J-S53026-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                          Appellant

                     v.

NELSON SOTO

                          Appellee                      No. 481 MDA 2015


               Appeal from the PCRA Order February 11, 2015
                In the Court of Common Pleas of Berks County
             Criminal Division at No(s): CP-06-CR-0003614-2013


BEFORE: DONOHUE, J., OTT, J., and MUSMANNO, J.

MEMORANDUM BY OTT, J.:                            FILED DECEMBER 11, 2015

      The Commonwealth appeals from the order entered on February 11,

2015, in the Court of Common Pleas of Berks County, granting Nelson Soto’s

Post Conviction Relief Act (PCRA) request to withdraw his guilty plea based

on   ineffective   assistance   of    counsel.   In   this   timely   appeal,   the

Commonwealth claims the PCRA court erred in determining trial counsel was

ineffective for: (1) failing to file a motion to suppress evidence, (2) failing to

advise Soto regarding the application of Alleyne v. United States, 133

S.Ct. 2151 (2013), and (3) failing to explain the parole consequences of

pleading guilty. After a thorough review of the submissions by the parties,

certified record and relevant law, we affirm.

      We relate the underlying facts of the criminal incident as paraphrased

from the affidavit of probable cause. In the early morning hours of July 20,
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2013, Reading Police Officer Nicholas Epolito was dispatched to the scene of

a motor vehicle accident.         Upon his arrival, several females were at the

scene and they pointed toward a man, later identified as Soto, telling the

officer “he’s leaving, he’s running, he said he had a parole warrant.” Officer

Epolito pursued Soto, catching up to him as Soto unsuccessfully attempted

to scale a fence.       Soto fought with Officer Epolito, attempting to evade

capture.    Soto was eventually subdued and during the search incident to

arrest, he was found to be in possession of 32 baggies of what later proved

to be cocaine.        Soto was charged with a variety of crimes, including

aggravated assault of a police officer, simple assault, possession with intent

to deliver (PWID), disarming a police officer, resisting arrest, driving under

the influence (DUI) and accidents involving damage to unattended vehicles

or property.

       No pre-trial motions were filed.        On January 29, 2014, Soto entered

into a negotiated guilty plea on charges of PWID, DUI and resisting arrest. 1

The negotiated aggregate sentence was for 3-10 years’ incarceration plus a

$10,000.00 fine.         The sentence represents the three-year mandatory

minimum sentence for possession of more than 2 grams of cocaine.         See 18

Pa.C.S. § 7508(a)(3)(i). Subsequent to sentencing, Soto filed a motion to

modify sentence, which was denied without analysis or comment.

____________________________________________


1
  35 P.S. § 780-113(a)(30)(cocaine), 75 Pa.C.S. § 3802(a)(1), and 18
Pa.C.S. § 5104, respectively.



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       Soto then filed this timely PCRA petition on June 17, 2014. Appointed

counsel filed an amended petition alleging ineffective assistance of counsel,

as noted above. Following a hearing, the PCRA court granted Soto’s petition

and allowed him to withdraw his guilty plea based upon the failure to file a

suppression motion and to inform Soto regarding the application of

Alleyne.2

       Because we agree with the PCRA court’s Alleyne determination, we

will address that issue first.

       The record reveals that Soto’s negotiated minimum sentence of three

years’ incarceration, was based upon a mandatory minimum sentence that

applied the possession of more than 2 grams of cocaine.

       The United States Supreme Court issued the Alleyne v. United

States decision on June 17, 2013. The incident upon which Soto’s plea was

based occurred on July 20, 2013, almost one month after the Alleyne

decision. Soto’s guilty plea took place on January 29, 2014, approximately

six months after the Alleyne decision.           Alleyne held that any fact that

raises a mandatory minimum sentence is to be considered an element of the

crime and must be submitted to the fact finder for determination beyond a



____________________________________________


2
  Although the Commonwealth argues the PCRA court improperly granted
Soto relief on the basis of a failure to explain the likely parole violation
consequences, the PCRA court’s Pa.R.A.P. 1925(a) opinion is silent on that
issue. Therefore, we need not consider that issue.



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reasonable doubt. Of specific relevance to this matter, 18 Pa.C.S. § 7508(b)

stated:

       (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.

18 Pa.C.S. § 7508(b).

       Accordingly, from the date the Alleyne decision was published, it was,

or should have been, apparent that Pennsylvania’s drug sentencing scheme,

as set forth in section 7508, was constitutionally suspect. We also note that

by December 2013, our Supreme Court stated the following:

       Furthermore, to the degree to which Appellant may attain
       recourse to the new Alleyne regime consistent with the
       developed principles of issue presentation and preservation
       and/or their exceptions, we also do not foreclose that the
       common pleas court may undertake traditional, individualized
       sentencing, based on Alleyne.

See Commonwealth v. Hanson, 82 A.3d 1023, 1040 (Pa. 2013).3

____________________________________________


3
  Our Supreme Court has recently accepted Commonwealth v. Barnes,
350 EAL 2014, for review. One of the issues for consideration is:

       Whether contemporaneous convictions of possession with intent,
       pursuant to 35 Pa.C.S. § 780-113, and possession of a firearm
       prohibited, pursuant to 18 Pa.C.S. § 6105, allow application of
(Footnote Continued Next Page)


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      Nonetheless, trial counsel testified to only a rudimentary consideration

of the case and the implications to Soto.

      Q: Okay. You would agree with me, Ms. Ebner, would you not,
      that the plea bargain that you arranged for Mr. Soto for the
      possession with intent to deliver count included a mandatory
      minimum of three years sentence?

      A: Yes.

      Q: And obviously at the time of the guilty plea and sentence for
      Mr. Soto you were aware of the United States Supreme Court
      decision in Alleyne?

      A: Yes.

      Q: Did you have discussions with Mr. Soto about the application
      of the United States Supreme Court decision in Alleyne to his
      case before his guilty plea?

      A: Yes. When it came out I believe right after that we had met
      at the prison and he actually brought it to my attention. We
      discussed that – we discussed that Berks County hadn’t made a
      decision, and quite frankly I don’t think Berks County was
      thinking about making a decision at this point in time. We
      discussed that it was the middle of the standard range at the
      three years.

N.T. PCRA Hearing, 10/10/2014, at 9-10.

      However, at the PCRA hearing, Soto testified counsel informed him he

was receiving the mandatory minimum sentence. Specifically, Soto denied
                       _______________________
(Footnote Continued)

      the mandatory minimum sentence found at 42 Pa.C.S. § 9712.1
      in light of our decision on Commonwealth v. Hopkins, ___
      A.3d ___, 2015 PA.Lexis 1282 (decided June 15, 2015).

See Commonwealth v. Barnes, 305 EAL 2014, September 18, 2015. The
ruling on this issue in Barnes is likely to have relevance to guilty pleas.



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discussing the constitutionality of the mandatory minimum sentencing

statute.   See N.T. PCRA Hearing, 10/10/2014, at 28-29.        That the Berks

County judges had not yet addressed the applicability of Alleyne to

negotiated guilty pleas was not a valid reason for counsel’s failure to discuss

Alleyne with her client before he accepted the guilty plea.       In fact, our

Court has held that Alleyne is applicable to a stipulation of weight in

Commonwealth v. Vargas, 108 A.3d 858, 876-77 (Pa. Super. 2015) (en

banc), which is evidence that the claim had arguable merit.

      “Our standard in reviewing a PCRA court order is abuse of
      discretion. We determine only whether the court's order is
      supported by the record and free of legal error.”
      Commonwealth v. Battle, 883 A.2d 641, 647 (Pa. Super.
      2005). “This Court grants great deference to the findings of the
      PCRA court, and we will not disturb those findings merely
      because the record could support a contrary holding.”
      Commonwealth v. Hickman, 799 A.2d 136, 140, (Pa. Super.
      2002). We will not disturb the PCRA court's findings unless the
      record fails to support those findings. Id.


      “A criminal defendant has the right to effective counsel during a
      plea process as well as during trial.” Id. at 141. “A defendant is
      permitted to withdraw his guilty plea under the PCRA if
      ineffective assistance of counsel caused the defendant to enter
      an involuntary plea of guilty.” Commonwealth v. Kersteter,
      877 A.2d 466, 468 (Pa. Super. 2005).


           We conduct our review of such a claim in accordance
           with the three-pronged ineffectiveness test under
           section  9543(a)(2)(ii)   of   the    PCRA.     See
           [Commonwealth v.] Lynch[, 820 A.2d 728, 732 (Pa.


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         Super. 2003)]. “The voluntariness of the plea depends
         on whether counsel's advice was within the range of
         competence demanded of attorneys in criminal cases.”
         Id. at 733 (quoting Commonwealth v. Hickman,
         2002 PA Super 152, 799 A.2d 136, 141 (Pa. Super.
         2002)).


         In order for Appellant to prevail on a claim of ineffective
         assistance of counsel, he must show, by a
         preponderance of the evidence, ineffective assistance of
         counsel which, in the circumstances of the particular
         case, so undermined the truth-determining process that
         no reliable adjudication of guilt or innocence could have
         taken place. Commonwealth v. Kimball, 555 Pa. 299,
         724 A.2d 326, 333 (Pa. 1999). Appellant must
         demonstrate: (1) the underlying claim is of arguable
         merit; (2) that counsel had no reasonable strategic
         basis for his or her 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. Id. The
         petitioner bears the burden of proving all three prongs
         of the test. Commonwealth v. Meadows, 567 Pa.
         344, 787 A.2d 312, 319-20 (2001).

        Commonwealth v. Johnson, 868 A.2d 1278, 1281 (Pa.
        Super. 2005).


     Kersteter, 877 A.2d at 469-69 [sic]. Moreover, trial counsel is
     presumed to be effective. Commonwealth v. Carter, 540 Pa.
     135, 656 A.2d 463, 465 (1995).

Commonwealth v. Rathfon, 899 A.2d 365, 368-69 (Pa. Super. 2006).

     Additionally,




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         With regard to prejudice, in Hickman, we noted that “[t]o
         succeed in showing prejudice, the defendant must show that it is
         reasonably probable that, but for counsel's errors, he would not
         have pleaded guilty and would have gone to trial. The ‘reasonable
         probability’ test is not a stringent one.” Hickman, 799 A.2d at
         141 (citations omitted; emphasis added). The Court in Hickman
         derived this standard from Nix v. Whiteside, 475 U.S. 157, 175,
         106 S.Ct. 988, 89 L.Ed.2d 123 (1986), which held that “[a]
         reasonable probability is a probability sufficient to undermine
         confidence in the outcome.”

Id. at 369-70.

         In the instant matter, Soto has asserted that his decision to accept the

offered guilty plea was based upon a false understanding of sentencing

options and that he was not properly informed regarding the effect of

Alleyne.      The PCRA court accepted that assertion and further determined

that trial counsel had not properly discussed or considered the possible

applications of Alleyne.        The record supports both these determinations.

We note trial counsel helped Soto obtain what many would consider a

favorable plea agreement – several serious charges, including assault of a

police officer, were nolle prossed. However, that fact cannot cure the failure

to adequately consider a constitutional infirmity.        Having reviewed the

certified record and determined the PCRA court’s findings are supported by

the record and there no errors of law in the resultant conclusions, we are

obliged to affirm the order granting Soto permission to withdraw his guilty

plea.4
____________________________________________


4
 We also note that the Commonwealth has not claimed that it would suffer
any prejudice in being required to try this matter.



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      Because we have resolved this issue and affirmed Soto’s entitlement to

relief based on our Alleyne analysis, we do not need to consider the claim

regarding the failure to file a suppression motion.

      Finally, we note that shortly before this decision was drafted, our Court

issued the Opinion in Commonwealth v. Melendez-Negron, ___ A.3d

___, 2015 PA Super 2015 (9/25/2015), that addressed this same issue and

came to the same conclusion. We adopt the sound reasoning of Melendez-

Negron in supplement of this decision.

      Order Affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/11/2015




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