J-S71041-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT

OF

PENNSYLVANIA

Appellee

v.

ALDALBERTO RIVERA,

Appellant No. 1240 EDA 2017

Appeal from the PCRA Order April 10, 2017

in the Court of Common Pleas of Philadelphia County

Criminal Division at Nos.: CP-51-CR-0013645-2012

CP-51-CR-0014695-2012

BEFORE: PANELLA, J., STABILE, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.: FILED DECEMBER 13, 2017

Appellant, Aldalberto Rivera, appeals from the order denying his petition 

filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-

9546. We affirm.

We take the following facts and procedural background from our 

independent review of the certified record. On September 20, 2013, Appellant 

entered a negotiated guilty plea to two counts of possession with intent to 

deliver a controlled substance (PWID) and conspiracy to commit PWID at case 

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* Retired Senior Judge assigned to the Superior Court.
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number 13645-2012 and 14695-2012.

1

 On December 6, 2013, pursuant to 

the plea agreement’s terms, the trial court imposed a sentence on Appellant 

of not less than five nor more than ten years’ imprisonment. Appellant did 

not file a direct appeal.

On July 25, 2014, Appellant filed a timely pro se PCRA petition. 

Appointed counsel filed an amended petition on November 15, 2015. On 

March 6, 2017, the PCRA court sent Appellant notice of its intent to dismiss 

the petition without a hearing. See Pa.R.Crim.P. 907(1). The court formally 

dismissed the petition on April 10, 2017, and Appellant timely appealed.2

Appellant raises one issue for our review: “Was counsel ineffective for 

failing to raise the issue of the [his] being subject to an illegal mandatory 

minimum sentence?” (Appellant’s Brief, at 9).

Our standard of review of appeals from PCRA court decisions is wellsettled:

This Court analyzes PCRA appeals in the light most favorable 

to the prevailing party at the PCRA level. Our review is limited to 

the findings of the PCRA court and the evidence of record and we 

do not disturb a PCRA court’s ruling if it is supported by evidence 

of record and is free of legal error. Similarly, [w]e grant great 

deference to the factual findings of the PCRA court and will not 

disturb those findings unless they have no support in the record. 

However, we afford no such deference to its legal conclusions.

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1

In consideration of the plea, the Commonwealth nolle prossed a charge of 

possession of a controlled substance. 

2 On May 24, 2017, Appellant filed a timely statement of errors complained of 

on appeal pursuant to the PCRA court’s order. The court filed an opinion on 

June 26, 2017. See Pa.R.A.P. 1925.
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[W]here the petitioner raises questions of law, our standard of 

review is de novo and our scope of review is plenary. . . .

Commonwealth v. Rigg, 84 A.3d 1080, 1084 (Pa. Super. 2014) (citations 

and quotation marks omitted).

[T]o succeed on an ineffectiveness claim, a petitioner must 

demonstrate that: the underlying claim is of arguable merit; 

counsel had no reasonable basis for the act or omission in 

question; and he suffered prejudice as a result, i.e., there is a 

reasonable probability that, but for counsel’s error, the outcome 

of the proceeding would have been different. A reasonable 

probability is a probability sufficient to undermine confidence in 

the outcome of the proceeding. 

Commonwealth v. Laird, 119 A.3d 972, 978 (Pa. 2015) (citations omitted). 

“Counsel’s assistance is deemed constitutionally effective once this Court 

determines that the defendant has not established any one of the prongs of 

the ineffectiveness test.” Commonwealth v. Rolan, 964 A.2d 398, 406 (Pa. 

Super. 2008) (citation and emphasis omitted).

Here, Appellant maintains that counsel was ineffective for failing to raise 

a claim that [his] mandatory minimum sentence violated Alleyne v. United 

States, 570 U.S. 99 (2013).3 This issue does not merit relief.

First, we observe that, the Pennsylvania Supreme Court expressly held 

“that Alleyne does not apply retroactively to cases pending on collateral 

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3 “[T]he Alleyne decision . . . renders those Pennsylvania mandatory minimum 

sentencing statutes that do not pertain to prior convictions constitutionally 

infirm insofar as they permit a judge to automatically increase a defendant’s 

sentence based on a preponderance of the evidence standard.” 

Commonwealth v. Valentine, 101 A.3d 801, 809 (Pa. Super. 2014), appeal 

denied, 124 A.3d 309 (Pa. 2015) (citations omitted).
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review[.]” Commonwealth v. Washington, 142 A.3d 810, 820 (Pa. 2016). 

Accordingly, Appellant cannot obtain relief on his claim.

Additionally, even assuming arguendo that Alleyne could be applied in 

the PCRA context, Appellant’s ineffective assistance of counsel claim would 

lack merit. A review of the record reveals that Appellant’s sentence of not 

less than five nor more than ten years’ imprisonment was not a mandatory 

minimum term of imprisonment. Instead, the court sentenced Appellant 

pursuant to a negotiated guilty plea to three charges. (See PCRA Court 

Opinion, 6/26/17, at 5; Trial Disposition and Dismissal Form, 9/20/13; Written 

Guilty Plea Colloquy, 9/20/13, at 1). 

Therefore, Appellant has failed to prove the first prong of the 

ineffectiveness test, the merit of his underlying claim, and his contention

would fail. See Commonwealth v. Rivera, 108 A.3d 779, 789 (Pa. 2014) 

(“[C]ounsel cannot be deemed ineffective for failing to raise a meritless 

claim.”) (citation omitted); see also Laird, supra at 978; Rolan, supra at 

406. Hence, the PCRA court properly denied Appellant’s petition where, even 

if he could raise an Alleyne claim, it would not merit relief. See Rigg, supra

at 1084. 

Order affirmed.
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 12/13/2017