J-S60009-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

ELANTE OUTTERBRIDGE,

Appellant No. 3187 EDA 2015

Appeal from the PCRA Order September 22, 2015

In the Court of Common Pleas of Philadelphia County

Criminal Division at No(s): CP-51-CR-0001809-2011, CP-51-CR-0012306-

2012

BEFORE: SHOGAN, OTT, and STRASSBURGER,*JJ.

MEMORANDUM BY SHOGAN, J.: FILED DECEMBER 06, 2016

Elante Outterbridge (“Appellant”) appeals, pro se, from the order 

denying his petition for relief filed under the Post Conviction Relief Act 

(“PCRA”), 42 Pa.C.S. §§ 9541–9546. We vacate the PCRA order and remand 

for further proceedings.

Appellant was arrested on January 12, 2011, in connection with the 

shooting of Ronnie Brown (“the victim”) during an altercation on November 

13, 2010. Criminal Complaint, 11/15/10, at 1. Appellant was charged with, 

inter alia, aggravated assault and possession of an instrument of crime with 

intent to employ it criminally. Id. at 2. Appellant was arrested again on 

____________________________________________

*

 Retired Senior Judge assigned to the Superior Court.
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August 30, 2012, in connection with his possession of a black Browning 

Arms .22 caliber handgun in his waistband. Criminal Complaint, 8/30/12, at 

1. Appellant was charged with, inter alia, possessing a firearm without a 

license. Id. at 2.

Appellant entered a negotiated plea on both criminal dockets, whereby 

he pled guilty to aggravated assault, PIC, and possessing a firearm without a 

license, and the Commonwealth nol prossed the remaining charges. N.T., 

10/15/13; Written Guilty Plea Colloquy, 10/15/13. The trial court sentenced 

Appellant the same day to incarceration for an aggregate term of five to 

fifteen years. Appellant filed an untimely pro se motion for reconsideration 

on March 19, 2014, which the trial court denied. Order, 5/1/14. Appellant 

did not file a direct appeal.

Appellant filed a timely pro se PCRA petition, averring he did not 

receive credit for time served. PCRA Petition, 9/29/14, at 4. The PCRA 

court appointed counsel on April 23, 2015. Three days later, counsel filed a 

“no merit” letter pursuant to Commonwealth v. Finley, 550 A.2d 213 (Pa. 

Super. 1988), and a motion to withdraw representation. In response, 

Appellant filed a pro se application for leave to amend his PCRA petition, 

raising a legality-of-sentence issue premised on U.S. v. Alleyne, ___ U.S. 

___, 133 S.Ct. 2151 (2013). Application for Leave to Amend, 5/5/15.

Without addressing Appellant’s request for permission to amend his 

petition, the PCRA court sent a notice of its intent to dismiss Appellant’s 
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petition pursuant to Pa.R.Crim.P. 907 on July 7, 2015. In response, 

Appellant filed a pro se objection to the Rule 907 notice. Objection to Notice 

of Intention to Dismiss, 7/21/15. The PCRA court dismissed Appellant’s 

petition and permitted counsel to withdraw, with no mention of Appellant’s 

legality-of-sentence claim. Order, 9/22/15. This appeal followed. Appellant 

and the PCRA court have complied with Pa.R.A.P. 1925.

Appellant presents the following issues for our consideration:

Is the appellant freely allowed to file an/or amended PCRApetition, while the initial PCRA-petition was still pending so that 

appellant can achieve substantial justice?

Is the appellant serving a mandatory minimum sentence 

that’s unconstitutional and illegal?

Appellant’s Brief at 7 (verbatim).

When reviewing the propriety of an order denying PCRA relief, we 

consider the record “in the light most favorable to the prevailing party at the 

PCRA level.” Commonwealth v. Stultz, 114 A.3d 865, 872 (Pa. Super. 

2015) (quoting Commonwealth v. Henkel, 90 A.3d 16, 20 (Pa. Super. 

2014) (en banc)). This Court is limited to determining whether the evidence 

of record supports the conclusions of the PCRA court and whether the ruling 

is free of legal error. Commonwealth v. Rykard, 55 A.3d 1177, 1183 (Pa. 

Super. 2012). We grant great deference to the PCRA court’s findings that 

are supported in the record and will not disturb them unless they have no 

support in the certified record. Commonwealth v. Rigg, 84 A.3d 1080, 

1084 (Pa. Super. 2014).
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Regarding Appellant’s first issue, amendment of a PCRA petition, the 

Pennsylvania Supreme Court has stated:

Our criminal procedural rules reflect that the PCRA judge 

“may grant leave to amend ... a petition for post-conviction 

collateral relief at any time,” and that amendment “shall be 

freely allowed to achieve substantial justice.” Pa.R.Crim.P. 

905(A); see Commonwealth v. Williams, 573 Pa. 613, 633, 

828 A.2d 981, 993 (2003) (noting that the criminal procedural 

rules contemplate a “liberal amendment” policy for PCRA 

petitions). Nevertheless, it is clear from the rule’s text that leave 

to amend must be sought and obtained, and hence, 

amendments are not “self-authorizing.” Commonwealth v. 

Porter, 613 Pa. 510, 523, 35 A.3d 4, 12 (2012). Thus, for 

example, a petitioner may not “simply ‘amend’ a pending 

petition with a supplemental pleading.” Id. Rather, Rule 905 

“explicitly states that amendment is permitted only by direction 

or leave of the PCRA Court.” Id. at 523–24, 35 A.3d at 12; see 

also Williams, 573 Pa. at 625, 828 A.2d at 988 (indicating that 

the PCRA court retains discretion whether or not to grant a 

motion to amend a post-conviction petition). It follows that 

petitioners may not automatically “amend” their PCRA petitions 

via responsive pleadings.

Commonwealth v. Baumhammers, 92 A.3d 708, 730–731 (Pa. 2014). In 

sum, claims raised outside of a court-authorized PCRA petition are subject to 

waiver. Commonwealth v. Reid, 99 A.3d 470, 484 (Pa. 2014). See also 

Commonwealth v. Mason, 130 A.3d 601, 627 (Pa. 2015) (finding claim 

waived for failure to raise it in an authorized amended PCRA petition).

Here, despite being represented, Appellant sought, pro se, the PCRA 

court’s permission to amend his petition with an Alleyne sentencing claim. 

Application for Leave to Amend, 5/5/15. Without granting Appellant leave to 
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amend, the PCRA court dismissed Appellant’s petition on the merits.1 In its 

Pa.R.A.P. 1925(a) opinion, however, the PCRA court expressly recognized 

Appellant’s sentencing issue: “Since [Appellant’s] motion to amend 

challenges the legality of his sentence, the [c]ourt is treating his pro se

PCRA petition as having been properly amended.” PCRA Court Opinion, 

2/19/16, at 2 n.1.

Pennsylvania jurisprudence recognizes that a legality-of-sentence issue 

is not subject to the traditional waiver doctrine. See Commonwealth v. 

Wolfe, 140 A.3d 651, 660 (Pa. 2016) (“[T]his Court has previously found 

____________________________________________

1

 As stated above, Appellant filed a pro se objection to the Rule 907 notice 

on July 21, 2015, again challenging his sentence under Alleyne. Objection 

to Notice of Intention to Dismiss, 7/21/15, at ¶ 2. Inexplicably, the record 

suggests that two months later neither the PCRA court nor counsel were 

aware of Appellant’s objection or the sentencing issue therein:

THE COURT: What’s this here for?

[DEFENSE COUNSEL]: Dismissal. The 907 notice went out.

THE COURT: Okay. It’s a PCRA. At the last listing in July 

we were going to send out a 907 notice, which it looks like we 

did, on July 7th. Anybody hear back from the defendant?

[PROSECUTOR]: No, Your Honor.

[DEFENSE COUNSEL]: No, Your Honor.

[THE COURT]: So, then, today we can just enter a formal 

dismissal?

[PROSECUTOR]: That’s correct.

N.T., 9/22/15, at 4–5.
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that an asserted [Alleyne] violation implicated the legality of a sentence . . . 

and that legality-of-sentence claims are not subject to the traditional waiver 

doctrine.” (internal citations omitted)); Commonwealth v. Hopkins, 67 

A.3d 817, 821 (Pa. Super. 2013) (“As a general rule, a challenge to the 

application of a mandatory minimum sentence is a non-waivable challenge 

to the legality of sentence.” (internal quotations omitted)). Therefore, 

despite the PCRA court’s failure to formally grant Appellant leave to amend 

his petition to include a legality-of-sentence issue, we discern no abuse of 

the PCRA court’s discretion in treating Appellant’s PCRA petition as properly 

amended.

Appellant’s second issue implicates the legality of his sentence. 

According to Appellant, his sentence was imposed under the illegal 

mandatory minimum sentencing scheme of 42 Pa.C.S. § 9712(a). 

Appellant’s Brief at 11 (citing Commonwealth v. Hopkins, 117 A.3d 247 

(Pa. 2015)). Contrarily, the Commonwealth asserts that “[Appellant] 

negotiated the sentence the court imposed as part of his guilty plea, and the 

sentence was not a mandatory minimum sentence. Alleyne does not apply.” 

Commonwealth’s Brief at 6. In support of its position, the Commonwealth 

asserts:

[Appellant] made no proffer to the PCRA court – and offers 

none now on appeal – that a mandatory sentence under Section 

9712 was imposed. In fact, on the court’s October 15, 2013, 

Sentencing Order, the “No” box is checked under the heading 

“Mandatory Sentence”. At the plea proceeding, the court 

explicitly stated on the record, “It’s my intention to impose the 
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sentence that was recommended by the DA and agreed to by the 

defense as part of the negotiated plea” (N.T. 10/15/13, 16), 

which [Appellant] confirmed when he “waived the ordering of a 

presentence investigation report in light of the negotiated 

agreement.” (N.T. 10/15/13, 17).

Id. at 7–8 (some internal citations omitted).

In retrospect, the PCRA court found Appellant’s sentencing challenge 

meritorious, opining, in relevant part, as follows:

This matter falls into a very narrow category of cases 

wherein defendants entered into negotiated plea agreements 

shorty after Alleyne was decided which were premised on the 

application of Pennsylvania’s statutory mandatory minimum 

sentence scheme. As part of these plea agreements, as in the 

instant matter, the defendants admitted to the predicate act 

leading to the imposition of a mandatory minimum sentence.

Alleyne held that any predicate fact that triggers an 

increase in the mandatory minimum sentence for a crime is 

necessarily an element of the offense and that such fact must be 

found “beyond a reasonable doubt” by a jury. ...

* * *

Alleyne, was decided on June 17, 2013, and, as noted 

above, [Appellant] was sentenced on October 15, 2013, some 

four months later. . . . Subsequently, our Supreme Court, in 

Commonwealth v. Newman, 99 A.3d 86 (Pa. 2014), held that 

in Pennsylvania, Alleyne was to be applied retroactively to any 

proceeding pending at the time Alleyne was decided. 

Therefore, [Appellant’s] sentence is subject to review under 

Alleyne. ...

Before accepting [Appellant’s] plea the [PCRA court] engaged 

him in an extensive colloquy to ascertain whether or not his plea 

was in fact voluntary. During this colloquy, [Appellant], on the 

Bill of Information relating to the charge of Aggravated Assault 

and PIC, admitted to getting into an altercation with the [victim] 

who was known to him. [Appellant] also admitted that during 

the altercation he drew a silver hand gun from his waist and shot 

the [victim] once in the leg. (N.T. 10/15/[13], pgs. 11, 14) 
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[Appellant], on the Bill of Information relating to the charge of 

Carrying a Firearm Without a License, admitted to carrying a 

loaded gun without a license. (N.T. 10/15/[13], pgs. 13, 14) In 

light of [Appellant’s] admissions, the [c]ourt accepted 

[Appellant’s] plea.

Prior to imposing [Appellant’s] negotiated aggregate 

sentence of 5 to 15 years incarceration, the [c]ourt reviewed the 

sentencing guidelines to determine if his negotiated sentence fell 

within the guidelines. ... [Appellant’s] sentence was clearly 

within the guidelines.

* * *

In considering [Appellant’s] negotiated plea, it is unclear 

what role the consideration of the imposition of the mandatory 

minimum sentence, pursuant to the provisions of 42 Pa.C.S.A. 

9712, played in negotiating [Appellant’s] plea. No reference was 

made to the imposition of a mandatory minimum sentence 

during the [c]ourt’s colloquy prior to accepting his plea. The 

only references on the record to §9712 appear in the Bill of 

Information wherein the Commonwealth put [Appellant] on 

notice that it would proceed pursuant to § 9712 and, at 

sentencing as an aside during the [c]ourt’s discussion of the 

sentencing guidelines with counsel. (N.T. 10/15/[13], pgs. 16, 

14).

* * *

The [c]ourt finds that, . . . at the very least, this matter should 

be remanded for resentencing without reference to § 9712, the 

mandatory minimum provision.

PCRA Court Opinion, 2/19/16, at 4–8.

In suggesting the need for resentencing, the PCRA court relied heavily 

on our decision in Commonwealth v. Melendez-Negron, 123 A.3d 1087, 

1094 (Pa. Super. 2015), which, the PCRA court asserts, “addressed for the 

first time the legality of a negotiated plea agreement in light of Alleyne.” 

PCRA Court Opinion, 2/19/16, at 6. According to the PCRA court:
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The defendant in Melendez-Negron, as part of his plea 

agreement, admitted to the possession of a firearm during a 

drug transaction. His negotiated sentence, premised on the 

application of § 9712.1, resulted in the imposition of a sentence 

which substantially exceeded the sentencing guidelines 

recommendations. [The] Melendez-Negron [Court], in 

declaring the defendant’s sentence illegal, in light of Alleyne, 

held that the shared misapprehension that the mandatory 

minimum sentence required by § 9712.1 applied to MelendezNegron tainted the parties’ negotiations at the outset. 

Melendez-Negron makes it clear that any negotiated sentence 

premised on the consideration of the now discredited mandatory 

minimum sentence statutes is per se illegal.

PCRA Court Opinion, 2/19/16, at 6–7 (internal citation, quotation marks, and 

footnote omitted).

Upon review, we agree with the PCRA court that a remand is 

necessary. We reach this conclusion based on several facts of record. First, 

as part of his plea agreement, Appellant admitted to the predicate act for 

imposition of a mandatory minimum sentence: possessing an instrument of 

crime. (N.T. 10/15/13, pgs. 11). Appellant’s admission is “the functional 

equivalent of a stipulation,” and therefore, it would not remedy an Alleyne

violation inherent to section 9712. Melendez-Negron, 123 A.3d at 1091 

(citing Commonwealth v. Cardwell, 105 A.3d 748, 754–755 (Pa. Super. 

2014)). 

Second, as observed by the PCRA court, the record is unclear “what 

role the consideration of the imposition of the mandatory minimum 

sentence, pursuant to the provisions of 42 Pa.C.S.A. 9712, played in 

negotiating [Appellant’s] plea.” PCRA Court Opinion, 2/19/16, at 7. On one 
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hand, the Commonwealth gave notice of its intention to seek a mandatory 

minimum sentence pursuant to 42 Pa.C.S. § 9712(a) (Sentences for 

offenses committed with firearms). Bills of Information, 3/1/11 and 

11/26/12, at Count 1. Then, at sentencing, the trial court inquired, “The 

aggravated assault would be a mandatory minimum, right?” N.T., 10/15/13, 

at 16. On the other hand, Alleyne was decided four months before 

Appellant entered the negotiated plea. Moreover, there was no reference to 

section 9712 during the plea hearing, and as the Commonwealth submits, 

the sentencing order indicates that the sentence imposed was not a 

mandatory sentence. N.T., 10/15/13, 3–15; Commonwealth’s Brief at 7. 

Third, Appellant’s affirmation that the sentence was a negotiated one 

does not reveal to what extent, if any, his plea was informed by section 

9712. Unlike the record in Melendez–Negron, the record at hand is 

unclear as to whether Appellant and the Commonwealth entered into a 

negotiated plea under the misapprehension that a mandatory minimum 

sentencing statute applied. It is well settled that in plea negotiations, “both 

parties to a negotiated plea agreement are entitled to receive the benefit of 

their bargain.” Melendez-Negron, 123 A.3d at 1093 (citations omitted). 

Accordingly, if a shared misapprehension that the mandatory minimum 

sentence required by section 9712 applied to Appellant tainted the parties’ 

negotiations at the outset, then “the parties’ negotiations began from an 

erroneous premise and therefore were fundamentally skewed from the 
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beginning.” Id. For these reasons, we are compelled to vacate the order 

denying PCRA relief and remand for a hearing to determine whether section 

9712(a) was a factor in the guilty plea negotiations.

Order vacated. Case remanded. Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 12/6/2016