J-S25026-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

v.

MIGUEL ANGEL GONZALEZ

Appellant No. 1486 EDA 2016

Appeal from the PCRA Order April 18, 2016

In the Court of Common Pleas of Bucks County

Criminal Division at No(s): CP-09-CR-0002598-2013

BEFORE: BENDER, P.J.E., RANSOM, J., FORD ELLIOTT, P.J.E.

MEMORANDUM BY RANSOM, J.: FILED MAY 26, 2017

Appellant, Miguel Angel Gonzalez, appeals from the order entered April 

18, 2016, denying his petition for collateral relief filed under the Post 

Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. We affirm.

We adopt the following statement of facts from the PCRA court’s 

supplemental opinion of August 23, 2016, which in turn is supported by the 

record. See PCRA Court Opinion (PCO), 8/23/16, at 1-4. In February 2013, 

Appellant was arrested at a Red Roof Inn in Bensalem, in possession of 

cocaine, two handguns, a submachine gun, and ammunition. 

On July 29, 2013, Appellant entered a negotiated guilty plea to 

possession with intent to deliver (PWID), possession of a controlled 

substance, possession of drug paraphernalia, and three counts each of 

possession of firearms by a prohibited person and firearms not to be 
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possessed without a license.1 Prior to the plea and sentencing, the 

Commonwealth filed a notice of its intent to invoke the five-year mandatory 

minimum pursuant to 42 Pa.C.S. § 9712.1. At the time of Appellant’s 

sentencing, the statute provided for a five-year, mandatory minimum 

sentence where a defendant was convicted under 35 P.S. § 780-113(a)(30) 

while in possession of and/or exercising control over a firearm. See 42 

Pa.C.S. § 9712.1; Criminal Information, CP-09-CR-0002598-2013, Count 1.

At the plea hearing, defense counsel, the Commonwealth, and the 

court were under the impression that they sought a mandatory minimum 

sentence of five to ten years of incarceration on count four, possession of a 

firearm by a prohibited person. However, 42 Pa.C.S. § 9712.1 would have 

applied to count one, possession with intent to deliver; it did not apply to 

count four. Ultimately, Appellant received a sentence of five to ten years of 

incarceration for possession of a firearm prohibited, followed by five years of 

probation, and no further penalty on the remaining charges. His sentence 

was within the standard range of the guidelines for that charge. Further, at 

the plea hearing, the court indicated that had Appellant proceeded to trial, 

he would have received a harsher sentence of at least ten to twenty years.

Appellant did not pursue a direct appeal but timely filed a petition 

seeking PCRA relief. Counsel was appointed and filed two amended petitions 

____________________________________________

1 See 35 P.S. §§ 780-113(a)(30), (a)(16), (a)(32); and 18 Pa.C.S. §§ 

6105(a)(1), 6106(a)(1), respectively.
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on Appellant’s behalf, arguing that plea counsel was ineffective in his 

representation. Specifically, Appellant averred that plea counsel was 

ineffective for advising him to enter a plea to a sentence that was illegal 

pursuant to Alleyne v. United States, 133 S. Ct. 1251 (2013), decided 

approximately one month prior to Appellant’s sentencing.

The court held an evidentiary hearing. Appellant’s plea counsel, David 

Glanzberg, Esquire, testified. Mr. Glanzberg reviewed a copy of the 

sentencing guidelines and was aware that the Commonwealth had invoked a 

mandatory minimum for the possession of a firearm in proximity to drugs. 

See 42 Pa.C.S. § 9712.1. He was concerned that Appellant’s potential 

exposure would be greater than the mandatory minimum sentence and 

entered into plea negotiations under that assumption. Mr. Glanzberg was 

aware of the decision in Alleyne but did not raise the issue because he 

believed Appellant had received a fair sentence and it was ultimately in 

Appellant’s favor to take the offer. He did not realize the sentence Appellant 

received was not a mandatory minimum until reviewing the case in 

preparation for the PCRA hearing.

Appellant testified at the hearing. He claimed to have discussed the 

potential five-year, mandatory minimum sentences with Mr. Glanzberg, who 

advised Appellant he could potentially face three consecutive mandatory 

sentences for each fire arm possessed. Due to this advice, Appellant 

accepted the deal. Appellant averred he believed he could not receive less 
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than five years of incarceration as a result of the mandatory minimum 

sentence.

Following the hearing, the court dismissed Appellant’s petition. 

Appellant timely appealed and filed a court-ordered Pa.R.A.P. 1925(b) 

statement of errors complained of on appeal. The court issued a responsive 

opinion.

On appeal, Appellant raises the following issue for our review:

Did the lower court err in denying Appellant’s Post-Conviction 

Relief Act petition where trial counsel was ineffective for allowing 

Appellant to enter a guilty plea to an illegal, non-existent, 

mandatory sentence?

Appellant’s Brief at 4 (unnecessary capitalization omitted).

We review an order denying a petition under the PCRA to determine 

whether the findings of the PCRA court are supported by the evidence of 

record and free of legal error. Commonwealth v. Ragan, 923 A.2d 1169, 

1170 (Pa. 2007). We afford the court’s findings deference unless there is no 

support for them in the certified record. Commonwealth v. Brown, 48 

A.3d 1275, 1277 (Pa. Super. 2012) (citing Commonwealth v. Anderson, 

995 A.2d 1184, 1189 (Pa. Super. 2010)).

We presume counsel is effective. Commonwealth v. Washington, 

927 A.2d 586, 594 (Pa. 2007). To overcome this presumption and establish 

the ineffective assistance of counsel, a PCRA petitioner must plead and 

prove, by a preponderance of the evidence, that 1) the underlying issue has 

arguable merit; 2) counsel’s actions lacked an objective reasonable basis; 
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and 3) petitioner suffered actual prejudice from the act or omission. See 

Commonwealth v. Johnson, 966 A.2d 523, 533 (Pa. 2009) (citations 

omitted). A claim will be denied if the petitioner fails to meet any one of 

three prongs discussed supra. Commonwealth v. Springer, 961 A.2d 

1262, 1267 (Pa. Super. 2008); see also Commonwealth v. Jones, 942 

A.2d 903, 906 (Pa. Super. 2008).

When determining prejudice in the context of an ineffective assistance 

of counsel claim arising out of a guilty plea,

the defendant must show that there is a reasonable probability 

that, but for counsel’s errors, he would not have pleaded guilty 

and would have insisted on going to trial. The reasonable 

probability test is not a stringent one; it merely refers to a 

probability sufficient to undermine confidence in the outcome.

Commonwealth v. Barndt, 74 A.3d 185, 192 (Pa. Super. 2013) (citations 

and internal quotation marks omitted). 

Appellant argues that counsel was ineffective for failing to advise him 

of the decision in Alleyne. See Appellant’s Brief at 11. 2 Although he 

____________________________________________

2

In Alleyne, the United States Supreme Court held that “any fact that, by 

law, increases the penalty is an ‘element’ that must be submitted to the jury 

and found beyond a reasonable doubt.” Alleyne, 133 S. Ct. at 2155. 

Subsequently, Pennsylvania courts have found certain mandatory minimum 

sentencing schemes unconstitutional. See, e.g., Commonwealth v. 

Hopkins, 117 A.3d 247 (Pa. 2015) (finding mandatory minimum for DrugFree School Zones violation unconstitutional); see also Commonwealth v. 

Valentine, 101 A.3d 801 (Pa. Super. 2014) (applying Alleyne and holding 

42 Pa.C.S. §§ 9712 and 9713 unconstitutional), appeal denied, 124 A.3d 

309 (Pa. 2015); see also Commonwealth v. Newman, 99 A.3d 86 (Pa. 

Super. 2014) (finding 42 Pa.C.S. § 9712.1 unconstitutional).

(Footnote Continued Next Page)
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acknowledges that he did not actually receive a mandatory minimum 

sentence, per the mistake discussed supra, he argues that trial counsel’s 

failure to challenge the applicability of the mandatory minimum tainted the 

guilty plea negotiations. Id. at 11-13, 17. Appellant contends he believed 

that he was facing “three potential five year mandatory minimum sentences” 

for charges for which there was no mandatory minimum sentence and that, 

therefore, his plea was not knowing, intelligent, and voluntary. Id. at 17.

Appellant relies on Commonwealth v. Melendez-Negron, 123 A.3d 

1087 (Pa. Super. 2015) to support his contention that his plea was 

involuntary. In Melendez-Negron, the defendant accepted a plea 

agreement, on the advice of counsel, resulting in the imposition of a 

mandatory minimum sentence. See Melendez-Negron, 123 A.3d at 1090. 

As a result of this advice, the defendant received a sentence that was nearly 

twice the sentence he could have received. Id. at 1091 n.6. Ultimately, this 

Court found that 1) the disparity between the actual sentence and potential 

sentence established prejudice, and 2) the shared misapprehension tainted 

(Footnote Continued) _______________________

While, generally, an Alleyne claim does not apply retroactively to cases on 

collateral review, this Court has recognized that an Alleyne claim 

constitutes a non-waivable challenge to the legality of a sentence and may 

be raised for the first time in a timely-filed PCRA petition where the 

petitioner’s judgment of sentence was not final when Alleyne was decided. 

See Commonwealth v. Washington, 142 A.3d 810, 820 (Pa. 2016); see 

also Commonwealth v. Ruiz, 131 A.3d 54 (Pa. Super 2015). Here, 

Appellant was sentenced July 19, 2013; Alleyne was decided June 17, 

2013.
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the parties’ negotiation at the outset, such that a vacation of his guilty plea 

was required. Id. at 1094. 

Appellant argues that, as in Melendez-Negron, the parties were 

under a shared misapprehension that three mandatory minimum sentences 

applied to Appellant and entered negotiations accordingly. See Appellant’s 

Brief at 17. He does not actually plead that had counsel advised him of the 

holding in Alleyne, he would not have pleaded guilty. Id. Instead, he 

appears to argue that because the plea negotiations were “tainted from the 

outset,” he suffered prejudice per se. Id.

We note that as discussed supra, despite the mistaken belief of the 

parties at the time of sentencing, Appellant did not receive a mandatory 

minimum sentence. Instead, he received a sentence that was within the 

standard to aggravated range of the guidelines for an offense that did not 

carry a mandatory minimum and potentially faced that same sentence for 

three counts. Thus, unlike Melendez-Negron, the misapprehension did not 

result in a sentence that was double the aggravated range sentence he 

would have received without application of the mandatory. As the lower 

court indicated, Appellant would likely have received a sentence of at least 

ten to twenty years had he gone to trial, regardless of mandatory 

minimums. Accordingly, counsel had a reasonable basis for his advice. See 

Washington, 927 at 606 (noting that counsel’s stewardship may be 

deemed effective if any reasonable basis for his actions is apparent from the 

record).
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Further, Appellant has not pleaded or proved prejudice. Despite his 

arguments regarding plea negotiations, an examination of his brief reveals 

he did not plead that he would have insisted on going to trial had counsel 

advised him of Alleyne. See Barndt, 74 A.3d at 192. More importantly, 

Melendez-Negron did not establish a per se finding of prejudice, as 

Appellant seems to imply. Instead, the Court looked at the sentence 

Appellant had received, noted the large disparity as a result of counsel’s 

advice, and accordingly, found prejudice. See Melendez-Negron, 123 A.3d 

at 1091 n.6. Appellant cannot make a similar allegation. Accordingly, he 

has not pleaded or proved prejudice, therefore there was no error in the 

court’s dismissal of his petition. Springer, 961 A.2d at 1267.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 5/26/2017