J-S48040-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                         Appellee

                    v.

ELLOYD KAREEM KEYES

                         Appellant                    No. 363 WDA 2015


              Appeal from the PCRA Order of February 25, 2015
                 In the Court of Common Pleas of Erie County
              Criminal Division at No.: CP-25-CR-0002962-2012


BEFORE: PANELLA, J., DONOHUE, J., and WECHT, J.

MEMORANDUM BY WECHT, J.:                         FILED DECEMBER 14, 2015

      Elloyd Kareem Keyes appeals the February 25, 2015 order dismissing

his first petition under the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.

§§ 9541, et seq., without a hearing pursuant to Pa.R.Crim.P. 907.         Keyes

contends that trial counsel was constitutionally ineffective for failing to argue

that the mandatory minimum sentence imposed upon his underlying guilty

plea to manufacture, delivery, or possession with intent to deliver, a

controlled substance, 35 P.S. § 780-113(a)(3), was illegal following the

United States Supreme Court’s decision in Alleyne v. United States,

133 S.Ct. 2151 (U.S. 2013), which had issued several months before Keyes
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entered his plea and was sentenced.1             We agree with Keyes that counsel

constitutionally was ineffective. Consequently, we reverse the PCRA court’s

order, we vacate Keyes’ guilty plea, and we remand for further proceedings.

       Because the factual background of this case is immaterial to our

decision, we relate only its procedural history.        On October 18, 2012, the

Erie Bureau of Police filed a criminal complaint against Keyes. Therein, the

police charged Keyes with numerous crimes arising from an encounter in

which they arrested Keyes, who was subject to an outstanding bench

warrant, and discovered on his person a substantial amount of marijuana

packaged in fifty small baggies and a vessel containing approximately seven

grams of crack cocaine.

       On November 6, 2013, Keyes pleaded guilty to the above-mentioned

crime. On his signed guilty plea form, Keyes acknowledged that the charge

to which he pleaded guilty subjected him to a mandatory minimum sentence

of three years’ incarceration and a $10,000 fine.                See Defendant’s

Statement of Understanding of Rights Prior to Guilty Plea (“Guilty Plea

Form”), 11/6/2013; see also 18 Pa.C.S. § 7508(a)(3)(i) (imposing three-

year mandatory minimum for conviction of possessing two or more grams of

a coca-derived compound), deemed unconstitutional by Commonwealth v.


____________________________________________


1
     The Supreme Court released its decision in Alleyne on June 17, 2013.
Keyes pleaded guilty on November 6, 2013. Keyes was sentenced in
absentia on January 21, 2014.



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Thompson, 93 A.3d 478 (Pa. Super. 2014).             He orally acknowledged

possession of 7.3 grams of crack cocaine during his plea proceeding, as well.

See Notes of Testimony—Guilty Plea Proceeding (“N.T. Plea”), 11/6/2013,

at 7-8. In return for Keyes’ plea, the Commonwealth nolle prossed all other

charges.

      On January 21, 2014, Keyes, who was free on bail, failed to appear for

sentencing. The trial court noted that Keyes had a prior record score of 5.

See Notes of Testimony—Sentencing, 1/21/2014, at 7.           The trial court

further indicated that it had reviewed a presentence report; Pennsylvania’s

sentencing guidelines; Keyes’ background and rehabilitative needs; what

appeared to be Keyes’ long-standing issues with substance abuse; and the

fact that Keyes had accepted responsibility for his crimes. Id. With Keyes

in absentia, the trial court sentenced him under section 7508 to the

prescribed mandatory minimum sentence of three to six years’ incarceration

and the mandatory $10,000 fine. Keyes did not file post-sentence motions

and did not file a direct appeal to this Court.

      On October 23, 2014, Keyes filed a timely pro se petition under the

PCRA.   On October 28, 2014, the PCRA court appointed the Erie County

Public Defender to represent Keyes.         After some delay associated with

counsel’s effort to obtain the relevant transcripts, counsel filed an amended

petition on December 23, 2014, wherein counsel asserted that the

imposition of the section 7508 mandatory minimum sentence was illegal

under Alleyne and subsequent Pennsylvania case law, and that trial counsel

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was ineffective for failing to inform Keyes or the trial court of that fact. On

this basis, Keyes asked that he be permitted to withdraw his guilty plea or

that the case be remanded for resentencing without the application of the

mandatory minimum sentence.

      On January 30, 2015, the PCRA court entered a notice under

Pa.R.Crim.P. 907 indicating its intent to dismiss Keyes’ petition without

conducting a hearing, and setting forth several bases for doing so.         On

February 25, 2015, the PCRA court entered an order dismissing Keyes’

petition. On February 27, 2015, Keyes filed the instant, timely appeal. The

PCRA court did not direct Keyes to file a concise statement of the errors

complained of on appeal.         In lieu of a new opinion pursuant to

Pa.R.A.P. 1925(a), the PCRA court entered a brief document directing this

Court to its earlier Rule 907 notice as reflecting the court’s reasoning for

dismissing Keyes’ petition.   Accordingly, this matter is now ripe for our

review.

      Keyes’ raises the following issue:

      Whether the PCRA Court erred when it dismissed [Keyes’]
      Petition in which he argued that he was serving an illegal
      sentence and that his plea counsel was ineffective both for failing
      to challenge the application of the mandatory minimum sentence
      and for failing to inform [Keyes] about decisional law that the
      mandatory minimum sentencing statute that applied was
      unconstitutional?

Brief for Keyes at 5.




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      Our standard of review of a PCRA court order granting or denying relief

calls upon us to determine “whether the determination of the PCRA court is

supported    by   the   evidence   of    record   and   is   free   of   legal   error.”

Commonwealth v. Garcia, 23 A.3d 1059, 1061 (Pa. Super. 2011). We will

not disturb the PCRA court’s findings unless there is no support for the

findings in the certified record. Commonwealth v. Wah, 42 A.3d 335, 338

(Pa. Super. 2012).

      [T]he right to an evidentiary hearing on a post-conviction
      petition is not absolute. Commonwealth v. Jordan, 772 A.2d
      1011, 1014 (Pa. Super. 2001). It is within the PCRA court’s
      discretion to decline to hold a hearing if the petitioner's claim is
      patently frivolous and has no support either in the record or
      other evidence. Id. It is the responsibility of the reviewing
      court on appeal to examine each issue raised in the PCRA
      petition in light of the record certified before it in order to
      determine if the PCRA court erred in its determination that there
      were no genuine issues of material fact in controversy and in
      denying relief without conducting an evidentiary hearing.
      Commonwealth v. Hardcastle, 701 A.2d 541, 542-43
      (Pa. 1997).

Wah, 42 A.3d at 338 (citations modified).

      Keyes raises two issues.          First, he contends that he is entitled to

sentencing    relief    because    his     mandatory     minimum         sentence     is

unconstitutional, and hence illegal, following the United States Supreme

Court’s decision in Alleyne and our decision in Thompson. Second, Keyes

contends that his trial counsel was constitutionally ineffective for failing to

recognize, advise him, and argue before the trial court that the application of

the mandatory minimum was unconstitutional and hence illegal under


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Alleyne. Keyes also argues that counsel was ineffective for failing to raise

the issue in a direct appeal, when, as per the above analysis, this Court

would have applied Alleyne and its Pennsylvania progeny.         On this basis,

Keyes maintains that he should be entitled to withdraw his plea. We agree

that Keyes is entitled to the relief he requests on the latter issue, and we

afford him that remedy for the reasons that follow.            In light of our

disposition, we need not consider Keyes’ first stated issue.

      A claim of ineffective assistance of counsel (“IAC”) is governed by the

following standard:

      [I]n order to obtain relief based on [an IAC] claim, a petitioner
      must establish: (1) the underlying claim has arguable merit; (2)
      no reasonable basis existed for counsel’s actions or failure to
      act; and (3) petitioner suffered prejudice as a result of counsel’s
      error such that there is a reasonable probability that the result of
      the proceeding would have been different absent such error.

Commonwealth v. Reed, 971 A.2d 1216, 1221 (Pa. 2005) (citing

Commonwealth v. Pierce, 527 A.2d 973, 975 (Pa. 1987)). The petitioner

bears the burden of proving all three prongs of this test. Commonwealth

v. Meadows, 787 A.2d 312, 319-20 (Pa. 2001).

      Very recently, in Commonwealth v. Melendez-Negron, 123 A.3d

1087 (Pa. Super. 2015), a panel of this Court considered a materially

identical claim.   In that case, the appellee pleaded guilty, inter alia, to

possession of a controlled substance with intent to deliver. Ultimately, the

appellee was sentenced to five to ten years’ incarceration pursuant to the

mandatory minimum provision codified at 42 Pa.C.S. § 9721 (imposing a

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mandatory five year minimum sentence when a defendant is found in

possession of a weapon contemporaneously with possession of narcotics).2

However, Alleyne had been decided approximately five months before the

sentence was imposed.          Melendez-Negron, 123 A.3d at 1090-91.         Trial

counsel did not inform the appellee of the recent development in the law,

nor did counsel bring the issue to the court’s attention. The appellee did not

file a direct appeal. Id. at 1089.

       The appellee filed a PCRA petition alleging, inter alia, that trial counsel

was ineffective for advising the appellee to plead guilty instead of

challenging    the    then-applicable     mandatory   minimum    sentence   under

Alleyne. The PCRA court granted the appellee’s petition, and awarded him

a new sentence. The Commonwealth appealed.

       The panel affirmed the PCRA court’s order. The panel explained that,

at the time of the appellee’s plea, both Alleyne and a case from this Court,

Commonwealth v. Munday, 78 A3d 661 (Pa. Super. 2013), were on the

books, and that counsel should have been aware of those cases. Melendez-

Negron, 123 A.3d at 1090-91.              Regarding the prongs of the ineffective

assistance of counsel, the panel stated the following:

       [I]n Alleyne, the United States Supreme Court found mandatory
       minimum sentence enhancements unconstitutional where the
____________________________________________


2
     This Court held that this mandatory minimum provision was
unconstitutional in Commonwealth v. Newman, 99 A.3d 86 (Pa. Super.
2014) (en banc), pursuant to the Supreme Court’s decision in Alleyne.



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      facts that increase a mandatory minimum sentence are not
      submitted to a jury and are not required to be found beyond a
      reasonable doubt. Upon the issuance of the Alleyne decision in
      June 2013, Counsel was on notice that the constitutionality of
      such sentencing enhancements was in question. There can be
      no reasonable basis for Counsel’s failure to recognize this and to
      advise [the appellee] to reject a plea agreement that
      incorporated a sentence based upon [the mandatory minimum
      sentencing provision.] This is so especially in light of the fact
      that the application of the [provision] resulted in a sentence that
      was more than double the aggravated range sentence [the
      appellee] would have faced.6 In a situation such as this, where
      the United States Supreme Court has spoken, counsel need not
      wait for a pronouncement from a Pennsylvania appellate court.
      By raising such a claim or at least questioning the
      constitutionality of [the provision] during plea negotiations,
      Counsel would not be predicting changes in the law, as the
      Commonwealth contends, but rather conscientiously advancing
      an argument based upon the logical extension of Alleyne to
      protect his client’s interests.
           6
             This large disparity between the sentence [the appellee]
           could have received and the sentence he agreed to
           establishes prejudice for purposes of the ineffective
           assistance of counsel standard.

Id. at 1091-92 (citation omitted).

      Finally,        the    panel   discussed   the   correct   remedy   for   counsel’s

ineffectiveness. The panel ultimately concluded that, because both parties

believed       that    the    mandatory    minimum      sentence    applied,    the   plea

negotiations were tainted from the start.               Hence, the panel vacated the

guilty plea in its entirety, and remanded the case to the procedural posture

of before the entry of the plea. Id. at 1094.

      There is no question that Melendez-Negron controls the instant case,

because the circumstances of the two cases nearly are identical. Here, like



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in Melendez-Negron, Keyes entered his plea approximately five months

after Alleyne.   Keyes’ counsel did not inform him of Alleyne, nor did

counsel argue Alleyne’s applicability to the trial court.    At the time of

sentencing, if Keyes were sentenced pursuant to the sentencing guidelines,

instead of a mandatory minimum sentence, the standard range sentence

would be a minimum of twenty-four to thirty months’ incarceration.

Application of the mandatory sentence resulted in a sentence that exceeded

the standard range by anywhere from six to twelve months.

      Applying the analysis from Melendez-Negron, as we must, Keyes has

satisfied all three prongs of the ineffective assistance of counsel test. The

claim has obvious merit, and, like in Melendez-Negron, counsel could not

have had a reasonable basis for not challenging the sentence.        Finally,

prejudice resulted from the higher than standard sentence that necessarily

resulted by the imposition of the mandatory minimum sentence.

      Finally, as noted above, Keyes acknowledged in the “Defendant’s

Statement of Understanding of Rights Prior to Guilty Plea” form, his plea

subjected him to the mandatory sentence. Thus, the mandatory sentence

played at least some role in the plea negotiation process. Consequently, we

must afford the same relief as the panel did in Melendez-Negron.

      Order reversed.     Plea vacated.     Case remanded.       Jurisdiction

relinquished.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/14/2015




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