J-S48029-15

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,            :   IN THE SUPERIOR COURT OF
                                         :        PENNSYLVANIA
                  Appellee               :
                                         :
             v.                          :
                                         :
SYLVESTER DION TATE,                     :
                                         :
                  Appellant              :   No. 183 WDA 2015

                Appeal from the PCRA Order January 21, 2015,
                    Court of Common Pleas, Erie County,
             Criminal Division at No(s): CP-25-CR-0000447-2014
                         and CP-25-CR-0003018-2008

BEFORE: PANELLA, DONOHUE and WECHT, JJ.

MEMORANDUM BY DONOHUE, J.:                         FILED AUGUST 18, 2015

       Sylvester Dion Tate (“Tate”) appeals pro se from the January 21, 2015

order entered by the Erie County Court of Common Pleas dismissing his

petition filed pursuant to the Post Conviction Relief Act, 42 Pa.C.S.A. §§

9541-9546 (“PCRA”).      Upon review, we reverse the PCRA court’s order,

vacate Tate’s judgment of sentence and remand for resentencing.

       On July 3, 2014, Tate entered a negotiated guilty plea to the charge of

possession of a controlled substance with intent to deliver.1 Pursuant to the

plea agreement, the Commonwealth nol prossed additional charges pending

against him,2 reduced the amount of cocaine he was accused of possessing


1
    35 P.S. § 780-113(a)(30).
2
   Tate was also facing charges of criminal conspiracy (18 Pa.C.S.A. §
903(c)) and three counts of criminal use of a communication facility (18
Pa.C.S.A. § 7512(a)).
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from 31.5 grams to 9.9 grams, and recommended that the trial court

sentence Tate to the mandatory minimum sentence in effect at that time.

See 18 Pa.C.S.A. § 7508(a)(3)(i), held unconstitutional by Commonwealth

v. Cardwell, 105 A.3d 748, 750 (Pa. Super. 2014). The plea court accepted

Tate’s guilty plea and sentenced him in accordance with the negotiated

agreement to three to six years of incarceration immediately following the

entry of his plea.3

      Tate did not file any post-sentence motions or a direct appeal.       On

September 14, 2014, Tate filed a pro se PCRA petition raising challenges to

the plea court’s subject matter jurisdiction and ineffective assistance of

counsel based upon plea counsel’s failure to file post-sentence motions or a

direct appeal on Tate’s behalf.   The PCRA court appointed counsel (“PCRA

counsel”). On November 3, 2014, PCRA counsel filed a Turner/Finley4 “no-

merit” letter and requested to withdraw as counsel. Therein, PCRA counsel

concluded that Tate’s jurisdictional claims were meritless, but did not

address Tate’s assertion that prior counsel was ineffective for failing to file

post-sentence motions or a direct appeal.     Curiously, at the conclusion of

PCRA counsel’s “no-merit” letter, PCRA counsel identified a “legally viable

claim possessed of arguable merit that would compel the striking of the


3
   Tate had a prior conviction of possession of a controlled substance with
intent to deliver.
4
  Commonwealth v. Turner, 544 A.2d 927 (Pa.                      1988),    and
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988).


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sentence and resentencing,” to wit, that Tate’s mandatory minimum

sentence was illegal pursuant to the United States Supreme Court’s decision

in Alleyne v. U.S., __ U.S. __, 133 S. Ct. 2151 (2013).        Turner/Finley

Letter, 11/3/14, at 2.

      On December 29, 2014, the PCRA court issued an opinion and notice

of its intent to dismiss Tate’s pro se PCRA petition pursuant to Pa.R.Crim.P.

907. The PCRA court did not address Tate’s claim of ineffective assistance of

counsel based upon prior counsel’s failure to file post-sentence motions or a

direct appeal on his behalf.    It found his jurisdictional challenges to be

meritless. It further found his legality of sentencing claim to be meritless.

With respect to this final issue, the PCRA court based its decision on the fact

that Tate was sentenced following the entry of a guilty plea and thus

“concede[d] the factual predicates that implicate the mandatory minimum

sentence.”   PCRA Court Opinion, 12/29/14, at 4.      The PCRA court further

found that cases decided by this Court interpreting the Alleyne decision did

not entitle Tate to relief, as this Court decided those cases after Tate’s

sentencing proceeding. Relying on Commonwealth v. Newman, 99 A.3d

86, 90 (Pa. Super. 2014) (en banc), the PCRA court stated that Superior

Court decisions interpreting Alleyne “are not retroactive” and therefore,




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“they offer [Tate] no assistance.” Id. The PCRA court ultimately dismissed

Tate’s PCRA petition without a hearing on January 21, 2015.5

     Tate filed a timely pro se notice of appeal.     The PCRA court did not

order Tate to file a concise statement of errors complained of on appeal, and

issued a statement that it relied upon its December 29, 2014 opinion on

appeal.

     On appeal, Tate raises the following issues for our review:

           [1.] When sentencing counsel and PCRA counsel
           failed to preserve [Tate]’s appellate rights, doesn’t
           this deprive [Tate] of the effective assistance of
           counsel as guaranteed under the U.S. and Pa.
           Constitutions; and amount to plea/sentencing
           counsel abandoning [Tate] – which thereafter [Tate]
           filed a timely PCRA [petition] to raise his ALLEYNE
           (illegal sentence) and subsequent PCRA counsel[’]s
           failure to preserve the issues of plea/sentencing
           counsel[’]s failure to preserve his direct appeal rights
           for the illegal sentence and amend his PCRA petition
           to include these issues?

           [2.] Wasn’t [Tate] deprived of his right to file a direct
           appeal based on sentencing counsel’s failure to file to
           [sic] requested appeal? And wasn’t [Tate] denied
           the assistance of counsel when PCRA counsel failed
           to raise, preserve, and brief sentencing counsel[’]s


5
   We note that the PCRA court did not address PCRA counsel’s request to
withdraw. This is problematic, as PCRA counsel has never been given
permission to withdraw, and absent such permission, Tate is entitled to
representation on appeal.       See Pa.R.Crim.P. 904(C) (indigent PCRA
petitioners entitled to appointment of counsel for first PCRA petition).
Nonetheless, because we conclude that Tate is serving an illegal sentence,
which is an issue that may be raised by this Court sua sponte, see
Commonwealth v. Melvin, 103 A.3d 1, 52 (Pa. Super. 2014), we
conclude, for the sake of judicial efficiency, that we need not remand the
case for the PCRA court to rule upon PCRA counsel’s request.


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             failure to file his direct appeal; amounting to a total
             and constructive denial of counsel and a violation of
             his rights under the Constitutions for the United
             States and Pennsylvania?

Tate’s Brief at 3.

        We   need    only   address   the   legality    of   Tate’s   sentence.   See

Commonwealth v. Ali, 112 A.3d 1210, 1225 (Pa. Super. 2015) (“Alleyne

challenges implicate the legality of a sentence.”). A challenge to the legality

of a defendant’s sentence is not waivable and may be decided as long as we

have jurisdiction to decide the case.           Id.   “An illegal sentence must be

vacated.” Id. A legality of sentence claim presents a question of law over

which our standard of review is de novo and our scope of review is plenary.

Id.

        We begin with a brief discussion of the pertinent law underlying the

issue. The sentencing statute in question, section 7508, states, in relevant

part:

             (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



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              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::

                 (i) when the aggregate weight of the
                 compound or mixture containing the substance
                 involved is at least 2.0 grams and less than ten
                 grams; one year in prison and a fine of $5,000
                 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: three years in prison and $10,000
                 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.

18 Pa.C.S.A. § 7508(a)(3)(i), (b) (emphasis added). On June 17, 2013, the

United States Supreme Court decided Alleyne v. U.S., wherein it held that




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“facts that increase mandatory minimum sentences must be submitted to

the jury.” Alleyne, 133 S.Ct. at 2163.

      On November 25, 2014, in Commonwealth v. Cardwell this Court

held that pursuant to Alleyne, section 7508 was facially unconstitutional in

its entirety.   Cardwell, 105 A.3d at 754-55.     The defendant in Cardwell

stipulated at trial to the weight of the drugs recovered. Id. at 754. The trial

court in Cardwell concluded that the Commonwealth proved the weight of

the drugs beyond a reasonable doubt, alleviating any Alleyne-related

problem.   Id.     On appeal, we disagreed, stating that section 7508(b) was

not severable from the rest of the statute.     Id.   Further, relying on this

Court’s    prior    decisions   in   Commonwealth       v.   Newman6       and

Commonwealth v. Valentine, 101 A.3d 801 (Pa. Super. 2014),7 the

Cardwell Court stated, “[C]reating a new procedure in an effort to impose a

6
    In Newman, we rejected the Commonwealth’s suggestion that we
remand for a sentencing jury to make the required determination, stating
“that it is manifestly the province of the General Assembly to determine
what new procedures must be created in order to impose mandatory
minimum sentences in Pennsylvania following Alleyne.” Newman, 99 A.3d
at 102.
7
     In Valentine, we held that the mandatory sentencing provisions
contained in sections 9712 and 9713 of the Sentencing Code were
unconstitutional pursuant to Alleyne, as both sections required the trial
court to determine by a preponderance of the evidence factors triggering the
implementation of a mandatory minimum sentence. Valentine, 101 A.3d at
809, 812. Although in Valentine, the jury, not the trial court, determined
on the verdict slip the existence of the factors triggering the application of
sections 9712 and 9713, we concluded that pursuant to Newman, “the trial
court performed an impermissible legislative function by creating a new
procedure in an effort to impose the mandatory minimum sentences in
compliance with Alleyne.” Id. at 811.


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mandatory minimum sentence is solely within the province of the

legislature.”   Cardwell, 105 A.3d at 754-55 (emphasis supplied).         This

Court thus concluded that the trial court erred by imposing the mandatory

minimum provided for in section 7508. Id. at 755.

      Turning to the decision in the case at bar, we disagree with the PCRA

court’s conclusion that the Pennsylvania Superior Court cases interpreting

the Alleyne decision that were decided after Tate’s sentencing hearing

cannot be applied to this case.8 See PCRA Court Opinion, 12/29/14, at 4.

In so finding, the PCRA court relies upon the following excerpt from the

Newman decision:

            To be entitled to the retroactive application of a new
            constitutional rule, a defendant must have raised
            and preserved the issue in the court below:

            [W]here an appellate decision overrules prior law
            and announces a new principle, unless the decision
            specifically declares the ruling to be prospective only,
            the new rule is to be applied retroactively to cases
            where the issue in question is properly preserved at
            all stages of adjudication up to and including any
            direct appeal.

Newman, 99 A.3d at 90 (quoting Commonwealth v. Cabeza, 469 A.2d

146, 148 (Pa. 1983)) (emphasis omitted); see PCRA Court Opinion,

12/29/14, at 4.    The cases decided by the Superior Court interpreting the


8
    We note that in lieu of filing a responsive brief on appeal, the
Commonwealth submitted a letter to this Court, stating, in relevant part:
“This Honorable Court has jurisdiction to address [Tate]’s timely allegation of
the imposition of an illegal sentence and the case should be remanded for
re-sentencing.” Letter from the Commonwealth, 6/29/15.


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Alleyne decision, however, do not announce a new constitutional rule. They

simply apply the new constitutional rule announced by the United States

Supreme     Court in   Alleyne   to   the   Pennsylvania sentencing statutes

concerning mandatory minimum sentences.         We routinely rely upon cases

decided subsequent to the entry of the judgment of sentence interpreting

relevant areas of the law. See, e.g., Cardwell, 105 A.3d at 755 (although

the judgment of sentence in Cardwell was entered on June 18, 2013, the

Cardwell Court relied upon the holdings in Newman, decided on August

20, 2014, and Valentine, decided on October 3, 2014, in reaching its

decision that the defendant was serving an illegal sentence pursuant to

Alleyne).

      Even if these cases were inapplicable, the PCRA court’s conclusion that

Tate is not entitled to resentencing is incorrect. As stated above, Alleyne

was decided prior to Tate’s guilty plea and sentencing hearing.     Thus, the

holding of Alleyne unquestionably applies to Tate’s case.       The Alleyne

decision clearly renders the mandatory sentencing scheme contained in

section 7508 unconstitutional, as section 7508 does not require facts that

increase mandatory minimum sentence for convictions of possession with

intent to deliver, i.e., the weight of the drugs recovered, to be submitted to

a jury. See Alleyne, 133 S.Ct. at 2163; 18 Pa.C.S.A. § 7508(a)(3)(ii), (b).

      Pursuant to the United States Supreme Court’s decision in Alleyne

and the decision by this Court in Cardwell interpreting Alleyne, Tate’s



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sentence pursuant to the mandatory sentencing provision contained in

section 7508 is illegal.     See Alleyne, 133 S.Ct. at 2163; see also

Cardwell, 105 A.3d at 755. That Tate pled guilty and admitted the facts

underlying the applicability of the mandatory minimum sentencing provision

of section 7508 is irrelevant. See Cardwell, 105 A.3d at 754-55.

      We therefore vacate Tate’s judgment of sentence and remand the case

for resentencing without consideration of the mandatory minimum sentence

contained in section 7508. The trial court shall appoint counsel to represent

Tate at the resentencing hearing. Following resentencing, if Tate wishes to

file a direct appeal, he shall be entitled to do so, limited to raising issues

permitted following the entry of a guilty plea.

      Order reversed. Judgment of sentence vacated. Case remanded with

instructions. Jurisdiction relinquished.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 8/18/2015




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