Com. v. Rodriguez-Garcia, L.

J. S64008/15
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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.
J. S64008/15
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
-2-
J. S64008/15
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,
-3-
J. S64008/15
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
-4-
J. S64008/15
(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
-5-
J. S64008/15
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.
-6-
J. S64008/15
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
-7-
J. S64008/15
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
-8-
J. S64008/15
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
-9-
J. S64008/15
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
- 10 -