J-S41035-16


                                  2016 PA Super 140

COMMONWEALTH OF PENNSYLVANIA,                     IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

CHARLIE PATTERSON,

                            Appellant                 No. 773 EDA 2015


                Appeal from the PCRA Order February 19, 2015
             In the Court of Common Pleas of Montgomery County
              Criminal Division at No(s): CP-46-CR-0007382-2011

BEFORE: BENDER, P.J.E., DUBOW, J., and STEVENS, P.J.E.*

OPINION BY STEVENS, P.J.E.:                            FILED JUNE 29, 2016

        Appellant Charlie Patterson (“Appellant”) appeals from the order

entered in the Court of Common Pleas of Montgomery County, which

dismissed his first petition brought pursuant to the Post Conviction Relief Act

(“PCRA”), 42 Pa.C.S.A. §§ 9541-46. We vacate and remand.

        On June 10, 2013, Appellant entered into an open guilty plea to the

charge of possession of a controlled substance (marijuana) with the intent to

deliver.1    During the colloquy, Appellant acknowledged that his lawyer

informed him of the Commonwealth’s intention to seek imposition of a five-

year statutory mandatory minimum sentence2 from which the judge would

have no power to deviate under the law. N.T., 6/10/13, at 5. Plea Counsel
____________________________________________


1
    35 P.S. § 780-113(a)(30).
2
    18 Pa.C.S. § 7508(a)(iii).



*Former Justice specially assigned to the Superior Court.
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likewise referred to the applicability of the “mandatory minimum sentence”

throughout the hearing, and the court also informed Appellant that it “would

be constrained on some level, because the Commonwealth is going to file

the mandatory minimum.” N.T. at 13-14.

      One week later, on June 17, 2013, the United States Supreme Court

decided Alleyne v. United States, 133 S.Ct. 2151 (2013), in which it held

for the first time that any fact triggering a mandatory minimum sentence

must first be submitted to a jury and proved beyond a reasonable doubt.

Nevertheless, the Commonwealth subsequently filed its “Notice of Intent to

Seek Mandatory Sentence,” referencing the statutory mandatory minimum

sentence of five years’ incarceration and a mandatory minimum fine of

$50,000.

      At the sentencing hearing of September 6, 2013, however, the court

acknowledged that the Commonwealth and Appellant had reached a

negotiated agreement for a term of incarceration of four to eight years with

no fine.   There is no indication in the transcript that the Alleyne decision

influenced this change in course or that Appellant was aware of the

decision’s implications, and, in fact, statements by the court imply that the

statutory mandatory minimum remained applicable as a matter of course

and would have been implemented as indicated during the guilty plea but for

the “eminently reasonable” decision of the Commonwealth to “waiv[e]” its

right to enforce it. N.T., 9/6/13, at 2, 5. The court accepted the negotiated




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agreement and imposed sentence accordingly. Plea counsel filed neither a

post-sentence motion nor a direct appeal.

      On September 15, 2014, Appellant filed a pro se petition for relief

under the PCRA, and the court appointed PCRA counsel. PCRA counsel filed

an amended petition on November 24, 2014 averring that plea counsel’s

ineffective failure to advise Appellant of the Alleyne decision and its

potential impact on his case induced Appellant to plead guilty.          Most

pertinent to the present appeal are the following two averments contained in

the amended petition:

      9.   The petitioner alleges that the law provided to him by
      defense counsel and the court prior to his plea on the issue of
      mandatory minimums has now been declared unconstitutional.

      10. The petitioner likewise alleges that the guarantees of a 5-
      10 year sentence and a $50,000 fine induced him to agree to a
      sentence of 4-8 years with no fine.

Amended Petition, 11/24/24 at 2-3.

      The Commonwealth filed an answer to the amended petition in which it

argued that plea counsel could not have been ineffective as alleged, for

Alleyne was not decided until after Appellant entered his June guilty plea.

It is well-settled, the Commonwealth maintained, that a court may not deem

counsel ineffective for failing to anticipate changes in the law.   The PCRA

court agreed, discerning only a challenge to the June guilty plea in counsel’s

amended petition for which the law could provide no relief. See PCRA Court

Order, filed 1/13/15, at p 7, ¶¶ 31 and 32. Accordingly, the court dismissed



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Appellant’s petition without an evidentiary hearing.     This timely appeal

followed.

      Appellant raises two discrete claims of unlawful inducement of his

guilty plea and negotiated sentence. The first claim contends the threat of

receiving a mandatory minimum scheme at Section 7508(a)(iii), which has

since been held unconstitutional in light of Alleyne, induced him to plead

guilty.   The second claim asks for a remand to enable Appellant, through

newly-appointed, present counsel, to address whether plea counsel was

ineffective for failing to either challenge the negotiated sentence or file a

motion to withdraw Appellant’s plea altogether given the ramifications of

Alleyne.

            “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

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           (Pa.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,

     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

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      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.

      Appellant first asks us to invalidate his June guilty plea because it was

the product of undue pressure from a mandatory minimum statutory scheme

subsequently declared unconstitutional.         In order to prevail on this

underlying claim as presented, Appellant must establish that plea counsel

provided ineffective assistance of counsel in advising him to plead guilty at

the June guilty plea hearing. In the strictest sense, the PCRA court correctly

observed that it could not deem counsel ineffective for failing to anticipate

the United States Supreme Court’s subsequent decision in Alleyne.             See

Commonwealth v. Bennett, 57 A.3d 1185, 1201 (Pa. 2012) (recognizing

“counsel will not be faulted for failing to predict a change in the law.”).

      However, Appellant’s argument goes beyond this discrete claim, and

his two issues coalesce, as did the averments in his amended PCRA

complaint, to advance the more nuanced position that counsel’s failure to

advise him of Alleyne during the September sentencing negotiations

affected his decision not only to accept the Commonwealth’s offer of

sentence but also, by implication, to proceed with his guilty plea.

Specifically, by way of its ninth and tenth paragraphs, reproduced supra,

counsel’s amended complaint alleging ineffective inducement incorporated

both the pre-Alleyne June guilty plea itself and the post-Alleyne negotiated

agreement to a four to eight year sentence with no fine, which the


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sentencing court accepted. Therefore, we reject the position taken by the

PCRA court and Commonwealth that Appellant directed his amended

complaint exclusively to plea counsel’s representation at his June guilty plea.

       In his amended petition, Appellant, through counsel, averred that plea

counsel’s failure to advise him properly of Alleyne’s applicability to his case

caused him to agree to a sentence of four to eight years as part of his guilty

plea without understanding his sentencing options. The clear implication of

this   assertion   is   that   Appellant   would   not   have   accepted   the

Commonwealth’s offer of sentence had he known he would not be subject to

a mandatory five year sentence given the constitutional infirmities of

mandatory sentencing statutes such as Section 7508(a)(iii). Moreover, it is

not unreasonable to infer from the assertion in paragraph 10, especially

when read in context of the broader petition assailing his guilty plea, that

Appellant would also have withdrawn his plea at that time.

       It remains for the PCRA court, however, to conduct an evidentiary

hearing to determine whether counsel did, in fact, fail to advise Appellant

about Alleyne’s applicability to his case.     The record of the sentencing

hearing, which contains multiple references to the favorability of the

negotiated sentence over the mandatory minimum sentence that could

otherwise   apply, supports Appellant’s position sufficiently to       warrant

remand, where he may present evidence that he agreed to the negotiated

sentence only under the undue influence of an unconstitutional mandatory

minimum sentencing scheme.          Proof of such prejudice stemming from

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counsel’s failure to advise him properly of the law would entitle Appellant to

a new sentencing hearing. An additional showing that Appellant would have

withdrawn his guilty plea altogether had counsel properly advised him of

Alleyne and the effect it could have on his sentencing would entitle him to

withdraw his guilty plea. See Commonwealth v. Melendez-Negron, 123

A.3d 13, 15-20 (Pa.Super. 2014) (affirming order vacating sentence in light

of Alleyne, but also vacating guilty plea and remanding for further

proceedings where unconstitutional mandatory minimum statute influenced

a plea and negotiated sentence).

      Order vacated. Case remanded for further proceedings consistent with

this decision. Jurisdiction is relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/29/2016




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