Com. v. Smith, B., Com. v. Smith, B. No. 313 WDA 2016

Bradley Smith was convicted by a jury of voluntary manslaughter and carrying a firearm without a license after a fatal drug transaction; acquitted of other charges.
At sentencing the Commonwealth had sought a five-year mandatory minimum under 42 Pa.C.S. § 9712.
The trial court sentenced Smith to 8–16 years for manslaughter (above guideline aggravated range) plus a consecutive 2–4 years for the firearms offense; it did not impose a § 9712 mandatory minimum.
Smith filed a timely pro se PCRA petition; counsel filed a Turner/Finley no-merit letter and moved to withdraw. The PCRA court issued a Rule 907 notice and dismissed the petition without an evidentiary hearing.
Smith claimed layered ineffective assistance: PCRA counsel was ineffective for not raising that appellate counsel was ineffective for not arguing trial counsel failed to object to the constitutionality of his mandatory-minimum sentence under Alleyne.
The PCRA court concluded Alleyne did not apply because the trial court did not impose the § 9712 mandatory minimum; PCRA dismissal was affirmed on appeal.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether PCRA counsel was ineffective for not raising appellate counsel's failure to challenge the constitutionality of the mandatory-minimum sentence under Alleyne	Smith: Alleyne makes mandatory-minimum sentencing elements that increase punishment a jury question; PCRA counsel should have raised appellate counsel’s failure to press this	Commonwealth/PCRA court: Alleyne inapplicable because trial court did not base sentence on § 9712 mandatory minimum; sentence was above that minimum	Court held counsel was not ineffective; no arguable merit because Alleyne did not apply where sentence exceeded but did not rely on § 9712 mandatory minimum

Alleyne v. United States, 133 S. Ct. 2151 (U.S. 2013) (facts increasing mandatory penalty are elements for the jury)
Commonwealth v. Newman, 99 A.3d 86 (Pa. Super. 2014) (invalidating mandatory-minimum statute language that lets judge increase minimum based on preponderance)
Commonwealth v. Hopkins, 117 A.3d 247 (Pa. 2015) (unconstitutional mandatory-minimum provisions not severable)
Commonwealth v. Ziegler, 112 A.3d 656 (Pa. Super. 2015) (Alleyne not implicated where defendant is sentenced above mandatory minimum via standard sentencing range)
Commonwealth v. Chmiel, 30 A.3d 1111 (Pa. 2011) (standard three-prong ineffective assistance test)