J-S76013-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

DAVID MORA

Appellant No. 377 EDA 2016

Appeal from the PCRA Order January 8, 2016

In the Court of Common Pleas of Chester County

Criminal Division at No: CP-16-CR-0002776-2013

BEFORE: STABILE, DUBOW, JJ., and STEVENS, P.J.E.*

MEMORANDUM BY STABILE, J.: FILED DECEMBER 30, 2016

Appellant, David Mora, appeals pro se from the January 8, 2016 order 

entered in the Court of Common Pleas of Chester County (“PCRA court”) 

denying relief under the Post-Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 

9541-46. Upon review, we affirm.

The PCRA court summarized the factual and procedural history as 

follows.

On November 1, 2013, [Appellant] entered an open guilty 

plea to 5 counts of possession with the intent to deliver cocaine 

(PWID); 1 count of possession with intent to deliver marijuana; 

1 count of criminal use of a communication facility; 1 count of 

dealing in unlawful proceeds; and 1 count of conspiracy to 

deliver cocaine. [Appellant] was sentenced on October 1, 2014. 

Although [Appellant] had previously entered into an open guilty 

plea, on the date of sentencing, [Appellant], through his 

____________________________________________

*

Former Justice specially assigned to the Superior Court.
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attorney, agreed with the sentence recommended by the 

Commonwealth. This sentence was based upon [Appellant’s] 

cooperation with the Commonwealth and [Appellant’s] almost

immediate admission that he was involved with drug trafficking. 

[Appellant was sentenced to a total of 13-26 years’ 

incarceration.]

. . . 

[Appellant] received credit for time served from July 2, 

2013 to October 1, 2014. The Commonwealth did not pursue 

any mandatory minimum sentences. The sentence included 

eligibility for the RRRI program after [Appellant] served 10 years 

and 10 months incarceration. [Appellant] was represented by 

Evan J. Kelly, Esquire, when he entered the open guilty plea and 

was represented by Phillip D. Press, Esquire, at sentencing.

[Appellant] filed a pro se motion pursuant to the [PCRA] 

on September 24, 2015. By [o]rder dated October 5, 2015, the 

[PCRA court] appointed Robert P. Brendza, Esquire, to represent 

[Appellant] with regard to his PCRA motion. On November 10, 

2015, Mr. Brendza filed a [p]etition for [l]eave to [w]ithdraw as 

PCRA [c]ounsel, including a letter to [Appellant] pursuant to 

Commonwealth v. Turner, 544 A.2d 922 (1988) and 

Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988). 

PCRA Court Order, 12/3/2015, at 1 n.1 (citations omitted).

The PCRA court issued a Pa.R.Crim.P. 907(1) notice on December 3, 

2015. Appellant, pro se, filed objections to the 907(1) notice on January 4, 

2016. The PCRA court dismissed Appellant’s petition on January 8, 2016. 

Appellant filed the instant appeal on January 29, 2016. On February 2, 

2016, the PCRA court directed Appellant to file a Pa.R.A.P. 1925(b) 

statement. Appellant complied and filed a 1925(b) statement on February 

18, 2016. 

Appellant raises two issues on appeal, which we quote verbatim.
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I. Did the Honorable PCRA Court err by dismissing 

Appellant’s PCRA Petition for failure to provide any basis 

for the relief requested, when Appellant was sentenced 

pursuant to 18 Pa.C.S.A. § 7508(a)(3)(iii), then held 

unconstitutional in Commonwealth v. Cardwell, 105 

A.3d 748, 750 (Pa. Super. 2014).

II. Did the Honorable PCRA Court err by dismissing 

Appellant’s PCRA Petition when the record is clear that 

Appellant was sentenced to more counts than all parties 

agreed to, when Appellant signed the Plea Agreement, 

contrary to the Negotiated Plea Agreement and breaching 

the contract made and signed into by all parties.

Appellant’s Brief at 4. 

Appellant’s first argument is a challenge to his sentence based upon 

Alleyne v. United States, 133 S. Ct. 2151 (2013). In Alleyne the 

Supreme Court held that any fact other than a prior conviction requiring 

imposition of a mandatory minimum sentence must be found beyond a 

reasonable doubt by the trier of fact. Id. at 2155. Appellant cites to a 

number of cases detailing the application of Alleyne and the imposition of a 

mandatory minimum sentence; however, Appellant’s argument is fatally 

flawed. Appellant was not sentenced to a mandatory minimum;1therefore, 

Alleyne is inapplicable to Appellant’s case. Appellant’s first claim fails.

Next, Appellant claims that he was not sentenced according to the plea 

agreement. Specifically, Appellant argues that his plea agreement was 

violated because the PCRA court sentenced Appellant on count 5 (3-6 years 

____________________________________________

1 The Commonwealth specifically did not seek any mandatory minimums in 

this case because of a possible Alleyne challenge. See N.T. Sentencing, 

10/1/2014, at 5.
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incarceration) consecutively to count 4 (3-6 years incarceration). 

Appellant’s claim lacks merit. Generally, sentencing is vested in the sound 

discretion of the trial court. Commonwealth v. Daniels, 656 A.2d 539, 

543 (Pa. Super. 1995). However, 

[u]pon acceptance of a plea agreement, [] the trial court is 

bound to comply with the terms of that agreement. A 

sentence recommendation is among the “terms” of a plea 

bargain. Therefore, a negotiated sentence is binding on 

the court where the sentence is plainly set forth on the 

record, understood and agreed to by the parties and 

approved by the trial court.

Id. (quoting Commonwealth v. Anderson, 643 A.2d 109, 113 (Pa. Super. 

1994)) (internal citations omitted).

On November 21, 2013, Appellant entered an open plea to nine 

separate counts including counts 4 and 5. On October 1, 2014, Appellant 

and the Commonwealth agreed on a total sentence of 13-26 years 

incarceration. Reviewing the transcripts of sentencing, it is clear that 

Appellant was sentenced to the agreed upon sentence. See N.T. 

Sentencing, 10/1/2014, at 6, 10-12.2 Therefore, Appellant’s claim that his 

sentence violated his plea agreement fails.

____________________________________________

2 Appellant was sentenced to 1-2 years on count 1, 3-6 years on count 2 

(concurrent to count 1), 9 months to 2 years on count 3 (concurrent to 

count 2), 3-6 years on count 4 (concurrent to count 2), 3-6 years on count 5 

(consecutive to count 4), 4-8 years on count 6 (consecutive to count 5), 9 

months to 2 years on count 13 (concurrent to count 2), 1-2 years on count 

19 (concurrent to count 2), and 3-6 years on count 25 (consecutive to count 

6). These sentences reach an aggregate sentence of 13-26 years of 

incarceration.
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Order affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 12/30/2016