J-S25026-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                 IN THE SUPERIOR COURT OF
                                                   PENNSYLVANIA


                   v.

MIGUEL ANGEL GONZALEZ

                        Appellant                 No. 1486 EDA 2016


                Appeal from the PCRA Order April 18, 2016
              In the Court of Common Pleas of Bucks County
           Criminal Division at No(s): CP-09-CR-0002598-2013


BEFORE: BENDER, P.J.E., RANSOM, J., FORD ELLIOTT, P.J.E.

MEMORANDUM BY RANSOM, J.:                           FILED MAY 26, 2017

     Appellant, Miguel Angel Gonzalez, appeals from the order entered April

18, 2016, denying his petition for collateral relief filed under the Post

Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. We affirm.

     We adopt the following statement of facts from the PCRA court’s

supplemental opinion of August 23, 2016, which in turn is supported by the

record. See PCRA Court Opinion (PCO), 8/23/16, at 1-4. In February 2013,

Appellant was arrested at a Red Roof Inn in Bensalem, in possession of

cocaine, two handguns, a submachine gun, and ammunition.

     On July 29, 2013, Appellant entered a negotiated guilty plea to

possession with intent to deliver (PWID), possession of a controlled

substance, possession of drug paraphernalia, and three counts each of

possession of firearms by a prohibited person and firearms not to be
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possessed without a license.1            Prior to the plea and sentencing, the

Commonwealth filed a notice of its intent to invoke the five-year mandatory

minimum pursuant to 42 Pa.C.S. § 9712.1.             At the time of Appellant’s

sentencing, the statute provided for a five-year, mandatory minimum

sentence where a defendant was convicted under 35 P.S. § 780-113(a)(30)

while in possession of and/or exercising control over a firearm.       See 42

Pa.C.S. § 9712.1; Criminal Information, CP-09-CR-0002598-2013, Count 1.

       At the plea hearing, defense counsel, the Commonwealth, and the

court were under the impression that they sought a mandatory minimum

sentence of five to ten years of incarceration on count four, possession of a

firearm by a prohibited person. However, 42 Pa.C.S. § 9712.1 would have

applied to count one, possession with intent to deliver; it did not apply to

count four. Ultimately, Appellant received a sentence of five to ten years of

incarceration for possession of a firearm prohibited, followed by five years of

probation, and no further penalty on the remaining charges. His sentence

was within the standard range of the guidelines for that charge. Further, at

the plea hearing, the court indicated that had Appellant proceeded to trial,

he would have received a harsher sentence of at least ten to twenty years.

       Appellant did not pursue a direct appeal but timely filed a petition

seeking PCRA relief. Counsel was appointed and filed two amended petitions

____________________________________________


1
  See 35 P.S. §§ 780-113(a)(30), (a)(16), (a)(32); and 18 Pa.C.S. §§
6105(a)(1), 6106(a)(1), respectively.



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on Appellant’s behalf, arguing that plea counsel was ineffective in his

representation.   Specifically, Appellant averred that plea counsel was

ineffective for advising him to enter a plea to a sentence that was illegal

pursuant to Alleyne v. United States, 133 S. Ct. 1251 (2013), decided

approximately one month prior to Appellant’s sentencing.

      The court held an evidentiary hearing. Appellant’s plea counsel, David

Glanzberg, Esquire, testified.      Mr. Glanzberg reviewed a copy of the

sentencing guidelines and was aware that the Commonwealth had invoked a

mandatory minimum for the possession of a firearm in proximity to drugs.

See 42 Pa.C.S. § 9712.1.      He was concerned that Appellant’s potential

exposure would be greater than the mandatory minimum sentence and

entered into plea negotiations under that assumption.      Mr. Glanzberg was

aware of the decision in Alleyne but did not raise the issue because he

believed Appellant had received a fair sentence and it was ultimately in

Appellant’s favor to take the offer. He did not realize the sentence Appellant

received was not a mandatory minimum until reviewing the case in

preparation for the PCRA hearing.

      Appellant testified at the hearing. He claimed to have discussed the

potential five-year, mandatory minimum sentences with Mr. Glanzberg, who

advised Appellant he could potentially face three consecutive mandatory

sentences for each fire arm possessed.       Due to this advice, Appellant

accepted the deal. Appellant averred he believed he could not receive less




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than five years of incarceration as a result of the mandatory minimum

sentence.

      Following the hearing, the court dismissed Appellant’s petition.

Appellant timely appealed and filed a court-ordered Pa.R.A.P. 1925(b)

statement of errors complained of on appeal. The court issued a responsive

opinion.

      On appeal, Appellant raises the following issue for our review:

      Did the lower court err in denying Appellant’s Post-Conviction
      Relief Act petition where trial counsel was ineffective for allowing
      Appellant to enter a guilty plea to an illegal, non-existent,
      mandatory sentence?

Appellant’s Brief at 4 (unnecessary capitalization omitted).

      We review an order denying a petition under the PCRA to determine

whether the findings of the PCRA court are supported by the evidence of

record and free of legal error. Commonwealth v. Ragan, 923 A.2d 1169,

1170 (Pa. 2007). We afford the court’s findings deference unless there is no

support for them in the certified record.    Commonwealth v. Brown, 48

A.3d 1275, 1277 (Pa. Super. 2012) (citing Commonwealth v. Anderson,

995 A.2d 1184, 1189 (Pa. Super. 2010)).

      We presume counsel is effective.     Commonwealth v. Washington,

927 A.2d 586, 594 (Pa. 2007). To overcome this presumption and establish

the ineffective assistance of counsel, a PCRA petitioner must plead and

prove, by a preponderance of the evidence, that 1) the underlying issue has

arguable merit; 2) counsel’s actions lacked an objective reasonable basis;


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and 3) petitioner suffered actual prejudice from the act or omission.         See

Commonwealth v. Johnson, 966 A.2d 523, 533 (Pa. 2009) (citations

omitted). A claim will be denied if the petitioner fails to meet any one of

three prongs discussed supra.           Commonwealth v. Springer, 961 A.2d

1262, 1267 (Pa. Super. 2008); see also Commonwealth v. Jones, 942

A.2d 903, 906 (Pa. Super. 2008).

       When determining prejudice in the context of an ineffective assistance

of counsel claim arising out of a guilty plea,

       the defendant must show that there is a reasonable probability
       that, but for counsel’s errors, he would not have pleaded guilty
       and would have insisted on going to trial. The reasonable
       probability test is not a stringent one; it merely refers to a
       probability sufficient to undermine confidence in the outcome.

Commonwealth v. Barndt, 74 A.3d 185, 192 (Pa. Super. 2013) (citations

and internal quotation marks omitted).

       Appellant argues that counsel was ineffective for failing to advise him
                                                                   2
of the decision in Alleyne.         See Appellant’s Brief at 11.       Although he
____________________________________________


2
  In Alleyne, the United States Supreme Court held that “any fact that, by
law, increases the penalty is an ‘element’ that must be submitted to the jury
and found beyond a reasonable doubt.” Alleyne, 133 S. Ct. at 2155.
Subsequently, Pennsylvania courts have found certain mandatory minimum
sentencing schemes unconstitutional.        See, e.g., Commonwealth v.
Hopkins, 117 A.3d 247 (Pa. 2015) (finding mandatory minimum for Drug-
Free School Zones violation unconstitutional); see also Commonwealth v.
Valentine, 101 A.3d 801 (Pa. Super. 2014) (applying Alleyne and holding
42 Pa.C.S. §§ 9712 and 9713 unconstitutional), appeal denied, 124 A.3d
309 (Pa. 2015); see also Commonwealth v. Newman, 99 A.3d 86 (Pa.
Super. 2014) (finding 42 Pa.C.S. § 9712.1 unconstitutional).

(Footnote Continued Next Page)


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acknowledges that he did not actually receive a mandatory minimum

sentence, per the mistake discussed supra, he argues that trial counsel’s

failure to challenge the applicability of the mandatory minimum tainted the

guilty plea negotiations. Id. at 11-13, 17. Appellant contends he believed

that he was facing “three potential five year mandatory minimum sentences”

for charges for which there was no mandatory minimum sentence and that,

therefore, his plea was not knowing, intelligent, and voluntary. Id. at 17.

      Appellant relies on Commonwealth v. Melendez-Negron, 123 A.3d

1087 (Pa. Super. 2015) to support his contention that his plea was

involuntary.     In Melendez-Negron, the defendant accepted a plea

agreement, on the advice of counsel, resulting in the imposition of a

mandatory minimum sentence. See Melendez-Negron, 123 A.3d at 1090.

As a result of this advice, the defendant received a sentence that was nearly

twice the sentence he could have received. Id. at 1091 n.6. Ultimately, this

Court found that 1) the disparity between the actual sentence and potential

sentence established prejudice, and 2) the shared misapprehension tainted
                       _______________________
(Footnote Continued)

While, generally, an Alleyne claim does not apply retroactively to cases on
collateral review, this Court has recognized that an Alleyne claim
constitutes a non-waivable challenge to the legality of a sentence and may
be raised for the first time in a timely-filed PCRA petition where the
petitioner’s judgment of sentence was not final when Alleyne was decided.
See Commonwealth v. Washington, 142 A.3d 810, 820 (Pa. 2016); see
also Commonwealth v. Ruiz, 131 A.3d 54 (Pa. Super 2015). Here,
Appellant was sentenced July 19, 2013; Alleyne was decided June 17,
2013.




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the parties’ negotiation at the outset, such that a vacation of his guilty plea

was required. Id. at 1094.

      Appellant argues that, as in Melendez-Negron, the parties were

under a shared misapprehension that three mandatory minimum sentences

applied to Appellant and entered negotiations accordingly. See Appellant’s

Brief at 17. He does not actually plead that had counsel advised him of the

holding in Alleyne, he would not have pleaded guilty.        Id.    Instead, he

appears to argue that because the plea negotiations were “tainted from the

outset,” he suffered prejudice per se. Id.

      We note that as discussed supra, despite the mistaken belief of the

parties at the time of sentencing, Appellant did not receive a mandatory

minimum sentence.     Instead, he received a sentence that was within the

standard to aggravated range of the guidelines for an offense that did not

carry a mandatory minimum and potentially faced that same sentence for

three counts. Thus, unlike Melendez-Negron, the misapprehension did not

result in a sentence that was double the aggravated range sentence he

would have received without application of the mandatory.          As the lower

court indicated, Appellant would likely have received a sentence of at least

ten to twenty years had he gone to trial, regardless of mandatory

minimums. Accordingly, counsel had a reasonable basis for his advice. See

Washington, 927 at 606 (noting that counsel’s stewardship may be

deemed effective if any reasonable basis for his actions is apparent from the

record).

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     Further, Appellant has not pleaded or proved prejudice.     Despite his

arguments regarding plea negotiations, an examination of his brief reveals

he did not plead that he would have insisted on going to trial had counsel

advised him of Alleyne. See Barndt, 74 A.3d at 192. More importantly,

Melendez-Negron did not establish a per se finding of prejudice, as

Appellant seems to imply.     Instead, the Court looked at the sentence

Appellant had received, noted the large disparity as a result of counsel’s

advice, and accordingly, found prejudice. See Melendez-Negron, 123 A.3d

at 1091 n.6.   Appellant cannot make a similar allegation.   Accordingly, he

has not pleaded or proved prejudice, therefore there was no error in the

court’s dismissal of his petition. Springer, 961 A.2d at 1267.

     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/26/2017




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