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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA             :     IN THE SUPERIOR COURT OF
                                         :           PENNSYLVANIA
                    v.                   :
                                         :
LUIS GUILLERMO RODRIGUEZ-                :
GARCIA,                                  :          No. 341 MDA 2015
                                         :
                         Appellant       :


                 Appeal from the PCRA Order, January 28, 2015,
                  in the Court of Common Pleas of Berks County
                Criminal Division at No. CP-06-CR-0006116-2012


BEFORE: FORD ELLIOTT, P.J.E., WECHT AND FITZGERALD,* JJ.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:             FILED DECEMBER 14, 2015

        Luis Guillermo Rodriguez-Garcia appeals, pro se, from the order of

January 28, 2015, dismissing his first PCRA1 petition. After careful review,

we reverse.

        The PCRA court has summarized the history of this matter as follows:

                     On September 23, 2013, [appellant] pled
              guilty to two (2) counts of PWID [(possession with
              intent to deliver)] as well as possession of drug
              paraphernalia. [Appellant] was sentenced to two
              concurrent sentences of four (4) to eight (8) years
              [of] incarceration pursuant to a mandatory minimum
              sentence for possession of more than 100 grams of
              cocaine. A mandatory minimum sentence of four
              years was applied because [appellant] was found in



* Former Justice specially assigned to the Superior Court.
1
    Post-Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-9546.
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          possession of more than 100 grams of cocaine
          pursuant to 18 Pa.C.S. § 7508.

                 On May 30, 2014, [appellant] filed his [PCRA
          petition]. In [appellant]’s PCRA Petition, [appellant]
          argued the following

          1.   Appellant believes that Alleyne v.
               United States, 133 S.Ct. 2151 (2013)
               announced a new constitutional right
               that applies retroactively to his case.
               Based upon the decision in Alleyne,
               [appellant] requests this Court either
               allow [appellant] to withdraw his guilty
               plea and/or order a new sentencing
               hearing in this matter.

          [Appellant]’s Motion    for   Post-Conviction   Relief,
          5/30/14, at 1-3.

                On September 24, 2014, this Court held a
          PCRA Hearing via video conference. Attorney Emily
          Cherniack, Esq. represented [appellant] at the PCRA
          Hearing.    After the hearing, both parties were
          ordered to file briefs in support of their arguments.
          On December 3, 2014, the Commonwealth filed a
          Memorandum requesting the denial of [appellant]’s
          PCRA Petition. On December 23, 2014, [appellant]
          by and through Counsel filed a Supplemental
          Memorandum in Support of his [PCRA] Petition.

                 After conducting an independent review of
          [appellant]’s PCRA petition and the complete record
          on file with the Berks County Clerk of Courts, this
          Court filed an Order and Notice of Intent to Dismiss
          [appellant]’s PCRA Petition on January 6, 2015. On
          January 28, 2015, this Court entered a final Order
          dismissing [appellant]’s PCRA petition.

                On February 18, 2015, [appellant] filed a
          pro se Notice of Appeal with the Pennsylvania
          Superior Court. On February 18, 2015, [appellant]
          was directed to file of record in this Court a concise
          statement of errors complained of on appeal


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            pursuant to Pa.R.A.P. 1925(b). On February 23,
            2015, this Court received [appellant]’s “Concise
            Statement of Matters Complained of on Appeal
            Pursuant to Pa.R.A.P. 1925(b).”

PCRA court opinion, 4/16/15 at 1-2.

                  On March 30, 2015, this Court received
            Defense Counsel’s Motion to Withdraw as Counsel in
            this matter. On March 31, 2015, this Court denied
            Defense Counsel’s Motion to Withdraw and ordered
            Defense Counsel to file an appellate brief on
            [appellant]’s behalf or file a “no-merit” letter
            requesting to withdraw from representation pursuant
            to Commonwealth v. Finley, 550 A.2d 213
            (Pa.Super. 1988) [(en banc)], and Commonwealth
            v. Turner, 544 A.2d 927 (Pa. 1988). This Court has
            yet to receive any correspondence from Defense
            Counsel concerning [appellant]’s appeal.

Id. at 3.

      On April 24, 2015, upon consideration of appellant’s pro se “motion

for the appointment of counsel or to proceed pro se,” this court remanded

for the trial court to determine how appellant wished to proceed, and if

appellant wished to proceed pro se, to conduct an on-the-record inquiry

pursuant to Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1988), to ensure

appellant’s waiver of counsel was knowing, voluntary, and intelligent.       On

May 12, 2015, the trial court issued an order granting appellant’s request to

proceed pro se, having determined that, after a Grazier hearing, appellant

made a knowing, voluntary, and intelligent waiver of his right to counsel.

      On appeal, appellant alleges that his mandatory minimum sentence of

4 to 8 years’ incarceration, imposed pursuant to 18 Pa.C.S.A. § 7508,



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relating to mandatory minimum sentences for certain drug trafficking

offenses, was illegal.   (Appellant’s brief at 4.)     Appellant argues that

Section 7508 cannot be constitutionally applied in light of Alleyne, which

held that any fact that served to aggravate the minimum sentence must be

found by a jury beyond a reasonable doubt. We agree.

            At the outset, we note that issues pertaining to
            Alleyne go directly to the legality of the sentence.
            Commonwealth v. Lawrence, 99 A.3d 116, 123
            (Pa.Super.2014). With this in mind, we begin by
            noting our well-settled standard of review.          “A
            challenge to the legality of a sentence . . . may be
            entertained as long as the reviewing court has
            jurisdiction.” Commonwealth v. Borovichka, 18
            A.3d 1242, 1254 n. 8 (Pa.Super.2011) (citation
            omitted). It is also well-established that “[i]f no
            statutory authorization exists for a particular
            sentence, that sentence is illegal and subject to
            correction.” Commonwealth v. Rivera, 95 A.3d
            913, 915 (Pa.Super.2014) (citation omitted). “An
            illegal sentence must be vacated.” Id. “Issues
            relating to the legality of a sentence are questions of
            law[.] . . .    Our standard of review over such
            questions is de novo and our scope of review is
            plenary.” Commonwealth v. Akbar, 91 A.3d 227,
            238 (Pa.Super.2014) (citations omitted).

Commonwealth v. Fennell, 105 A.3d 13, 15 (Pa.Super. 2014), appeal

denied, 121 A.3d 494 (Pa. 2015). In both Fennell and Commonwealth v.

Cardwell, 105 A.3d 748 (Pa.Super. 2014), appeal denied, 121 A.3d 494

(Pa. 2015), this court found Section 7508 to be unconstitutional in its

entirety.   It is important to note that Alleyne was decided on June 17,

2013, and appellant was sentenced on September 23, 2013; therefore,

retroactivity is not an issue. Cf. Commonwealth v. Riggle, 119 A.3d 1058


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(Pa.Super. 2015) (holding that Alleyne is not entitled to retroactive effect in

a PCRA setting).

      The recent case of Commonwealth v. Melendez-Negron,                 A.3d

   , 2015 WL 5657130 (Pa.Super. 2015), is instructive.       In that case, on

November 15, 2013, Melendez-Negron entered a negotiated plea to drug

charges including PWID. Melendez-Negron was in possession of a firearm at

the time of the offenses in question.      In accordance with 42 Pa.C.S.A.

§ 9712.1 (relating to drug offenses committed with firearms), the trial court

sentenced Melendez-Negron to five to ten years of incarceration on the

PWID conviction. Id. at *1.

      Melendez-Negron did not file a direct appeal; however, on July 7,

2014, he filed a timely pro se PCRA petition.        Subsequently, appointed

counsel filed an amended PCRA petition on his behalf, arguing that his

sentence was unconstitutional, and therefore illegal, in light of the United

States Supreme Court’s decision in Alleyne,         U.S.     , 133 S.Ct. 2151

(2013), and this court’s decisions in Commonwealth v. Newman, 99 A.3d

86 (Pa.Super. 2014) (en banc), and Commonwealth v. Valentine, 101

A.3d 801 (Pa.Super. 2014).     Newman held that because Section 9712.1

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

minimum sentence based upon a preponderance of the evidence that the

defendant was dealing drugs while in possession of a firearm, or that a

firearm was “in close proximity” to the drugs, it does not pass constitutional



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muster under Alleyne. The PCRA court granted Melendez-Negron’s petition,

vacated his sentence, and ordered that he be re-sentenced. Id.

      On the ensuing appeal, this court rejected the Commonwealth’s

argument that because Melendez-Negron admitted the element that would

trigger the application of Section 9712.1 (possession of a firearm), there was

no Alleyne violation:

            As this Court has previously concluded,

                  we 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. [] 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.

Id. at *3, quoting Cardwell, 105 A.3d at 754-755.        We determined that

Melendez-Negron’s admission that he possessed a firearm, which he made

for purposes of his plea, was the functional equivalent of a stipulation, and

pursuant to Cardwell, it did not remedy the Alleyne violation inherent to

Section 9712.1.


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      However, this court in Melendez-Negron did agree with the

Commonwealth that the proper remedy was to vacate the guilty plea, not

remand for re-sentencing. As in the case sub judice, Melendez-Negron and

the   Commonwealth         entered   into   a    negotiated   plea   under    the

misapprehension that a mandatory minimum sentencing statute applied, and

it is well settled that in plea negotiations, “both parties to a negotiated plea

agreement are entitled to receive the benefit of their bargain.”       Id. at *5

(citations     omitted).    “Accordingly,   we    conclude    that   the   shared

misapprehension that the mandatory minimum sentence required by

§ 97[12].1 applied to Melendez-Negron tainted the parties’ negotiations at

the outset.     [T]he parties’ negotiations began from an erroneous premise

and therefore were fundamentally skewed from the beginning.” Id.

      Similarly, in this case, all parties, including the trial court, understood

that appellant faced a 4-8 year mandatory minimum sentence under

Section 7508 for possessing in excess of 100 grams of cocaine with intent to

deliver.     (Notes of testimony, 9/23/13 at 8.)    The Commonwealth argues

that it is entitled to the benefit of its bargain and that appellant’s sentence

was in the standard range of the guidelines. It is axiomatic that a defendant

cannot agree to an illegal sentence. See Commonwealth v. Gentry, 101

A.3d 813, 819 (Pa.Super. 2014) (“Our cases clearly state that a criminal

defendant cannot agree to an illegal sentence, so the fact that the illegality




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was a term of his plea bargain is of no legal significance.”) (citation

omitted).

      Regarding appellant’s mandatory sentence also falling within the

standard range of the sentencing guidelines, the Commonwealth’s argument

misses the mark. All parties were under the impression that Section 7508

applied due to the amount of the drugs possessed, which provided the

framework for plea negotiations. The fact that appellant theoretically could

have received the identical sentence regardless of the applicability of

Section 7508 is beside the point.      Appellant was sentenced under the

mandatory sentencing provisions of Section 7508, which has been held to be

unconstitutional in its entirety. Therefore, appellant’s sentence was without

statutory authorization and is illegal.   This court must vacate an illegal

sentence.

      Similarly, the Commonwealth points out that appellant received the

identical sentence on the conspiracy charge, which was not subject to

Section 7508.   Appellant received a concurrent sentence of 4-8 years for

conspiracy which was also within the standard range. Again, however, the

4-8 year mandatory was the basis for appellant’s sentence. (See notes of

testimony, sentencing, 9/23/13 at 11 (“The sentences in these matters will

be based upon the mandatory invoked by the Commonwealth, which this

Court finds the mandatory does apply . . . .”).) At the hearing on appellant’s

PCRA petition, appellant asserted that given various mitigating factors in his



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favor, including lack of a prior criminal record, his age, and employment

history, he could have argued for a lesser sentence. (Notes of testimony,

9/24/14 at 8.)

      The Commonwealth points out that in his brief on appeal, appellant

asks only for re-sentencing, not to withdraw his plea. However, clearly the

appropriate remedy in a case such as this, where the parties have

negotiated an illegal sentence, is to return the parties to the status quo prior

to the entry of the guilty plea by vacating the plea.      Melendez-Negron,

supra.

      The PCRA court, in denying appellant relief, relied on the fact that

appellant admitted, on the record at his guilty plea, to possessing over one

hundred grams of cocaine.     We rejected a similar argument in Cardwell,

supra, where the Commonwealth and the defendant entered into a

stipulation that the total weight of the PCP in that case was 6.148 grams,

stating, “this conclusion was premised on the trial court’s belief that

Section 7508(b), which permits the trial court to find the necessary elements

by a preponderance of the evidence, was severable from the rest of the

statute. Pursuant to this Court’s decision in Newman, this conclusion was

not correct.”    Cardwell, 105 A.3d at 754.     To reiterate, Section 7508 is

unconstitutional in its entirety in light of Alleyne and any sentence imposed

thereunder is illegal and must be vacated.     As such, we are compelled to




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reverse the order denying appellant PCRA relief, vacate the guilty plea, and

remand for further proceedings.

      Order reversed.     Guilty plea vacated.   Case remanded.   Jurisdiction

relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 12/14/2015




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