J-S33023-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
               v.                              :
                                               :
                                               :
    TERRANCE TRICE                             :
                                               :
                      Appellant                :   No. 1518 MDA 2016

                  Appeal from the PCRA Order August 15, 2016
              In the Court of Common Pleas of Huntingdon County
              Criminal Division at No(s): CP-31-CR-0000132-2013


BEFORE:      BENDER, P.J.E., OTT, J. and STRASSBURGER, J.*

MEMORANDUM BY OTT, J.:                                    FILED JUNE 26, 2017

        Terrance Trice appeals from the order entered August 15, 2016, in the

Huntingdon County Court of Common Pleas, dismissing his first petition for

collateral relief filed pursuant to the Post Conviction Relief Act (“PCRA”), 42

Pa.C.S. §§ 9541-9546. Trice seeks relief from the judgment of sentence of

an aggregate nine to 18 years’ imprisonment imposed on July 11, 2013,

following his entry of a guilty plea to charges of possession with intent to

deliver cocaine and heroin (“PWID”) (two counts), criminal use of a

communication facility, and corrupt organizations.1            On appeal, Trice

____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
  35 P.S. § 780-113(a)(30), and 18 Pa.C.S. §§ 7512(a) and 911(b)(4),
respectively.
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contends the PCRA court erred in denying his petition when plea counsel

provided ineffective assistance, and the now unconstitutional mandatory

minimum      sentencing     statute,    18     Pa.C.S.   §   7508,2   was   taken    into

consideration when crafting his negotiated sentence. For the reasons below,

we affirm.

       The facts and procedural history underlying this appeal are as follows.

In late 2010 through early 2011, Huntington County law enforcement, in

conjunction with the Pennsylvania Attorney General’s Office, Bureau of Drug

Investigation and Drug Control, conducted an investigation of the heroin and

cocaine drug trade in Huntingdon County. The investigation disclosed Trice

was a supplier in the Mt. Union area. See Police Criminal Complaint, Grand

Jury Presentment, at 4, 9. The case was later presented to a grand jury,

which recommended the following charges be filed against Trice:                     PWID

(three counts), criminal use of communication facility (two counts), criminal

conspiracy, corrupt organizations (two counts), dealing in proceeds of

unlawful activity, and perjury.3




____________________________________________


2
   Section 7508 provides for the imposition of a mandatory minimum
sentence, following a conviction PWID, based upon the amount of drugs
involved in the case. See 18 Pa.C.S. § 7508(a)(3) (cocaine), and (a)(7)
(heroin).
3
 See 35 P.S. § 780-113(a)(30), and 18 Pa.C.S. §§ 7512(a), 903, 911(b)(3)
and (b)(4), d 5111(a)(1), and 4902(a), respectively.



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       On July 11, 2013, Trice entered a negotiated guilty plea to two counts

of PWID, and one count each of criminal use of communication facility, and

corrupt organizations.         In exchange for the plea, the Commonwealth

withdrew the remaining charges, and agreed to an aggregate sentence of

nine to 18 years’ imprisonment.         The Commonwealth also agreed to “waive”

any disqualifying factors that would have made Trice ineligible for an early

RRRI4 release.      N.T., 7/11/2013, at 2.       The court imposed the negotiated

sentence,5 and no direct appeal was filed.

       On June 18, 2014, Trice filed a pro se PCRA petition.         Counsel was

appointed, but subsequently filed a petition to withdraw and Turner/Finley6

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4
 Recidivism Risk Reduction Incentive, 61 Pa.C.S. § 4501, et seq. Therefore,
Trice’s RRRI minimum sentence was 45 months.
5
  Specifically, Trice was sentenced to two consecutive terms of four and one-
half to nine years’ imprisonment for both counts of PWID, a concurrent term
of four and one-half to nine years’ imprisonment for corrupt organizations,
and a concurrent term of two to seven years’ imprisonment for criminal use
of communication facility. The sentence for PWID-heroin was imposed in the
aggravated range of the guidelines, while the remaining sentences were
outside the guideline ranges but within the statutory maximums. See
Guideline Sentence Forms, 7/11/2013.

       It merits emphasis that during the plea colloquy/sentencing hearing,
plea counsel explained he had advised Trice that if he chose to proceed to
trial the Commonwealth might have sought a mandatory minimum sentence
on both counts of PWID pursuant to Section 7508. See N.T., 7/11/2013, at
7.
6
  Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth
v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).




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“no merit” letter. The PCRA court granted counsel’s petition to withdraw on

October 16, 2014, but did not dispose of Trice’s PCRA petition. Thereafter,

on May 29, 2015, new counsel entered his appearance for Trice,7 and filed

an amended PCRA petition on November 16, 2015, asserting plea counsel’s

ineffectiveness, and the improper consideration of the mandatory minimum

sentencing statutes during the plea negotiations in light of the United States

Supreme Court’s decision in Alleyne v. United States, 133 S.Ct. 2151

(U.S. 2013).8 The PCRA court conducted an evidentiary hearing on January

29, 2016. Thereafter, on August 15, 2016, the court dismissed Trice’s PCRA

petition. This timely appeal followed.9

____________________________________________


7
    It is unclear from the record if present counsel was retained or appointed.
8
  In Alleyne, the United States Supreme Court held “[a]ny fact that, by law,
increases the penalty for a crime is an ‘element’ that must be submitted to
the jury and found beyond a reasonable doubt.” Alleyne, supra, 133 S.Ct.
at 2155. In interpreting that decision, the courts of this Commonwealth
have determined that most of our mandatory minimum sentencing statutes,
including 18 Pa.C.S. § 7508, are unconstitutional because the language of
those statutes “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. (Pa. Super. 2014) (en banc), appeal denied, 121 A.3d 496 (Pa.
2015). See Commonwealth v. Mosley, 114 A.3d 1072, 1091 (Pa. Super.
2015) (invalidating 18 Pa.C.S. § 7508), appeal denied, ___ A.3d ___ [387
MAL 2015/714 MAL 2015] (Pa. February 9, 2017). Further, our courts have
held that the unconstitutional provisions of the mandatory minimum statutes
are not severable from the statute as a whole.           Commonwealth v.
Hopkins, 117 A.3d 247, 262 (Pa. 2015); Newman, supra, 99 A.3d at 101.
9
  On September 23, 2016, the PCRA court ordered Trice to filed a concise
statement or errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
(Footnote Continued Next Page)


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      In his first issue, Trice argues the PCRA court erred in dismissing his

petition because he established plea counsel provided ineffective assistance.

Specifically, he claims counsel was unprepared to proceed to trial, and, in

fact, never provided Trice with the written statement of the purported “ring

leader” of the drug organization. Trice’s Brief at 17.      Trice also asserts

counsel insisted he would “do fifty years” if he did not accept the plea, and,

in fact, might be indicted on federal charges. Id. at 19. Accordingly, Trice

contends his decision to plead guilty “was based on the misinformation

concerning the federal charges, the scare tactic for a fifty year sentence if he

went to trial, and [his] belief that [his attorney] was unprepared to go to

trial[.]” Id. at 20.

      Our review of an order denying PCRA relief is well-established:

      This Court reviews a PCRA court’s decision in the light most
      favorable to the prevailing party. Commonwealth v. Hanible,
      612 Pa. 183, 30 A.3d 426, 438 (2011). Our review is limited to a
      determination of whether the record supports the PCRA court’s
      factual findings and whether its legal conclusions are free from
      error.    Id.   “A PCRA court’s credibility findings are to be
      accorded great deference, and where supported by the record,
      such determinations are binding on a reviewing court.”
      Commonwealth v. Treiber, ___ Pa. ___, 121 A.3d 435, 444
      (2015) (citing Commonwealth v. Dennis, 609 Pa. 442, 17
      A.3d 297, 301 (2011)). We review the PCRA court’s legal
      conclusions de novo. Commonwealth v. Roney, 622 Pa. 1, 79
      A.3d 595, 603 (2013).


                       _______________________
(Footnote Continued)

Trice complied with the court’s directive, and filed a concise statement on
October 4, 2016.



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Commonwealth v. Williams, 141 A.3d 440, 452 (Pa. 2016). Furthermore,

when considering a claim asserting trial counsel’s ineffectiveness, we must

bear in mind:

            “In order to obtain relief under the PCRA premised upon a
     claim that counsel was ineffective, a petitioner must establish
     beyond a preponderance of the evidence that counsel’s
     ineffectiveness ‘so undermined the truth-determining process
     that no reliable adjudication of guilt or innocence could have
     taken place.’” Commonwealth v. Payne, 794 A.2d 902, 905
     (Pa. Super. 2002), quoting 42 Pa.C.S.A. § 9543(a)(2)(ii). When
     considering such a claim, courts presume that counsel was
     effective, and place upon the appellant the burden of proving
     otherwise. Id. at 906. “Counsel cannot be found ineffective for
     failure to assert a baseless claim.” Id.

           To succeed on a claim that counsel was ineffective,
     Appellant must demonstrate that: (1) the claim is of arguable
     merit; (2) counsel had no reasonable strategic basis for his or
     her action or inaction; and (3) counsel’s ineffectiveness
     prejudiced him. Commonwealth v. Allen, 833 A.2d 800, 802
     (Pa. Super. 2003).

Commonwealth v. Michaud, 70 A.3d 862, 867 (Pa. Super. 2013).            “To

demonstrate prejudice, a petitioner must show that there is a reasonable

probability that, but for counsel’s actions or inactions, the result of the

proceeding would have been different.”   Commonwealth v. Mason, 130

A.3d 601, 618 (Pa. 2015).

     The PCRA court found Trice “did not meet his burden of proof by

establishing that the advice of his court appointed attorney was anything

other than correct.” PCRA Court Opinion, 8/15/2016, at 10. Moreover, the

court found “that had [Trice] truly wanted to go to trial, [counsel] would

have been prepared and would have done the best he could under the


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circumstances.”      Id.    Our review of the testimony at the PCRA hearing

reveals ample support for the court’s findings and contradicts Trice’s

allegations.

       First, counsel testified that although he “would have felt comfortable

going to trial,” he believed it was in Trice’s best interest to accept the guilty

plea. N.T., 1/29/2016, at 21. Counsel explained Trice “wasn’t completely

denying any involvement in the matter but was trying to minimize his level

of involvement to basically characterize himself as a drug user and not being

a major player as the Commonwealth was trying to characterize him.” Id.

at 6. See also id. at 91-92 (counsel stating Trice acknowledged to him that

he had delivered cocaine and heroin).            Further, counsel noted the

Commonwealth’s evidence included (1) a statement from the “main player,”

which implicated all of the co-conspirators, including Trice,10 and (2)

surveillance video of Trice and his girlfriend driving back and forth to a motel

room where the drug operation was run.           Id. at 6, 8.    Therefore, the

evidence against Trice was compelling.

       Furthermore, the record does not support Trice’s allegation that

counsel told him “there is a possibility of the federal prosecutor indicting him

if he did not accept the plea offer that was placed in front of him.” Trice’s


____________________________________________


10
  Although Trice alleges counsel did not provide him with that statement,
counsel testified he “would have given [Trice] a copy” of the statement if it
was in the discovery package. N.T., 1/29/2016, at 6.



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Brief at 19. Rather, counsel testified he may have told Trice “you’re better

with the State prosecuting this than the Feds” because Trice would face

more time in federal court. N.T., 1/29/2016, at 17. However, he did not

state the guilty plea would foreclose the possibility of federal charges. See

id. at 17-18.     Lastly, with regard to Trice’s sentencing exposure, counsel

testified that even if the mandatory minimum sentences were inapplicable,

the standard range Trice faced was “in excess of what the Commonwealth’s

offering.” Id. at 16. Again, counsel denied telling Trice “you must take a

plea or you’re going to do 40, 50 years.” Id. at 40.

       Therefore, the record supports the findings of the PCRA court.

Moreover, Trice’s own testimony, particularly under questioning by the PCRA

court, reveals that he wanted a lighter sentence, rather than a new trial.

See id. at 73-74.        See also PCRA Court Opinion, 8/15/2016, at 10-11.

Accordingly, no relief is warranted on his first issue.

       Next, Trice contends the PCRA court erred in determining that the

Alleyne decision did not apply to his case.11      See Trice’s Brief at 21. He

argues:



____________________________________________


11
  We note that despite the fact Trice included this issue in both his amended
PCRA petition and concise statement, the PCRA court did not specifically
address this claim in its August 15, 2016, opinion accompanying the order
denying relief, or its October 26, 2016, opinion filed pursuant to Pa.R.A.P.
1925(a).




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       All plea offers in this case were based on [the] unconstitutional
       mandatory’s [in Section 7508] as [Trice] was looking at a five
       year mandatory for count one and a seven year mandatory[] for
       count two, three, and four. The Alleyne case was decided prior
       to the guilty plea or soon before, therefore, Alleyne is proper to
       be decided by the [PCRA] court. The [PCRA] court ruled that
       Alleyne was not a factor in that [Trice] accepted the plea offer
       of 9-18 years in total. However, said 9-18 years consisted of
       mandatory sentences contemplated by both [Trice] and the
       Commonwealth. Since mandatory’s are not constitutional as
       they were written in 2013, it cannot be said that the plea offer
       that was accepted is appropriate and therefore a new term
       should be awarded based on sentencing guidelines only.

Id. at 21-22.

       First, Trice’s negotiated sentence did not include the imposition of any

Section 7508 mandatory minimum, and, therefore, was not violative of

Alleyne.     Accordingly, in order to obtain relief, Trice must establish plea

counsel’s ineffectiveness in failing to discuss the potential applicability of

Alleyne to the facts of his case caused him to enter an involuntary plea.12

See 42 Pa.C.S. § 9543(a)(2)(ii).


____________________________________________


12
   We note a petitioner may also attack a guilty plea under Subsection
(a)(2)(iii), by demonstrating his guilty plea was “unlawfully induced where
the circumstances make it likely that the inducement caused the petitioner
to plead guilty and the petitioner is innocent.” 42 Pa.C.S. § 9543(a)(2)(iii).
However, here, Trice did not raise the applicability of Subsection 9543
(a)(2)(iii) in either his pro se or amended PCRA petition. Therefore, it is
waived. See Commonwealth v. Mason, 130 A.3d 601, 639 (Pa. 2015).
Furthermore, even if we were permitted to address this claim, Trice would
be entitled to no relief because he has not established he is innocent of the
charges. Indeed, although Trice testified at the evidentiary hearing he was
not guilty of the charges he pled guilty to, (see N.T., 1/29/2016, at 79)
PCRA counsel testified Trice admitted to him that he was involved, in some
capacity, with the drug operation. See id. at 91-92 (counsel testifying Trice
(Footnote Continued Next Page)


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      Our review of the record reveals Trice failed to establish that counsel

had no reasonable basis for his actions, or that Trice was prejudiced as a

result. First, counsel testified he advised Trice to accept the negotiated plea

based upon a “combination” of the potential mandatory sentences he might

face and the standard guideline range sentences. N.T., 1/29/2016, at 42.

Counsel stated:

      I mean, you know, if the Commonwealth could prove weight and
      if [Section] 7508 was invoked, he was going to get more time.
      If he went and a Judge just said, well, I’m not buying off on the
      mandatories but then looked at the standard range, he was
      looking at more time. So any way you slice it he was looking at
      more time and that was communicated to him.

Id. Accordingly, even considering the impact of Alleyne, which at that time

was still unknown,13 we agree counsel had a reasonable basis for advising

Trice to accept the guilty plea.
                       _______________________
(Footnote Continued)

“acknowledged delivering the cocaine” and “delivering the heroin to
people”).
13
   We note the early decisions interpreting Alleyne, “implied that [a
defendant] could legally stipulate to the amount of drugs recovered, and
agree to the imposition of the mandatory minimum sentence under Section
7508.” Commonwealth v. Rivera, 154 A.3d 370, 379 (Pa. Super. 2017)
(en banc). The Rivera panel further espoused:

      Indeed, it was not until our decision in Newman, supra, filed in
      August of 2014, that an en banc panel held Pennsylvania’s
      mandatory minimum sentencing statutes, which permitted a trial
      court to increase a defendant’s minimum sentence based upon a
      preponderance of the evidence standard, were unconstitutional
      under Alleyne and incapable of severance. After Newman, this
      Court consistently rejected any harmless error analysis that
      attempted to circumvent the plain language of the statutes.
(Footnote Continued Next Page)


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      Moreover, we also conclude Trice failed to establish he was prejudiced

by counsel’s purported ineffectiveness.             Indeed, at no time during the

evidentiary hearing did Trice testify that “but for” counsel’s failure to discuss

the possible impact of Alleyne on the possible application of Section

7508, he would not have entered a guilty plea.                See Mason, supra.

Indeed, the implication of Trice’s testimony is that he pled guilty based on a

number of factors, which included the possibility of mandatory minimum

terms. See N.T., 1/29/2016, at 67-69. However, as trial counsel testified,

even if the Section 7508 mandatory sentences were not applied, Trice’s

standard range guideline sentences would have exceeded the negotiated

term. Compare Commonwealth v. Patterson, 143 A.3d 394 (Pa. Super.

2016) (remanding for an evidentiary hearing to provide defendant with the

opportunity to show that he “would have withdrawn his guilty plea [entered

one week before Alleyne was filed] had counsel properly advised him of




                       _______________________
(Footnote Continued)

Id. at 378.

       In Rivera, the defendant entered a negotiated guilty plea, which
included the imposition of a mandatory minimum sentence, after Alleyne
was filed, but before Newman was decided. In concluding plea counsel was
not ineffective, the Rivera panel found “the PCRA court properly determined
counsel had a reasonable basis for advising Rivera to accept the plea, based
upon the harsher sentence Rivera would have faced had he proceeded to
trial.” Id. at 379.




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Alleyne and the effect it would have on his sentencing”).14     Accordingly,

Trice is entitled to no relief.

       Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/26/2017




____________________________________________


14
  In Patterson, unlike here, the PCRA court did not conduct an evidentiary
hearing before dismissing the petition. Furthermore, in that case, the
defendant entered his plea one week before Alleyne, with no agreement as
to sentencing. Patterson, supra, 143 A.3d at 396. However, at the
sentencing hearing, held after Alleyne, the court acknowledged that the
parties had reached a “negotiated agreement for a term of incarceration”
that did not include a mandatory minimum sentence. Id. Therefore, in
remanding for an evidentiary hearing, the Patterson panel stated that if the
defendant could prove “he agreed to the negotiated sentence only under the
undue influence of an unconstitutional mandatory minimum sentencing
scheme[,]” he would be entitled to a new sentencing hearing. Id. at 399.
Here, however, Trice is entitled to no such remedy because his guilty plea
included the negotiated sentence. Therefore, his only avenue for relief was
to demonstrate counsel’s ineffectiveness caused an unknowing plea, which
he failed to do.



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