J-S69036-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA                :     IN THE SUPERIOR COURT OF
                                                :          PENNSYLVANIA
                                                :
               v.                               :
                                                :
                                                :
    RAFAEL R. SANCHES, JR.                      :
                                                :
                      Appellant                 :     No. 768 WDA 2017

                       Appeal from the Order July 26, 2016
     In the Court of Common Pleas of Erie County Criminal Division at No(s):
                            CP-25-CR-0001914-2013


BEFORE:      BOWES, J., RANSOM, J., and STEVENS*, P.J.E.

MEMORANDUM BY STEVENS, P.J.E.:                          FILED DECEMBER 06, 2017

        Appellant, Rafael Sanches, appeals from the July 26, 2016, order

dismissing his petition filed pursuant to the Post Conviction Relief Act

(PCRA), 42 Pa.C.S.A. §§ 9541-9546. Sentenced to an aggregate 30 to 60

months’ incarceration following his entry of a guilty plea to charges of

possession with intent to deliver marijuana (PWID), conspiracy to commit

PWID,      possession     of   a   controlled       substance,   possession   of   drug

paraphernalia, and criminal use of a communication facility,1 Appellant

claims plea counsel ineffectively advised him to plead in exchange for the

Commonwealth’s agreement to waive application of the mandatory minimum

sentencing statute, 18 Pa.C.S. § 7508, where the United States Supreme
____________________________________________


1
  35 P.S. 780-113(a)(30), 18 P.S. 903, 35 P.S. 780-113(a)(16), 35 P.S.
780-113(a)(32), and 18 P.S. 7512(a).


____________________________________
* Former Justice specially assigned to the Superior Court.
J-S69036-17



Court had decided, just one month earlier in Alleyne v. United States, 133

S.Ct. 2151 (2013), that mandatory minimums triggered by judicial fact-

finding during sentencing were unconstitutional.2 We affirm.

       On January 15, 2014, Appellant entered into a plea agreement

whereby he would plead guilty to the above-mentioned offenses in exchange

for the Commonwealth’s promise to reduce the weight of the marijuana

charged in the criminal information from 10.6 to 9.9 pounds and to waive

the mandatory minimum sentence applicable to the PWID charge. On April

15, 2014, the court sentenced Appellant to the aforementioned sentence of

30 to 60 months’ incarceration with a 36-month probationary tail. Appellant

filed a motion for modification of sentence, which the trial court denied on

April 23, 2014.       Appellant appealed the judgment of sentence, raising

challenges to the order denying his motion to suppress evidence and to the

legality of this sentence.         On September 17, 2015, this Court affirmed

judgment of sentence.

       On November 16, 2015, Appellant filed a pro se PCRA petition, his

first. In his petition, Appellant argued his plea was involuntary because he

was induced to enter it in order to avoid exposure to a mandatory minimum

sentencing     scheme      that,   unbeknownst   to   him,   had   been   declared
____________________________________________


2
   In Alleyne, the United States Supreme Court decided that any fact
increasing the penalty for a crime beyond the prescribed statutory minimum
sentence must be submitted to a jury as an element of the crime to be
proven beyond a reasonable doubt.



                                           -2-
J-S69036-17



unconstitutional by the United States Supreme Court in Alleyne. Counsel

was appointed, and he subsequently filed an amended PCRA petition.         On

March 11, 2016, the PCRA court presided over an evidentiary hearing at

which Appellant and plea counsel testified.

       On June 29, the PCRA court filed a Pa.R.Crim.P. 907 Notice of Intent to

Dismiss PCRA based on the evidence adduced at the hearing.3 On July 26,

2016, the court entered its order dismissing Appellant’s PCRA petition.

Appellant, thereafter, filed pro se a timely notice of appeal.         In our

memorandum decision Commonwealth v. Sanches, No. 1164 WDA 2016,

unpublished memorandum at 3-4, filed on May 2, 2017, we determined

there was no indication in either the record or court docket suggesting that

counsel withdrew his appearance or that Appellant affirmatively waived his

right to counsel.     Given counsel’s apparent abandonment of Appellant, we

remanded the matter so that the court could either direct counsel to

continue representation, allow counsel to withdraw and appoint new counsel,

or conduct a Grazier4 hearing if Appellant wished to proceed pro se.       On



____________________________________________


3
  The PCRA court issued a notice of intent to dismiss Appellant's petition
pursuant to Pa.R.Crim.P. 907. However, that procedure is improper as Rule
907 controls only when the PCRA court determines that no hearing is
required to dispose of the PCRA petition. The court was permitted to dismiss
Appellant's PCRA petition following a hearing pursuant to Pa.R.Crim.P.
908(D)(1).
4
    Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).



                                           -3-
J-S69036-17



remand, the PCRA court appointed new counsel, who filed a notice of appeal

nunc pro tunc on May 26, 2017.

      Appellant presents the following questions for our review:

      1. [DID] THE LOWER COURT COMMIT[] LEGAL ERROR AND
         ABUSE[] ITS DISCRETION IN FAILING TO FIND THAT THE
         GUILTY PLEAS AS ENTERED WERE INVALID IN THAT THE
         COMMONWEALTH USED THE REPRESENTATION THAT IT
         WOULD AGREE TO WAIVE THE MANDATORY MINIMUM
         SENTENCE AS AN INDUCNEMENT [SIC] TO ACCEPT THE PLEA
         AGREEMENT WHEREIN THE COMMONWEALTH LACKED ANY
         LEGAL AUTHORITY TO PURSUE THE MANDATORY MINIMUM
         SENTENCE GIVEN THE ISSUANCE OF THE SUPREME COURT
         DECISION IN UNITED STATES V. ALLEYNE?

      2. [WAS]   THE   APPELLANT   [] AFFORDED INEFFECTIVE
         ASSISTANCE OF COUNSEL IN THAT DEFENSE COUNSEL
         FAILED TO PROPERLY ADVISE AND COUNSEL THE APPELLANT
         AS TO THE TERMS OF THE PLEA AGREEMENT IN THE CONTET
         OF THE HOLDING OF UNITED STATES V. ALLEYNE AND
         DEFENSE COUNSEL ALSO SERVED TO INDUCE THE ENTRY OF
         GUILTY PLEAS BY REPRESENTING THAT THE WAIVER OF THE
         MANDATORY MINIMUM WAS OF SIGNIFICANCE AND
         CONSTITUTED A FAVORABLE ELEMENT OF THE PLEA
         AGREEMENT?

Appellant’s brief at 2.

      Our review of an order denying PCRA relief is well-established:

      This Court reviews a PCRA court's decision in the light most
      favorable to the prevailing party. Commonwealth v. Hanible,
      612 Pa. 183, 30 A.3d 426, 438 (2011). Our review is limited to
      a determination of whether the record supports the PCRA court's
      factual findings and whether its legal conclusions are free from
      error.    Id.   “A PCRA court's credibility findings are to be
      accorded great deference, and where supported by the record,
      such determinations are binding on a reviewing court.”
      Commonwealth v. Treiber, ––– Pa. ––––, 121 A.3d 435, 444
      (2015) (citing Commonwealth v. Dennis, 609 Pa. 442, 17
      A.3d 297, 301 (2011)). We review the PCRA court's legal


                                    -4-
J-S69036-17


      conclusions de novo. Commonwealth v. Roney, 622 Pa. 1, 79
      A.3d 595, 603 (2013).


Commonwealth v. Williams, 141 A.3d 440, 452 (Pa. 2016). Furthermore,

to be eligible for relief under the PCRA, a petitioner must plead and prove by

a preponderance of the evidence: “[t]hat the allegation of error has not been

previously litigated or waived.” 42 Pa.C.S.A. § 9543(a)(3).

      First, Appellant challenges the validity of his guilty plea as a stand-

alone claim, discrete from the related ineffective assistance of counsel claim

raised in his second issue. Specifically, he contends here that because his

plea was based on a mistaken belief—fostered by both the trial court and the

Commonwealth without due regard for Alleyne—that the waiver of the

mandatory minimum sentence conferred a benefit to Appellant in exchange

for his plea, his plea was invalid. We find this issue is waived.

      To obtain post-conviction relief, a petitioner is required to plead and

prove that “the allegation of error has not been previously litigated or

waived.” 42 Pa.C.S. § 9543(a)(3). An issue is waived if it could have been

raised before trial, at trial, on direct appeal, or in a prior state post-

conviction proceeding. 42 Pa.C.S. § 9544(b).          In order to preserve a

challenge to his guilty plea, a defendant must either make a timely objection

during the plea colloquy or raise the claim in a post-sentence motion.

Commonwealth v. D'Collanfield, 805 A.2d 1244, 1246 (Pa.Super. 2002)

(instructing that claim challenging validity of guilty plea waived where




                                     -5-
J-S69036-17



appellant neither objected during colloquy nor challenged it in post-sentence

motion); Pa.R.Crim.P. 720.

      Here, Appellant did not object to the guilty plea during his colloquy or

challenge the plea in a post-sentence motion. Therefore, Appellant's stand-

alone claim that his guilty plea was invalid, raised for the first time on

collateral review, is waived. 42 Pa.C.S. § 9544(b).

      Appellant’s second issue, however, challenges the invalidity of his

guilty plea as a function of plea counsel’s ineffectiveness in failing to advise

him that he may not have been subject to Pennsylvania’s mandatory

minimum sentencing scheme for PWID given the United States Supreme

Court’s then-recent decision in Alleyne. When considering a claim asserting

trial counsel's ineffectiveness, we must bear in mind:

      “In order to obtain relief under the PCRA premised upon a claim
      that counsel was ineffective, a petitioner must establish beyond
      a preponderance of the evidence that counsel's ineffectiveness
      ‘so undermined the truth-determining process that no reliable
      adjudication of guilt or innocence could have taken place.’”
      Commonwealth v. Payne, 794 A.2d 902, 905 (Pa. Super.
      2002), quoting 42 Pa.C.S.A. § 9543(a)(2)(ii). When considering
      such a claim, courts presume that counsel was effective, and
      place upon the appellant the burden of proving otherwise. Id. at
      906. “Counsel cannot be found ineffective for failure to assert a
      baseless claim.” Id.

      To succeed on a claim that counsel was ineffective, Appellant
      must demonstrate that: (1) the claim is of arguable merit; (2)
      counsel had no reasonable strategic basis for his or her action or
      inaction; and (3) counsel's ineffectiveness prejudiced him.
      Commonwealth v. Allen, 833 A.2d 800, 802 (Pa. Super.
      2003).

Commonwealth v. Michaud, 70 A.3d 862, 867 (Pa. Super. 2013).

                                     -6-
J-S69036-17



       Here, Appellant fails to establish that counsel had no reasonable basis

upon which to recommend pleading guilty, where the Commonwealth offered

not only to waive the mandatory minimum sentence for PWID but also to

decrease the weight of marijuana charged in the information to an amount

that would reduce the offense gravity score and, consequently, the standard

range sentence for Appellant’s PWID by 12 months. The reduction of weight

likewise reduced the sentencing guidelines for the related charge of

Conspiracy to Commit PWID. As such, Appellant’s sentencing exposure was

significantly reduced independent of the Commonwealth’s offer to waive the

mandatory minimum, and counsel explained at the PCRA hearing that he

based his advice in part on the benefits attendant to the reduction of the

drug weight charged in the information. See N.T. 7/26/17 at 20-22.

       Accordingly, even considering the effect of Alleyne, which, it must be

said, was still unresolved by this Court in early interpretive decisions filed

prior to the time counsel advised Appellant to plead,5 we conclude that
____________________________________________


5
  Early decisions interpreting Alleyne “implied that [a defendant] could
legally stipulate to the amount of drugs recovered, and agree to the
imposition of the mandatory minimum sentence under Section 7508.”
Commonwealth v. Rivera, 154 A.3d 370, 379 (Pa.Super. 2017) (en banc).
The Rivera panel further espoused:

       Indeed, it was not until our decision in [Commonwealth v.
       Newman, [99 A.3d 86 (Pa.Super. 2014)], filed in August of
       2014, that an en banc panel held Pennsylvania's mandatory
       minimum sentencing statutes, which permitted a trial court to
       increase a defendant's minimum sentence based upon a
       preponderance of the evidence standard, were unconstitutional
(Footnote Continued Next Page)


                                           -7-
J-S69036-17



counsel had a reasonable basis for advising Appellant to accept the

Commonwealth’s offer and plead guilty. Because Appellant has, therefore,

failed to prove the “reasonable basis” prong of his ineffective assistance of

counsel claim, his appeal fails.

      Order is AFFIRMED.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/6/17




                       _______________________
(Footnote Continued)

      under Alleyne and incapable of severance. After Newman, this
      Court consistently rejected any harmless error analysis that
      attempted to circumvent the plain language of the statutes.

Id. at 378.

In Rivera, the defendant entered a negotiated guilty plea, which included
the imposition of a mandatory minimum sentence, after Alleyne was filed,
but before Newman was decided. In concluding plea counsel was not
ineffective, the Rivera panel found “the PCRA court properly determined
counsel had a reasonable basis for advising Rivera to accept the plea, based
upon the harsher sentence Rivera would have faced had he proceeded to
trial.” Id. at 379.




                                            -8-
J-S69036-17




              -9-
