Com. v. James, V.

J-S27006-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

VAUGHN JAMES

Appellant No. 527 WDA 2013

Appeal from the PCRA Order January 25, 2013

In the Court of Common Pleas of Allegheny County

Criminal Division at No(s): CC: 201100990; CC: 201104395;

CP-02-CR-0015955-2008

BEFORE: GANTMAN, P.J., ALLEN, J., and STABILE, J.

MEMORANDUM BY GANTMAN, P.J.: FILED OCTOBER 24, 2014

Appellant, Vaughn James, appeals pro se from the order entered in the

Allegheny County Court of Common Pleas, dismissing his first petition

brought pursuant to the Post Conviction Relief Act (“PCRA”).1 We affirm in

part, reverse in part, and remand for resentencing only as to the portion of

Appellant’s sentence imposing restitution.

In its opinion, the PCRA court fully and correctly sets forth the relevant

facts and procedural history of this case as follows:

On March 15, 2011, [at CC # 2008-15955,] pursuant to a

plea agreement, Appellant pled guilty to two counts of

Intentionally Possessing a Controlled Substance by a

Person Not Registered and one count each of Possession of

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1

42 Pa.C.S.A. §§ 9541-9546.

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a Controlled Substance with Intent to Deliver (PWID),

Possession of Marijuana, Obstruction of Justice, and

Resisting Arrest. The Commonwealth and Appellant

agreed to a sentence of two to six years’ incarceration, but

Appellant asked to defer sentencing past ninety days in

order to resolve other pending matters. The

Commonwealth did not object to the deferment of

sentencing.

At CC # 2011-00990, on July 18, 2011, again pursuant to

a plea agreement this time with the Office of the Attorney

General, Appellant pled guilty to the entire criminal

information: thirty counts. Appellant pled [guilty] to: two

counts each of Corrupt Organizations, Receiving Stolen

Property, Firearms Not to be Carried Without a License,

and Sale or Transfer of a Firearm; one count of

Conspiracy; thirteen counts of Delivery of a Controlled

Substance (eleven cocaine, one heroin and one

marijuana); and eight counts of PWID (seven cocaine and

one marijuana). The Commonwealth summarized the

sentence agreement:

[W]e have agreed to a sentence at count twenty-four

of that information [CC # 2011-00990] of four-to-

eight years; at count twenty-nine of that information

of seven-to-fourteen years [of imprisonment]

consecutive to count twenty-four. In addition, your

Honor, the Commonwealth is seeking a short

probationary period at Count twenty-two to run

consecutive to the other counts. I’ve agreed with

[trial counsel] that…will not exceed a three-month

period as set by the [c]ourt. … [Your Honor, at

Count 16 of the information, Commonwealth is

seeking to impose a five-year mandatory to run

concurrent to all of the counts described. Guilt with

no further penalty at the remaining counts, Your

Honor.]

Also on July 18, 2011, at CC # 2011-04395, once more

pursuant to a plea agreement, Appellant pled guilty to two

counts of PWID (cocaine). The Commonwealth withdrew

two counts in exchange for: a five-year mandatory that

will run concurrent with the sentence imposed at CC #

2011-00990. As part of the plea negotiations, Appellant

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agreed to accept the mandatory sentence so that Ms.

Lunsford [(Appellant’s co-defendant and girlfriend)] is able

to receive a period of intermediate punishment for her

criminal involvement in the case.

Appellant was sentenced at all three cases on July 18,

2011. Appellant was told by defense counsel, the

Commonwealth, and the [c]ourt prior to pleading guilty

that the aggregate prison sentence would be 11-to-22

years of imprisonment. In accordance with the plea

agreement, at CC # 2011-00990 this [c]ourt sentenced

Appellant to the following: at Count Twenty-Four, PWID, a

period of four to eight years’ incarceration[;] at Count

Twenty-Nine, PWID, a consecutive period of seven to

fourteen years’ incarceration[;] at Count Sixteen, Delivery

of a Controlled Substance, five to ten years’ incarceration

to run concurrent with Count Twenty-Nine[;] at Count

Twenty-Two, Delivery of a Controlled Substance, a period

of three months’ probation to run consecutive to Count

Twenty-Nine[;] and restitution of $14,400[2] was imposed.

At CC # 2008-15955 Appellant received two to six years’

incarceration at Count Two, PWID, concurrent with CC #

2011-00990.[3] At CC # 2011-04395 Appellant was

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2

The July 18, 2011 transcript shows the Commonwealth requested

restitution in the amount of $14,400.00 for money expended during

controlled buys, which formed the bases of Appellant’s charges at counts 10-

18 at docket # 2011-00990. (Guilty Plea/Sentence Hearing, 7/18/11, at

27). According to the sentencing transcript, however, the court imposed

restitution in the amount of $14,440.00. (Id. at 29). Further, the

sentencing order for docket # 2008-15955 indicates the court imposed

restitution in the amount of $12,864.96. No other sentencing order in this

case contains a restitution provision. The record does not explain these

discrepancies.

3

The March 15, 2011 and July 18, 2011 transcripts make clear the parties

agreed to a term of two to six years’ imprisonment for Appellant’s PWID

conviction at docket # 2008-15955 (count two), to run concurrent with

Appellant’s sentence at docket # 2011-00990. Nevertheless, the sentencing

order and docket sheets for docket # 2008-15955 indicate the court

imposed a sentence of only two to four years’ imprisonment for this

(Footnote Continued Next Page)

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sentenced at Count Three, PWID, to a period of

incarceration of five to ten years to run concurrent with the

sentence imposed at CC # 2011-00990. Appellant

received no further penalty at all remaining counts.

No post-sentence motion or direct appeal was filed. On

January 3, 2012, Appellant filed a Motion to Compel

Discovery and Plea Transcripts which was denied on

January 24, 2012 without prejudice to be re-filed after

Appellant filed a PCRA petition. On March 2, 2012,

Appellant filed a pro se Motion for Post Conviction

Collateral Relief covering all three cases. Appellant

presented four ineffective assistance of trial counsel claims

in his PCRA petition[.] …

Appointed counsel filed a Turner/Finley[4] letter on

December 19, 2012. This [c]ourt, after thoroughly

reviewing the record, determined that the PCRA Petition

contained no issues of arguable merit and issued an Intent

to Dismiss Order on January 2, 2013[, and granted

counsel’s request to withdraw.] Appellant responded on

January 17, 2013, but merely restated issues previously

contained in his PCRA petition. This [c]ourt dismissed the

PCRA petition on January 25, 2013.

Appellant filed a [pro se] Notice of Appeal on [Monday,]

February 25, 2013 and amended it on March 22, 2013.[5]

[On April 2, 2013, the court ordered Appellant to file a

concise statement of errors complained of on appeal

pursuant to Pa.R.A.P. 1925(b)]. Appellant filed a [Rule

1925(b) statement] on April 24, 2013.

_______________________

(Footnote Continued)

conviction. To the extent the sentencing order and docket sheets are

inaccurate, these errors must be corrected on remand.

4

Commonwealth v. Turner, 518 Pa. 491, 544 A.2d 927 (1988) and

Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc).

5

The amended notice of appeal is simply a typed copy of Appellant’s

handwritten notice of appeal filed on February 25, 2013.

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(PCRA Court Opinion, filed August 7, 2013, at 2-5) (internal citations,

quotation marks, and footnotes omitted).

Appellant raises the following issues for our review:

WHETHER THE COMMONWEALTH FAILED TO EXHIBIT

(BEYOND A REASONABLE DOUBT) SUFFICIENT EVIDENCE

PROVING APPELLANT’S POSSESSION WITH THE INTENT

TO DELIVER WHERE DRUGS WERE NOT FOUND ON HIS

PERSON AND NO DRUGS WERE DISCOVERED AS TO

(COUNT 24 OF CASE #CP-02-CR-00990-2011) IN

VIOLATION OF APPELLANT’S V AND XIV RIGHT OF THE

U.S. CONSTITUTION AND ARTICLE 1, §9 OF THE PA.

CONSTITUTION.

WHETHER THE COMMONWEALTH VIOLATED APPELLANT’S

IV AMENDMENT RIGHT OF THE U.S. CONSTITUTION AND

ARTICLE I, § 8 OF THE PA. CONSTITUTION BY VIOLATING

LAWFUL PROCEDURES REQUIRED BEFORE THE ISSUANCE

OF ELECTRONIC SURVEILLANCE IN CASE # CP-02-CR-

00990-2011.

WHETHER [PLEA] COUNSEL WAS IN VIOLATION OF

APPELLANT’S VI AMENDMENT RIGHT OF THE U.S.

CONSTITUTION FOR FAILURE TO PROVIDE REQUESTED

DISCOVERY UPON CLIENT AND FAILING TO REVIEW

EXCULPATORY EVIDENCE WITH CLIENT, THUS LEADING

TO THE COERCION OF AN UNINFORMED AND UNKNOWING

PLEA.

WHETHER [PLEA] COUNSEL IS IN VIOLATION OF

APPELLANT’S VI AMENDMENT RIGHT OF THE U.S.

CONSTITUTION, AND ARTICLE I, § 9 OF THE PA.

CONSTITUTION FOR FAILING TO SUPPRESS WIRETAPS OR

FOR THE FAILURE TO FOLLOW THROUGH WITH THE

PURSUIT OF SUPPRESSION MOTION IN CASE # CP-02-CR-

00990-2011, IN VIOLATION OF APPELLANT’S IV

AMENDMENT RIGHT OF THE U.S. CONSTITUTION AND

ARTICLE I, §8 OF THE PA. CONSTITUTION.

WHETHER [THE] TRIAL COURT ERRED IN ITS IMPOSITION

OF EXCESSIVE SENTENCE UPON APPELLANT (EXCEEDED

THE MANDATORY MAXIMUM) PURSUANT TO 42 PA.C.S.A.

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§ 9721(b) AND 35 P.S. § 780-113(a)(30)(f)(1) IN

VIOLATION OF PA. ARTICLE I, § 9 AND U.S.

CONSTITUTION AMENDMENTS V AND XIV.

WHETHER [THE] TRIAL COURT ERRED IN IMPOSING A

FINE NOT IN COMPLIANCE WITH THE TERMS OF THE PLEA

AGREEMENT IN VIOLATION OF THE VIII AMENDMENT OF

THE U.S. CONSTITUTION.

(Appellant’s Brief at 4-5).6

Preliminarily, we observe that to be eligible for relief under the PCRA,

a petitioner must plead and prove, inter alia, his allegations of error were

not previously litigated or waived. 42 Pa.C.S.A. § 9543(a)(3). “[A]n issue is

waived if the petitioner could have raised it but failed to do so before trial, at

trial, during unitary review, on appeal or in a prior state post-conviction

proceeding.” 42 Pa.C.S.A § 9544(b). Likewise, the failure to raise an issue

before the PCRA court deems the claim presented waived. Commonwealth

v. Bond, 572 Pa. 588, 819 A.2d 33 (2002). See also Pa.R.A.P 302(a)

(stating issues not raised in PCRA court are waived and cannot be raised for

first time on appeal). Further, “when a defendant enters a guilty plea,

he…waives all defects and defenses except those concerning the validity of

the plea, the jurisdiction of the trial court, and the legality of the sentence

imposed.” Commonwealth v. Stradley, 50 A.3d 769, 771 (Pa.Super.

2012).

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6

We have reordered Appellant’s issues.

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Instantly, Appellant failed to challenge the sufficiency of the evidence

to sustain his PWID conviction (count 24) at docket # 2011-00990 in a

timely filed post-sentence motion, on direct appeal, or in his pro se PCRA

petition. Appellant also failed to complain about the Commonwealth’s

alleged failure to follow procedures required for electronic surveillance in a

timely filed post-sentence motion, on direct appeal, or in his pro se PCRA

petition. Consequently, Appellant’s first and second issues on appeal are

waived. See 42 Pa.C.S.A. § 9544(b); Bond, supra. Moreover, Appellant’s

entry of a guilty plea renders these claims waived on this basis as well. See

Stradley, supra. Therefore, Appellant’s first and second issues on appeal

merit no relief.

For purposes of disposition, we combine Appellant’s third and fourth

issues. Appellant argues he requested a copy of the discovery at docket #

2011-00990 during one of his visits with plea counsel prior to pleading

guilty. Appellant asserts plea counsel did not provide the requested

discovery and failed to review exculpatory evidence with Appellant.7

Appellant claims plea counsel declined to go over with Appellant the

evidence against him or the evidence in Appellant’s favor. Appellant

contends he was unable to participate in a meaningful way in decisions

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7

Appellant states generally that wiretap recordings in his case were

exculpatory but does not mention which statement(s) on those recordings

were exculpatory.

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regarding plea counsel’s objectives because Appellant had no opportunity to

review the evidence in his case. Appellant maintains counsel could have

brought his laptop to visits with Appellant so that Appellant could have

listened to the wiretap recordings in his case. Appellant avers counsel also

failed to share with him other discovery material aside from the wiretap

recordings at docket # 2011-00990.8 Appellant insists he suffered prejudice

because he was unaware of the Commonwealth’s evidence. Appellant

submits counsel’s deficiencies caused him to enter an unknowing and

involuntary guilty plea.

Additionally, Appellant argues plea counsel mentioned the possibility of

filing a motion to suppress wiretap recordings at docket # 2011-00990

before Appellant pled guilty. Appellant contends police performed controlled

buys for a period of six months, which yielded evidence against Appellant.

Appellant submits the Commonwealth unlawfully applied for a wiretap where

normal investigative tactics produced successful results. Appellant avers the

wiretap recordings were the only evidence against Appellant related to

Appellant’s PWID conviction at count 24 of this docket. Appellant maintains

that if counsel had successfully litigated a motion to suppress, then the

Commonwealth might not have been able to prove its case at count 24, as

well as other drug charges at this docket. Appellant claims counsel had no

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8

Appellant does not specify what other discovery materials were allegedly

part of his case at this docket.

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reasonable strategic basis for failing to file and litigate a motion to suppress

the wiretap recordings.9 Appellant concludes counsel rendered ineffective

assistance, and this Court must grant Appellant appropriate relief. We

disagree.

Our standard of review of the denial of a PCRA petition is limited to

examining whether the record evidence supports the court’s determination

and whether the court’s decision is free of legal error. Commonwealth v.

Ford, 947 A.2d 1251 (Pa.Super. 2008), appeal denied, 598 Pa. 779, 959

A.2d 319 (2008). This Court grants great deference to the findings of the

PCRA court if the record contains any support for those findings.

Commonwealth v. Carr, 768 A.2d 1164 (Pa.Super. 2001). A petitioner is

not entitled to a PCRA hearing as a matter of right; the PCRA court can

decline to hold a hearing if there is no genuine issue concerning any material

fact, the petitioner is not entitled to PCRA relief, and no purpose would be

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9

In his reply brief, Appellant proclaims counsel also should have moved for

suppression of the wiretap recordings under any of the bases set forth at 18

Pa.C.S.A. § 5721.1(b) (governing motions to exclude contents of intercepted

communication or derivative evidence); and on the basis that police need a

search warrant to send a confidential informant into a defendant’s home to

electronically record a conversation at the instruction of the police.

Appellant raises these claims for the first time in his reply brief constituting

waiver of these arguments on appeal. See Commonwealth v. Fahy, 558

Pa. 313, 737 A.2d 214 (1999) (explaining appellant is prohibited from

raising new issues in reply brief; when appellant uses reply brief to raise new

issues or remedy deficient discussions in initial brief, appellate court may

suppress non-complying portions).

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served by any further proceedings. Commonwealth v. Hardcastle, 549

Pa. 450, 701 A.2d 541 (1997).

To prevail on a claim of ineffective assistance of counsel, a petitioner

must show, by a preponderance of the evidence, ineffective assistance of

counsel which, in the circumstances of the particular case, so undermined

the truth-determining process that no reliable adjudication of guilt or

innocence could have taken place. Commonwealth v. Turetsky, 925 A.2d

876 (Pa.Super. 2007), appeal denied, 596 Pa. 707, 940 A.2d 365 (2007).

The petitioner must demonstrate: (1) the underlying claim is of arguable

merit; (2) counsel had no reasonable strategic basis for his action or

inaction; and (3) but for the errors and omissions of counsel, there is a

reasonable probability that the outcome of the proceedings would have been

different. Id. “The petitioner bears the burden of proving all three prongs

of the test.” Id. at 880 (quoting Commonwealth v. Johnson, 868 A.2d

1278, 1281 (Pa.Super. 2005), appeal denied, 583 Pa. 680, 877 A.2d 460

(2005)).

“Allegations of ineffectiveness in connection with the entry of a guilty

plea will serve as a basis for relief only if the ineffectiveness caused the

defendant to enter an involuntary or unknowing plea.” Commonwealth v.

Moser, 921 A.2d 526, 531 (Pa.Super. 2007) (quoting Commonwealth v.

Hickman, 799 A.2d 136, 141 (Pa.Super. 2002)). “Where the defendant

enters his plea on the advice of counsel, the voluntariness of the plea

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depends on whether counsel’s advice was within the range of competence

demanded of attorneys in criminal cases.” Moser, supra. Pennsylvania law

does not require the defendant to “be pleased with the outcome of his

decision to enter a plea of guilty[; a]ll that is required is that [his] decision

to plead guilty be knowingly, voluntarily and intelligently made.” Id. at 528-

29. Further, “[a] person who elects to plead guilty is bound by the

statements he makes in open court while under oath and he may not later

assert grounds for withdrawing the plea which contradict the statements he

made at his plea colloquy.” Commonwealth v. Pollard, 832 A.2d 517, 523

(Pa.Super. 2003).

Additionally, “where an assertion of ineffective assistance of counsel is

based upon the failure to pursue a suppression motion, proof of the merit of

the underlying suppression claim is necessary to establish the merit of the

ineffective assistance of counsel claim.” Commonwealth v. Jones, 942

A.2d 903, 909 (Pa.Super. 2008), appeal denied, 598 Pa. 764, 956 A.2d 433

(2008). An appellant must also “establish that there was no reasonable

basis for not pursuing the suppression claim and that if the evidence had

been suppressed, there is a reasonable probability the verdict would have

been more favorable.” Commonwealth v. Arch, 654 A.2d 1141, 1143

(Pa.Super. 1995).

Instantly, the PCRA court addressed Appellant’s third issue on appeal

as follows:

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Appellant’s claim fails to meet any of the requirements for

a successful ineffectiveness claim. The amount of pretrial

discovery at CC # 2011-00990, as described by defense

counsel was “overwhelming” and included numerous hours

of audio recordings from Appellant’s two cell phones from

July 16, 2010 until August 14, 2010. [Appellant]

stipulated to the admissibility of the fifteen crime lab

reports which were then made part of the record. The

reports each related to drugs or guns recovered from a co-

defendant, …Appellant’s residence, and Appellant’s person

at the Allegheny County Jail. Also, the Commonwealth

incorporated into the record Grand Jury presentments

Number 20 and 25 without any objections from Appellant.

Appellant’s claim that he lacked the necessary discovery

and therefore entered an uninformed, unknowing, and

involuntary plea agreement directly contradicts his

testimony at his guilty plea hearing for CC # 2011-00990.

Among other things, Appellant testified that defense

counsel explained to him the nature of the charges

Appellant faced and the elements that the Commonwealth

would have to prove and that along with counsel he had

read and answered all sixty-eight questions contained in

the plea colloquy honestly. In that colloquy, which was

incorporated into the record, Appellant indicated, inter alia,

that he had discussed with counsel the factual basis of

each charged offense. Appellant also testified that no one

had forced, threatened or coerced him in any way with

regard to his decision to plead guilty and that he was

satisfied with the services that his attorney had provided.

Further, the Commonwealth presented a detailed summary

of the facts that supported each charge in the criminal

information. Appellant was asked to allocute and accept

criminal responsibility for each charge. The

Commonwealth went chronologically, charge by charge,

and asked Appellant if he agreed with the facts as read.

Appellant specifically, verbally acknowledged that the facts

pertaining to counts 4-8, 19-21 and 23-30 were correct.

When given the opportunity, Appellant stated he had no

additions or corrections to the summary provided by the

Commonwealth. … Appellant is bound by the statements

he made during his plea colloquy and cannot assert

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grounds for withdrawing the plea that contradict

statements made when he pled.

(PCRA Court Opinion at 9-10) (internal citations, quotation marks, and

footnotes omitted). The record supports the court’s decision to deny relief

on this claim. See Ford, supra; Carr, supra.

Regarding Appellant’s fourth issue, Appellant did not present the

precise ineffectiveness challenges, which he raises on appeal, in his pro se

PCRA petition, response to the court’s Rule 907 notice, or Rule 1925(b)

statement. To the contrary, Appellant simply claimed in his pro se PCRA

petition that counsel was ineffective for “failing to proceed with suppression

hearing.” (PCRA Petition, 3/2/12, at 3). Appellant made no reference

whatsoever to this issue in his response to the court’s Rule 907 notice. In

his Rule 1925(b) statement, Appellant framed this claim as follows: “Trial

counsel is in violation of the Appellant’s 6th Amendment right to effective

assistance of counsel of the U.S. Constitution and Article 1 § 9 of the Pa.

Constitution for filing A Motion To Suppress Electronic Surveillance (namely

wiretaps) in violation of Appellant’s 4th Amendment of the U.S. Constitution,

and Article 1 § 8 of the Pa. Constitution, which was granted by the [c]ourt

and he failed to follow through with granted motion leading to an

uninformed Plea Agreement.” (Rule 1925(b) Statement, 4/24/13, at 2).

Because Appellant failed to articulate the grounds he now asserts on appeal

before the PCRA court, the PCRA court did not address Appellant’s particular

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complaints in its Rule 1925(a) opinion.10 Appellant’s failure to preserve his

fourth issue before the PCRA court constitutes waiver of this claim on

appeal. See Pa.R.A.P. 302(a); Bond, supra; Commonwealth v. Hansley,

24 A.3d 410 (Pa.Super. 2011), appeal denied, 613 Pa. 642, 32 A.3d 1275

(2011) (explaining appellant’s concise statement must properly specify error

to be addressed on appeal; concise statement which is too vague to allow

court to identify issues raised on appeal is functional equivalent of no

concise statement at all).11

In his fifth issue, Appellant argues his aggregate sentence of eleven

(11) to twenty-two (22) years’ imprisonment exceeds the statutory

maximum sentence for a drug trafficking conviction. Appellant also insists

the Commonwealth failed to prove beyond a reasonable doubt the quantity

of drugs at issue for his conviction at count 24 of docket # 2011-00990,

which subjected him to a mandatory minimum sentence under 18 Pa.C.S.A.

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10

In an attempt to decipher Appellant’s ineffectiveness claim as presented in

his Rule 1925(b) statement, the PCRA court explained: “Appellant presents

an ineffective assistance of counsel claim which, while ambiguously worded,

appears to assert that defense counsel was ineffective for failing to proceed

with a granted suppression motion. Appellant’s premise is incorrect.

Defense counsel did proceed, if unsuccessfully, with a Motion to Suppress at

CC # 2008-15955 which is the only case that involved a warrantless search.

The investigation into the charges filed in CC # 2011-00990 utilized

electronic surveillance through wireless phone taps and video surveillance.”

(PCRA Court Opinion at 11) (internal footnote omitted).

11

Moreover, Appellant indicated he understood that, by pleading guilty, he

was giving up the right to file pretrial motions or pursue any previously filed.

(See Written Guilty Plea Colloquy, 7/18/11, at 4.)

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§ 7508(a)(3)(iii) (stating mandatory minimum sentence for defendant

convicted of PWID (cocaine) where aggregate weight of cocaine is at least

one hundred grams is four years’ imprisonment). Appellant further

maintains the court improperly used Appellant’s PWID conviction at count

24, as a basis to impose an enhanced sentence at count 29 on the same

docket. See id. (stating mandatory minimum sentence for defendant

convicted of PWID (cocaine) where aggregate weight of cocaine is at least

one hundred grams and offender has prior conviction for drug trafficking

offense is seven years’ imprisonment). For these reasons, Appellant

concludes his sentence is illegal and this Court must remand for re-

sentencing. We disagree.12

Our standard of review is as follows:

Generally, a challenge to the application of a mandatory

minimum sentence is a non-waiveable challenge to the

legality of the sentence. Issues relating to the legality of a

sentence are questions of law, as are claims raising a

court’s interpretation of a statute. Our standard of review

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12

Appellant also argues the court failed to state its sentencing rationale on

the record in violation of 42 Pa.C.S.A. § 9721(b) (discussing general

standards for sentencing). Appellant’s claim implicates the discretionary

aspects of sentencing and is not cognizable under the PCRA. See

Commonwealth v. Bromley, 862 A.2d 598 (Pa.Super. 2004), cert. denied,

546 U.S. 1095, 126 S.Ct. 1089, 163 L.Ed.2d 863 (2006) (explaining claim

that court failed to state reasons on record for sentence challenges

discretionary aspects of sentencing). See also Commonwealth v. Fowler,

930 A.2d 586 (Pa.Super. 2007), appeal denied, 596 Pa. 715, 944 A.2d 756

(2008) (stating challenges to discretionary aspects of sentencing are not

cognizable under PCRA). Thus, we give this particular argument no further

attention.

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over such questions is de novo and our scope of review is

plenary.

Commonwealth v. Hawkins, 45 A.3d 1123, 1130 (Pa.Super. 2012),

appeal denied, 617 Pa. 629, 53 A.3d 756 (2012) (quoting Commonwealth

v. Brougher, 978 A.2d 373, 377 (Pa.Super. 2009)). Further, a claim that a

sentence exceeds the statutory maximum falls within the narrow class of

cases implicating the legality of the sentence. Commonwealth v. Watley,

81 A.3d 108 (Pa.Super. 2013) (en banc), appeal denied, ___ Pa. ___, 95

A.3d 277 (2014). This Court can raise sua sponte claims implicating the

legality of a sentence. Id.

The statutory maximum penalty for a PWID or delivery of a controlled

substance conviction involving the sale of cocaine is ten years’

imprisonment. 35 P.S. § 780-113(f)(1.1).13 Additionally, Section

7508(a)(3)(iii) sets forth a mandatory minimum sentence of four years’

imprisonment where a defendant is convicted of PWID or delivery of a

controlled substance involving at least 100 grams of cocaine. See 18

Pa.C.S.A. § 7508(a)(3)(iii). If, at the time of sentencing, the defendant has

been convicted of another drug trafficking offense, the mandatory minimum

for PWID or delivery of a controlled substance involving at least 100 grams

of cocaine is seven years’ imprisonment. 18 Pa.C.S.A. § 7508(a)(3)(iii). For

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13

Appellant incorrectly states that the statutory maximum at issue here is

fifteen years’ imprisonment.

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purposes of Section 7508, “it shall be deemed that a defendant has been

convicted of another drug trafficking offense when the defendant has been

convicted of another offense under section 13(a)(14), (30) or (37) of The

Controlled Substance, Drug, Device and Cosmetic Act…whether or not

judgment of sentence has been imposed concerning that offense.” 18

Pa.C.S.A. § 7508(a.1).

Section 7508 “is unambiguous, and clearly requires that as long as at

the time of sentencing, a defendant has been convicted of another qualifying

offense, the defendant shall receive the enhanced sentence.”

Commonwealth v Vasquez, 562 Pa. 120, 124, 753 A.2d 807, 809 (2000)

(internal quotation marks and emphasis omitted). “A person who pleads

guilty to multiple drug trafficking counts in a consolidated proceeding

acquires multiple convictions. When that person then proceeds to

sentencing, the enhanced penalty language [in Section 7508] applies

precisely because the person already has other convictions.”

Commonwealth v. Rush, 959 A.2d 945, 950 (Pa.Super. 2008), appeal

denied, 601 Pa. 696, 972 A.2d 521 (2009). See also Vasquez, supra at

123, 753 A.2d at 809 (holding where defendant pled guilty to multiple drug

trafficking counts contained within same criminal information, each

conviction counted as prior drug trafficking conviction to apply enhancement

provision per Section 7508; “it is irrelevant that the prior conviction arises

from one count within a multiple count complaint, or that the offenses are

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from a single arrest and charge”).

Pursuant to Section 7508(b), provisions of the section shall not be an

element of the crime; and applicability of the statute shall be determined by

the court at sentencing by a preponderance of the evidence. 18 Pa.C.S.A. §

7508(b). Recently, in Commonwealth v. Newman, ___ A.3d ___, 2014

WL 4088805 (Pa.Super. Aug. 20, 2014), an en banc panel of this Court

addressed the constitutionality of a mandatory minimum statute containing

language similar to Section 7508(b). In Newman, a jury convicted the

defendant of PWID and other drug related offenses. The court sentenced

Appellant to five to ten years’ imprisonment, specifically imposing a

mandatory minimum sentence under 42 Pa.C.S.A. § 9712.1 (mandating five

year minimum sentence for defendant convicted of PWID when at time of

offense defendant was in physical possession or control of firearm, or

firearm was in close proximity to drugs). Similar to Section 7508(b), Section

9712.1 contains a subsection explaining that provisions of Section 9712.1

shall not be an element of the crime; and applicability of the statute shall be

determined by the court at sentencing by a preponderance of the evidence.

See 42 Pa.C.S.A. § 9712.1(c). This Court analyzed whether Newman’s

mandatory minimum sentence was constitutional in light of the United

States Supreme Court’s decision in Alleyne v. United States, ___ U.S.

___, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013), in which the Court held that

any fact increasing the mandatory minimum sentence for a crime is

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considered an element of the crime to be submitted to the fact-finder and

found beyond a reasonable doubt. Id.14

Relying on Alleyne, this Court held that Section 9712.1 can no longer

past constitutional muster as it “permits the trial court, as opposed to the

jury, to increase a defendant’s minimum sentence based upon a

preponderance of the evidence that the defendant was dealing drugs and

possessed a firearm, or that a firearm was in close proximity to the drugs.”

Newman, supra at *10. Thus, this Court vacated Newman’s PWID

sentence and remanded for resentencing without imposition of the

mandatory minimum under Section 9712.1. This Court made clear,

however, that Alleyne is subject to limited retroactivity; in other words,

Alleyne is applicable to all criminal cases still pending on direct review. Id.

at *2. Because Newman’s case was still pending on direct appeal when the

United States Supreme Court announced Alleyne, the holding in Alleyne

applied to Newman’s case.

Instantly, on March 15, 2011, Appellant entered a negotiated guilty

plea at docket # 2008-15955 to one count of PWID, and related offenses.

____________________________________________

14

On August 14, 2014, Appellant filed a pro se motion requesting this Court

to consider Alleyne and its progeny when deciding Appellant’s appeal. We

grant Appellant’s motion for consideration of Alleyne. Nevertheless, to the

extent Appellant wants to include post-submission filings, we deny

Appellant’s motion as moot based on our disposition. Regarding Appellant’s

request for an updated copy of his docketing statement, we deny that

portion of his motion without prejudice to Appellant’s right to seek an

updated copy of the docket entries from the PCRA court.

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The court deferred sentencing. On July 18, 2011, Appellant entered a

negotiated guilty plea at docket # 2011-04395, to two counts of PWID; and

at docket # 2011-00990, to eight counts of PWID, thirteen counts of

delivery of a controlled substance, and related offenses. After accepting

Appellant’s plea as knowing, intelligent and voluntary, the court sentenced

Appellant for his convictions at all three dockets. The court imposed the

following sentencing scheme: at docket # 2011-00990, four (4) to eight (8)

years’ imprisonment for Appellant’s PWID conviction at count 24; a

consecutive term of seven (7) to fourteen (14) years’ imprisonment for

Appellant’s PWID conviction at count 29; a concurrent term of five (5) to ten

(10) years’ imprisonment for Appellant’s delivery of a controlled substance

conviction at count 16; and a term of three (3) months’ probation for

Appellant’s delivery of a controlled substance conviction at count 22; at

docket # 2008-15955, two (2) to six (6) years’ imprisonment for Appellant’s

PWID conviction at count 2, concurrent to Appellant’s sentence at docket

2011-00990; at docket # 2011-04395, five (5) to ten (10) years’

imprisonment for Appellant’s PWID conviction at count 3, concurrent to

Appellant’s sentence at docket # 2011-00990. Additionally, the court

imposed a provision of restitution. Appellant received no further penalty for

the remainder of his convictions. Thus, the court sentenced Appellant to an

aggregate term of eleven (11) to twenty-two (22) years’ imprisonment, plus

three (3) months’ probation, and an order of restitution.

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Regarding Appellant’s complaint that the court sentenced him beyond

the statutory maximum for his drug trafficking convictions, the statutory

maximum for each of Appellant’s PWID and delivery of a controlled

substance convictions is ten (10) years’ imprisonment. See 35 P.S. § 780-

113(f)(1.1). Appellant pled guilty at all three dockets to eleven counts of

PWID and thirteen counts of delivery of a controlled substance. Accordingly,

the court could have imposed an aggregate maximum sentence of more

than two hundred years’ imprisonment for Appellant’s drug trafficking

convictions. Therefore, the court did not exceed the statutory maximum in

fashioning its sentence.

Concerning Appellant’s claim that the Commonwealth failed to prove

the quantity of drugs at issue for his conviction at count 24 of docket #

2011-00990, our review of the July 18, 2011 proceeding shows Appellant’s

negotiated plea agreement included imposition of the four year mandatory

minimum under Section 7508(a)(3)(iii). (See Guilty Plea/Sentencing

Hearing, 7/18/11, at 26.) Significantly, Appellant admitted at the time of

his guilty plea to the quantity of drugs he possessed. Specifically, the

Commonwealth presented a detailed summary in support of each charge in

the criminal information at docket # 2011-00990. The Commonwealth

asked Appellant to allocute and accept responsibility for certain facts relative

to several counts at that docket, including count 24. The Commonwealth

stated: “[A]s it pertains to Count 24 of the information, [Appellant] bought

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one kilogram of cocaine from a courier at the Wal-Mart parking lot in North

Versailles for $34,500…” (Id. at 20). Appellant expressly agreed to the

factual summary and, when given the opportunity to do so, he provided no

additions or corrections to the Commonwealth’s recitation. (See id. at 20,

23.) Thus, Appellant pled guilty at count 24 to PWID involving 1,000 grams

of cocaine.

Under these facts, this Court’s decision in Newman is not dispositive.

First, Appellant’s conviction at count 24 was pursuant to a negotiated guilty

plea which included imposition of the mandatory minimum sentence, at

which time Appellant expressly admitted to PWID involving over 100 grams

of cocaine. Second, Newman involved an analysis of a different statute and

limited its holding to the constitutionality of Section 9712.1, which is not at

issue here. Third, Newman made clear retro-application of Alleyne is

limited to cases pending on direct appeal. Appellant’s appeal, however,

arises from the denial of a PCRA petition. Appellant’s case was no longer

pending on direct appeal when the Court announced its decision in Alleyne.

Compare Newman, supra. Further, nothing in Alleyne suggests it applies

to a negotiated guilty plea where the defendant expressly admitted the fact

necessary for imposition of the mandatory minimum sentence. See

Alleyne, supra. For these reasons, we see no issue implicating the legality

of Appellant’s sentence at count 24 based on Alleyne or Newman.

With respect to Appellant’s contention that he had no prior drug

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trafficking convictions to justify an enhanced sentence at count 29 of docket

# 2011-00990, the record makes clear Appellant had twenty-four

PWID/delivery of a controlled substance convictions at the time of his July

18, 2011 sentencing, as a result of his guilty pleas at all three dockets.

Contrary to Appellant’s contention, nothing in the record demonstrates the

court used Appellant’s conviction at count 24 to enhance his sentence at

count 29. In any event, the court could have used any of the drug

trafficking convictions at any of the three dockets to enhance Appellant’s

sentence at count 29. See Vasquez, supra; Rush, supra. Consequently,

Appellant’s claim that his sentence enhancement at count 29 was illegal

lacks merit. See Vasquez, supra.15

____________________________________________

15

The Alleyne Court made clear its holding did not apply to the fact of a

prior conviction. Alleyne, supra at ___ n.1, 133 S.Ct. at 2160 n.1, 186

L.Ed.2d at ___ n.1. Thus, we see no Alleyne problem related to the

sentencing enhancement provision of Section 7508(a)(3)(iii) based on a

prior drug trafficking conviction. Regarding the portion of Section

7508(a)(3)(iii) that relates to the weight of cocaine, as to count 29,

Appellant’s negotiated plea agreement included imposition of the mandatory

seven-year sentence. (See Guilty Plea/Sentencing Hearing, 7/18/11, at 26.)

Furthermore, Appellant expressly indicated that he had purchased one

kilogram of cocaine from “Moe” on August 14, 2010, in exchange for

$34,000.00. (See id. at 21-22.) For the reasons discussed regarding count

24, we see no issue related to the legality of Appellant’s sentence at count

29 relative to the weight of the drugs based on Alleyne or Newman.

Additionally, we observe the court imposed concurrent mandatory minimum

sentences per Section 7508 of five years’ imprisonment for each of

Appellant’s convictions at count 16 on docket # 2011-00990, and count 3 on

docket # 2011-04395. See 18 Pa.C.S.A. § 7508(a)(3)(ii) (stating

mandatory minimum sentence for defendant convicted of PWID (cocaine)

(Footnote Continued Next Page)

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In his sixth issue, Appellant argues his negotiated plea agreement did

not include an agreement that Appellant pay restitution. Appellant

complains he did not receive the benefit of his bargain due to the restitution

provision, rendering this portion of his sentence illegal. We agree with

Appellant’s position.

“Challenges to the appropriateness of a sentence of restitution are

generally considered challenges to the legality of the sentence.”

Commonwealth v. Langston, 904 A.2d 917, 921 (Pa.Super. 2006).

Section 1106 of the Crimes Code governs orders of restitution, in pertinent

part, as follows:

§ 1106. Restitution for injuries to person or property

(a) General rule.—Upon conviction for any crime

wherein property has been stolen, converted or otherwise

unlawfully obtained, or its value substantially decreased as

a direct result of the crime, or wherein the victim suffered

personal injury directly resulting from the crime, the

offender shall be sentenced to make restitution in addition

to the punishment prescribed therefor.

_______________________

(Footnote Continued)

where aggregate weight of cocaine is at least ten grams and less than 100

grams and offender has prior conviction for drug trafficking offense is five

years’ imprisonment). Appellant’s negotiated plea agreement included

imposition of these mandatory minimum sentences as well; and Appellant

made no additions or corrections to the Commonwealth’s factual summary

as to the quantity of drugs relative to these charges. (See Guilty

Plea/Sentencing Hearing, 7/18/11, at 18; 26.) For the reasons discussed

regarding count 24, we see no issue related to the legality of these

sentences relative to the weight of drugs, based on Alleyne or Newman.

We have already decided there is no Alleyne problem as to the sentencing

enhancement portion of these mandatory minimum sentences, based on a

prior conviction. See Alleyne, supra.

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18 Pa.C.S.A § 1106(a). The statute refers to the Crimes Victims Act for the

definition of “victim” for purposes of Section 1106. See 18 Pa.C.S.A. §

1106(h).16 The Crime Victims Act defines “victim” as:

(1) A direct victim.

(2) A parent or legal guardian of a child who is a direct

victim, except when the parent or legal guardian of the

child is the alleged offender.

(3) A minor child who is a material witness to any of the

following crimes and offenses under 18 Pa.C.S. (relating to

crimes and offenses) committed or attempted against a

member of the child’s family:

Chapter 25 (relating to criminal homicide).

Section 2702 (relating to aggravated assault).

Section 3121 (relating to rape).

(4) A family member of a homicide victim including

stepbrothers or stepsisters, stepchildren, stepparents or a

fiancé, one of whom is to be identified to receive

communication as provided for in this act, except where

the family member is the alleged offender.

18 Pa.C.S.A. § 11.103.

Importantly, “the Commonwealth…does not qualify as a victim as that

term is defined in [Section] 1106.” Commonwealth v. Boyd, 835 A.2d

812, 819 (Pa.Super. 2003). Thus, the Commonwealth cannot recover as

____________________________________________

16

Section 1106(h) relies on the definition of “victim” set forth in Section

479.1 of the Act of April 9, 1929 (P.L. 177, No. 175), known as the

Administrative Code of 1929 (repealed; now codified at 18 Pa.C.S.A. §

11.101 et seq., known as the “Crime Victims Act”).

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restitution from a defendant “buy money” used in a controlled drug

transaction. See id. (holding Commonwealth is not “victim” as defined in

Section 1106, so Commonwealth cannot recover as restitution buy money

obtained by defendant as result of controlled buy; vacating portion of

sentence ordering defendant to pay restitution to Commonwealth).

Nevertheless, “[i]n any case where a defendant is convicted and

sentenced to pay the costs of prosecution and trial, the expenses of the

district attorney in connection with such prosecution shall be considered a

part of the costs of the case and be paid by the defendant.” 16 Pa.C.S.A. §

1403. This Court has stated:

In that the district attorney is the chief law enforcement

officer of a county, …when a drug buy is arranged by police

officers, these officers are proceeding in accordance with

general directives from the district attorney of that county.

Consequently, we find that buy money expended by

officers in furtherance of their investigation and

apprehension of persons suspected of crime are reasonable

costs of prosecution within the purview of § 1403, if such

funds are not recovered by drug enforcement officers prior

to the time of sentencing.

Commonwealth v. Smith, 901 A.2d 1030, 1032-33 (Pa.Super. 2006),

appeal denied, 590 Pa. 667, 912 A.2d 837 (2006). Therefore, buy money

used in a controlled drug transaction cannot be recovered under a restitution

order, but it can be recovered as a reasonable cost of prosecution. Id.

Additionally, with respect to plea agreements, “[w]hen counsel for

both sides have arrived at a plea agreement, they shall state on the record

in open court, in the presence of the defendant, the terms of the

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agreement….” Pa.R.Crim.P. 590(B)(1).

[T]he guilty plea and the frequently concomitant plea

bargain are valuable implements in our criminal

justice system. The disposition of criminal charges

by agreement between the prosecutor and the

accused, …is an essential component of the

administration of justice. Properly administered, it is

to be encouraged. In this Commonwealth, the

practice of plea bargaining is generally regarded

favorably, and is legitimized and governed by court

rule.

Assuming the plea agreement is legally possible to fulfill,

when the parties enter the plea agreement on the record,

and the court accepts and approves the plea, then the

parties and the court must abide by the terms of the

agreement.

Commonwealth v. Anderson, 995 A.2d 1184, 1190-91 (Pa.Super. 2010),

appeal denied, 608 Pa. 634, 9 A.3d 626 (2010) (internal citations and

quotation marks omitted).

Instantly, the parties agreed to a negotiated aggregate sentence of

eleven (11) to twenty-two (22) years’ imprisonment in exchange for

Appellant’s guilty plea to numerous offenses at three dockets. Appellant’s

negotiated plea agreement did not contain a provision for restitution. After

the court accepted Appellant’s plea, the Commonwealth stated it was also

seeking an order of restitution to recover buy money it had expended during

controlled drug buys between Appellant and a confidential informant, which

formed the bases for some of Appellant’s convictions. The court sentenced

Appellant to the negotiated term of imprisonment and also granted the

Commonwealth’s request for restitution.

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The court’s imposition of restitution under these facts was improper for

two reasons. First, the record makes clear the parties did not agree to a

restitution provision as part of the negotiated plea agreement. Once the

court accepted the negotiated plea, the court was obligated to impose the

agreed-upon sentencing terms. The court, however, tacked onto Appellant’s

sentence a restitution provision at the Commonwealth’s request. Thus, in

this regard Appellant did not receive the benefit of his bargain at sentencing.

See id.

Second, and perhaps more important, the Commonwealth does not

qualify as a “victim” under Section 1106 and cannot recover buy money

through a restitution order. See 18 Pa.C.S.A. § 11.103; Boyd, supra.

Therefore, the court’s order directing Appellant to pay restitution to the

Commonwealth for buy money constitutes an illegal sentence, requiring

remand. Upon remand, the court can restructure the sentencing order so

the Commonwealth can recoup its buy money as a “cost of prosecution.”

See 16 Pa.C.S.A. § 1403; Smith, supra (affirming PCRA court’s order

requiring defendant to pay buy money to Commonwealth as cost of

prosecution). Accordingly, we affirm the order denying PCRA relief in part,

reverse it in part, and remand for resentencing only as to the portion of

Appellant’s sentence imposing restitution.

Order affirmed in part; reversed in part; case remanded for

resentencing. Jurisdiction is relinquished.

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Judge Allen joins this memorandum.

Judge Stabile concurs in the result.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 10/24/2014

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