Commonwealth v. Rivera
154 A.3d 370
| Pa. Super. Ct. | 2017Background
- Rivera pled guilty (Jan 23, 2014) to three counts of possession with intent to deliver (heroin) and one count of possession of marijuana pursuant to a negotiated plea that produced an aggregate sentence of 4½ to 9 years. No post-sentence motion or direct appeal was filed within the appeal period.
- The plea included a mandatory-minimum term under 18 Pa.C.S. § 7508 based on a 2.1g heroin sale; Alleyne v. United States had been decided seven months before Rivera’s plea and raised constitutional questions about judge-found facts that increase mandatory penalties.
- Rivera later sought relief under the PCRA, alleging (1) plea counsel was ineffective for advising him to accept a plea that produced an unlawful mandatory minimum under Alleyne, and (2) counsel failed to consult about or file a direct appeal.
- The PCRA court held counsel was not ineffective in advising the plea (given the state of the law at the time and benefits of the plea), but granted relief because counsel failed to consult Rivera, sua sponte, about whether he wished to appeal — there were nonfrivolous Alleyne-based arguments.
- The PCRA court reinstated Rivera’s post-sentence and direct-appeal rights nunc pro tunc; the Commonwealth appealed and the Superior Court affirmed.
Issues
| Issue | Plaintiff's Argument (Rivera) | Defendant's Argument (Commonwealth) | Held |
|---|---|---|---|
| Whether counsel had duty to consult about an appeal after a negotiated plea | Counsel failed to consult; Rivera had a nonfrivolous Alleyne claim so a reasonable defendant would want to appeal | If defendant received the bargained-for sentence and counsel had reasonable basis to advise plea, no duty to perform a "useless act" of consulting | Court: Duty to consult existed because Alleyne presented a nonfrivolous issue; counsel’s failure prejudiced Rivera; reinstated appeal rights |
| Whether plea counsel was ineffective for advising acceptance of the negotiated plea (Alleyne issue) | Plea was entered without informing Rivera of Alleyne’s ramifications; counsel ineffective | Counsel reasonably advised plea given prevailing interpretations and concrete sentencing benefit from plea | Court: Counsel was not ineffective in advising plea given state of law then and benefits conferred |
| Whether an Alleyne challenge to a negotiated sentence is a challenge to legality of sentence (and thus appealable) | Alleyne claim challenges legality and is not waived by plea | Commonwealth: Defendant got bargained-for sentence so cannot challenge negotiated sentence; could seek relief on PCRA instead | Court: Alleyne-based attack implicates legality; direct appeal is a constitutional right that cannot be waived absent knowing, voluntary waiver |
| Whether reinstatement of post-sentence motions nunc pro tunc was appropriate | Needed to preserve issues (e.g., motion to withdraw plea) that must be raised in trial court | Commonwealth argued PCRA remedies could proceed without nunc pro tunc restoration; reliance on Liston | Court: Reinstated post-sentence rights because some claims require preservation in trial court (motion to withdraw plea) |
Key Cases Cited
- Alleyne v. United States, 570 U.S. 99 (2013) (any fact that increases penalty is an element for the jury to find beyond a reasonable doubt)
- Roe v. Flores-Ortega, 528 U.S. 470 (2000) (counsel must consult about appeal when a reasonable defendant would want to appeal or defendant indicates interest)
- Commonwealth v. Newman, 99 A.3d 86 (Pa. Super. 2014) (en banc) (Pennsylvania mandatory-minimum statutes that allow judge-found facts by preponderance are unconstitutional)
- Commonwealth v. Melendez-Negron, 123 A.3d 1087 (Pa. Super. 2015) (PCRA relief where counsel ineffectively advised plea that included unconstitutional mandatory minimum; prejudice shown by large sentence disparity)
- Commonwealth v. Liston, 977 A.2d 1089 (Pa. 2009) (reinstating direct appeal nunc pro tunc does not automatically entitle defendant to file optional post-sentence motions nunc pro tunc; some claims must be preserved in trial court)