J-S11028-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    DIGNO BURGOS                               :
                                               :
                       Appellant               :   No. 2530 EDA 2017

                    Appeal from the PCRA Order July 21, 2017
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                        No(s): CP-51-CR-0004615-2013


BEFORE: SHOGAN, J., MURRAY, J., and FORD ELLIOTT, P.J.E.

JUDGMENT ORDER BY MURRAY, J.:                           FILED MARCH 21, 2019

       Digno Burgos (Appellant) appeals from the order denying his first

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

§§ 9541-9546.        Upon review, we vacate and remand for an evidentiary

hearing.

       On January 17, 2014, Appellant entered into a negotiated guilty plea to

possession with intent to deliver (PWID), criminal conspiracy and persons not

to possess firearms.1 The trial court imposed a mandatory minimum sentence

of five to ten years’ incarceration for PWID, and a consecutive term of three

years’ probation for the firearms offense. No further penalty was imposed for

criminal conspiracy. Appellant did not file a direct appeal.


____________________________________________


1 35 P.S. § 780-113(a)(30), 18 Pa.C.S.A. § 903, and 18 Pa.C.S.A. §
6105(a)(1).
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       On July 1, 2014, Appellant filed the underlying PCRA petition, asserting

that plea counsel was ineffective for failing to file a timely post-sentence

motion or direct appeal challenging the imposition of a mandatory minimum

sentence pursuant to Alleyne v. United States, 570 U.S. 99 (2013). Counsel

was appointed, but was later removed by the PCRA court for failing to file

“anything on behalf of the [Appellant].” Order, 11/3/16. In the meantime,

on August 20, 2014, this Court issued its decision in Commonwealth v.

Newman, 99 A.3d 86 (Pa. Super. 2014) (en banc), which found

Pennsylvania’s mandatory minimum statutes unconstitutional based on

Alleyne. On April 1, 2016, Appellant filed an amended pro se PCRA petition

challenging, inter alia, the legality of his sentence under Alleyne.             On

November 3, 2016, the PCRA court appointed Christopher Montoya (Counsel)

to represent Appellant; Counsel subsequently filed a no-merit letter pursuant

to   Commonwealth           v.    Turner,      544   A.2d   927   (Pa   1988),   and

Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).2

       Based on Counsel’s assessment, the PCRA court issued notice of intent

to dismiss Appellant’s petition pursuant to Rule 907 of the Pennsylvania Rules

of Criminal Procedure. Appellant filed several objections to the court’s notice,

alleging that Counsel misconstrued Alleyne and its progeny, and seeking an


____________________________________________


2 The PCRA court granted Counsel’s motion to withdraw on October 25, 2017.
On October 26, 2017, the court appointed attorney Demetra Mehta, Esq. to
represent Appellant; Attorney Mehta has continued to represent Appellant
through this appeal.

                                           -2-
J-S11028-19



evidentiary hearing.   On July 21, 2017, the PCRA court entered an order

dismissing Appellant’s petition without a hearing. This timely appeal followed.

      Appellant presents the following issue for our review: “Did the PCRA

court incorrectly dismiss the PCRA petition without conducting an evidentiary

hearing into trial counsel’s failure to file an appeal following [Appellant’s]

sentencing?” Appellant’s Brief at 6.

      In its opinion, the PCRA court states that “[u]pon painstaking review of

this matter, the [PCRA c]ourt is of the opinion that [C]ounsel’s assessment

was incorrect and an evidentiary hearing on this case is warranted,” and asks

this Court to remand the case. PCRA Court Opinion, 6/21/18, at 5-9. Citing

our decision in Commonwealth v. Rivera, 154 A.3d 370 (Pa. Super. 2017)

(en banc), appeal denied, 169 A.3d 1072 (Pa. 2017), the PCRA court explains:

      Appellant was sentenced to a stipulated, mandatory minimum
      sentence seven months after Alleyne, but seven months before
      Newman. He timely filed a PCRA petition, claiming [ineffective
      assistance of counsel] for failure to file a direct appeal and
      challenging his sentence under Alleyne. While plea counsel may
      have had a rational basis to believe that Appellant’s sentence was
      not violative of Alleyne (because pre-Newman decisions
      permitted stipulated mandatory sentences via guilty plea) the
      Alleyne decision nonetheless presented a non-frivolous issue for
      appeal.

PCRA Court Opinion, 6/21/18, at 9. We agree. Accordingly, we reverse the

PCRA court’s July 21, 2017 order, and remand this case to the PCRA court for

an evidentiary hearing and ruling on Appellant’s petition.

      Order reversed. Case remanded. Jurisdiction relinquished.




                                       -3-
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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/21/19




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