealth shall,
          when applicable, permit the defendant’s attorney to
          inspect and copy or photograph such items.

                                       *       *   *

Pa.R.Crim.P. 573(B)(1).

       Instantly, the Commonwealth turned over discoverable material to trial

counsel in compliance with Rule 573(b)(1). Appellant cites no Pennsylvania

rules or case law to support his claim that counsel had a duty to provide the

physical discovery materials or a copy of the materials to Appellant.3

Therefore, Appellant’s issue lacks arguable merit. See Pierce, supra.

       Further, trial counsel testified at the PCRA hearing that he traditionally

does not give his clients the actual discovery material.     Counsel explained

this practice was intended to prevent loss of the documents or public
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3
  Pennsylvania federal courts have held counsel has no duty to provide a
defendant with his own copy of discovery materials. See, e.g., Williams v.
Dark, 844 F.Supp. 210, 213-14 (E.D.Pa. 1993) (stating: “A defendant has
no independent right to his own copy of discoverable documents…when
these documents have been provided to defense counsel”).



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dissemination of incriminating information.       Counsel also confirmed he

consulted with Appellant regarding the pertinent information in the discovery

packet, and they discussed the risks of going to trial. Thus, the PCRA court

properly concluded counsel’s actions had a reasonable strategic basis. See

id.

      With respect to the prejudice prong, Appellant fails to identify any

information in the discovery packet he was unaware of pretrial, which would

have persuaded him to accept the plea deal offered by the Commonwealth.

The PCRA court found trial counsel had adequately informed Appellant of the

risks of going to trial. Further, Appellant admitted that after his arrest, he

received and reviewed the grand jury presentment, which mentioned the

testimony of multiple witnesses.        Appellant also was present at the

preliminary hearing. The prosecutor testified at the PCRA hearing that the

quantity and quality of the Commonwealth’s evidence was reflected in the

grand jury presentment and the preliminary hearing testimony. Therefore,

Appellant failed to establish he was prejudiced by his inability to obtain a

copy of the discovery packet.      See Chambers, supra.          Based on the

foregoing, Appellant’s challenge to counsel’s effectiveness merits no relief.

      Nevertheless, we observe in the certified record that the trial court

imposed    mandatory    minimum     sentences    for   several   of   Appellant’s

convictions, pursuant to 18 Pa.C.S.A. § 7508.       At the time of Appellant’s

sentencing, Section 7508(a)(2)(ii)      established a mandatory minimum


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sentence of five (5) years’ imprisonment for PWID, where the aggregate

weight of the controlled substance was between ten and one hundred grams,

and at the time of sentencing, the defendant had been convicted of another

drug trafficking offense.   18 Pa.C.S.A. § 7508(a)(2)(ii).   If the aggregate

weight of the controlled substance exceeded one hundred grams, and the

defendant had a prior conviction for a drug trafficking offense, the

mandatory minimum sentence was seven (7) years’ imprisonment.             18

Pa.C.S.A. § 7508(a)(2)(iii). Section 7508(b) stated its provisions shall not

be an element of the crime and their applicability shall be determined by the

court at sentencing by a preponderance of the evidence.       18 Pa.C.S.A. §

7508(b).

      In Alleyne v. U.S., ___ U.S. ___, 133 S.Ct. 2151, 186 L.Ed.2d 314

(2013), decided on June 17, 2013, the United States Supreme Court

expressly held 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. Alleyne, supra. This Court

later addressed the constitutionality of a mandatory minimum sentencing

statute containing language similar to Section 7508, in Commonwealth v.

Newman, 99 A.3d 86 (Pa.Super. 2014) (en banc). Newman involved an

Alleyne sentencing issue that could not have been initially raised on direct

appeal, because the defendant’s appeal had been resolved on June 12,

2013, five days before Alleyne was decided.       So, the defendant filed a


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petition for reconsideration/reargument, which this Court granted. Relying

on Alleyne, Newman held that 42 Pa.C.S.A. § 9712.1 (requiring imposition

of mandatory minimum sentence for certain drug offenses committed with

firearms) could no longer pass constitutional muster as it “permits the trial

court, as opposed to the jury, to increase a defendant’s minimum sentence

based upon a preponderance of the evidence that the defendant was dealing

drugs and possessed a firearm, or that a firearm was in close proximity to

the drugs.”     Id. at 98.   Newman further held (1) the non-offending

provisions of Section 9712.1 were not severable and the statute was

unconstitutional in its entirety; (2) a sentencing challenge premised on

Alleyne implicates the legality of the sentence and cannot be waived. Id.

at 90, 101.

      In a subsequent decision filed on November 21, 2014, this Court

extended the logic of Alleyne and Newman to Section 7508, declaring the

statute unconstitutional in its entirety.   See Commonwealth v. Fennell,

105 A.3d 13 (Pa.Super. 2014), appeal denied, ___ Pa. ___, 121 A.3d 494

(2015). See also Commonwealth v. Hopkins, ___ Pa. ___, 117 A.3d 247

(2015) (declaring mandatory minimum statute at 18 Pa.C.S.A. § 6317

(drug-free school zones) unconstitutional in its entirety under Alleyne,

where that statute stated its provisions were not elements of crime and

applicability of statute should be determined at sentencing by preponderance

of evidence).


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     In Commonwealth v. Ruiz, 131 A.3d 54 (Pa.Super. 2015), this Court

reiterated the Newman Court’s declarations: (1) an Alleyne claim is a

nonwaivable challenge to the legality of sentence; and (2) Alleyne

announced a new constitutional rule that applied to all cases pending on

direct review when Alleyne was decided.          Id. at 59-60 (citing Newman,

supra at 90).   Based on those principles, Ruiz clarified that a defendant

could also raise an Alleyne challenge in a timely PCRA petition so long as

his direct appeal from the judgment of sentence was still pending when

Alleyne was decided. Id. at 59-60.

     Recently in Commonwealth v. Washington, ___ A.3d ___, 2016 WL

3909088 (Pa. filed July 9, 2016), the Pennsylvania Supreme Court

addressed a situation in which the defendant raised an Alleyne claim in a

timely PCRA petition but his judgment of sentence had become final prior to

the Alleyne decision. The Washington Court stated:

        [A] new rule of law does not automatically render final,
        pre-existing sentences illegal.      A finding of illegality
        concerning such sentences may be premised on such a
        rule only to the degree that the new rule applies
        retrospectively. In other words, if the rule simply does not
        pertain to a particular conviction or sentence, it cannot
        operate to render that conviction or sentence illegal. …

                                *     *      *

        [N]ew constitutional procedural rules generally pertain to
        future cases and matters that are pending on direct review
        at the time of the rule’s announcement.

Id. at *3-4 (Pa. 2016) (emphasis added). See also id. at *4 (stating: “[I]f


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a new constitutional rule does not apply, it cannot render an otherwise final

sentence illegal”). The Washington Court applied the retroactivity analysis

delineated in Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d

334 (1989), and determined the new constitutional rule announced in

Alleyne is not a substantive or watershed procedural rule that would

warrant retroactive application. Washington, supra. The Court held the

defendant was not entitled to retroactive application of Alleyne because his

judgment of sentence had become final before Alleyne was decided. Id.

      Instantly, the trial court sentenced Appellant on March 30, 2011, to

mandatory minimum terms of incarceration for several of his drug offenses,

pursuant to Section 7508. Alleyne was decided thirty-three days after the

Pennsylvania Supreme Court had denied Appellant’s petition for allowance of

appeal on May 15, 2013, during the 90-day window Appellant had to file a

petition for writ of certiorari with the United States Supreme Court.      See

U.S.Sup.Ct.R. 13 (providing petition for writ of certiorari must be filed within

90 days after entry of order by state court of last resort denying

discretionary review).   Appellant’s judgment of sentence did not become

final until August 13, 2013, after Alleyne became law on June 17, 2013, but

before Fennell declared Section 7508 unconstitutional in its entirety by

virtue of Alleyne on November 21, 2014. Appellant timely filed his PCRA

petition on August 12, 2014. See 42 Pa.C.S.A. § 9545(b)(1), (b)(3) (stating

PCRA petition must be filed within one year of date underlying judgment


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becomes final; judgment is deemed final at conclusion of direct review or at

expiration of time for seeking review).            Because Appellant’s judgment of

sentence was not yet final when Alleyne was decided on June 17, 2013, we

elect to review sua sponte the legality of Appellant’s mandatory minimum

sentences in light of Alleyne and its Pennsylvania progeny.                   See

Commonwealth v. Edrington, 780 A.2d 721 (Pa.Super. 2001) (explaining

appellate court can raise legality of sentence issue sua sponte, assuming

court has proper jurisdiction).4 Alleyne applies to Appellant’s case, and he

is entitled to review and relief under Ruiz, supra.            See also Fennell,

supra.

       The present matter is distinguishable from Washington, which

concerned the retroactive application of Alleyne to cases where the

defendant’s judgment had already become final before the Alleyne

decision.    Washington did not consider the unique procedural posture

presented in Ruiz or in the instant case, where a defendant’s Alleyne claim
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4
   Washington did not upset the holding in Newman and Ruiz that an
Alleyne violation renders a sentence illegal for purposes of waiver analysis.
Washington stands for the proposition that no Alleyne violation can occur
in the first place where the defendant’s sentence was imposed and became
final before Alleyne was decided. In Washington, the Supreme Court
noted it recently granted allowance of appeal in a separate case to address
the distinct issue of whether an Alleyne violation implicates the legality of
sentence for issue preservation purposes. See Washington, supra at *4
n.6 (citing Commonwealth v. Barnes, ___ Pa. ___, 122 A.3d 1034
(2015)). Therefore, under current law, the claim that a sentence violates
Alleyne remains a nonwaivable challenge to the legality of the sentence.
See Newman, supra; Ruiz, supra.



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is addressed on collateral review but his direct appeal from the judgment of

sentence was still pending at the time Alleyne was decided.                 The

Washington Court, however, did specifically acknowledge the general

retroactivity of new constitutional rules to cases pending on direct review at

the time of the rule’s announcement. See Washington, supra at *2, *4.

Therefore, Washington does not necessarily foreclose review and relief with

respect   to   an   Alleyne-based   sentencing   issue   under    these   unique

circumstances.

      Based on the foregoing, we affirm the court’s denial of PCRA relief

related to Appellant’s claim of ineffective assistance of counsel, but we

conclude Appellant is entitled to a remand for resentencing without

application of any unlawful mandatory minimum statute.           Accordingly, we

affirm in part and reverse in part the order denying PCRA relief, vacate the

judgment of sentence in its entirety, and remand for resentencing without

imposition of a mandatory minimum term.            See Commonwealth v.

Bartrug, 732 A.2d 1287 (Pa.Super. 1999), appeal denied, 561 Pa. 651, 747

A.2d 896 (1999) (holding sentencing error in multi-count case normally

requires appellate court to vacate entire judgment of sentence so trial court

can restructure its sentencing scheme on remand).

      Order affirmed in part and reversed in part; judgment of sentence

vacated; case remanded for resentencing. Jurisdiction is relinquished.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/2/2016




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