Com. v. Keyes, E. ( 2015 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
ELLOYD KAREEM KEYES
Appellant No. 363 WDA 2015
Appeal from the PCRA Order of February 25, 2015
In the Court of Common Pleas of Erie County
Criminal Division at No.: CP-25-CR-0002962-2012
BEFORE: PANELLA, J., DONOHUE, J., and WECHT, J.
MEMORANDUM BY WECHT, J.: FILED DECEMBER 14, 2015
Elloyd Kareem Keyes appeals the February 25, 2015 order dismissing
his first petition under the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.
§§ 9541, et seq., without a hearing pursuant to Pa.R.Crim.P. 907. Keyes
contends that trial counsel was constitutionally ineffective for failing to argue
that the mandatory minimum sentence imposed upon his underlying guilty
plea to manufacture, delivery, or possession with intent to deliver, a
controlled substance, 35 P.S. § 780-113(a)(3), was illegal following the
United States Supreme Court’s decision in Alleyne v. United States,
133 S. Ct. 2151 (U.S. 2013), which had issued several months before Keyes
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entered his plea and was sentenced.1 We agree with Keyes that counsel
constitutionally was ineffective. Consequently, we reverse the PCRA court’s
order, we vacate Keyes’ guilty plea, and we remand for further proceedings.
Because the factual background of this case is immaterial to our
decision, we relate only its procedural history. On October 18, 2012, the
Erie Bureau of Police filed a criminal complaint against Keyes. Therein, the
police charged Keyes with numerous crimes arising from an encounter in
which they arrested Keyes, who was subject to an outstanding bench
warrant, and discovered on his person a substantial amount of marijuana
packaged in fifty small baggies and a vessel containing approximately seven
grams of crack cocaine.
On November 6, 2013, Keyes pleaded guilty to the above-mentioned
crime. On his signed guilty plea form, Keyes acknowledged that the charge
to which he pleaded guilty subjected him to a mandatory minimum sentence
of three years’ incarceration and a $10,000 fine. See Defendant’s
Statement of Understanding of Rights Prior to Guilty Plea (“Guilty Plea
Form”), 11/6/2013; see also 18 Pa.C.S. § 7508(a)(3)(i) (imposing three-
year mandatory minimum for conviction of possessing two or more grams of
a coca-derived compound), deemed unconstitutional by Commonwealth v.
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1
The Supreme Court released its decision in Alleyne on June 17, 2013.
Keyes pleaded guilty on November 6, 2013. Keyes was sentenced in
absentia on January 21, 2014.
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Thompson, 93 A.3d 478 (Pa. Super. 2014). He orally acknowledged
possession of 7.3 grams of crack cocaine during his plea proceeding, as well.
See Notes of Testimony—Guilty Plea Proceeding (“N.T. Plea”), 11/6/2013,
at 7-8. In return for Keyes’ plea, the Commonwealth nolle prossed all other
charges.
On January 21, 2014, Keyes, who was free on bail, failed to appear for
sentencing. The trial court noted that Keyes had a prior record score of 5.
See Notes of Testimony—Sentencing, 1/21/2014, at 7. The trial court
further indicated that it had reviewed a presentence report; Pennsylvania’s
sentencing guidelines; Keyes’ background and rehabilitative needs; what
appeared to be Keyes’ long-standing issues with substance abuse; and the
fact that Keyes had accepted responsibility for his crimes. Id. With Keyes
in absentia, the trial court sentenced him under section 7508 to the
prescribed mandatory minimum sentence of three to six years’ incarceration
and the mandatory $10,000 fine. Keyes did not file post-sentence motions
and did not file a direct appeal to this Court.
On October 23, 2014, Keyes filed a timely pro se petition under the
PCRA. On October 28, 2014, the PCRA court appointed the Erie County
Public Defender to represent Keyes. After some delay associated with
counsel’s effort to obtain the relevant transcripts, counsel filed an amended
petition on December 23, 2014, wherein counsel asserted that the
imposition of the section 7508 mandatory minimum sentence was illegal
under Alleyne and subsequent Pennsylvania case law, and that trial counsel
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was ineffective for failing to inform Keyes or the trial court of that fact. On
this basis, Keyes asked that he be permitted to withdraw his guilty plea or
that the case be remanded for resentencing without the application of the
mandatory minimum sentence.
On January 30, 2015, the PCRA court entered a notice under
Pa.R.Crim.P. 907 indicating its intent to dismiss Keyes’ petition without
conducting a hearing, and setting forth several bases for doing so. On
February 25, 2015, the PCRA court entered an order dismissing Keyes’
petition. On February 27, 2015, Keyes filed the instant, timely appeal. The
PCRA court did not direct Keyes to file a concise statement of the errors
complained of on appeal. In lieu of a new opinion pursuant to
Pa.R.A.P. 1925(a), the PCRA court entered a brief document directing this
Court to its earlier Rule 907 notice as reflecting the court’s reasoning for
dismissing Keyes’ petition. Accordingly, this matter is now ripe for our
review.
Keyes’ raises the following issue:
Whether the PCRA Court erred when it dismissed [Keyes’]
Petition in which he argued that he was serving an illegal
sentence and that his plea counsel was ineffective both for failing
to challenge the application of the mandatory minimum sentence
and for failing to inform [Keyes] about decisional law that the
mandatory minimum sentencing statute that applied was
unconstitutional?
Brief for Keyes at 5.
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Our standard of review of a PCRA court order granting or denying relief
calls upon us to determine “whether the determination of the PCRA court is
supported by the evidence of record and is free of legal error.”
Commonwealth v. Garcia, 23 A.3d 1059, 1061 (Pa. Super. 2011). We will
not disturb the PCRA court’s findings unless there is no support for the
findings in the certified record. Commonwealth v. Wah, 42 A.3d 335, 338
(Pa. Super. 2012).
[T]he right to an evidentiary hearing on a post-conviction
petition is not absolute. Commonwealth v. Jordan, 772 A.2d
1011, 1014 (Pa. Super. 2001). It is within the PCRA court’s
discretion to decline to hold a hearing if the petitioner's claim is
patently frivolous and has no support either in the record or
other evidence. Id. It is the responsibility of the reviewing
court on appeal to examine each issue raised in the PCRA
petition in light of the record certified before it in order to
determine if the PCRA court erred in its determination that there
were no genuine issues of material fact in controversy and in
denying relief without conducting an evidentiary hearing.
Commonwealth v. Hardcastle, 701 A.2d 541, 542-43
(Pa. 1997).
Wah, 42 A.3d at 338 (citations modified).
Keyes raises two issues. First, he contends that he is entitled to
sentencing relief because his mandatory minimum sentence is
unconstitutional, and hence illegal, following the United States Supreme
Court’s decision in Alleyne and our decision in Thompson. Second, Keyes
contends that his trial counsel was constitutionally ineffective for failing to
recognize, advise him, and argue before the trial court that the application of
the mandatory minimum was unconstitutional and hence illegal under
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Alleyne. Keyes also argues that counsel was ineffective for failing to raise
the issue in a direct appeal, when, as per the above analysis, this Court
would have applied Alleyne and its Pennsylvania progeny. On this basis,
Keyes maintains that he should be entitled to withdraw his plea. We agree
that Keyes is entitled to the relief he requests on the latter issue, and we
afford him that remedy for the reasons that follow. In light of our
disposition, we need not consider Keyes’ first stated issue.
A claim of ineffective assistance of counsel (“IAC”) is governed by the
following standard:
[I]n order to obtain relief based on [an IAC] claim, a petitioner
must establish: (1) the underlying claim has arguable merit; (2)
no reasonable basis existed for counsel’s actions or failure to
act; and (3) petitioner suffered prejudice as a result of counsel’s
error such that there is a reasonable probability that the result of
the proceeding would have been different absent such error.
Commonwealth v. Reed, 971 A.2d 1216, 1221 (Pa. 2005) (citing
Commonwealth v. Pierce, 527 A.2d 973, 975 (Pa. 1987)). The petitioner
bears the burden of proving all three prongs of this test. Commonwealth
v. Meadows, 787 A.2d 312, 319-20 (Pa. 2001).
Very recently, in Commonwealth v. Melendez-Negron, 123 A.3d
1087 (Pa. Super. 2015), a panel of this Court considered a materially
identical claim. In that case, the appellee pleaded guilty, inter alia, to
possession of a controlled substance with intent to deliver. Ultimately, the
appellee was sentenced to five to ten years’ incarceration pursuant to the
mandatory minimum provision codified at 42 Pa.C.S. § 9721 (imposing a
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mandatory five year minimum sentence when a defendant is found in
possession of a weapon contemporaneously with possession of narcotics).2
However, Alleyne had been decided approximately five months before the
sentence was imposed. Melendez-Negron, 123 A.3d at 1090-91. Trial
counsel did not inform the appellee of the recent development in the law,
nor did counsel bring the issue to the court’s attention. The appellee did not
file a direct appeal. Id. at 1089.
The appellee filed a PCRA petition alleging, inter alia, that trial counsel
was ineffective for advising the appellee to plead guilty instead of
challenging the then-applicable mandatory minimum sentence under
Alleyne. The PCRA court granted the appellee’s petition, and awarded him
a new sentence. The Commonwealth appealed.
The panel affirmed the PCRA court’s order. The panel explained that,
at the time of the appellee’s plea, both Alleyne and a case from this Court,
Commonwealth v. Munday, 78 A3d 661 (Pa. Super. 2013), were on the
books, and that counsel should have been aware of those cases. Melendez-
Negron, 123 A.3d at 1090-91. Regarding the prongs of the ineffective
assistance of counsel, the panel stated the following:
[I]n Alleyne, the United States Supreme Court found mandatory
minimum sentence enhancements unconstitutional where the
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2
This Court held that this mandatory minimum provision was
unconstitutional in Commonwealth v. Newman, 99 A.3d 86 (Pa. Super.
2014) (en banc), pursuant to the Supreme Court’s decision in Alleyne.
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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, Counsel was on notice that the constitutionality of
such sentencing enhancements was in question. There can be
no reasonable basis for Counsel’s failure to recognize this and to
advise [the appellee] to reject a plea agreement that
incorporated a sentence based upon [the mandatory minimum
sentencing provision.] This is so especially in light of the fact
that the application of the [provision] resulted in a sentence that
was more than double the aggravated range sentence [the
appellee] would have faced.6 In a situation such as this, 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 [the provision] during plea negotiations,
Counsel would not be predicting changes in the law, as the
Commonwealth contends, but rather conscientiously advancing
an argument based upon the logical extension of Alleyne to
protect his client’s interests.
6
This large disparity between the sentence [the appellee]
could have received and the sentence he agreed to
establishes prejudice for purposes of the ineffective
assistance of counsel standard.
Id. at 1091-92 (citation omitted).
Finally, the panel discussed the correct remedy for counsel’s
ineffectiveness. The panel ultimately concluded that, because both parties
believed that the mandatory minimum sentence applied, the plea
negotiations were tainted from the start. Hence, the panel vacated the
guilty plea in its entirety, and remanded the case to the procedural posture
of before the entry of the plea. Id. at 1094.
There is no question that Melendez-Negron controls the instant case,
because the circumstances of the two cases nearly are identical. Here, like
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in Melendez-Negron, Keyes entered his plea approximately five months
after Alleyne. Keyes’ counsel did not inform him of Alleyne, nor did
counsel argue Alleyne’s applicability to the trial court. At the time of
sentencing, if Keyes were sentenced pursuant to the sentencing guidelines,
instead of a mandatory minimum sentence, the standard range sentence
would be a minimum of twenty-four to thirty months’ incarceration.
Application of the mandatory sentence resulted in a sentence that exceeded
the standard range by anywhere from six to twelve months.
Applying the analysis from Melendez-Negron, as we must, Keyes has
satisfied all three prongs of the ineffective assistance of counsel test. The
claim has obvious merit, and, like in Melendez-Negron, counsel could not
have had a reasonable basis for not challenging the sentence. Finally,
prejudice resulted from the higher than standard sentence that necessarily
resulted by the imposition of the mandatory minimum sentence.
Finally, as noted above, Keyes acknowledged in the “Defendant’s
Statement of Understanding of Rights Prior to Guilty Plea” form, his plea
subjected him to the mandatory sentence. Thus, the mandatory sentence
played at least some role in the plea negotiation process. Consequently, we
must afford the same relief as the panel did in Melendez-Negron.
Order reversed. Plea vacated. Case remanded. Jurisdiction
relinquished.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/14/2015
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