J-S65016-16

*Retired Senior Judge assigned 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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.

TARRONCE VELENTA-EMIL PORTER,

Appellant No. 1743 WDA 2015

Appeal from the PCRA Order of October 8, 2015

In the Court of Common Pleas of Erie County

Criminal Division at No(s): CP-25-CR-0000850-2013

BEFORE: LAZARUS, OLSON AND PLATT,* JJ.

MEMORANDUM BY OLSON, J.: FILED NOVEMBER 28, 2016

Appellant, Tarronce Velenta-Emil Porter, appeals from an order 

entered on October 8, 2015 that denied, without a hearing, his timely first 

petition filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. 

§9541-9546. We reverse the order of October 8, 2015, vacate Appellant’s 

judgment of sentence, and remand for resentencing.

We briefly set forth the historical and procedural history in this case. 

On July 18, 2013, a jury found Appellant guilty of four counts of aggravated 

assault, two counts of recklessly endangering another person, and firearms 

not to be carried without a license.1 Thereafter, the court, on September 

30, 2013, sentenced Appellant to a mandatory minimum term of five to ten 

____________________________________________

1 18 Pa.C.S.A. §§ 2702(a)(1) and (4), 2705, and 6106(a)(1).
J-S65016-16

- 2 -

years’ incarceration on one of his aggravated assault charges. This sentence 

was imposed pursuant to 42 Pa.C.S.A. § 9712. The other charges merged 

with Appellant’s aggravated assault conviction for sentencing purposes. 

Appellant did not file post-sentence motions.

Appellant filed a notice of appeal on October 11, 2013. On appeal, 

Appellant challenged the discretionary aspects of his sentence and the 

weight of the evidence introduced at trial. This Court affirmed Appellant’s 

judgment of sentence on August 19, 2014. Appellant never petitioned for 

further review before the Supreme Court.

Appellant, acting pro se, filed the instant PCRA petition (captioned as a 

motion to vacate illegal sentence and to impose a legal sentence) on 

February 18, 2015. The petition argued that Appellant’s mandatory 

minimum sentence was illegal under Alleyne v. United States, 133 S.Ct. 

(2013), which was decided on June 17, 2013 – three months prior to 

Appellant’s sentencing hearing. Counsel was appointed and an amended 

petition was filed on March 30, 2015. The amended submission reiterated 

the claims set forth in Appellant’s pro se petition and added a claim of 

ineffective assistance of counsel. On July 23, 2015, the PCRA court, 

pursuant to Pa.R.Crim.P. 907, issued notice of its intent to dismiss 

Appellant’s petition without a hearing. The court’s dismissal order followed 

on October 8, 2015. This appeal timely ensued wherein Appellant and the 

PCRA court have complied with Pa.R.A.P. 1925.
J-S65016-16

- 3 -

On appeal, Appellant challenges the PCRA court’s refusal to grant relief 

in the face of his Alleyne-based challenge to the legality of his mandatory 

minimum sentence. Our standard of review is well settled.

[We review an order] denying PCRA relief [to ascertain] whether 

the record supports the PCRA court's determination and whether 

the PCRA court's decision is free of legal error. The PCRA court's 

findings will not be disturbed unless there is no support for the 

findings in the certified record.

Commonwealth v. Ruiz, 131 A.3d 54, 57 (Pa. Super. 2015), quoting

Commonwealth v. Lawson, 90 A.3d 1, 4 (Pa. Super. 2014) (internal 

citations omitted).

The PCRA court offered several reasons in support of its decision to 

dismiss Appellant’s petition without a hearing. First, the court found that 

Appellant waived any challenge to his mandatory minimum sentence 

because he failed to raise the issue prior to sentencing, at sentencing, in a 

post-sentence motion, or on direct appeal. Next, the court reasoned that 

Alleyne was not applicable to cases pending on collateral review. Lastly, 

the court found that Appellant’s direct appeal counsel could not be deemed 

ineffective since Appellant waived his Alleyne challenge by not raising the 

claim before the trial court. These assessments are legally flawed.

Our decision in Ruiz governs the disposition of this appeal. In Ruiz, 

we explained that an Alleyne claim is a non-waivable challenge to the 
J-S65016-16

- 4 -

legality of sentence that may be raised for the first time on direct appeal or 

in a timely filed PCRA petition.2 Ruiz, 131 A.3d at 60; 42 Pa.C.S.A. § 9542 

(“persons serving illegal sentences may obtain collateral relief”). Therefore, 

Appellant’s failure to raise his claim prior to the instant timely PCRA petition 

is not grounds for finding waiver. 

We also observed in Ruiz that Alleyne may be applied retroactively to 

cases pending on collateral review so long as the petitioner’s judgment of 

sentence was not final when Alleyne was decided. Ruiz, 131 A.3d at 

59-60. Because Appellant received his sentence three months after the 

issuance of Alleyne, the instant case does not implicate impermissible 

retroactive application of that precedent. 

Finally, since we have noted that Appellant could not waive his 

Alleyne challenge prior to direct appeal, nothing precluded direct appeal 

counsel from challenging Appellant’s mandatory minimum sentence at that 

stage of the proceedings. Id. at 60, citing Commonwealth v. Newman, 

99 A.3d 86, 90 (Pa. Super. 2014) (en banc) (recognizing that Alleyne

applies to all criminal cases pending on direct review), appeal denied, 121 

____________________________________________

2 The issue of whether Alleyne implicates the legality of a sentence, and 

thus constitutes a non-waivable claim, is currently pending before the 

Pennsylvania Supreme Court in Commonwealth v. Barnes, 122 A.3d 

1034-1035 (Pa. 2015) (per curiam order granting petition for allowance of 

appeal in part).
J-S65016-16

- 5 -

A.3d 496 (Pa. 2015). Hence, Appellant retains a viable claim of ineffective 

assistance of counsel.

Based on our review of the procedural background of this case and the 

relevant case law discussed above, we conclude that Appellant is entitled to 

resentencing without consideration of the mandatory minimum sentencing 

provision of 42 Pa.C.S. § 9712. Therefore, since the PCRA court erred in 

dismissing Appellant’s petition raising an Alleyne challenge, we reverse the 

order denying PCRA relief, vacate Appellant’s judgment of sentence, and 

remand for resentencing.

Order reversed. Judgment of sentence vacated. Case remanded for 

resentencing. Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 11/28/2016