Com. v. Rivera, A. ( 2017 )

J-S71041-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT
OF
PENNSYLVANIA
Appellee
v.
ALDALBERTO RIVERA,
Appellant No. 1240 EDA 2017
Appeal from the PCRA Order April 10, 2017
in the Court of Common Pleas of Philadelphia County
Criminal Division at Nos.: CP-51-CR-0013645-2012
CP-51-CR-0014695-2012
BEFORE: PANELLA, J., STABILE, J., and PLATT, J.*
MEMORANDUM BY PLATT, J.: FILED DECEMBER 13, 2017
Appellant, Aldalberto Rivera, appeals from the order denying his petition
filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-
9546. We affirm.
We take the following facts and procedural background from our
independent review of the certified record. On September 20, 2013, Appellant
entered a negotiated guilty plea to two counts of possession with intent to
deliver a controlled substance (PWID) and conspiracy to commit PWID at case
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* Retired Senior Judge assigned to the Superior Court.
J-S71041-17
number 13645-2012 and 14695-2012.1 On December 6, 2013, pursuant to
the plea agreement’s terms, the trial court imposed a sentence on Appellant
of not less than five nor more than ten years’ imprisonment. Appellant did
not file a direct appeal.
On July 25, 2014, Appellant filed a timely pro se PCRA petition.
Appointed counsel filed an amended petition on November 15, 2015. On
March 6, 2017, the PCRA court sent Appellant notice of its intent to dismiss
the petition without a hearing. See Pa.R.Crim.P. 907(1). The court formally
dismissed the petition on April 10, 2017, and Appellant timely appealed. 2
Appellant raises one issue for our review: “Was counsel ineffective for
failing to raise the issue of the [his] being subject to an illegal mandatory
minimum sentence?” (Appellant’s Brief, at 9).
Our standard of review of appeals from PCRA court decisions is well-
settled:
This Court analyzes PCRA appeals in the light most favorable
to the prevailing party at the PCRA level. Our review is limited to
the findings of the PCRA court and the evidence of record and we
do not disturb a PCRA court’s ruling if it is supported by evidence
of record and is free of legal error. Similarly, [w]e grant great
deference to the factual findings of the PCRA court and will not
disturb those findings unless they have no support in the record.
However, we afford no such deference to its legal conclusions.
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1 In consideration of the plea, the Commonwealth nolle prossed a charge of
possession of a controlled substance.
2 On May 24, 2017, Appellant filed a timely statement of errors complained of
on appeal pursuant to the PCRA court’s order. The court filed an opinion on
June 26, 2017. See Pa.R.A.P. 1925.
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[W]here the petitioner raises questions of law, our standard of
review is de novo and our scope of review is plenary. . . .
Commonwealth v. Rigg, 84 A.3d 1080, 1084 (Pa. Super. 2014) (citations
and quotation marks omitted).
[T]o succeed on an ineffectiveness claim, a petitioner must
demonstrate that: the underlying claim is of arguable merit;
counsel had no reasonable basis for the act or omission in
question; and he suffered prejudice as a result, i.e., there is a
reasonable probability that, but for counsel’s error, the outcome
of the proceeding would have been different. A reasonable
probability is a probability sufficient to undermine confidence in
the outcome of the proceeding.
Commonwealth v. Laird, 119 A.3d 972, 978 (Pa. 2015) (citations omitted).
“Counsel’s assistance is deemed constitutionally effective once this Court
determines that the defendant has not established any one of the prongs of
the ineffectiveness test.” Commonwealth v. Rolan, 964 A.2d 398, 406 (Pa.
Super. 2008) (citation and emphasis omitted).
Here, Appellant maintains that counsel was ineffective for failing to raise
a claim that [his] mandatory minimum sentence violated Alleyne v. United
States, 570 U.S. 99 (2013).3 This issue does not merit relief.
First, we observe that, the Pennsylvania Supreme Court expressly held
“that Alleyne does not apply retroactively to cases pending on collateral
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3 “[T]he Alleyne decision . . . renders those Pennsylvania mandatory minimum
sentencing statutes that do not pertain to prior convictions constitutionally
infirm insofar as they permit a judge to automatically increase a defendant’s
sentence based on a preponderance of the evidence standard.”
Commonwealth v. Valentine, 101 A.3d 801, 809 (Pa. Super. 2014), appeal
denied, 124 A.3d 309 (Pa. 2015) (citations omitted).
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review[.]” Commonwealth v. Washington, 142 A.3d 810, 820 (Pa. 2016).
Accordingly, Appellant cannot obtain relief on his claim.
Additionally, even assuming arguendo that Alleyne could be applied in
the PCRA context, Appellant’s ineffective assistance of counsel claim would
lack merit. A review of the record reveals that Appellant’s sentence of not
less than five nor more than ten years’ imprisonment was not a mandatory
minimum term of imprisonment. Instead, the court sentenced Appellant
pursuant to a negotiated guilty plea to three charges. (See PCRA Court
Opinion, 6/26/17, at 5; Trial Disposition and Dismissal Form, 9/20/13; Written
Guilty Plea Colloquy, 9/20/13, at 1).
Therefore, Appellant has failed to prove the first prong of the
ineffectiveness test, the merit of his underlying claim, and his contention
would fail. See Commonwealth v. Rivera, 108 A.3d 779, 789 (Pa. 2014)
(“[C]ounsel cannot be deemed ineffective for failing to raise a meritless
claim.”) (citation omitted); see also Laird, supra at 978; Rolan, supra at
406. Hence, the PCRA court properly denied Appellant’s petition where, even
if he could raise an Alleyne claim, it would not merit relief. See Rigg, supra
at 1084.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/13/2017
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