J-S59024-15

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,            :   IN THE SUPERIOR COURT OF
                                         :        PENNSYLVANIA
                   Appellee              :
                                         :
           v.                            :
                                         :
EDDIE JAMES JOHNSON III,                 :
                                         :
                   Appellant             :   No. 270 WDA 2015

                 Appeal from the PCRA Order January 6, 2015,
                      Court of Common Pleas, Erie County,
                Criminal Division at No. CP-25-CR-0000018-2013

BEFORE: BOWES, DONOHUE and FITZGERALD*, JJ.

MEMORANDUM BY DONOHUE, J.:                      FILED SEPTEMBER 29, 2015

     Eddie James Johnson, III (“Johnson”) appeals from the order of court

denying his petition filed pursuant to the Post Conviction Relief Act, 42

Pa.C.S.A. §§ 9541-9546 (“PCRA”).      For the following reasons, we reverse

the PCRA court’s order and remand for further proceedings.

     On October 21, 2013, Johnson pled guilty to possession with intent to

deliver a controlled substance (“PWID”), a felony, and possession of a small

amount of marijuana.     At the time of his plea, he acknowledged that the

PWID charge involved over nine grams of cocaine and that he had a prior

PWID conviction.      N.T., 10/21/13, at 6-8.    At that time, Johnson also

acknowledged that because of the amount of cocaine involved and his prior

PWID conviction, he was subject to a mandatory minimum sentence of three




*Former Justice specially assigned to the Superior Court.
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years, pursuant to 18 Pa.C.S.A. § 7508(a)(3)(i).1    Id. at 6, 10.   The trial

court subsequently imposed a sentence of three to six years of incarceration

on the PWID conviction with no further penalty on the remaining conviction.

N.T., 1/2/14, at 9-10.

     Johnson did not file a direct appeal. On October 10, 2014, he filed a

pro se PCRA petition and the PCRA court appointed counsel (“PCRA

counsel”). After reviewing the record, PCRA counsel filed a motion seeking

to withdraw pursuant to Commonwealth v. Turner, 544 A.2d 927 (Pa.

1998), and Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988).

The PCRA court subsequently granted PCRA counsel’s motion and issued

notice of its intent to dismiss Johnson’s petition without a hearing pursuant

to Pennsylvania Rule of Criminal Procedure 907 (“Rule 907”).         Johnson

responded to the Rule 907 notice on December 18, 2014 and the PCRA court

denied his petition on January 6, 2015.


1
   “A person who is convicted of … [PWID] … where the controlled substance
is coca leaves or is any salt, compound, derivative or preparation of coca
leaves or is any salt, compound, derivative or preparation which is
chemically equivalent or identical with any of these substances or is any
mixture containing any of these substances … shall, upon conviction, be
sentenced to a mandatory minimum term of imprisonment and a fine as set
forth in this subsection: (i) when the aggregate weight of the compound or
mixture containing the substance involved is at least 2.0 grams and less
than ten grams; one year in prison and a fine of $5,000 or such larger
amount as is sufficient to exhaust the assets utilized in and the proceeds
from the illegal activity; however, if at the time of sentencing the defendant
has been convicted of another drug trafficking offense: three years in prison
and $10,000 or such larger amount as is sufficient to exhaust the assets
utilized in and the proceeds from the illegal activity.”          18 Pa.C.S.A.
§ 7508(a)(3)(i).


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      This timely appeal followed. Johnson presents one issue for our

review: “Whether the [PCRA] court erred in failing to find that the

mandatory minimum sentence imposed in the instant case constituted an

illegal sentence under Alleyne?”      Johnson’s Brief at 2.   We consider this

claim cognizant that “[o]ur standard of review of [an] order granting or

denying relief under the PCRA requires us to determine whether the decision

of the PCRA court is supported by the evidence of record and is free of legal

error.”   Commonwealth v. Perez, 103 A.3d 344, 347 (Pa. Super. 2014)

(citation omitted).

      In his Turner/Finley letter, PCRA counsel concluded that there was

no merit to Johnson’s claim because Alleyne is not applicable “in the

context of the entry of guilty pleas wherein an factual finding for sentencing

under the mandatory minimum has not been deprived of adjudication by the

jury as triers-of-fact[.]”   Turner/Finley Letter, 12/8/14, at 2.   The PCRA

court agreed with appointed counsel, finding that neither [Allyene or

Commonwealth v. Newman, 99 A.3d 86 (Pa. Super. 2014)2] apply to the

plea setting because there was no issue for a jury (or fact finder) to

determine beyond a reasonable doubt.” PCRA Court Opinion, 12/10/14, at

7.   The PCRA court further concluded that Johnson’s counsel “was not




2
   In Newman, this Court found a similar mandatory minimum sentencing
statute, 18 Pa.C.S.A. § 9721.1, facially unconstitutional in light of the
Alleyne decision. Newman, 99 A.3d at 98.


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required   to   anticipate   the   Newman    decision   which   was    decided

approximately eight months after [Johnson] was sentenced.” Id.

      We begin with PCRA counsel’s and the PCRA court’s conclusion that

Alleyne does not apply to guilty pleas.         This Court has held that a

stipulation by the defendant to the relevant fact does not remedy the

Alleyne violation inherent in Pennsylvania’s mandatory minimum sentencing

statutes. We reasoned as follows:

            [W]e see no meaningful difference, for the purposes
            of Newman and [Commonwealth v.]Valentine,[
            101 A.3d 801 (Pa. Super. 2014)] 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. [] While submission to a jury is a
            more formal and involved procedure, we decline to
            fracture Newman and Valentine further by
            concluding that when read together, they only
            prohibit formal mandatory minimum procedures, but
            permit informal ones.

Commonwealth v. Fennell, 105 A.3d 13, 20 (Pa. Super. 2014); see also

Commonwealth v. Cardwell, 105 A.3d 748, 754-55 (Pa. Super. 2014).

Johnson’s admissions as to the amount of cocaine in his possession, which

he made for purpose of his plea, is the functional equivalent of a stipulation.

Pursuant to Fennell, it does not remedy the Alleyne violation inherent to §

7508. The PCRA court erred in its conclusion to the contrary.



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     We now address the PCRA court’s conclusion that Johnson is not

entitled to relief because Newman was decided after Johnson was

sentenced, and that his counsel could not be required to anticipate that we

would find mandatory minimum sentencing statutes unconstitutional.

     The PCRA court’s focus on the date of the Newman decision is

misplaced.      Johnson entered his plea and was sentenced after the United

States Supreme Court decided Alleyne.             In Alleyne, the United States

Supreme      Court   found   mandatory       minimum     sentence   enhancements

unconstitutional where the 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, Johnson’s trial counsel (indeed, all of the Pennsylvania bar) was

on notice that the constitutionality of such sentencing enhancements was in

question.    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 § 7508

during   plea    negotiations,   Johnson’s    trial   counsel   would   have   been

conscientiously advancing an argument based upon the logical extension of

Alleyne to protect Johnson’s interests, not attempting to predict changes in

the law, as the PCRA court contends.3



3
  We further note that on October 10, 2013, this Court issued an opinion
regarding the constitutionality of another, similar mandatory minimum


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         For these reasons, the PCRA court’s conclusion that there was no merit

to Johnson’s claim that his sentence is illegal pursuant to Alleyne was in

error.     To the contrary, it is apparent that Johnson’s sentence is illegal.

Fennell, 105 A.3d at 20. Accordingly, we reverse the PCRA court’s order

denying Johnson’s PCRA petition and remand for resentencing without

consideration of § 7805(a)(3)(i).

         Order reversed.     Case remanded for resentencing.        Jurisdiction

relinquished.

         Fitzgerald, J. joins the Memorandum.

         Bowes, J. concurs in the result.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 9/29/2015




sentencing statute, § 9721.1, in light of Alleyne. See Commonwealth v.
Munday, 78 A.3d 661 (Pa. Super. 2013) (finding 18 Pa.C.S.A. § 9721.1
unconstitutional as applied in light of Alleyne). Munday was decided
approximately two weeks before Johnson’s plea and almost three months
before his sentencing. Thus, an appellate court of this Commonwealth had
addressed the effect of Alleyne on our mandatory minimum sentencing
statutes before these crucial events in Johnson’s case.


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