Com. v. Ross, M.
2972 EDA 2015
| Pa. Super. Ct. | Jan 12, 2017Background
- Appellant Michael Ross filed a PCRA petition claiming trial counsel was ineffective for failing to advise him about Alleyne’s impact on Pennsylvania mandatory-minimum statutes (42 Pa.C.S. § 7508 and similar provisions).
- Alleyne v. United States was decided roughly three months before Ross’s sentencing and held that any fact (other than a prior conviction) that increases a mandatory minimum must be found by a jury beyond a reasonable doubt.
- At the time of Ross’s sentencing, Pennsylvania courts had not uniformly ruled whether Alleyne invalidated state mandatory-minimum statutes; later Pennsylvania cases (e.g., Newman, Hopkins) found such statutes unconstitutional and non-severable.
- The PCRA court denied an evidentiary hearing; the majority reversed (not included in this dissent), but the dissent argues counsel cannot be ineffective for failing to predict a change in the law.
- The dissent also faults Ross for failing to adequately plead prejudice under the Pierce test—Ross’s brief gave only a conclusory one-sentence assertion that he received a harsher sentence and did not identify the offenses, offense gravity score, or prior record score.
- The Commonwealth noted that Ross faced additional open charges and probation violations that could have exposed him to significantly greater exposure if convicted at trial.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether counsel was ineffective for not advising re: Alleyne’s effect on PA mandatory-minimum statutes | Ross: counsel should have anticipated Alleyne would lead courts to declare statutes like §7508 unconstitutional, affecting plea/sentence | Commonwealth/PCRA court: counsel cannot be faulted for failing to predict a change in the law; Alleyne’s effect on PA law was unsettled at sentencing | Dissent: PCRA court did not err in denying hearing — counsel not ineffective for failing to predict change; insufficient prejudice shown |
| Whether Alleyne by itself rendered §7508 unconstitutional | Ross: Alleyne logically invalidates PA mandatory-minimum statutes | Commonwealth: Alleyne applies to facts increasing mandatory minimums but did not automatically invalidate §7508 at sentencing here where no mandatory minimum was applied | Dissent: Alleyne does not automatically make §7508 infirm; application depends on state court rulings and whether a mandatory minimum was increased by judge-found facts |
| Whether petitioner pleaded prejudice under Pierce sufficiently | Ross: asserted prejudice because he received a more severe sentence | Commonwealth/PCRA court: Ross’s single-sentence assertion fails to show what sentence would have been absent counsel’s error | Held: Dissent finds prejudice claim inadequate; appellant failed to prove Pierce prejudice prong |
| Whether an evidentiary hearing was required | Ross: hearing needed to develop ineffective-assistance claim about Alleyne advice | PCRA court/Commonwealth: no hearing required because claim lacks merit and pleadings fail to establish prejudice | Held: Dissent would affirm denial of hearing |
Key Cases Cited
- Alleyne v. United States, 133 S. Ct. 2151 (2013) (facts increasing mandatory minimums must be found by a jury beyond a reasonable doubt)
- Commonwealth v. Bennett, 57 A.3d 1185 (Pa. 2012) (counsel not ineffective for failing to predict changes in law)
- Commonwealth v. Cox, 983 A.2d 666 (Pa. 2009) (same principle: counsel cannot be faulted for not anticipating a change in law)
- Commonwealth v. Newman, 99 A.3d 86 (Pa. Super. 2014) (en banc) (held PA mandatory-minimum statutes unconstitutional and nonseverable post-Alleyne)
- Commonwealth v. Hopkins, 117 A.3d 247 (Pa. 2015) (Pennsylvania Supreme Court vindicated Newman’s approach)
- Commonwealth v. Melendez-Negron, 123 A.3d 1087 (Pa. Super. 2015) (vacated guilty plea where plea included an unconstitutional mandatory minimum)
- Commonwealth v. Pierce, 527 A.2d 973 (Pa. 1987) (three-prong test for ineffective assistance of counsel)
- Commonwealth v. Reyes-Rodriguez, 111 A.3d 775 (Pa. Super. 2015) (petitioners must adequately discuss all three Pierce factors on appeal)