J-S17012-16

_____________________________ *Former Justice specially assigned to the Superior Court. NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee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 o rder 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, vaca te 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 dru g-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

____________________________________________ 1 42 Pa.C.S.A. §§ 9541-9546.J-S17012-16

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Appellant a plea deal of an aggregate term of five (5) to ten (10) years’ incarceration, which Appellant rejected. On Novemb er 10, 2010, a jury convicted Appellant of multiple counts of possessio n of a controlled substance with intent to deliver (“PWID”), delivery of a controlled substance, criminal use of communication facility, and conspir acy. The court sentenced Appellant on March 30, 2011, to consecutive mandato ry minimum terms of incarceration of five (5) to ten (10) years for PWI D 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 charge s. Thus, Appellant received an aggregate sentence of twelve (12) to tw enty (20) years’ imprisonment. This Court affirmed the judgment of sentence on October 3, 2012, and the Pennsylvania Supreme Court denied all owance 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 See Commonwealth v. Darcangelo , No, 857 WDA 2011, unpublished memorandum (Pa.Super.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, 201 4, Appellant timely

____________________________________________ 2 Appellant’s term of seven (7) to ten (10) years’ i ncarceration 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 sha ll 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 la nguage in Section 7508 carved out exception to general rule set forth in S ection 9756(b)).J-S17012-16

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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 d enied 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 revie w:

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 v iew or obtain a copy of the discovery packet turned over by the Commonwealt h prior to trial. Appellant contends counsel’s withholding of the dis covery materials prevented Appellant from making an informed decisio n as to whether to accept the Commonwealth’s plea offer of five to ten years’ incarceration. Appellant asserts trial counsel had no reasonable b asis for denying him access to the discovery materials. Appellant submi ts 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 discover y packet because it was on a CD, which counsel could have easily copied and gi ven to Appellant. Appellant claims he would have accepted the Commonw ealth’s plea offer andJ-S17012-16

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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 concl udes 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 pet ition is limited to examining whether the evidence of record supports t he court’s determination and whether its decision is free of l egal error. Commonwealth v. Conway , 14 A.3d 101, 108 (Pa.Super. 2011), appeal denied , 612 Pa. 687, 29 A.3d 795 (2011). This Court gran ts great deference to the findings of the PCRA court if the record con tains 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 defer ence, 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 as sistance. Commonwealth v. Williams , 597 Pa. 109, 950 A.2d 294 (2008). When asserting a claim of ineffective assistance of coun sel, a petitioner is required to make the following showing: (1) the underlying c laim is of arguable merit; (2) counsel had no reasonable strategic basis for h is action or inaction; and, (3) but for the errors and omissions of counsel, th ere is a reasonable probability that the outcome of the proceedings wou ld have been different. Commonwealth v. Kimball , 555 Pa. 299, 312, 724 A.2d 326, 333 (1999).J-S17012-16

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The failure to satisfy any prong of the test for in effectiveness will cause the claim to fail. Williams, supra

. “The threshold inquiry in ineffectiveness claims i s whether the issue/argument/tactic which counsel has foregone an d 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). “Cou nsel cannot be found ineffective for failing to pursue a basele ss 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 w as designed to effectuate his client’s interests. If we conclude that the particular course chosen by counsel had so me reasonable basis, our inquiry ceases and counsel’s assistance is deemed effective. Pierce, supra at 524, 645 A.2d at 194-95 (internal citations omi tted).

Prejudice is established when [a defendant] demonst rates that counsel’s chosen course of action had an adver se effect on the outcome of the proceedings. The defe ndant must show that there is a reasonable probability th at, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermin e 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).J-S17012-16

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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 whic h the Commonwealth might obtain under this rule, the Commonwealth shall disclose to the defendant’s atto rney all...requested items or information, provided they a re material to the instant case. The Commonwealth sha ll, 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 discoverab le material to trial counsel in compliance with Rule 573(b)(1). Appella nt 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 mater ials to Appellant. 3 Therefore, Appellant’s issue lacks arguable merit. See Pierce, supra

. Further, trial counsel testified at the PCRA heari ng that he traditionally does not give his clients the actual discovery mate rial. Counsel explained this practice was intended to prevent loss of the d ocuments or public

____________________________________________ 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 discoverabl e documents...when these documents have been provided to defense couns el”).J-S17012-16

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dissemination of incriminating information. Counse l also confirmed he consulted with Appellant regarding the pertinent in formation in the discovery packet, and they discussed the risks of going to tr ial. Thus, the PCRA court properly concluded counsel’s actions had a reasonab le strategic basis. See id. With respect to the prejudice prong, Appellant fai ls 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 i nformed Appellant of the risks of going to trial. Further, Appellant admitt ed that after his arrest, he received and reviewed the grand jury presentment, w hich mentioned the testimony of multiple witnesses. Appellant also wa s present at the preliminary hearing. The prosecutor testified at t he 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 effec tiveness merits no relief. Nevertheless, we observe in the certified record t hat the trial court imposed mandatory minimum sentences for several of Appellant’s convictions, pursuant to 18 Pa.C.S.A. § 7508. At t he time of Appellant’s sentencing, Section 7508(a)(2)(ii) established a ma ndatory minimumJ-S17012-16

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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 be en 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 hun dred grams, and the defendant had a prior conviction for a drug traffic king offense, the mandatory minimum sentence was seven (7) years’ imp risonment. 18 Pa.C.S.A. § 7508(a)(2)(iii). Section 7508(b) state d 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 evide nce. 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 mandato ry minimum sentence for
a crime is considered an element of the crime to be submitted to the factfinder and found beyond a reasonable doubt. Alleyne, supra . This Court later addressed the constitutionality of a mandator y 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 initiall y raised on direct appeal, because the defendant’s appeal had been res olved on June 12, 2013, five days before Alleyne was decided. So, the defendant filed aJ-S17012-16

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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 imposit ion of mandatory minimum sentence for certain drug offe nses committed with firearms) could no longer pass constitutional muste r as it “permits the trial court, as opposed to the jury, to increase a defend ant’s minimum sentence based upon a preponderance of the evidence that the defendant was dealing drugs and possessed a firearm, or that a firearm wa s 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 P a.C.S.A. § 6317 (drug-free school zones) unconstitutional in its en tirety under Alleyne , where that statute stated its provisions were not e lements of crime and applicability of statute should be determined at se ntencing by preponderance of evidence).J-S17012-16

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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 h ad 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 simpl y does not pertain to a particular conviction or sentence, it cannot operate to render that conviction or sentence illeg al. ... * * * [N]ew constitutional procedural rules generally per tain 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]fJ-S17012-16

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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 r ule 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 applicati on 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 severa l of his drug offenses, pursuant to Section 7508. Alleyne was decided thirty-three days after the Pennsylvania Supreme Court had denied Appellant’s p etition for allowance of appeal on May 15, 2013, during the 90-day window Ap pellant 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 sen tence 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 enti rety 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 judgmentJ-S17012-16

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becomes final; judgment is deemed final at conclusi on of direct review or at expiration of time for seeking review). Because Ap pellant’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 issu e 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

____________________________________________ 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 w as 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 t hat 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 ap peal from the judgment of sentence was still pending at the time Alleyne was decided. The Washington Court, however, did specifically acknowledge the g eneral 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 w ith respect to an Alleyne -based sentencing issue under these unique circumstances. Based on the foregoing, we affirm the court’s deni al of PCRA relief related to Appellant’s claim of ineffective assista nce of counsel, but we conclude Appellant is entitled to a remand for rese ntencing without application of any unlawful mandatory minimum statu te. Accordingly, we affirm in part and reverse in part the order denyin g PCRA relief, vacate the judgment of sentence in its entirety, and remand fo r 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; judgm ent of sentence vacated; case remanded for resentencing. Jurisdict ion is relinquished.J-S17012-16

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Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 9/2/2016