J-S03027-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA 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-15-CR-0001110-2013

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 Conviction 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 appeal, 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. § 780-113(a)(30).
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below, we reverse the order of the PCRA court and remand 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 court 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 of heroin and prior drug 

conviction). No appeal was filed.

On August 29, 2014, Irving filed a counseled PCRA petition,2asserting 

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 Irving 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 determination that Irving’s claims were meritless.
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response to the court’s Rule 907 notice, and, on March 30, 2015, the PCRA 

court dismissed Irving’s petition. 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 

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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, 2015. 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 Kelly 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 

PCRA 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 

brief 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 include 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)
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relief based on the claim ... that [Irving] was subjected to an illegal 

sentence?” 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 disturbed 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, however, 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 

counsel’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 decision 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.”). Nevertheless, 

because we conclude Irving is entitled to relief on his third claim, we need 

not remand for new counsel.
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omitted) (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 Irving 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 be 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 rendered 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 effect 

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 the 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.
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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 essentially 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 unconstitutional 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 incapable 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 minimum 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 offense 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 factual 
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determinations at sentencing under a relaxed preponderance of the evidence 

standard, which has been found 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 Further, 

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 

different 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 possessing 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).

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8 See Commonwealth v. Caple, 121 A.3d 511 (Pa. Super. 2015); 

Commonwealth v. Mosley, 114 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).
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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 (6th Cir. 2013); United States v. Harris, 2013 WL 

5755249 (7th Cir. 2013); United Sates v. Oliver, 2013 WL 6037182 (11th

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 “the 
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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 submit 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 provisions 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, between 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 involved procedure, 

we decline to fracture Newman and Valentine further by 
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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 Alleyne, 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 Irving, 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