J-S65016-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                         IN THE SUPERIOR COURT OF
                                                            PENNSYLVANIA
                            Appellee

                       v.

TARRONCE VELENTA-EMIL PORTER,

                            Appellant                     No. 1743 WDA 2015


                Appeal from the PCRA Order of October 8, 2015
                  In the Court of Common Pleas of Erie County
              Criminal Division at No(s): CP-25-CR-0000850-2013


BEFORE: LAZARUS, OLSON AND PLATT,* JJ.

MEMORANDUM BY OLSON, J.:                             FILED NOVEMBER 28, 2016

        Appellant, Tarronce Velenta-Emil Porter, appeals from an order

entered on October 8, 2015 that denied, without a hearing, his timely first

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

§9541-9546. We reverse the order of October 8, 2015, vacate Appellant’s

judgment of sentence, and remand for resentencing.

        We briefly set forth the historical and procedural history in this case.

On July 18, 2013, a jury found Appellant guilty of four counts of aggravated

assault, two counts of recklessly endangering another person, and firearms

not to be carried without a license.1          Thereafter, the court, on September

30, 2013, sentenced Appellant to a mandatory minimum term of five to ten

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1
    18 Pa.C.S.A. §§ 2702(a)(1) and (4), 2705, and 6106(a)(1).



*Retired Senior Judge assigned the Superior Court.
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years’ incarceration on one of his aggravated assault charges. This sentence

was imposed pursuant to 42 Pa.C.S.A. § 9712. The other charges merged

with Appellant’s aggravated assault conviction for sentencing purposes.

Appellant did not file post-sentence motions.

     Appellant filed a notice of appeal on October 11, 2013.      On appeal,

Appellant challenged the discretionary aspects of his sentence and the

weight of the evidence introduced at trial. This Court affirmed Appellant’s

judgment of sentence on August 19, 2014. Appellant never petitioned for

further review before the Supreme Court.

     Appellant, acting pro se, filed the instant PCRA petition (captioned as a

motion to vacate illegal sentence and to impose a legal sentence) on

February 18, 2015.      The petition argued that Appellant’s mandatory

minimum sentence was illegal under Alleyne v. United States, 133 S.Ct.

(2013), which was decided on June 17, 2013 – three months prior to

Appellant’s sentencing hearing.   Counsel was appointed and an amended

petition was filed on March 30, 2015. The amended submission reiterated

the claims set forth in Appellant’s pro se petition and added a claim of

ineffective assistance of counsel.    On July 23, 2015, the PCRA court,

pursuant to Pa.R.Crim.P. 907, issued notice of its intent to dismiss

Appellant’s petition without a hearing. The court’s dismissal order followed

on October 8, 2015. This appeal timely ensued wherein Appellant and the

PCRA court have complied with Pa.R.A.P. 1925.




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      On appeal, Appellant challenges the PCRA court’s refusal to grant relief

in the face of his Alleyne-based challenge to the legality of his mandatory

minimum sentence. Our standard of review is well settled.

      [We review an order] denying PCRA relief [to ascertain] whether
      the record supports the PCRA court's determination and whether
      the PCRA court's decision is free of legal error. The PCRA court's
      findings will not be disturbed unless there is no support for the
      findings in the certified record.

Commonwealth v. Ruiz, 131 A.3d 54, 57 (Pa. Super. 2015), quoting

Commonwealth v. Lawson, 90 A.3d 1, 4 (Pa. Super. 2014) (internal

citations omitted).

      The PCRA court offered several reasons in support of its decision to

dismiss Appellant’s petition without a hearing.   First, the court found that

Appellant waived any challenge to his mandatory minimum sentence

because he failed to raise the issue prior to sentencing, at sentencing, in a

post-sentence motion, or on direct appeal.    Next, the court reasoned that

Alleyne was not applicable to cases pending on collateral review.      Lastly,

the court found that Appellant’s direct appeal counsel could not be deemed

ineffective since Appellant waived his Alleyne challenge by not raising the

claim before the trial court. These assessments are legally flawed.

      Our decision in Ruiz governs the disposition of this appeal. In Ruiz,

we explained that an Alleyne claim is a non-waivable challenge to the




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legality of sentence that may be raised for the first time on direct appeal or

in a timely filed PCRA petition.2 Ruiz, 131 A.3d at 60; 42 Pa.C.S.A. § 9542

(“persons serving illegal sentences may obtain collateral relief”). Therefore,

Appellant’s failure to raise his claim prior to the instant timely PCRA petition

is not grounds for finding waiver.

       We also observed in Ruiz that Alleyne may be applied retroactively to

cases pending on collateral review so long as the petitioner’s judgment of

sentence was not final when Alleyne was decided.           Ruiz, 131 A.3d at

59-60.    Because Appellant received his sentence three months after the

issuance of Alleyne, the instant case does not implicate impermissible

retroactive application of that precedent.

       Finally, since we have noted that Appellant could not waive his

Alleyne challenge prior to direct appeal, nothing precluded direct appeal

counsel from challenging Appellant’s mandatory minimum sentence at that

stage of the proceedings. Id. at 60, citing Commonwealth v. Newman,

99 A.3d 86, 90 (Pa. Super. 2014) (en banc) (recognizing that Alleyne

applies to all criminal cases pending on direct review), appeal denied, 121



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2
  The issue of whether Alleyne implicates the legality of a sentence, and
thus constitutes a non-waivable claim, is currently pending before the
Pennsylvania Supreme Court in Commonwealth v. Barnes, 122 A.3d
1034-1035 (Pa. 2015) (per curiam order granting petition for allowance of
appeal in part).



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A.3d 496 (Pa. 2015). Hence, Appellant retains a viable claim of ineffective

assistance of counsel.

      Based on our review of the procedural background of this case and the

relevant case law discussed above, we conclude that Appellant is entitled to

resentencing without consideration of the mandatory minimum sentencing

provision of 42 Pa.C.S. § 9712.    Therefore, since the PCRA court erred in

dismissing Appellant’s petition raising an Alleyne challenge, we reverse the

order denying PCRA relief, vacate Appellant’s judgment of sentence, and

remand for resentencing.

      Order reversed. Judgment of sentence vacated. Case remanded for

resentencing. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/28/2016




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