J-S52017-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                          IN THE SUPERIOR COURT OF
                                                            PENNSYLVANIA
                            Appellee

                       v.

MICHAEL TELLEED ROSS

                            Appellant                          No. 2972 EDA 2015


             Appeal from the PCRA Order Dated September 4, 2015
              In the Court of Common Pleas of Philadelphia County
                Criminal Division at No: CP-51-CR-0009616-2013


BEFORE: FORD ELLIOTT, P.J.E., STABILE, and STRASSBURGER,* JJ.

DISSENTING MEMORANDUM BY STABILE, J.:                     FILED January 12, 2017

        I respectfully dissent because the Majority incorrectly concludes

Alleyne1 rendered Section 7508 of the Crimes Code unconstitutional.

        The sole issue before us is whether the PCRA court erred in declining

to hold an evidentiary hearing on Appellant’s allegation that his trial counsel

was     ineffective   for   failing   to   advise   him   of    Alleyne’s   impact   on

Pennsylvania’s mandatory minimum statutes. Put differently, Appellant here

argues that his counsel was ineffective for failing to predict that Alleyne



____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
  Alleyne v. United States, 133 S. Ct. 2151, 2161-63 (2013) (holding that
any fact other than a prior conviction that triggers a mandatory minimum
sentence must be found by a jury beyond a reasonable doubt).
J-S52017-16



would trigger Pennsylvania courts to declare unconstitutional mandatory

minimum statutes, such as Section 7508.

       Unlike the Majority, I believe Appellant’s argument lacks merit. It is

well-settled that counsel will not be deemed ineffective for failing to

anticipate changes in law.         Commonwealth v. Bennett, 57 A.3d 1185,

1201 (Pa. 2012) (recognizing that “counsel will not be faulted for failing to

predict change in the law.”); see also Commonwealth v. Cox, 983 A.2d

666, 702 (Pa. 2009) (“The law is clear that counsel cannot be held

ineffective for failing to anticipate a change in the law.”).        Instantly,

although it is true that Alleyne was decided approximately three months

before Appellant was sentenced, Pennsylvania courts had not ruled at the

time of his sentencing whether Alleyne would invalidate state mandatory

minimum statutes. In fact, it was not until Commonwealth v. Newman,

99 A.3d 86 (Pa. Super. 2014) (en banc) (Ford Elliot, P.J.E.), that this Court

held that mandatory minimum statutes were unconstitutional and non-

severable.     Newman was vindicated by our Supreme Court’s decision in

Commonwealth v. Hopkins, 117 A.3d 247 (Pa. 2015).                 Accordingly,

Appellant’s counsel cannot be faulted for failing to predict the full effect of

Alleyne on Pennsylvania mandatory minimum statutes.2           See Bennett,
____________________________________________


2
  To the extent the learned Majority asserts that “Alleyne rendered
[S]ection 7508 []constitutionally infirm,” Maj. Mem. at 5, I must disagree.
Alleyne held only that under the Sixth Amendment to the United States
Constitution, a jury must find beyond a reasonable doubt any facts that
(Footnote Continued Next Page)


                                           -2-
J-S52017-16



supra; but compare Melendez-Negron, 123 A.3d at 1090-91 (trial

counsel was ineffective for permitting appellant to enter into a negotiated

guilty plea featuring a mandatory minimum sentence under Section 9712.1

after Section 9712.1 was declared unconstitutional in Commonwealth v.

Munday, 78 A.3d 661 (Pa. Super. 2013)).

      Even if Appellant’s claim had merit, as the Majority believes, it still

fails because Appellant failed to discuss adequately the prejudice prong of

the Pierce test. As this Court recently emphasized in Commonwealth v.

Reyes-Rodriguez, 111 A.3d 775, 780 (Pa. Super. 2015) (en banc), “[a]

petitioner must prove all three factors of the Pierce test, or the

[ineffectiveness] claim fails.         In addition, on appeal, a petitioner must

adequately discuss all three factors” of the test outlined in Commonwealth

v. Pierce, 527 A.2d 973 (Pa. 1987). See Reyes-Rodriguez, supra. Here,

Appellant’s brief contains only a one-sentence allegation of prejudice:

“[Appellant] was prejudiced by this failure of counsel because [Appellant]

received a more severe sentence.”                Appellant’s Brief at 6.   Appellant’s

allegation of prejudice does not explain how his sentence would have been
                       _______________________
(Footnote Continued)

increase a mandatory minimum sentence. See Alleyne, 133 S. Ct. at 2155.
Here, as noted, no mandatory minimum sentence was applied as part of the
negotiated plea deal. Thus, the trial court did not determine any facts
increasing   a   mandatory     minimum      sentence.        But   compare
Commonwealth v. Melendez-Negron, 123 A.3d 1087, 1089 (Pa. Super.
2015) (vacating the appellant’s guilty plea because it included a mandatory
minimum sentence under 42 Pa.C.S.A. § 9712.1 for firearms possession).




                                            -3-
J-S52017-16



less severe.     Specifically, Appellant does not allege what crimes he was

facing, or what the standard range sentence was for those crimes—let alone

the offense gravity score or his prior record score.3     Accordingly, I would

conclude that the PCRA court did not err in dismissing Appellant’s PCRA

petition without a hearing.




____________________________________________


3
    As the Commonwealth points out:

        In addition to the open PWID and conspiracy case to which
        [Appellant] pled guilty, he had two open violations of probation
        cases on the court’s list for disposition that same day, including
        one for a previous PWID conviction. [The trial court] found
        [Appellant] in violation of both probations, but gave no
        additional sentence. Had [Appellant] proceeded to trial and been
        convicted on all of the charges he faced, he could have been
        sentenced to up to 30 years in prison.
Appellee’s Brief at 7.



                                           -4-
