J-S53007-15

 2015 PA Super 205

COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

Appellant :

:

v. :

:

JOSE MELENDEZ-NEGRON, JR., :

:

Appellee : No. 494 MDA 2015

Appeal from the PCRA Order March 4, 2015,

Court of Common Pleas, Berks County,

Criminal Division at No. CP-06-CR-0002879-2013

BEFORE: DONOHUE, OTT and MUSMANNO, JJ.

OPINION BY DONOHUE, J.: FILED SEPTEMBER 25, 2015

The Commonwealth of Pennsylvania appeals from the order of court 

granting the petition filed under the Post Conviction Relief Act (“PCRA”), 

42 Pa.C.S.A. §§ 9541–9546, by Jose Melendez-Negron, Jr. (“MelendezNegron”). Following our review, we find no error with the PCRA court’s 

determination that Melendez-Negron was entitled to relief, and so we affirm 

the PCRA court’s order. We further find, however, that the PCRA court erred 

in the manner in which it granted relief. We therefore vacate MelendezNegron’s guilty plea and remand for further proceedings. 

In April 2013, police officers in Berks County responded to a noise 

complaint at Melendez-Negron’s residence. Melendez-Negron allowed the 

officers to enter his home, at which time the officers observed a firearm on 

Melendez-Negron, as well as multiple indicia, in plain view, of the 
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consumption and sale of illegal substances. Following the execution of a 

search warrant in his home, Melendez-Negron was charged with possession 

of a controlled substance, possession of a controlled substance with the 

intent to deliver (“PWID”), possession of a small amount of marijuana, and 

possession of drug paraphernalia.1 On July 17, 2013, the Commonwealth 

gave notice of its intention to invoke the mandatory minimum sentence 

provision codified at 42 Pa.C.S.A. § 9721.1 based upon Melendez-Negron’s 

possession of a firearm at the time of the offenses in question. On 

November 15, 2013, Melendez-Negron entered a negotiated plea to PWID, 

possession of a controlled substance, and possession of a small amount of 

marijuana. N.T., 11/15/13, at 4. In accordance with § 9721.1, the trial 

court sentenced Melendez-Negron to five to ten years of incarceration on the 

PWID conviction, and one year of special probation and a fine of twenty-five 

dollars on the remaining convictions. Id. at 10. 

Melendez-Negron did not file a direct appeal. On July 7, 2014, he filed 

a pro se PCRA petition. On December 23, 2014, appointed counsel filed an 

amended PCRA petition, arguing that his sentence was unconstitutional, and 

therefore illegal, in light of the United States Supreme Court’s decision in 

U.S. v. Alleyne, __ U.S. __, 133 S. Ct. 2151 (2013), and this Court’s 

decisions in Commonwealth v. Newman, 99 A.3d 86 (Pa. Super. 2014) 

(en banc), and Commonwealth v. Valentine, 101 A.3d 801 (Pa. Super. 

 

1 35 P.S. §§ 780-113(a)(16), (30), (31)(i), (32). 
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2014). Amended PCRA Petition, 12/23/14, at 2-3. The PCRA court granted 

Melendez-Negron’s petition, vacated his sentence and ordered that he be 

resentenced.2 This timely appeal followed.3

The Commonwealth presents two issues for our review:

1. Did the PCRA court err in vacating [MelendezNegron’s] sentence and ordering a resentencing 

based upon a claim of trial counsel ineffectiveness 

for advising Melendez-Negron to plead guilty 

instead of challenging the constitutionality of the 

mandatory sentencing provision pursuant to 

Alleyne v. United States, [] 133 S.Ct. [2151] [] 

(2013)? 

2. Did the PCRA court err in vacating [MelendezNegron’s] sentence and ordering a resentencing 

because as part of a negotiated guilty plea the 

mere granting of a new sentence strips the 

Commonwealth of the benefit of the plea bargain, 

defeated the Commonwealth’s rightful 

expectations in making the agreement, and 

frustrated the quid pro quo of the plea bargain 

process?

Commonwealth’s Brief at 4. 

“Our standard of review of [an] order granting or denying relief under 

the PCRA requires us to determine whether the decision of the PCRA court is 

supported by the evidence of record and is free of legal error. The PCRA 

court’s findings will not be disturbed unless there is no support for the 

 

2

 The PCRA court granted relief without a hearing, although the 

Commonwealth did file a response to Melendez-Negron’s amended PCRA 

petition.

3 We note that the resentencing was stayed pending the resolution of this 

appeal. 
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findings in the certified record.” Commonwealth v. Perez, 103 A.3d 344, 

347 (Pa. Super. 2014) (citation omitted). 

The Commonwealth first argues that the PCRA court erred in finding 

that Melendez-Negron’s trial counsel (“Counsel”) was ineffective for allowing 

Melendez to plead guilty to a sentence based on the mandatory minimum 

sentencing enhancement, § 9721.1. It is well established that to prove 

ineffective assistance of counsel, a PCRA petitioner must prove that the 

underlying legal claim has arguable merit; counsel had no reasonable basis 

for his or her action or omission; and that the petitioner suffered prejudice 

as a result. Commonwealth v. Watkins, 108 A.3d 692, 702 (Pa. 2014). 

In rejecting the Commonwealth’s claim, the PCRA court first notes this 

Court found § 9721.1 unconstitutional in light of Alleyne, drolly cites the 

Gregorian calendar,4and then concludes that because Melendez-Negron’s 

sentencing occurred five months after the decision in Alleyne was 

announced, Counsel was ineffective for allowing Melendez-Negron to agree 

to a sentence that was premised on the application of § 9721.1. PCRA Court 

Opinion, 4/16/15, at 3-4 (discussing Commonwealth v. Newman, 99 A.3d 

86 (Pa. Super. 2014) (en banc), and Commonwealth v. Cardwell, 105 

A.3d 738 (Pa. Super. 2014)). 

 

4 The court recited the respective dates of the decision in Alleyne and 

Melendez-Negron’s plea and then stated, “[T]his court takes judicial notice 

of the Gregorian calendar and finds as a fact that November 15, 2013 

followed June 17, 2013.” PCRA Court Opinion, 4/16/15, at 4. 
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The Commonwealth argues that although Alleyne was decided prior to 

Melendez-Negron’s plea and sentencing, no Pennsylvania appellate court had 

addressed the constitutionality of § 9721.1 at the time, and therefore 

Counsel “cannot be deemed ineffective for failing to predict the changes or 

developments in the law.” Commonwealth’s Brief at 14 (citing 

Commonwealth v. Gribble, 863 A.2d 455 (Pa. 2004)). We cannot agree. 

First, the Commonwealth is incorrect in that this Court issued an opinion 

addressing Alleyne and the constitutionality of § 9721.1 on October 10, 

2013. See Commonwealth v. Munday, 78 A.3d 661 (Pa. Super. 2013).5 

This was more than one month prior to Melendez-Negron’s plea and 

sentencing proceeding. 

Second, in Alleyne, the United States Supreme Court found 

mandatory minimum sentence enhancements unconstitutional where the 

facts that increase a mandatory minimum sentence are not submitted to a 

jury and are not required to be found beyond a reasonable doubt. Upon the 

issuance of the Alleyne decision in June 2013, Counsel was on notice that 

the constitutionality of such sentencing enhancements was in question. 

There can be no reasonable basis for Counsel’s failure to recognize this and 

to advise Melendez-Negron to reject a plea agreement that incorporated a 

 

5 We note that in Munday, this Court found § 9721.1 unconstitutional as 

applied to the appellant and we declined to consider whether § 9721.1 was 

facially unconstitutional because the issue was not raised. Munday, 78 A.3d 

at 666. 
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sentence based upon § 9721.1. This is so especially in light of the fact that 

the application of § 9721.1 resulted in a sentence that was more than double 

the aggravated range sentence Melendez-Negron would have faced. See

N.T., 11/15/14, at 8-9.6 In a situation such as this, where the United States 

Supreme Court has spoken, counsel need not wait for a pronouncement 

from a Pennsylvania appellate court. By raising such a claim or at least 

questioning the constitutionality § 9721.1 during plea negotiations, Counsel 

would not be predicting changes in the law, as the Commonwealth contends, 

but rather conscientiously advancing an argument based upon the logical 

extension of Alleyne to protect his client’s interests.

Further, we are not swayed by the Commonwealth’s argument that 

because Melendez-Negron admitted the element that would trigger the 

application of § 9721.1 (possession of a firearm), there is no Alleyne

violation. Commonwealth’s Brief at 12. As this Court has previously 

concluded, 

we 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 

 

6 This large disparity between the sentence Melendez-Negron could have 

received and the sentence he agreed to establishes prejudice for purposes of 

the ineffective assistance of counsel standard. See Commonwealth v. 

Meadows, 787 A.2d 312, 319 (Pa 2001) (holding that to establish 

prejudice, an appellant must demonstrate “that there is a reasonable 

probability that, but for the act or omission challenged, the outcome of the 

proceeding would have been different.”).
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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. [] 

While submission to a jury is a more formal and 

involved procedure, we decline to fracture Newman

and Valentine further by concluding that when read 

together, they only prohibit formal mandatory 

minimum procedures, but permit informal ones.

Commonwealth v. Cardwell, 105 A.3d 748, 754-55 (Pa. Super. 2014). 

Melendez-Negron’s admission that he possessed a firearm, which he made 

for purposes of his plea, is the functional equivalent of a stipulation, and 

pursuant to Cardwell, it does not remedy the Alleyne violation inherent to 

§ 9721.1. Accordingly, the Commonwealth’s argument cannot succeed. 

In its second issue, the Commonwealth argues that the case should 

not be remanded for resentencing, but that Melendez-Negron “should be 

returned to the status quo prior to the entry of the guilty plea.” 

Commonwealth’s Brief at 22.7 The Commonwealth argues that in 

consideration of agreeing to a five-to-ten-year period of incarceration, it 

“gave up the opportunity to seek sentences” on the drug paraphernalia and 

small amount of marijuana charges. Id. By simply allowing resentencing 

pursuant to the sentencing guidelines, the Commonwealth contends, it is 

losing the benefit of its bargain. The PCRA court did not agree, as it 

reasoned that “the Commonwealth is not entitled to the benefit of a plea 

 

7

 Melendez-Negron did not seek to withdraw his plea, he only asked to be 

resentenced pursuant to the Sentencing Guidelines. 
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bargain entered into with a defendant who was misinformed by his attorney 

and who believed at the time he entered his plea that an illegal mandatory 

minimum sentencing provision was applicable.” PCRA Court Opinion, 

4/16/15, at 4. For the following reasons, we agree with the Commonwealth. 

We recognize “the importance of the plea bargaining process as a 

significant part of the criminal justice system” and that “a defendant is 

permitted to waive valuable rights in exchange for important concessions by 

the Commonwealth when the defendant is facing a slim possibility of 

acquittal.” Commonwealth v. Widmer, __ A.3d __, 2015 WL 4394268 

(Pa. Super. July 20, 2015). The record here reveals that in negotiating the 

terms of the plea agreement, both parties operated under the belief that 

§ 9721.1 was in effect and that Melendez-Negron was subject to its terms. 

N.T., 11/15/13, at 7-11. It is further evident that the sentencing court 

believed that it applied, as well. Id. at 7. This Court addressed an 

analogous situation in Commonwealth v. Hodges, 789 A.2d 764 

(Pa. Super. 2002). In Hodges, the defendant entered a negotiated open 

guilty plea to multiple crimes, including two counts of first-degree murder, in 

exchange for the Commonwealth’s agreement not to seek the death penalty 

on the murder charges. In accordance with that agreement, the trial court 

sentenced the defendant to two consecutive life sentences on the murder 

convictions, with concurrent sentences for two lesser convictions. He 

subsequently moved to withdraw his plea. 
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The thrust of [the defendant’s] argument 

revolved around a mistake pertaining to [the 

defendant’s] age. Although trial counsel and the 

Commonwealth believed that [the defendant] was 

born on May 7, 1980, [the defendant] was actually 

born on May 7, 1982, making him fifteen years old at 

the time of the crime. Because he was not yet 

sixteen years of age at the time of the crime, he 

could not be subjected to the death penalty. 

Thompson v. Oklahoma, 487 U.S. 815, 108 S.Ct. 

2687, 101 L.Ed.2d 702 (1988). [The defendant] 

correctly asserted that because of his age, the death 

penalty was never applicable. Therefore, because he 

entered into his plea agreement in order to avoid the 

death penalty, [the defendant] requested leave to 

withdraw that plea.

Commonwealth v. Hodges, 789 A.2d at 765 (Pa. Super. 2002). The trial 

court denied the defendant’s motion. 

On review, this Court found that the shared misunderstanding as to 

the possible extent of the defendant’s sentence fatally poisoned the 

negotiations process:

[T]he plea was based on a maximum sentence 

that the court had no authority to impose. The entire 

process of plea negotiations, therefore, was affected 

by this grave error. [The defendant] pled guilty in 

order to avoid a maximum sentence which, by law, 

could not be imposed. We hold that in the event the 

maximum sentence communicated to a criminal 

defendant is in fact an illegal sentence, the plea 

process has been tainted from the outset and 

manifest injustice is established.

The trial court stated that [the defendant] 

received the benefit of his bargain; it is clear, 

however, that [the defendant] did not strike a 

legitimate bargain. While it is true that [he] was 

aware that he could be sentenced to life, and that 
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sentence was subsequently imposed, it cannot be 

said that [the defendant] entered into this 

agreement knowingly or voluntarily.

Id. at 767. 

Another panel of this Court relied on this reasoning in a subsequent 

case. In Commonwealth v. Lenhoff, 796 A.2d 338 (Pa. Super. 2002), the 

defendant was charged with forgery graded as a second-degree felony and 

unsworn falsifications to authorities graded as a second-degree 

misdemeanor. The defendant pled guilty to one count of each in exchange 

for a sentence of nine to twenty-three months of incarceration. At the plea 

hearing, the trial court emphasized to the defendant that “forgery is a felony 

of the second degree punishable by a maximum of [ten] years [of] 

incarceration[,]” and the defendant acknowledged his understanding of this. 

Id. at 340. In a post-sentence motion, the defendant argued that the 

forgery charge should have been graded as a first-degree misdemeanor and 

asked to withdraw his plea. The trial court agreed that the forgery was 

incorrectly graded and adjusted it to a third-degree felony, but did not allow 

the defendant to withdraw his plea. On appeal, the defendant challenged 

both the grading of his forgery charge and the denial of his request to 

withdraw his plea. After affirming the trial court’s decision to grade the 

forgery as a third-degree felony, we considered the circumstances 

surrounding the entry of the plea. Based upon the rationale espoused in 

Hodges, we reasoned as follows: 
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[The defendant] was charged with and entered 

plea negotiations to avoid a sentence for a second 

degree felony, not a third degree felony. Indeed, 

[the defendant] observes that because the forgery 

count was graded incorrectly, there are different 

guideline scores applicable. This change, [he] 

continues, may have “resulted in different plea offers 

and negotiations and considerations of partial 

confinement requested by the defendant.” 

[Defendant’s] [B]rief at 15. [The defendant] was 

charged with a second degree felony, carrying a tenyear maximum. The maximum legal sentence that 

[the defendant] faced when he entered plea 

negotiations and the plea itself was, in fact, less than 

ten years. He indicated on the record that he had 

conducted research, knew that he faced a ten-year 

sentence, and was seeking to avoid that sentence by 

pleading guilty. Meanwhile, the court did not have

the legal authority to impose that sentence. The plea 

was fatally flawed from the start, as in Hodges, by 

the defendant's desire to avoid a sentence that the 

court did not have the power to impose. Hence, we 

agree with [the defendant’s] position that plea

negotiations were tainted at the outset by 

misinformation about sentences. Therefore, it is clear 

that [he] should be permitted to withdraw his guilty 

plea.

Id. at 342-43. 

This case is fundamentally akin to Hodges and Lenhoff; where it 

differs is that it is the Commonwealth, not the defendant, who argues that it 

is being deprived of the benefit of its bargain. We see no reason why the 

rationale of Hodges and Lenhoff should be limited to criminal defendants. 

Indeed, both parties to a negotiated plea agreement are entitled to receive 

the benefit of their bargain. See Commonwealth v. Townsend, 693 A.2d 

980, 983 (Pa. Super. 1997) (“[W]here the parties have reached a specific 
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sentencing agreement ... the court cannot later modify the terms of the 

agreement without the consent of the Commonwealth” because “this would 

deny the Commonwealth the full benefit of the agreement which it reached 

... and the defendant, in turn, would receive a windfall.”); Commonwealth 

v. Coles, 530 A.2d 453, 458 (Pa. Super. 1987) (holding that granting 

defendant’s motion to modify negotiated plea sentence stripped 

Commonwealth of the benefit of its bargain); see also Commonwealth v. 

Ortiz, 854 A.2d 1280, 1284 (Pa. Super. 2004) (en banc) (holding that 

where amount of restitution is agreed upon as part of negotiated plea, 

Commonwealth cannot later seek to increase it). Accordingly, we conclude 

that the shared misapprehension that the mandatory minimum sentence 

required by § 9721.1 applied to Melendez-Negron tainted the parties’ 

negotiations at the outset. As in Hodges and Lenhoff, the parties’ 

negotiations began from an erroneous premise and therefore were 

fundamentally skewed from the beginning. Thus, while we affirm the PCRA 

court’s order vacating Melendez-Negron’s sentence, we further vacate his 

guilty plea and remand for further proceedings. See Lenhoff, 796 A.2d at 

343. 

Order affirmed. Guilty plea vacated. Case remanded. Jurisdiction 

relinquished. 
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 9/25/2015