J-S17007-16

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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

SHAWN RYAN CARR

Appellant No. 430 WDA 2015

Appeal from the PCRA Order February 4, 2015

In the Court of Common Pleas of Jefferson County

Criminal Division at No(s): CP-33-CR-0000026-2009;

CP-33-CR-0000125-2009; CP-33-CR-0000126-2009;

CP-33-CR-0000127-2009

BEFORE: GANTMAN, P.J., SHOGAN, J., and FITZGERALD, J.*

MEMORANDUM BY GANTMAN, P.J.: FILED APRIL 14, 2016

Appellant, Shawn Ryan Carr, appeals from the order entered in the 

Jefferson County Court of Common Pleas, which denied his first petition filed 

pursuant to the Post Conviction Relief Act (“PCRA”).1 We affirm. 

The relevant facts and procedural history of this case as follows:

On February 17, 2010, Appellant pled guilty to four (4) 

counts of delivery of a controlled substance in Jefferson 

County.1 That same day, the Jefferson County court 

sentenced Appellant on each count to fourteen (14) 

months’ to three (3) years’ imprisonment, followed by two 

(2) years’ probation, with all sentences to run 

concurrently. While under supervision, Appellant 

committed new crimes in Clarion County. On August 14, 

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1 42 Pa.C.S.A. §§ 9541-9546. 
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2013, Appellant pled guilty in the Clarion County Court of 

Common Pleas to delivery of a controlled substance, drug 

delivery resulting in death, criminal use of communication 

[facility], and abuse of a corpse.2 The Clarion County 

court sentenced Appellant to eight (8) to sixteen (16) 

years’ imprisonment. 

1 35 P.S. § 780-113(a)(30)

2 35 P.S. § 780-113(a)(30), 18 Pa.C.S.A. §§ 

2506(a), 7512(a), and 5510, respectively.

The Jefferson County court held a Gagnon II[2]revocation 

hearing on September 18, 2013, in which the court took 

judicial notice of Appellant’s plea and sentence in Clarion 

County, and revoked his probation. The Jefferson County 

court resentenced Appellant to five (5) to (15) years’ 

imprisonment on each count of delivery of a controlled 

substance, to run consecutively, for an aggregate of 

twenty (20) to sixty (60) years’ imprisonment. The 

Jefferson County court also ordered the sentence to run 

consecutively to Appellant’s Clarion County sentence.

Appellant filed a post-sentence motion for reconsideration 

on September 26, 2013, which the Jefferson County court 

denied on October 10, 2013. ... Appellant filed a timely 

notice of appeal on October 18, 2013. 

Commonwealth v. Carr, S., No. 1699 WDA 2013, unpublished 

memorandum at 1-3 (Pa.Super. filed June 16, 2014) (affirming Appellant’s 

judgment of sentence). Appellant did not seek further direct review. 

On December 11, 2014, Appellant timely filed a pro se PCRA petition. 

The PCRA court appointed counsel, who filed a petition to withdraw and “nomerit” letter on January 9, 2015. On that same date, the court permitted 

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2 Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 

(1973). 
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counsel to withdraw and issued notice of its intent to dismiss Appellant’s 

petition without a hearing, pursuant to Pa.R.Crim.P. 907. Appellant filed a 

response on January 29, 2015. The court dismissed the petition on February 

4, 2015. On February 23, 2015, Appellant timely filed a pro se notice of 

appeal. The 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 issues for our review:

DID THE [TRIAL] COURT COMMIT AN [ERROR] OF LAW IN 

[ITS] REVOCATION HEARING/RESENTENCING APPELLANT 

OUTSIDE THE PLEA AGREEMENT INITIALLY IMPOSED?

IS APPELLANT[’S] SENTENCE ILLEGAL AND 

UNCONSTITUTIONAL SINCE 18 PA.C.S.A. § 7508 HAS 

BEEN DECLARED UNCONSTITUTIONAL IN [ITS] ENTIRETY?

(Appellant’s Brief at 4). 

In his first issue, Appellant argues the court improperly resentenced 

him in violation of the terms of his original plea agreement. Appellant 

asserts the court had no authority to impose consecutive sentences upon 

revocation because the court had originally imposed concurrent sentences 

pursuant to the plea agreement. Appellant concludes this Court should 

vacate his sentence and remand for resentencing. We cannot agree.3 

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3 Appellant also argues his revocation sentence is manifestly excessive; the 

court failed to consider the applicable sentencing factors; and the court 

imposed a sentence outside of the Sentencing Guidelines without stating 

(Footnote Continued Next Page)
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Our standard of review of the denial of a PCRA petition is limited to 

examining whether the record evidence supports the court’s determination 

and whether the court’s decision is free of legal error. Commonwealth v. 

Ford, H., 947 A.2d 1251 (Pa.Super. 2008), appeal denied, 598 Pa. 779, 959 

A.2d 319 (2008). This Court grants great deference to the findings of the 

PCRA court if the record contains any support for those findings. 

Commonwealth v. Carr, M., 768 A.2d 1164 (Pa.Super. 2001). We give no 

deference, however, to the court’s legal conclusions. Commonwealth v. 

Ford, J., 44 A.3d 1190, 1194 (Pa.Super. 2012). A petitioner is not entitled 

to a PCRA hearing as a matter of right; the PCRA court can decline to hold a 

hearing if there is no genuine issue concerning any material fact, the 

(Footnote Continued) _______________________

appropriate reasons on the record. Appellant’s arguments challenge the 

discretionary aspects of his sentence and are not cognizable under the PCRA. 

See Commonwealth v. Hyland, 875 A.2d 1175 (Pa.Super. 2005), appeal 

denied, 586 Pa. 723, 890 A.2d 1057 (2005) (stating claim that sentencing 

court failed to consider mitigating factors challenges discretionary aspects of 

sentencing); Commonwealth v. Lutes, 793 A.2d 949 (Pa.Super. 2002) 

(stating claim that sentence is manifestly excessive challenges discretionary 

aspects of sentencing); Commonwealth v. Davis, 737 A.2d 792 (Pa.Super. 

1999) (stating claim that court imposed sentence outside of guidelines 

without placing sufficient explanation on record implicates discretionary 

aspects of sentencing). See also Commonwealth v. Wrecks, 934 A.2d 

1287 (Pa.Super. 2007) (stating challenges to discretionary aspects of 

sentencing are not cognizable under PCRA). Moreover, this Court resolved 

all of Appellant’s discretionary sentencing claims on the merits in his direct 

appeal. See Carr, S., supra. See also Commonwealth v. Turetsky, 925 

A.2d 876, 879 (Pa.Super. 2007), appeal denied, 596 Pa. 707, 940 A.2d 365 

(2007) (stating: “[T]o be entitled to PCRA relief, a petitioner must plead and 

prove, inter alia, that the allegation of error has not been previously litigated 

or waived”). Therefore, we give those claims no further attention. 
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petitioner is not entitled to PCRA relief, and no purpose would be served by 

any further proceedings. Commonwealth v. Hardcastle, 549 Pa. 450, 701 

A.2d 541 (1997). 

“An issue is waived if it could have been raised prior to the filing of the 

PCRA petition, but was not.” Commonwealth v. Berry, 877 A.2d 479, 482 

(Pa.Super. 2005) (en banc), appeal denied, 591 Pa. 688, 917 A.2d 844 

(2007). See also 42 Pa.C.S.A. § 9544(b). Nevertheless, “claims pertaining 

to the legality of sentence are non-waivable[.]” Commonwealth v. Foster, 

960 A.2d 160, 163 (Pa.Super. 2008). A defendant’s claim that he was 

sentenced in violation of his plea agreement does not implicate the legality 

of the sentence, where the defendant fails to identify any statutory reason or 

double jeopardy basis for declaring the sentence illegal. Berry, supra

(holding PCRA petitioner waived claim that his sentence violated terms of 

plea agreement by failing to raise issue on direct appeal). Further,

It is clearly stated in the Sentencing Code not only that the 

court may revoke a defendant’s probation if appropriate, 

but also that “[u]pon revocation the sentencing 

alternatives available to the court shall be the same as 

were available at the time of initial sentencing.” 42 

Pa.C.S. § 9771 (emphasis added). Likewise, [the 

Pennsylvania Supreme] Court has explicitly stated that 

“upon revocation of probation, the court possesses the 

same sentencing alternatives that it had at the time of the 

initial sentencing.” Commonwealth v. Pierce, 497 Pa. 

437, [440], 441 A.2d 1218, 1219 (1982). As it is well 

established that the sentencing alternatives available to a 

court at the time of initial sentencing are all of the 

alternatives statutorily available under the Sentencing 

Code, these authorities make clear that at any revocation 

of probation hearing, the court is similarly free to impose 
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any sentence permitted under the Sentencing Code and is 

not restricted by the bounds of a negotiated plea 

agreement between a defendant and prosecutor.

Commonwealth v. Wallace, 582 Pa. 234, 241-42, 870 A.2d 838, 842-43 

(2005) (footnotes omitted). See also Commonwealth v. Raphael, 879 

A.2d 1264 (Pa.Super. 2005), appeal denied, 587 Pa. 712, 898 A.2d 1070 

(2006) (holding imposition of consecutive sentences upon revocation of 

defendant’s probation, rather than concurrent sentences according to terms 

of plea agreement, was not improper). 

Instantly, on direct appeal, Appellant could have raised his claim that 

the trial court improperly imposed consecutive sentences following 

revocation of Appellant’s probation, purportedly in violation of the original 

plea agreement, which called for concurrent sentences. Appellant failed to 

do so. Further, as presented, Appellant’s claim does not implicate the 

legality of his sentence. Thus, Appellant’s claim is waived. See Berry, 

supra. Moreover, after the court revoked Appellant’s probation, it was free 

to impose any of the sentencing alternatives available at the time of initial 

sentencing, regardless of the terms of Appellant’s plea agreement.4 See 

Wallace, supra; Raphael, supra. Therefore, even if Appellant had not 

waived the issue, it would merit no relief. 

In his second issue, Appellant argues the court unlawfully imposed 

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4 Appellant cites contrary case law expressly overruled by the Pennsylvania 

Supreme Court in Wallace, supra. 
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five-year mandatory minimum terms of incarceration under 18 Pa.C.S.A. § 

7508, in violation of Alleyne v. United States, ___ U.S. ___, 133 S.Ct. 

2151, 186 L.Ed.2d 314 (2013), and its Pennsylvania progeny. Appellant 

concludes he is entitled to resentencing without application of a mandatory 

minimum term. We cannot agree. 

A sentencing challenge premised on Alleyne implicates the legality of 

the sentence and cannot be waived. Commonwealth v. Newman, 99 A.3d 

86 (Pa.Super. 2014) (en banc), appeal denied, ___ Pa. ___, 121 A.3d 496 

(2015). In Alleyne, the United States Supreme Court 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. See id. Section 7508(b) states that its statutory 

provisions shall not be an element of the crime and applicability of the 

statute shall be determined at sentencing by a preponderance of the 

evidence. In Newman, this Court addressed the constitutionality of a 

similar statute, 42 Pa.C.S.A. § 9712.1, in light of Alleyne. Newman held 

that Section 9712.1 can 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.” Newman, supra at 98. Subsequently, this Court 

directly addressed the constitutionality of Section 7508 in Commonwealth 
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v. Vargas, 108 A.3d 858 (Pa.Super. 2014) (en banc), appeal denied, ___ 

Pa. ___, 121 A.3d 496 (2015), where the trial court imposed a mandatory 

minimum sentence for the defendant’s conviction for possession with intent 

to deliver a controlled substance, pursuant to Section 7508(a)(7)(iii). On 

appeal, this Court emphasized that Section 7508 is structured in the same 

manner as the statute at issue in Newman. Id. at 876-77. This Court 

concluded that Section 7508 is likewise unconstitutional in its entirety. Id. 

Instantly, Appellant could have but failed to raise his Alleyne

challenge on direct appeal, or in his PCRA petition. Nevertheless, we will 

address the issue on the merits because it is a non-waivable challenge to the 

legality of Appellant’s sentence. See Newman, supra. Here, the court 

resentenced Appellant to a term of five (5) to fifteen (15) years’ 

incarceration for each count of delivery of a controlled substance. Appellant 

assumes the court applied Section 7508 simply because the statute sets 

forth a mandatory minimum term of five years’ incarceration for certain drug 

offenses. Careful review of the record, however, reveals that the court 

applied no mandatory minimum sentence. As Appellant concedes, the court 

made no mention of a mandatory minimum at sentencing. Moreover, the 

sentencing order and court commitment form indicate no mandatory 

minimum term was imposed. Therefore, Alleyne is not implicated, and no 

relief is due. Accordingly, we affirm. 

Order affirmed. 
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Fitzgerald, J. concurs in the result.

Shogan, J. files a concurring and dissenting memorandum.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 4/14/2016