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NON - PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENN SYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v. RAVON CHRISTOPHER IRVING Appellant No. 1128 EDA 2015
Appeal from the PCRA Order March 30 , 2015 In the Court of Common Pleas of Chester County Criminal Division at No(s): CP

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BEFORE: FORD ELLIOTT, P.J.E., OTT, J., and JENKINS, J. MEMORANDUM BY OTT, J.: FILED MARCH 03, 2016 Ravon Christopher Irving appeals from the order entered March 30, 2015, in the Chester County Court of Common Pleas, dismissing his first petition for collateral relief filed pursuant to the Post Conv iction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541

- 9546. Irving seeks relief from a mandatory minimum sentence of seven to 14 years’ imprisonment, imposed following his negotiated guilty plea to one count of possession with intent to deliver heroin. 1 On appe al, Irving contends the PCRA court erred in dismissing his claim that he was subjected to an illegal sentence pursuant to Alleyne v. United States , 133 S.Ct. 2151 (U.S. 2013). For the reasons set forth

____________________________________________ 1 35 P.S. § 780

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below, we reverse the order of the PCRA court and rem and for further proceedings. The procedural history underlying this appeal is as follows. On January 15, 2014, Irving entered a negotiated guilty plea to one count of possession with intent to deliver heroin. Pursuant to the plea agreement, the trial c ourt sentenced Irving to a term of seven to 14 years’ imprisonment based upon the mandatory minimum sentencing provision at 18 Pa.C.S. § 7508(a)(iii). See id. (mandatory seven years’ incarceration for possession with intent to deliver more than 50 grams o f heroin and prior drug conviction). No appeal was filed. On August 29, 2014, Irving filed a counseled PCRA petition, 2 asserting plea counsel was ineffective for (1) instructing Irving to accept a plea agreement with a mandatory minimum sentence in light of the United States Supreme Court’s decision in Alleyne , supra ; and (2) failing to “fully discuss and pursue” a pretrial motion to suppress. Petition for Post

- Conviction Relief, 8/29/2014, at ¶ 24. Thereafter, on January 27, 2015, the PCRA court
sent I rving notice, pursuant to Pa.R.Crim.P. 907, of its intent to dismiss the petition without first conducting an evidentiary hearing. 3 Irving did not file a

____________________________________________ 2 Irving retained Evan J. Kelly, Esquire, to litigate his petition at the PCRA court level.

3 The notice included an eight

- page footnote explaining the basis for the court’s de termination that Irving’s claims were meritless.J

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response to the court’s Rule 907 notice, and, on March 30, 2015, the PCRA court dismissed Irving’s pe tition. This timely appeal followed. 4 Although Irving purports to raise three issues on appeal, only one is preserved for our review: 5 “Whether [the] PCRA court erred in denying

____________________________________________ 4 Irving filed a pro se notice of appeal on April 16, 2015, and, thereafter, complied with the PCRA court’s order to file a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). See Concise Statement of Issues Raised on Appeal, 5/7/2015.
On June 2, 2015, counsel filed a motion to withdraw, claiming he had been retained only for the PCRA court level of representation, and not for an appeal. See Motion to Withdraw as Counsel, 6/2/2015, at ¶ 5. The PCRA court granted counsel’s motion on June 23, 2 015. However, when the record was forwarded to this Court, Kelly still appeared to be counsel of record. Because counsel had not complied with this Court’s directive to file a criminal docketing statement, we issued an order on June 24, 2015, directing K elly to inform this Court, within 10 days, if he was still representing Irving. The PCRA court responded by forwarding a copy of its June 23, 2015, Order permitting Kelly to withdraw. Thereafter, on July 17, 2015, this Court remanded the case to the P CRA court to conduct a Grazier hearing to determine if Irving wanted to proceed with an attorney or pro se . See Commonwealth v. Grazier , 713 A.2d 81 (Pa. 1998). The PCRA court complied with our directive and conducted a Grazier hearing on August 6, 2015. Because the court found Irving wanted to proceed with counsel, it appointed the Public Defenders’ Office to represent him on appeal. The Public Defenders’ Office did not seek to amend Irving’s Rule 1925(b) statement, but rather, filed the appellate brie f with this Court.

5 Irving’s remaining two claims, both asserting plea counsel’s ineffectiveness, were included in Irving’s PCRA petition, but not in his Rule 1925(b) concise statement. “It is well established that an appellant’s failure to i nclude claims in the court

- ordered 1925(b) statement will result in a waiver of that issue on appeal.” Commonwealth v. Carpenter , 955 A.2d 411, 415 (Pa. Super. 2008). Therefore, we need not consider these claims on appeal. (Footnote Continued Next Page)J

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relief based on the claim ... that [Irving] was subjected to an illegal
sente nce?” Irving’s Brief at 5. Our standard of review of an order denying PCRA relief is 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 distur bed unless there is no support for the findings in the certified record. Commonwealth v. Lawson , 90 A.3d 1, 4 (Pa. Super. 2014) (internal citations omitted). Preliminarily, we note that an Alleyne claim presents “a non

- waivable challenge to the legality of sentence ... [and] may be raised on direct appeal,

or in a timely filed PCRA petition.” Commonwealth v. Ruiz , ___ A.3d ___, ___, 2015 PA Super 275, *5 (Pa. Super. December 30, 2015) (footnote
(Footnote Continued)

_____ __________________ We are compelled to note, h owever, that Irving’s counseled brief reads, improperly, like a hybrid Anders /advocate brief because appellate counsel asserts that these two claims are meritless. See Anders v. California , 388 U.S. 924 (1967). Moreover, Irving’s challenge to plea couns el’s ineffectiveness for advising him to enter a guilty plea with a mandatory minimum sentence after the Supreme Court filed its decision in Alleyne appears to be meritorious based upon this Court’s recent decision in Commonwealth v. Melendez - Negron , 123 A .3d 1087, 1091 (Pa. Super. 2015) (defendant who entered negotiated guilty plea, including Section 9712.1 mandatory minimum sentence, was entitled to relief based upon ineffectiveness of plea counsel for advising him to enter guilty plea; Supreme Court’s de cision in Alleyne put counsel on notice of the unconstitutionality of mandatory minimum sentencing statute at issue, and defendant’s admission of triggering fact, by virtue of guilty plea, “does not remedy the Alleyne violation inherent to § 9712.1.”). Ne vertheless, because we conclude Irving is entitled to relief on his third claim, we need not remand for new counsel.J

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omit ted) (holding Alleyne invalidated mandatory minimum sentence on PCRA review when petitioner’s judgment of sentence was pending on direct review at the time Alleyne was decided). 6 Therefore, the issue is properly before us, regardless of the fact that Irvi ng failed to include it in his PCRA petition. 7 A brief synopsis of this Court’s application of Allenye is instructive. The United States Supreme Court in Alleyne held “[a]ny fact that, by law, increases the penalty for a crime is an ‘element’ that must b e submitted to the jury and found beyond a reasonable doubt.” Alleyne , 133 S.Ct. at 2155. In Commonwealth v. Newman , 99 A.3d 86 (Pa. Super. 2014) ( en banc ), appeal denied , 121 A.3d 496 (Pa. 2015), an en banc panel of this Court concluded that Alleyne ren dered the mandatory minimum sentencing provision at 42 Pa.C.S. § 9712.1 unconstitutional because “it permits the trial court, as opposed to the jury, to increase a defendant’s minimum

____________________________________________ 6 In Ruiz , this Court distinguished Commonwealth v. Riggle , 119 A.3d 1058 (Pa. Super. 2015), which “declined to give Alleyne retroactive e ffect to cases on timely collateral review when the defendant’s judgment of sentence was finalized before Alleyne was decided.” Ruiz , supra , ___ A.3d at ___, 2015 PA Super 275, *3. The Ruiz Court found Alleyne invalidated the sentence at issue because th e petitioner’s judgment of sentence was still pending on direct appeal when Allenye was decided. Id. at ___, 2015 PA Super 275, *4. Here, Irving entered his guilty plea after the Alleyne decision was filed. Therefore, we find the instant case does not present a “retroactive” application of the law, as was prohibited in Riggle , supra .
7 We note the Commonwealth did not address this particular claim in its brief.J

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sentence based upon a preponderance of the evidence” standard.
Newman , supra , 99 A.3d at 98. The Newman Court went one step further, however, and found the unconstitutional provisions in Section
9712.1 were not severable from the statute as a whole. See id. at 101 (“We find Subsections (a) and (c) of Section 9712.1 are esse ntially and inseparably connected.”). The Pennsylvania Supreme Court applied the same reasoning in Commonwealth v. Hopkins , 117 A.3d 247 (Pa. 2015), when it determined that the mandatory minimum sentencing statute at 18 Pa.C.S. § 6317 was also unconstitut ional under Alleyne . The Hopkins Court opined:

In conclusion, we hold ... that numerous provisions of Section 6317 are constitutionally infirm under Alleyne

. Moreover, the remaining provisions of Section 6317, standing alone, are incomplete and are incapab le of being vindicated in accord with the intent of the General Assembly. 1 Pa.C.S. § 1925. Because of the significant provisions found to violate the Constitution, which clearly express the intent of the legislature that Section 6317 is a mandatory mini mum sentencing statute, and not a substantive offense, we find the remaining unoffending provisions of Section 6317 are incapable of being severed, and we will not judicially usurp the legislative function and rewrite Section 6317 or create a substantive o ffense which the General Assembly clearly did not desire. Rather, we leave it to our sister branch for an appropriate statutory response to the United States Supreme Court’s decision in Alleyne

. Id. at 262. The mandatory sentencing statute applied in the present case, 18 Pa.C.S. § 7508, contains the same provision as in Sections 6317 and 9712.1. This provision permits the trial court to make factualJ

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determinations at sentencing under a relaxed preponderance of the evidence standard, which has been fou nd to be unconstitutional under Alleyne

. Accordingly, when faced with an Alleyne challenge on direct appeal to the imposition of a Section 7508 mandatory minimum sentence, this Court has consistently vacated the sentence and remanded for resentencing. 8 F urther, as noted supra , Alleyne also invalidates a Section 7508 sentence on timely collateral review, if Alleyne was decided before the judgment of sentence was final. Ruiz , supra . Nevertheless, the PCRA court found that the case before us presents a d ifferent factual scenario because Irving entered a guilty plea, and, consequently, admitted the facts necessary to impose the Section 7508 mandatory minimum. The court opined:

[Irving] understood the charges against him, knew the consequences of possessi ng that amount of heroin and voluntarily entered a plea of guilty to the charge, admitting that he possessed 50+ grams but less than 100 grams of heroin. No independent judicial factfinding was necessary and the Court sentenced [Irving] in accordance with his admitted conduct. Order, 1/27/2015, at 6. In doing so, the court relied upon a federal district court decision, United States v. Crossan , 2014 WL 695057 (E.D. Pa. 2014).

____________________________________________ 8 See Commonwealth v. Caple , 121 A.3d 511 (Pa. Super. 2015); Commonwealth v. Mosley , 11 4 A.3d 1072 (Pa. Super. 2015); Commonwealth v. Vargas , 108 A.3d 858 (Pa. Super. 2014) ( en banc ), appeal denied , 121 A.3d 496 (Pa. 2015); Commonwealth v. Cardwell , 105 A.3d 748 (Pa. Super. 2014), appeal denied , 121 A.3d 494 (Pa. 2015).J

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In Crossan , the district court considered whether Alleyne invalidated the defendant’s sentence under 18 U.S.C. § 924(c)(1)(A), which imposes a mandatory minimum sentence when a defendant uses or carries a firearm during a crime of violence. Id. at *2. Relying on several decisions by the United States Courts of Appeals, the Crossan court held the dictates of Allenye were not violated because the defendant was “charged [] with brandishing, he was advised of the elements of brandishing during his Change of Plea Hearing, and he admitted to facts that established the elements of brandishing during that Hearing.” Id. See United States v. Yancy , 725 F.3d 596 (6 th Cir. 2013); United States v. Harris , 2013 WL 5755249 (7 th Cir. 2013); United Sates v. Oliver, 2013 WL 6037182 (11 th Cir. 2013). In the present case, Irving recognizes that Crossan “seems to offer a bright line rule in terms of cases where guilty pleas were entered[.]” Irving’s Brief at 20. However, he asserts the Crossan ruling is not applicable here because the mandatory minimum statute at issue was held to be “unseverable and unconstitutional” by this Court in Cardwell , supra . Id.
In Cardwell , the defendant did not plead guilty, but rather, during his bench trial, entered into a stipulation with the Commonwealth regarding the weight of the drugs recovered. Id. at 754. The trial court concluded, therefore, the dictates of Allenye were not violated because “theJ

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Commonwealth did prove this element[, i.e. , the weight of the drugs,] to the trial court beyond a reasonable doubt[.] ” Id. On appeal, a panel of this Court disagreed. Relying upon Newman , supra , and Commonwealth v. Valentine , 101 A.3d 801 (Pa. Super. 2014), appeal denied , 124 A.3d 309 (Pa. 2015), the Cardwell Court found that any attempt “to impose a mandatory minimum sentence outside the statutory framework, but consistent with Alleyne [,]” must fail. Cardwell , supra , 105 A.3d at 754. Indeed, the Court explained that in Valentine , the trial court attempted to cure the Alleyne problem by allowing the Commonwealth to s ubmit to the jury specific questions, which determined the applicability of the mandatory minimum statute. Id. at 753. Nevertheless, on appeal, this Court found the trial court had erred because it “effectively determined that the unconstitutional provis ions of the [mandatory minimum statute] were severable.” Id. at 754, quoting Valentine , supra , 101 A.3d at 811. The Cardwell panel followed the holding in Valentine , opining: [W]e see no meaningful difference, for the purposes of Newman and Valentine , bet ween submitting the element to the jury and accepting a stipulation from a defendant. They both have the purpose of finding a method to impose a mandatory minimum sentence outside the statutory framework, but consistent with Alleyne . However, both Newman and Valentine unequivocally state that creating a new procedure in an effort to impose a mandatory minimum sentence is solely within the province of the legislature. See Newman , supra ; Valentine , supra . While submission to a jury is a more formal and inv olved procedure, we decline to fracture Newman and Valentine further byJ

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concluding that when read together, they only prohibit formal mandatory minimum procedures, but permit informal ones. Id. at 754

- 755. See also Commonwealth v. Fennell , 105 A.2d 13 ( Pa. Super. 2014) (accord), appeal denied , 121 A.3d 494 (Pa. 2015). Recently, the Ruiz Court applied this same reasoning with respect to a negotiated guilty plea. See Ruiz , supra , ___ A.3d at ___, 2015 PA Super 275, *5 (holding “this Court has consistently rejected any attempt by the Commonwealth to employ a harmless error analysis to overcome the mandate of Alleyne .”). This Court has held Section 7508 is unconstitutional under A lleyne , and its subsections are not severable. Therefore, we agree with Irving’s contention that the trial court imposed an illegal sentence, and the PCRA court erred in failing to grant Irving relief. Accordingly, because we find Irving is entitled to be resentenced without consideration of the mandatory minimum sentencing provision found at 18 Pa.C.S. § 7508, we reverse the PCRA court’s order dismissing Irving’s petition, vacate the judgment of sentence, and remand for resentencing. 9
Order reversed. Judgment of sentence vacated. Case remanded for proceeding consistent with this Memorandum. Jurisdiction relinquished.

____________________________________________ 9 We note neither Irv ing, nor the Commonwealth, has requested we vacate Irving’s plea to return the parties “to the status quo prior to the entry of the guilty plea.” Melendez - Negron , supra , 123 A.3d at 1091 (citation omitted) (granting Commonwealth’s request to vacate guilty plea; finding “shared misapprehension that the mandatory minimum sentence ... applied to Melendez

- Negron tainted the parties’ negotiations at the outset.’). Therefore, we decline to do so sua sponte

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Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 3/3/2016