Commonwealth v. Burgos, 032119 PASUP, 2530 EDA 2017

• Opinion Judge: MURRAY, J.
• Party Name: COMMONWEALTH OF PENNSYLVANIA v. DIGNO BURGOS Appellant
• Judge Panel: BEFORE: SHOGAN, J., MURRAY, J., and FORD ELLIOTT, P.J.E.
• Case Date: March 21, 2019
• Court: Pennsylvania Superior Court

COMMONWEALTH OF PENNSYLVANIA

v.

DIGNO BURGOS Appellant

No. 2530 EDA 2017

Superior Court of Pennsylvania

March 21, 2019

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

Appeal from the PCRA Order July 21, 2017 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0004615-2013.

BEFORE: SHOGAN, J., MURRAY, J., and FORD ELLIOTT, P.J.E.

JUDGMENT ORDER

MURRAY, J.

Digno Burgos (Appellant) appeals from the order denying his first petition filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. Upon review, we vacate and remand for an evidentiary hearing.

On January 17, 2014, Appellant entered into a negotiated guilty plea to possession with intent to deliver (PWID), criminal conspiracy and persons not to possess firearms.^[1] The trial court imposed a mandatory minimum sentence of five to ten years' incarceration for PWID, and a consecutive term of three years' probation for the firearms offense. No further penalty was imposed for criminal conspiracy. Appellant did not file a direct appeal.

On July 1, 2014, Appellant filed the underlying PCRA petition, asserting that plea counsel was ineffective for failing to file a timely post-sentence motion or direct appeal challenging the imposition of a mandatory minimum sentence pursuant to Alleyne v. United States, 570 U.S. 99 (2013). Counsel was appointed, but was later removed by the PCRA court for failing to file "anything on behalf of the [Appellant]." Order, 11/3/16. In the meantime, on August 20, 2014, this Court issued its decision in Commonwealth v. Newman, 99 A.3d 86 (Pa. Super. 2014) (en banc), which found Pennsylvania's mandatory minimum statutes unconstitutional based on Alleyne. On April 1, 2016, Appellant filed an amended pro se PCRA petition challenging, inter alia, the legality of his sentence under Alleyne. On November 3, 2016, the PCRA court appointed Christopher Montoya (Counsel) to represent Appellant; Counsel subsequently filed a no-merit letter pursuant to Commonwealth v. Turner, 544 A.2d 927 (Pa 1988), and Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).^[2]

Based on Counsel's assessment, the PCRA court issued notice of intent to dismiss Appellant's petition pursuant to Rule 907 of the Pennsylvania Rules of Criminal Procedure. Appellant filed several objections to the court's notice, alleging that Counsel misconstrued...