J-S03027-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

RAVON CHRISTOPHER IRVING

                            Appellant                No. 1128 EDA 2015


                  Appeal from the PCRA Order March 30, 2015
                In the Court of Common Pleas of Chester County
              Criminal Division at No(s): CP-15-CR-0001110-2013


BEFORE: FORD ELLIOTT, P.J.E., OTT, J., and JENKINS, J.

MEMORANDUM BY OTT, J.:                              FILED MARCH 03, 2016

        Ravon Christopher Irving appeals from the order entered March 30,

2015, in the Chester County Court of Common Pleas, dismissing his first

petition for collateral relief filed pursuant to the Post Conviction Relief Act

(“PCRA”), 42 Pa.C.S. §§ 9541-9546. Irving seeks relief from a mandatory

minimum sentence of seven to 14 years’ imprisonment, imposed following

his negotiated guilty plea to one count of possession with intent to deliver

heroin.1 On appeal, Irving contends the PCRA court erred in dismissing his

claim that he was subjected to an illegal sentence pursuant to Alleyne v.

United States, 133 S.Ct. 2151 (U.S. 2013).         For the reasons set forth



____________________________________________


1
    35 P.S. § 780-113(a)(30).
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below, we reverse the order of the PCRA court and remand for further

proceedings.

       The procedural history underlying this appeal is as follows.           On

January 15, 2014, Irving entered a negotiated guilty plea to one count of

possession with intent to deliver heroin.        Pursuant to the plea agreement,

the trial court sentenced Irving to a term of seven to 14 years’ imprisonment

based upon the mandatory minimum sentencing provision at 18 Pa.C.S. §

7508(a)(iii). See id. (mandatory seven years’ incarceration for possession

with intent to deliver more than 50 grams of heroin and prior drug

conviction). No appeal was filed.

       On August 29, 2014, Irving filed a counseled PCRA petition, 2 asserting

plea counsel was ineffective for (1) instructing Irving to accept a plea

agreement with a mandatory minimum sentence in light of the United States

Supreme Court’s decision in Alleyne, supra; and (2) failing to “fully discuss

and pursue” a pretrial motion to suppress.           Petition for Post-Conviction

Relief, 8/29/2014, at ¶ 24. Thereafter, on January 27, 2015, the PCRA court

sent Irving notice, pursuant to Pa.R.Crim.P. 907, of its intent to dismiss the

petition without first conducting an evidentiary hearing.3 Irving did not file a
____________________________________________


2
  Irving retained Evan J. Kelly, Esquire, to litigate his petition at the PCRA
court level.
3
  The notice included an eight-page footnote explaining the basis for the
court’s determination that Irving’s claims were meritless.




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response to the court’s Rule 907 notice, and, on March 30, 2015, the PCRA

court dismissed Irving’s petition. This timely appeal followed.4

       Although Irving purports to raise three issues on appeal, only one is

preserved for our review:5          “Whether [the] PCRA court erred in denying
____________________________________________


4
  Irving filed a pro se notice of appeal on April 16, 2015, and, thereafter,
complied with the PCRA court’s order to file a concise statement of errors
complained of on appeal pursuant to Pa.R.A.P. 1925(b). See Concise
Statement of Issues Raised on Appeal, 5/7/2015.

       On June 2, 2015, counsel filed a motion to withdraw, claiming he had
been retained only for the PCRA court level of representation, and not for an
appeal. See Motion to Withdraw as Counsel, 6/2/2015, at ¶ 5. The PCRA
court granted counsel’s motion on June 23, 2015. However, when the
record was forwarded to this Court, Kelly still appeared to be counsel of
record. Because counsel had not complied with this Court’s directive to file a
criminal docketing statement, we issued an order on June 24, 2015,
directing Kelly to inform this Court, within 10 days, if he was still
representing Irving. The PCRA court responded by forwarding a copy of its
June 23, 2015, Order permitting Kelly to withdraw.

      Thereafter, on July 17, 2015, this Court remanded the case to the
PCRA court to conduct a Grazier hearing to determine if Irving wanted to
proceed with an attorney or pro se. See Commonwealth v. Grazier, 713
A.2d 81 (Pa. 1998). The PCRA court complied with our directive and
conducted a Grazier hearing on August 6, 2015. Because the court found
Irving wanted to proceed with counsel, it appointed the Public Defenders’
Office to represent him on appeal. The Public Defenders’ Office did not seek
to amend Irving’s Rule 1925(b) statement, but rather, filed the appellate
brief with this Court.
5
    Irving’s remaining two claims, both asserting plea counsel’s
ineffectiveness, were included in Irving’s PCRA petition, but not in his Rule
1925(b) concise statement. “It is well established that an appellant’s failure
to include claims in the court-ordered 1925(b) statement will result in a
waiver of that issue on appeal.” Commonwealth v. Carpenter, 955 A.2d
411, 415 (Pa. Super. 2008). Therefore, we need not consider these claims
on appeal.
(Footnote Continued Next Page)


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relief based on the claim … that [Irving] was subjected to an illegal

sentence?” Irving’s Brief at 5.

      Our standard of review of an order denying PCRA relief is
      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. Lawson, 90 A.3d 1, 4 (Pa. Super. 2014) (internal

citations omitted).

      Preliminarily, we note that an Alleyne claim presents “a non-waivable

challenge to the legality of sentence … [and] may be raised on direct appeal,

or in a timely filed PCRA petition.” Commonwealth v. Ruiz, ___ A.3d ___,

___, 2015 PA Super 275, *5 (Pa. Super. December 30, 2015) (footnote

                       _______________________
(Footnote Continued)


      We are compelled to note, however, that Irving’s counseled brief
reads, improperly, like a hybrid Anders/advocate brief because appellate
counsel asserts that these two claims are meritless.         See Anders v.
California, 388 U.S. 924 (1967).       Moreover, Irving’s challenge to plea
counsel’s ineffectiveness for advising him to enter a guilty plea with a
mandatory minimum sentence after the Supreme Court filed its decision in
Alleyne appears to be meritorious based upon this Court’s recent decision in
Commonwealth v. Melendez-Negron, 123 A.3d 1087, 1091 (Pa. Super.
2015) (defendant who entered negotiated guilty plea, including Section
9712.1 mandatory minimum sentence, was entitled to relief based upon
ineffectiveness of plea counsel for advising him to enter guilty plea;
Supreme Court’s decision in Alleyne put counsel on notice of the
unconstitutionality of mandatory minimum sentencing statute at issue, and
defendant’s admission of triggering fact, by virtue of guilty plea, “does not
remedy the Alleyne violation inherent to § 9712.1.”).           Nevertheless,
because we conclude Irving is entitled to relief on his third claim, we need
not remand for new counsel.




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omitted) (holding Alleyne invalidated mandatory minimum sentence on

PCRA review when petitioner’s judgment of sentence was pending on direct

review at the time Alleyne was decided).6 Therefore, the issue is properly

before us, regardless of the fact that Irving failed to include it in his PCRA

petition.7

       A brief synopsis of this Court’s application of Allenye is instructive.

The United States Supreme Court in Alleyne held “[a]ny fact that, by law,

increases the penalty for a crime is an ‘element’ that must be submitted to

the jury and found beyond a reasonable doubt.”        Alleyne, 133 S.Ct. at

2155. In Commonwealth v. Newman, 99 A.3d 86 (Pa. Super. 2014) (en

banc), appeal denied, 121 A.3d 496 (Pa. 2015), an en banc panel of this

Court concluded that Alleyne rendered the mandatory minimum sentencing

provision at 42 Pa.C.S. § 9712.1 unconstitutional because “it permits the

trial court, as opposed to the jury, to increase a defendant’s minimum
____________________________________________


6
  In Ruiz, this Court distinguished Commonwealth v. Riggle, 119 A.3d
1058 (Pa. Super. 2015), which “declined to give Alleyne retroactive effect
to cases on timely collateral review when the defendant’s judgment of
sentence was finalized before Alleyne was decided.” Ruiz, supra, ___ A.3d
at ___, 2015 PA Super 275, *3. The Ruiz Court found Alleyne invalidated
the sentence at issue because the petitioner’s judgment of sentence was
still pending on direct appeal when Allenye was decided. Id. at ___,
2015 PA Super 275, *4. Here, Irving entered his guilty plea after the
Alleyne decision was filed. Therefore, we find the instant case does not
present a “retroactive” application of the law, as was prohibited in Riggle,
supra.
7
  We note the Commonwealth did not address this particular claim in its
brief.



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sentence   based     upon   a    preponderance    of     the   evidence”   standard.

Newman, supra, 99 A.3d at 98.              The Newman Court went one step

further, however, and found the unconstitutional provisions in Section

9712.1 were not severable from the statute as a whole. See id. at 101

(“We find Subsections (a) and (c) of Section 9712.1 are essentially and

inseparably connected.”).        The Pennsylvania Supreme Court applied the

same reasoning in Commonwealth v. Hopkins, 117 A.3d 247 (Pa. 2015),

when it determined that the mandatory minimum sentencing statute at 18

Pa.C.S. § 6317 was also unconstitutional under Alleyne.               The Hopkins

Court opined:

           In conclusion, we hold … that numerous provisions of
     Section 6317 are constitutionally infirm under Alleyne.
     Moreover, the remaining provisions of Section 6317, standing
     alone, are incomplete and are incapable of being vindicated in
     accord with the intent of the General Assembly. 1 Pa.C.S. §
     1925. Because of the significant provisions found to violate the
     Constitution, which clearly express the intent of the legislature
     that Section 6317 is a mandatory minimum sentencing statute,
     and not a substantive offense, we find the remaining unoffending
     provisions of Section 6317 are incapable of being severed, and
     we will not judicially usurp the legislative function and rewrite
     Section 6317 or create a substantive offense which the General
     Assembly clearly did not desire. Rather, we leave it to our sister
     branch for an appropriate statutory response to the United
     States Supreme Court’s decision in Alleyne.

Id. at 262.

     The mandatory sentencing statute applied in the present case, 18

Pa.C.S. § 7508, contains the same provision as in Sections 6317 and

9712.1.       This   provision   permits   the   trial   court   to   make   factual



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determinations at sentencing under a relaxed preponderance of the evidence

standard, which has been found to be unconstitutional under Alleyne.

Accordingly, when faced with an Alleyne challenge on direct appeal to the

imposition of a Section 7508 mandatory minimum sentence, this Court has

consistently vacated the sentence and remanded for resentencing. 8 Further,

as noted supra, Alleyne also invalidates a Section 7508 sentence on timely

collateral review, if Alleyne was decided before the judgment of sentence

was final. Ruiz, supra.

       Nevertheless, the PCRA court found that the case before us presents a

different factual scenario because Irving entered a guilty plea, and,

consequently, admitted the facts necessary to impose the Section 7508

mandatory minimum. The court opined:

             [Irving] understood the charges against him, knew the
       consequences of possessing that amount of heroin and
       voluntarily entered a plea of guilty to the charge, admitting that
       he possessed 50+ grams but less than 100 grams of heroin. No
       independent judicial factfinding was necessary and the Court
       sentenced [Irving] in accordance with his admitted conduct.

Order, 1/27/2015, at 6. In doing so, the court relied upon a federal district

court decision, United States v. Crossan, 2014 WL 695057 (E.D. Pa.

2014).
____________________________________________


8
  See Commonwealth v. Caple, 121 A.3d 511 (Pa. Super. 2015);
Commonwealth v. Mosley, 114 A.3d 1072 (Pa. Super. 2015);
Commonwealth v. Vargas, 108 A.3d 858 (Pa. Super. 2014) (en banc),
appeal denied, 121 A.3d 496 (Pa. 2015); Commonwealth v. Cardwell,
105 A.3d 748 (Pa. Super. 2014), appeal denied, 121 A.3d 494 (Pa. 2015).



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      In Crossan, the district court considered whether Alleyne invalidated

the defendant’s sentence under 18 U.S.C. § 924(c)(1)(A), which imposes a

mandatory minimum sentence when a defendant uses or carries a firearm

during a crime of violence. Id. at *2. Relying on several decisions by the

United States Courts of Appeals, the Crossan court held the dictates of

Allenye were not violated because the defendant was “charged [] with

brandishing, he was advised of the elements of brandishing during his

Change of Plea Hearing, and he admitted to facts that established the

elements of brandishing during that Hearing.” Id. See United States v.

Yancy, 725 F.3d 596 (6th Cir. 2013); United States v. Harris, 2013 WL

5755249 (7th Cir. 2013); United Sates v. Oliver, 2013 WL 6037182 (11th

Cir. 2013).

      In the present case, Irving recognizes that Crossan “seems to offer a

bright line rule in terms of cases where guilty pleas were entered[.]”

Irving’s Brief at 20.          However, he asserts the Crossan ruling is not

applicable here because the mandatory minimum statute at issue was held

to be “unseverable and unconstitutional” by this Court in Cardwell, supra.

Id.

      In Cardwell, the defendant did not plead guilty, but rather, during his

bench trial, entered into a stipulation with the Commonwealth regarding the

weight of the drugs recovered.          Id. at 754.     The trial court concluded,

therefore,    the   dictates    of   Allenye   were   not   violated   because   “the




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Commonwealth did prove this element[, i.e., the weight of the drugs,] to the

trial court beyond a reasonable doubt[.]” Id.

      On appeal, a panel of this Court disagreed. Relying upon Newman,

supra, and Commonwealth v. Valentine, 101 A.3d 801 (Pa. Super.

2014), appeal denied, 124 A.3d 309 (Pa. 2015), the Cardwell Court found

that any attempt “to impose a mandatory minimum sentence outside the

statutory framework, but consistent with Alleyne[,]” must fail. Cardwell,

supra, 105 A.3d at 754. Indeed, the Court explained that in Valentine, the

trial court attempted to cure the Alleyne problem by allowing the

Commonwealth to submit to the jury specific questions, which determined

the applicability of the mandatory minimum statute.                Id. at 753.

Nevertheless, on appeal, this Court found the trial court had erred because it

“effectively   determined   that   the   unconstitutional    provisions   of   the

[mandatory minimum statute] were severable.”                Id. at 754, quoting

Valentine, supra, 101 A.3d at 811.

      The Cardwell panel followed the holding in Valentine, opining:

      [W]e see no meaningful difference, for the purposes of Newman
      and Valentine, between submitting the element to the jury and
      accepting a stipulation from a defendant. They both have the
      purpose of finding a method to impose a mandatory minimum
      sentence outside the statutory framework, but consistent with
      Alleyne. However, both Newman and Valentine unequivocally
      state that creating a new procedure in an effort to impose a
      mandatory minimum sentence is solely within the province of the
      legislature. See Newman, supra; Valentine, supra. While
      submission to a jury is a more formal and involved procedure,
      we decline to fracture Newman and Valentine further by



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       concluding that when read together, they only prohibit formal
       mandatory minimum procedures, but permit informal ones.

Id. at 754-755. See also Commonwealth v. Fennell, 105 A.2d 13 (Pa.

Super. 2014) (accord), appeal denied, 121 A.3d 494 (Pa. 2015).

       Recently, the Ruiz Court applied this same reasoning with respect to a

negotiated guilty plea. See Ruiz, supra, ___ A.3d at ___, 2015 PA Super

275, *5 (holding “this Court has consistently rejected any attempt by the

Commonwealth to employ a harmless error analysis to overcome the

mandate of Alleyne.”). This Court has held Section 7508 is unconstitutional

under Alleyne, and its subsections are not severable. Therefore, we agree

with Irving’s contention that the trial court imposed an illegal sentence, and

the PCRA court erred in failing to grant Irving relief.

       Accordingly, because we find Irving is entitled to be resentenced

without consideration of the mandatory minimum sentencing provision found

at 18 Pa.C.S. § 7508, we reverse the PCRA court’s order dismissing Irving’s

petition, vacate the judgment of sentence, and remand for resentencing.9

       Order reversed. Judgment of sentence vacated. Case remanded for

proceeding consistent with this Memorandum. Jurisdiction relinquished.

____________________________________________


9
  We note neither Irving, nor the Commonwealth, has requested we vacate
Irving’s plea to return the parties “to the status quo prior to the entry of the
guilty plea.”     Melendez-Negron, supra, 123 A.3d at 1091 (citation
omitted) (granting Commonwealth’s request to vacate guilty plea; finding
“shared misapprehension that the mandatory minimum sentence … applied
to Melendez-Negron tainted the parties’ negotiations at the outset.’).
Therefore, we decline to do so sua sponte.



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/3/2016




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