Com. v. Darcangelo, D. ( 2016 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
DAVID R. DARCANGELO
Appellant No. 694 WDA 2015
Appeal from the PCRA Order April 7, 2015
In the Court of Common Pleas of Cambria County
Criminal Division at No(s): CP-11-CR-0001041-2010
BEFORE: GANTMAN, P.J., SHOGAN, J., and FITZGERALD, J.*
MEMORANDUM BY GANTMAN, P.J.: FILED SEPTEMBER 02, 2016
Appellant, David R. Darcangelo, appeals from the order entered in the
Cambria County Court of Common Pleas, which denied his petition filed
pursuant to the Post Conviction Relief Act (“PCRA”).1 We affirm in part and
reverse in part the order denying PCRA relief, vacate the judgment of
sentence, and remand for resentencing.
The relevant facts and procedural history of this case are as follows.
The Commonwealth charged Appellant with various drug-related offenses for
his involvement in a cocaine trafficking operation over a period of
approximately two years. On the eve of trial, the Commonwealth offered
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1
42 Pa.C.S.A. §§ 9541-9546.
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*Former Justice specially assigned to the Superior Court.
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Appellant a plea deal of an aggregate term of five (5) to ten (10) years’
incarceration, which Appellant rejected. On November 10, 2010, a jury
convicted Appellant of multiple counts of possession of a controlled
substance with intent to deliver (“PWID”), delivery of a controlled substance,
criminal use of communication facility, and conspiracy. The court sentenced
Appellant on March 30, 2011, to consecutive mandatory minimum terms of
incarceration of five (5) to ten (10) years for PWID count one and seven (7)
to ten (10) years for PWID count four, pursuant to 18 Pa.C.S.A. § 7508.2
The court ran sentences for eighteen other charges concurrently and
imposed no further penalty for the remaining charges. Thus, Appellant
received an aggregate sentence of twelve (12) to twenty (20) years’
imprisonment. This Court affirmed the judgment of sentence on October 3,
2012, and the Pennsylvania Supreme Court denied allowance of appeal on
May 15, 2013. See Commonwealth v. Darcangelo, No, 857 WDA 2011,
unpublished memorandum (Pa.Super. filed October 3, 2012), appeal denied,
620 Pa. 695, 67 A.3d 793 (2013). On August 12, 2014, Appellant timely
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2
Appellant’s term of seven (7) to ten (10) years’ incarceration for PWID
count four did not violate 42 Pa.C.S.A. § 9756(b), even though the minimum
term of incarceration exceeded the maximum term by more than one-half.
See 42 Pa.C.S.A. § 9756(b)(1) (stating: “The court shall impose a minimum
sentence of confinement which shall not exceed one-half of the maximum
sentence imposed”); Commonwealth v. Hockenberry, 689 A.2d 283
(Pa.Super. 1997), appeal denied, 548 Pa. 645, 695 A.2d 784 (1997)
(holding defendant’s sentence of seven to ten years’ incarceration was
permissible under Section 7508 because prefatory language in Section 7508
carved out exception to general rule set forth in Section 9756(b)).
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filed a pro se PCRA petition. The PCRA court appointed counsel, who filed an
amended petition. Following a hearing, the court denied Appellant’s petition
on April 7, 2015. Appellant filed a timely notice of appeal on April 23, 2015.
The PCRA court ordered Appellant to file a concise statement of errors
complained of on appeal per Pa.R.A.P. 1925(b), and Appellant timely
complied.
Appellant raises the following issue for our review:
WHETHER THE PCRA COURT ERRED WHEN IT FOUND THAT
TRIAL COUNSEL WAS NOT INEFFECTIVE FOR FAILING TO
PROVIDE [APPELLANT] WITH A COPY OF DISCOVERY
MATERIALS PRIOR TO TRIAL?
(Appellant’s Brief at 1).
Appellant argues trial counsel failed to let him view or obtain a copy of
the discovery packet turned over by the Commonwealth prior to trial.
Appellant contends counsel’s withholding of the discovery materials
prevented Appellant from making an informed decision as to whether to
accept the Commonwealth’s plea offer of five to ten years’ incarceration.
Appellant asserts trial counsel had no reasonable basis for denying him
access to the discovery materials. Appellant submits there was no real risk
of public dissemination of the information because the Commonwealth
already had access to and knowledge of the contents. Appellant likewise
maintains there was no risk of loss of the discovery packet because it was on
a CD, which counsel could have easily copied and given to Appellant.
Appellant claims he would have accepted the Commonwealth’s plea offer and
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not gone to trial if he had known the extent of the evidence against him as
reflected in the discovery packet. Appellant concludes counsel was
ineffective for failing to provide him with a copy of the discovery materials.
We disagree.
Our standard of review of the denial of a PCRA petition is limited to
examining whether the evidence of record supports the court’s
determination and whether its decision is free of legal error.
Commonwealth v. Conway, 14 A.3d 101, 108 (Pa.Super. 2011), appeal
denied, 612 Pa. 687, 29 A.3d 795 (2011). This Court grants great deference
to the findings of the PCRA court if the record contains any support for those
findings. Commonwealth v. Boyd, 923 A.2d 513, 515 (Pa.Super. 2007),
appeal denied, 593 Pa. 754, 932 A.2d 74 (2007). We owe no deference,
however, to the court’s legal conclusions. Commonwealth v. Ford, 44
A.3d 1190, 1194 (Pa.Super. 2012).
The law presumes counsel has rendered effective assistance.
Commonwealth v. Williams, 597 Pa. 109, 950 A.2d 294 (2008). When
asserting a claim of ineffective assistance of counsel, a petitioner is required
to make the following showing: (1) the underlying claim is of arguable merit;
(2) counsel had no reasonable strategic basis for his action or inaction; and,
(3) but for the errors and omissions of counsel, there is a reasonable
probability that the outcome of the proceedings would have been different.
Commonwealth v. Kimball, 555 Pa. 299, 312, 724 A.2d 326, 333 (1999).
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The failure to satisfy any prong of the test for ineffectiveness will cause the
claim to fail. Williams, supra.
“The threshold inquiry in ineffectiveness claims is whether the
issue/argument/tactic which counsel has foregone and which forms the basis
for the assertion of ineffectiveness is of arguable merit….” Commonwealth
v. Pierce, 537 Pa. 514, 524, 645 A.2d 189, 194 (1994). “Counsel cannot
be found ineffective for failing to pursue a baseless or meritless claim.”
Commonwealth v. Taylor, 933 A.2d 1035, 1042 (Pa.Super. 2007), appeal
denied, 597 Pa. 715, 951 A.2d 1163 (2008) (quoting Commonwealth v.
Poplawski, 852 A.2d 323, 327 (Pa.Super. 2004)).
Once this threshold is met we apply the “reasonable basis”
test to determine whether counsel’s chosen course was
designed to effectuate his client’s interests. If we conclude
that the particular course chosen by counsel had some
reasonable basis, our inquiry ceases and counsel’s
assistance is deemed effective.
Pierce, supra at 524, 645 A.2d at 194-95 (internal citations omitted).
Prejudice is established when [a defendant] demonstrates
that counsel’s chosen course of action had an adverse
effect on the outcome of the proceedings. The defendant
must show that there is a reasonable probability that, but
for counsel’s unprofessional errors, the result of the
proceeding would have been different. A reasonable
probability is a probability sufficient to undermine
confidence in the outcome. In [Kimball, supra], we held
that a “criminal defendant alleging prejudice must show
that counsel’s errors were so serious as to deprive the
defendant of a fair trial, a trial whose result is reliable.”
Commonwealth v. Chambers, 570 Pa. 3, 21-22, 807 A.2d 872, 883
(2002) (some internal citations and quotation marks omitted).
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Pennsylvania Rule of Criminal Procedure 573(B)(1) provides:
Rule 573. Pretrial Discovery and Inspection
* * *
(B) Disclosure by the Commonwealth.
(1) Mandatory. In all court cases, on request by the
defendant, and subject to any protective order which the
Commonwealth might obtain under this rule, the
Commonwealth shall disclose to the defendant’s attorney
all…requested items or information, provided they are
material to the instant case. The Commonwealth shall,
when applicable, permit the defendant’s attorney to
inspect and copy or photograph such items.
* * *
Pa.R.Crim.P. 573(B)(1).
Instantly, the Commonwealth turned over discoverable material to trial
counsel in compliance with Rule 573(b)(1). Appellant cites no Pennsylvania
rules or case law to support his claim that counsel had a duty to provide the
physical discovery materials or a copy of the materials to Appellant.3
Therefore, Appellant’s issue lacks arguable merit. See Pierce, supra.
Further, trial counsel testified at the PCRA hearing that he traditionally
does not give his clients the actual discovery material. Counsel explained
this practice was intended to prevent loss of the documents or public
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3
Pennsylvania federal courts have held counsel has no duty to provide a
defendant with his own copy of discovery materials. See, e.g., Williams v.
Dark, 844 F. Supp. 210, 213-14 (E.D.Pa. 1993) (stating: “A defendant has
no independent right to his own copy of discoverable documents…when
these documents have been provided to defense counsel”).
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dissemination of incriminating information. Counsel also confirmed he
consulted with Appellant regarding the pertinent information in the discovery
packet, and they discussed the risks of going to trial. Thus, the PCRA court
properly concluded counsel’s actions had a reasonable strategic basis. See
id.
With respect to the prejudice prong, Appellant fails to identify any
information in the discovery packet he was unaware of pretrial, which would
have persuaded him to accept the plea deal offered by the Commonwealth.
The PCRA court found trial counsel had adequately informed Appellant of the
risks of going to trial. Further, Appellant admitted that after his arrest, he
received and reviewed the grand jury presentment, which mentioned the
testimony of multiple witnesses. Appellant also was present at the
preliminary hearing. The prosecutor testified at the PCRA hearing that the
quantity and quality of the Commonwealth’s evidence was reflected in the
grand jury presentment and the preliminary hearing testimony. Therefore,
Appellant failed to establish he was prejudiced by his inability to obtain a
copy of the discovery packet. See Chambers, supra. Based on the
foregoing, Appellant’s challenge to counsel’s effectiveness merits no relief.
Nevertheless, we observe in the certified record that the trial court
imposed mandatory minimum sentences for several of Appellant’s
convictions, pursuant to 18 Pa.C.S.A. § 7508. At the time of Appellant’s
sentencing, Section 7508(a)(2)(ii) established a mandatory minimum
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sentence of five (5) years’ imprisonment for PWID, where the aggregate
weight of the controlled substance was between ten and one hundred grams,
and at the time of sentencing, the defendant had been convicted of another
drug trafficking offense. 18 Pa.C.S.A. § 7508(a)(2)(ii). If the aggregate
weight of the controlled substance exceeded one hundred grams, and the
defendant had a prior conviction for a drug trafficking offense, the
mandatory minimum sentence was seven (7) years’ imprisonment. 18
Pa.C.S.A. § 7508(a)(2)(iii). Section 7508(b) stated its provisions shall not
be an element of the crime and their applicability shall be determined by the
court at sentencing by a preponderance of the evidence. 18 Pa.C.S.A. §
7508(b).
In Alleyne v. U.S., ___ U.S. ___, 133 S. Ct. 2151, 186 L. Ed. 2d 314
(2013), decided on June 17, 2013, the United States Supreme Court
expressly held that any fact increasing the mandatory minimum sentence for
a crime is considered an element of the crime to be submitted to the fact-
finder and found beyond a reasonable doubt. Alleyne, supra. This Court
later addressed the constitutionality of a mandatory minimum sentencing
statute containing language similar to Section 7508, in Commonwealth v.
Newman, 99 A.3d 86 (Pa.Super. 2014) (en banc). Newman involved an
Alleyne sentencing issue that could not have been initially raised on direct
appeal, because the defendant’s appeal had been resolved on June 12,
2013, five days before Alleyne was decided. So, the defendant filed a
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petition for reconsideration/reargument, which this Court granted. Relying
on Alleyne, Newman held that 42 Pa.C.S.A. § 9712.1 (requiring imposition
of mandatory minimum sentence for certain drug offenses committed with
firearms) could no longer pass constitutional muster as it “permits the trial
court, as opposed to the jury, to increase a defendant’s minimum sentence
based upon a preponderance of the evidence that the defendant was dealing
drugs and possessed a firearm, or that a firearm was in close proximity to
the drugs.” Id. at 98. Newman further held (1) the non-offending
provisions of Section 9712.1 were not severable and the statute was
unconstitutional in its entirety; (2) a sentencing challenge premised on
Alleyne implicates the legality of the sentence and cannot be waived. Id.
at 90, 101.
In a subsequent decision filed on November 21, 2014, this Court
extended the logic of Alleyne and Newman to Section 7508, declaring the
statute unconstitutional in its entirety. See Commonwealth v. Fennell,
105 A.3d 13 (Pa.Super. 2014), appeal denied, ___ Pa. ___, 121 A.3d 494
(2015). See also Commonwealth v. Hopkins, ___ Pa. ___, 117 A.3d 247
(2015) (declaring mandatory minimum statute at 18 Pa.C.S.A. § 6317
(drug-free school zones) unconstitutional in its entirety under Alleyne,
where that statute stated its provisions were not elements of crime and
applicability of statute should be determined at sentencing by preponderance
of evidence).
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In Commonwealth v. Ruiz, 131 A.3d 54 (Pa.Super. 2015), this Court
reiterated the Newman Court’s declarations: (1) an Alleyne claim is a
nonwaivable challenge to the legality of sentence; and (2) Alleyne
announced a new constitutional rule that applied to all cases pending on
direct review when Alleyne was decided. Id. at 59-60 (citing Newman,
supra at 90). Based on those principles, Ruiz clarified that a defendant
could also raise an Alleyne challenge in a timely PCRA petition so long as
his direct appeal from the judgment of sentence was still pending when
Alleyne was decided. Id. at 59-60.
Recently in Commonwealth v. Washington, ___ A.3d ___, 2016 WL
3909088 (Pa. filed July 9, 2016), the Pennsylvania Supreme Court
addressed a situation in which the defendant raised an Alleyne claim in a
timely PCRA petition but his judgment of sentence had become final prior to
the Alleyne decision. The Washington Court stated:
[A] new rule of law does not automatically render final,
pre-existing sentences illegal. A finding of illegality
concerning such sentences may be premised on such a
rule only to the degree that the new rule applies
retrospectively. In other words, if the rule simply does not
pertain to a particular conviction or sentence, it cannot
operate to render that conviction or sentence illegal. …
* * *
[N]ew constitutional procedural rules generally pertain to
future cases and matters that are pending on direct review
at the time of the rule’s announcement.
Id. at *3-4 (Pa. 2016) (emphasis added). See also id. at *4 (stating: “[I]f
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a new constitutional rule does not apply, it cannot render an otherwise final
sentence illegal”). The Washington Court applied the retroactivity analysis
delineated in Teague v. Lane, 489 U.S. 288, 109 S. Ct. 1060, 103 L. Ed. 2d
334 (1989), and determined the new constitutional rule announced in
Alleyne is not a substantive or watershed procedural rule that would
warrant retroactive application. Washington, supra. The Court held the
defendant was not entitled to retroactive application of Alleyne because his
judgment of sentence had become final before Alleyne was decided. Id.
Instantly, the trial court sentenced Appellant on March 30, 2011, to
mandatory minimum terms of incarceration for several of his drug offenses,
pursuant to Section 7508. Alleyne was decided thirty-three days after the
Pennsylvania Supreme Court had denied Appellant’s petition for allowance of
appeal on May 15, 2013, during the 90-day window Appellant had to file a
petition for writ of certiorari with the United States Supreme Court. See
U.S.Sup.Ct.R. 13 (providing petition for writ of certiorari must be filed within
90 days after entry of order by state court of last resort denying
discretionary review). Appellant’s judgment of sentence did not become
final until August 13, 2013, after Alleyne became law on June 17, 2013, but
before Fennell declared Section 7508 unconstitutional in its entirety by
virtue of Alleyne on November 21, 2014. Appellant timely filed his PCRA
petition on August 12, 2014. See 42 Pa.C.S.A. § 9545(b)(1), (b)(3) (stating
PCRA petition must be filed within one year of date underlying judgment
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becomes final; judgment is deemed final at conclusion of direct review or at
expiration of time for seeking review). Because Appellant’s judgment of
sentence was not yet final when Alleyne was decided on June 17, 2013, we
elect to review sua sponte the legality of Appellant’s mandatory minimum
sentences in light of Alleyne and its Pennsylvania progeny. See
Commonwealth v. Edrington, 780 A.2d 721 (Pa.Super. 2001) (explaining
appellate court can raise legality of sentence issue sua sponte, assuming
court has proper jurisdiction).4 Alleyne applies to Appellant’s case, and he
is entitled to review and relief under Ruiz, supra. See also Fennell,
supra.
The present matter is distinguishable from Washington, which
concerned the retroactive application of Alleyne to cases where the
defendant’s judgment had already become final before the Alleyne
decision. Washington did not consider the unique procedural posture
presented in Ruiz or in the instant case, where a defendant’s Alleyne claim
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4
Washington did not upset the holding in Newman and Ruiz that an
Alleyne violation renders a sentence illegal for purposes of waiver analysis.
Washington stands for the proposition that no Alleyne violation can occur
in the first place where the defendant’s sentence was imposed and became
final before Alleyne was decided. In Washington, the Supreme Court
noted it recently granted allowance of appeal in a separate case to address
the distinct issue of whether an Alleyne violation implicates the legality of
sentence for issue preservation purposes. See Washington, supra at *4
n.6 (citing Commonwealth v. Barnes, ___ Pa. ___, 122 A.3d 1034
(2015)). Therefore, under current law, the claim that a sentence violates
Alleyne remains a nonwaivable challenge to the legality of the sentence.
See Newman, supra; Ruiz, supra.
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is addressed on collateral review but his direct appeal from the judgment of
sentence was still pending at the time Alleyne was decided. The
Washington Court, however, did specifically acknowledge the general
retroactivity of new constitutional rules to cases pending on direct review at
the time of the rule’s announcement. See Washington, supra at *2, *4.
Therefore, Washington does not necessarily foreclose review and relief with
respect to an Alleyne-based sentencing issue under these unique
circumstances.
Based on the foregoing, we affirm the court’s denial of PCRA relief
related to Appellant’s claim of ineffective assistance of counsel, but we
conclude Appellant is entitled to a remand for resentencing without
application of any unlawful mandatory minimum statute. Accordingly, we
affirm in part and reverse in part the order denying PCRA relief, vacate the
judgment of sentence in its entirety, and remand for resentencing without
imposition of a mandatory minimum term. See Commonwealth v.
Bartrug, 732 A.2d 1287 (Pa.Super. 1999), appeal denied, 561 Pa. 651, 747
A.2d 896 (1999) (holding sentencing error in multi-count case normally
requires appellate court to vacate entire judgment of sentence so trial court
can restructure its sentencing scheme on remand).
Order affirmed in part and reversed in part; judgment of sentence
vacated; case remanded for resentencing. Jurisdiction is relinquished.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/2/2016
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