J-S30007-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

WILLIAM LEE L. BAKER

                            Appellant                No. 1779 EDA 2015


                    Appeal from the PCRA Order June 5, 2015
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0011500-2009


BEFORE: GANTMAN, P.J., FORD ELLIOTT, P.J.E., and JENKINS, J.

MEMORANDUM BY GANTMAN, P.J.:                           FILED MAY 06, 2016

        Appellant, William Lee L. Baker, appeals from the order entered in the

Philadelphia County Court of Common Pleas, which denied his first petition

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

        This Court previously set forth the relevant facts of this case as

follows:

           On Wednesday, August 26, 2009, [thirteen]-year old
           [L.M.] was asleep inside her home in Philadelphia. [L.M.]
           was home alone, because her parents left for work before
           9:00 a.m. At approximately 10:50 a.m., [L.M.] awoke to
           someone knocking on the kitchen door.        [L.M.] went
           downstairs and peeked through a window for about two
           minutes. [L.M.] saw a man, later identified as Appellant,
           standing outside. [L.M.] recognized Appellant, because
           she previously had seen Appellant go into her next-door
____________________________________________


1
    42 Pa.C.S.A. §§ 9541-9546.
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        neighbor’s house. [L.M.] did not answer the door; instead,
        she went back to bed.

        [L.M.] then heard glass breaking. [L.M.] grabbed her cell
        phone and hid in one of her three bedroom closets. She
        could see through the slits in her closet door. About a
        minute after hearing the glass break, [L.M.] saw Appellant
        enter her bedroom, which was painted pink and filled with
        dolls. Appellant went through [L.M.’s] nightstand and
        dresser    drawers,    which    contained   clothing   and
        undergarments. Then, Appellant quickly looked in another
        closet before opening the closet where [L.M.] was hiding.

        Appellant is 6’1” and 250 pounds, stood approximately
        three inches from [L.M.], and demanded to know what she
        was doing inside the closet. [L.M.] responded, “This is my
        house.” Appellant ordered her to leave the closet, and
        [L.M.] complied because she was afraid Appellant would
        harm her. When [L.M.] attempted to walk past Appellant,
        Appellant tried to grab her cell phone. [L.M.] held onto the
        phone and managed to run out of the house. [L.M.] ran
        down the street until she reached an older man, who
        stayed with her until the police arrived.

Commonwealth v. Baker, No. 2112 EDA 2010, unpublished memorandum

at 1-2 (Pa.Super. filed July 21, 2011).        Later that evening, police

apprehended Appellant at the home of L.M.’s next-door neighbor.        L.M.

identified Appellant as the man who had entered her home that morning.

The Commonwealth subsequently charged Appellant with burglary, robbery,

and related offenses.

     On May 19, 2010, a jury convicted Appellant of first-degree burglary,

first-degree robbery, and third-degree robbery.       The court sentenced

Appellant on July 9, 2010, to an aggregate term of twenty (20) to forty (40)

years’ imprisonment. Appellant did not file any post-sentence motions. On


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July 21, 2011, this Court affirmed the judgment of sentence.2            See id.

Appellant did not pursue further direct review.

       On March 23, 2012, Appellant timely filed a pro se PCRA petition. The

court appointed counsel on March 5, 2013, who filed an amended PCRA

petition on October 15, 2013, claiming trial and appellate counsel were

ineffective for failing to challenge the discretionary aspects of sentencing in a

post-sentence motion and on direct appeal.3 On April 24, 2015, the PCRA

court issued notice of its intent to dismiss the petition without a hearing

pursuant to Pa.R.Crim.P. 907.           Appellant did not respond, and the court

denied PCRA relief on June 5, 2015. Appellant timely filed a notice of appeal

on June 16, 2015.        The court did not order, and Appellant did not file, a

concise statement of errors complained of on appeal per Pa.R.A.P. 1925(b).

       Appellant raises two issues for our review:

          DID THE [PCRA] COURT ERR IN NOT REINSTATING
          APPELLANT’S POST-SENTENCE RIGHTS FROM THE
          JUDGMENT   OF  SENTENCE    DUE   TO   INEFFECTIVE
          ASSISTANCE OF POST-SENTENCE DEFENSE COUNSEL
          BECAUSE THERE WAS A SUBSTANTIAL QUESTION AS TO
          THE REASONABLENESS OF THE SENTENCE IN THIS CASE
          AND DEFENSE COUNSEL FAILED TO RAISE THIS ISSUE IN
          POST-SENTENCE MOTIONS AND ON APPEAL?


____________________________________________


2
  On direct appeal, Appellant raised one issue challenging the sufficiency of
the evidence to sustain his conviction for first-degree robbery.
3
   Different attorneys from the Defender Association             of   Philadelphia
represented Appellant at trial and on direct appeal.



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         IS APPELLANT ENTITLED TO A NEW SENTENC[ING]
         HEARING BECAUSE THE SENTENCE IMPOSED OF 10 TO 20
         YEARS   ON   THE  BURGLARY    OFFENSE   WITH   A
         CONSECUTIVE SENTENCE ON [THE] THIRD DEGREE
         ROBBERY OFFENSE OF 3½ TO 7 YEARS’ IMPRISONMENT
         WAS ILLEGAL BECAUSE THEY MERGE FOR THE PURPOSES
         OF SENTENCING?

(Appellant’s Brief at 2).

      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

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

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

      In his first issue, Appellant argues the trial court imposed consecutive

sentences that exceeded the aggravated range of the sentencing guidelines.

Appellant asserts the court’s imposition of 20 to 40 years’ imprisonment was

unreasonable, where the victim suffered no bodily injury.            Appellant

contends the trial court lacked a factual basis to conclude Appellant had no


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rehabilitative potential.    Appellant maintains the trial court ignored the

protection of the public, the gravity of Appellant’s offenses in relation to their

impact on the victim and on the community, and Appellant’s rehabilitative

needs, when fashioning its sentence. Appellant claims the court also failed

to consider Appellant’s age (61 years old) or family history.           Appellant

submits the sentence imposed amounted to a virtual life sentence given

Appellant’s age. Appellant insists his was a substantial question concerning

the reasonableness of the sentence, trial and appellate counsel had no

rational basis for failing to challenge the discretionary aspects of sentencing

in a post-sentence motion and on direct appeal, and counsel’s failure to do

so deprived Appellant of the opportunity to secure a reduced sentence.

Appellant    concludes   trial   and   appellate   counsel   rendered   ineffective

assistance, and this Court must vacate the PCRA court’s decision and

remand for reinstatement of Appellant’s post-sentence motion and direct

appeal rights nunc pro tunc. We disagree.

      “[A]n accused who is deprived entirely of his right of direct appeal by

counsel’s failure to perfect an appeal is per se without the effective

assistance of counsel, and is entitled to reinstatement of his direct appellate

rights.”    Commonwealth v. Grosella, 902 A.2d 1290, 1293 (Pa.Super.

2006) (quoting Commonwealth v. Johnson, 889 A.2d 620, 622 (Pa.Super.

2005)).     Importantly, there are very few circumstances where counsel’s

conduct warrants a presumption of prejudice and the reinstatement of a


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petitioner’s direct appeal rights nunc pro tunc. Commonwealth v. Reed,

601 Pa. 257, 272, 971 A.2d 1216, 1225 (2009).           These circumstances

include: (1) where counsel failed to file a requested direct appeal; (2) where

counsel failed to file a concise statement of errors claimed of on appeal; or

(3) where counsel failed to file a requested petition for allowance of appeal.

Id. at 272-73, 971 A.2d at 1225. “In those extreme circumstances, where

counsel has effectively abandoned his…client and cannot possibly be acting

in the client’s best interests, our Supreme Court has held that the risk

should fall on counsel, and not the client.” Commonwealth v. West, 883

A.2d 654, 658 (Pa.Super. 2005).

      On the other hand, “the reinstatement of direct appeal rights is not the

proper remedy when appellate counsel perfected a direct appeal but simply

failed to raise certain claims.” Grosella, supra at 1293. Significantly:

         Where a petitioner was not entirely denied his right to a
         direct appeal and only some of the issues the petitioner
         wished to pursue were waived, the reinstatement of the
         petitioner’s direct appeal rights is not a proper remedy. In
         such circumstances, the [petitioner] must proceed under
         the auspices of the PCRA, and the PCRA court should apply
         the traditional three-prong test for determining whether
         appellate counsel was ineffective.

Id. at 1293-94 (emphasis in original) (internal citations and footnotes

omitted).   See also Commonwealth v. Reaves, 592 Pa. 134, 923 A.2d

1119 (2007) (holding counsel’s failure to preserve challenge to court’s

sentencing discretion by objecting at sentencing or filing post-sentence

motion did not entirely foreclose appellate review of defendant’s potential

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issues for direct appeal; rather, counsel’s inaction waived only those claims

subject to issue preservation requirements; appellate counsel perfected

direct appeal for defendant, and Superior Court addressed merits of one of

defendant’s claims but waived excessive sentence claim for failure to

preserve it at sentencing or in post-sentence motion; thus, counsel’s lapse

did not deprive defendant of his right to appellate review; at most, counsel

narrowed ambit of issues for direct appeal; consequently, defendant must

satisfy traditional three-prong ineffectiveness test).

      Under the traditional analysis, 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. “A reasonable

probability is a probability that is sufficient to undermine confidence in the

outcome of the proceeding.” Commonwealth v. Spotz, 624 Pa. 4, 34, 84

A.3d 294, 312 (2014) (quoting Commonwealth v. Ali, 608 Pa. 71, 86-87,


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10 A.3d 282, 291 (2010)). “The petitioner bears the burden of proving all

three    prongs   of   the   test.”   Turetsky,   supra   at   880   (quoting

Commonwealth v. Johnson, 868 A.2d 1278, 1281 (Pa.Super. 2005),

appeal denied, 583 Pa. 680, 877 A.2d 460 (2005)). “Where it is clear that a

petitioner has failed to meet any of the three, distinct prongs of the…test,

the claim may be disposed of on that basis alone, without a determination of

whether the other two prongs have been met.” Commonwealth v. Steele,

599 Pa. 341, 360, 961 A.2d 786, 797 (2008).

        Instantly, appellate counsel filed and perfected a direct appeal on

Appellant’s behalf, in which counsel challenged the sufficiency of the

evidence to sustain Appellant’s first-degree robbery conviction. This Court

addressed the sufficiency of the evidence issue on the merits and affirmed

the judgment of sentence on July 21, 2011. Thus, counsel’s failure to file

post-sentence motions did not completely foreclose appellate review but

simply “narrowed its ambit,” precluding Appellant from challenging on direct

appeal only the discretionary aspects of sentencing and weight of the

evidence, which are subject to issue preservation requirements.          See

Commonwealth v. Griffin, 65 A.3d 932 (Pa.Super. 2013), appeal denied,

621 Pa. 682, 76 A.3d 538 (2013) (explaining challenges to discretionary

aspects of sentencing and weight of evidence are waived if they are not

raised in post-sentence motion or by other appropriate manner before trial

court). See also Reaves, supra; Grosella, supra (distinguishing between


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cases where counsel’s failure extinguished defendant’s right to direct appeal

and cases where counsel might have waived or abandoned some but not all

issues on direct appeal). Given the pursuit and resolution of a direct appeal

in Appellant’s case, he would not be entitled to reinstatement of his post-

sentence motion and/or direct appeal rights nunc pro tunc in any event.

See id.

     The PCRA court properly considered Appellant’s ineffective assistance

of counsel claim by applying the traditional three-prong ineffectiveness test.

See Reaves, supra; Grosella, supra. The PCRA court reasoned:

          [T]here is no evidence that [Appellant] requested trial
          counsel to file a post-sentence motion, and it is well
          settled that counsel cannot be deemed ineffective for
          failing to do what he was not requested to do.
          Furthermore, [Appellant] has failed to plead or prove that
          a reasonable probability of relief existed but for the alleged
          omission of trial counsel. Indeed, [Appellant] was not
          prejudiced by trial counsel’s alleged omission because this
          court did not impose an excessive sentence.

          Consequently, because [Appellant] has not brought forth
          any evidence proving that he requested the filing of a
          post-sentence motion, or that there was [a] reasonable
          probability that relief would have been granted had such a
          motion been filed, trial counsel cannot be deemed
          ineffective.

                                   *    *    *

          In fashioning [Appellant’s] sentence, this court took into
          account the severity of the offenses he committed against
          the then thirteen year-old victim, as well as [Appellant’s]
          need for rehabilitation, society’s need for protection and
          the other requirements imposed by [the] legislature and
          our appellate courts. This court also noted that as an
          adult[, Appellant] had been arrested nineteen times,

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          convicted eleven times, and that he had been recently
          released from jail when he committed the charged
          offenses, knowing that a female child was home alone
          therein. In light of [Appellant’s] prior multiple convictions
          which span the course of his entire adult life[,] this court
          reasoned that there is no reason to believe that
          [Appellant] was or will ever be rehabilitated. This court
          then sentenced [Appellant] to a consecutive ten (10) to
          twenty (20) years of imprisonment on the first-degree
          robbery and first-degree burglary counts, for an aggregate
          twenty (20) to forty (40) years of state incarceration.

(PCRA Court Opinion, filed October 22, 2015, at 8-11) (internal citations,

quotation marks, and footnote omitted).            The record supports the court’s

analysis. See Ford, supra.

       Appellant did not plead in his pro se PCRA petition or in his amended

PCRA petition that he asked counsel to file post-sentence motions on his

behalf.4 See Reaves, supra at 153-54, 923 A.2d at 1131 (explaining that

for defendant to prevail on ineffectiveness claim, he would need to prove he

asked counsel to file post-sentence motion on his behalf, counsel refused his

request, counsel lacked rational basis for such refusal, and there is

reasonable probability that, but for counsel’s error, result of sentencing

proceeding would have been different).             See also Commonwealth v.

Velasquez, 563 A.2d 1273 (Pa.Super. 1989), appeal denied, 525 Pa. 663,

583 A.2d 793 (1990) (explaining counsel cannot be deemed ineffective for

____________________________________________


4
  Appellant also did not plead in his pro se PCRA petition or amended petition
that counsel was ineffective for failing to consult with Appellant about
whether he wanted to pursue a sentencing challenge.



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failing to do what he was not requested to do; to allege properly that

counsel was ineffective for failing to file motion to withdraw guilty plea,

appellant had to claim, at minimum, that he instructed counsel to file

motion). Consequently, Appellant’s claim that trial counsel was ineffective

for failing to file post-sentence motions lacks arguable merit. See Reaves,

supra; Velasquez, supra. Even if Appellant had asked trial counsel to file

post-sentence motions on his behalf, the PCRA court (which also sat as the

trial and sentencing court in this case) determined Appellant failed to

demonstrate prejudice.5 See Spotz, supra; Turetsky, supra. Therefore,

Appellant’s ineffectiveness claim merits no relief. See id.

       In his second issue, Appellant argues the court sentenced him to ten

to twenty years’ imprisonment for burglary and imposed a consecutive

sentence of three and one-half to seven years’ imprisonment for Appellant’s

third-degree robbery conviction. Appellant asserts that under the burglary

statute, a person may not be sentenced for burglary and for the offense

which he intended to commit after the unlawful entry, unless the additional

offense constitutes a felony of the first or second degree.            Appellant

concludes his sentence for third-degree robbery is illegal, and this Court
____________________________________________


5
  Appellant’s related claim that appellate counsel was ineffective for failing to
raise a challenge to the discretionary aspects of sentencing on direct appeal
is also unsuccessful because that claim would have been waived for failure to
preserve it at sentencing or in a post-sentence motion. See Griffin, supra.
Thus, appellate counsel had a rational basis for declining to pursue a claim
that would have resulted in waiver. See Turetsky, supra.



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must vacate and remand for resentencing. We disagree.

       The burglary statute in place at the time of Appellant’s convictions and

sentencing provided, in pertinent part:

           § 3502. Burglary

               (a) Offense defined.—A person is guilty of burglary
           if he enters a building or occupied structure, or separately
           secured or occupied portion thereof, with intent to commit
           a crime therein, unless the premises are at the time open
           to the public or the actor is licensed or privileged to enter.

                                       *         *        *

              (d) Multiple convictions.—A person may not be
           convicted both for burglary and for the offense which it
           was his intent to commit after the burglarious entry or for
           an attempt to commit that offense, unless the additional
           offense constitutes a felony of the first or second degree.

18 Pa.C.S.A. § 3502(a), (d) (effective July 1, 1991 to September 3, 2012).

“Subsection (d) is intended to eliminate the imposition of consecutive

sentences for burglary with intent to commit theft and for the actual theft.”

Id. at Official Comment.          Importantly, “[t]he ‘conviction’ referred to in

[Section] 3502(d) refers not to the verdict but to the judgment of sentence.

Thus, while a defendant may be charged with and adjudged guilty of both

burglary    and    theft,   he   may       not       be       sentenced   for   both   crimes.”6

____________________________________________


6
  The legislature amended the burglary statute on July 5, 2012 (effective
September 4, 2012), and on December 23, 2013 (effective February 21,
2014). Both amendments to the statute contained a similar subsection (d).
The amendments clarified the legislature’s intent (to eliminate consecutive
sentences for burglary and for the underlying theft) by changing the word
(Footnote Continued Next Page)


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Commonwealth v. Tessel, 500 A.2d 144, 151 (Pa.Super. 1985).

      Additionally, “where there is a discrepancy between the sentence as

written and orally pronounced, the written sentence generally controls.”

Commonwealth v. Willis, 68 A.3d 997, 1010 (Pa.Super. 2013).                   As a

general rule, “[o]ral statements made by the sentencing court, but not

incorporated into the written sentence signed by the court, are not part of

the judgment of sentence.”           Id.   “A sentence, as any other judgment, is

construed in its entirety according to the canons of construction and so as to

give effect to the intent of the sentencing court.”          Id. (internal citation

omitted). Notwithstanding that general rule, “a trial court has the inherent,

common-law authority to correct ‘clear clerical errors’ in its orders.”

Commonwealth v. Borrin, 12 A.3d 466, 471 (Pa.Super. 2011) (en banc),

aff’d, 622 Pa. 422, 80 A.3d 1219 (2013) (internal citations omitted).

          [F]or a trial court to exercise its inherent authority and
          enter an order correcting a defendant’s written sentence to
          conform with the terms of the sentencing hearing, the trial
          court’s intention to impose a certain sentence must be
          obvious on the face of the sentencing transcript. Stated
          differently, only when a trial court’s intentions are clearly
          and unambiguously declared during the sentencing hearing
          can there be a “clear clerical error” on the face of the
          record, and the sentencing order subject to later
          correction.

          If, on the other hand, a trial court’s stated intentions
                       _______________________
(Footnote Continued)

“convicted” to “sentenced.”    See 18 Pa.C.S.A. § 3502(d) (effective
September 4, 2012 to February 20, 2014); 18 Pa.C.S.A. § 3502(d) (effective
February 21, 2014 to present).



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         during the sentencing hearing are ambiguous, then the
         terms of the sentence in the sentencing order control, and
         the trial court cannot correct its perceived mistake. This is
         because the alleged error in the sentencing transcript is
         not a “clear clerical error,” but rather, is an ambiguity that
         must be resolved by reference to the written sentencing
         order.

Id. at 473 (internal citations omitted).

      Instantly, the jury convicted Appellant on May 19, 2010, of first-

degree burglary, first-degree robbery, and third-degree robbery. The court

sentenced Appellant on July 9, 2010. At sentencing, the court stated:

         THE COURT: … [Appellant], on CP-51-CR-0011500 year
         2009, on the charge of burglary, a felony of the first
         degree, the [c]ourt imposes a term of not less than 10,
         no[r] more than 20 years in a state correctional facility.

         On the charge of robbery, felony of the first degree, the
         [c]ourt imposes a consecutive term of 10 to 20 years in a
         state correctional facility.

         On the charge of robbery, felony of the third degree, if it
         does not merge for purposes of sentencing, the
         [c]ourt imposes a term of 3½ to 7 years and it is to run
         concurrent with the robbery, felony of the first degree and
         consecutive to the burglary, felony of the first degree.

(N.T. Sentencing, 7/9/10, at 10-11) (emphasis added).         Significantly, the

written sentencing order that followed the court’s oral remarks states, in

pertinent part:

                            SENTENCING ORDER

            AND NOW, this 9th day of July, 2010, [Appellant] having
         been convicted in this above-captioned case is hereby
         sentenced by this [c]ourt as follows:

         Count    1—18    [Pa.C.S.A.]      §   3701(a)(1)(ii)—Robbery—

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          Threat Immed Ser Injury—(F1)

          To be confined for a Period of 10 to 20 years at Graterford.

                                       *       *    *

          Count 2—18 [Pa.C.S.A.] § 3502(a)—Burglary—(F1)

          To be confined for a Period of 10 to 20 years at Graterford.

                                       *       *    *

(Sentencing Order, 7/9/10, at 1). The written sentencing order makes no

mention of any sentence for Appellant’s third-degree robbery conviction. In

this situation, the written sentencing order controls.7            See Willis, supra.

The    court’s   on-the-record      remarks        did   not   evidence   a   clear   and

unambiguous intention to impose a separate sentence for Appellant’s third-

degree robbery conviction.          See Borrin, supra.          Rather, the court was

careful to state it would impose a separate sentence for that crime only if

the sentences did not merge. (See N.T. Sentencing at 10-11.) The written
____________________________________________


7
  The record suggests the court imposed mandatory minimum sentences for
Appellant’s burglary and first-degree robbery convictions pursuant to 42
Pa.C.S.A. § 9714(a)(1) (providing for mandatory minimum 10-year sentence
for defendant convicted of crime of violence, if at time of commission of
current offense, defendant had previously been convicted of crime of
violence). To the extent that our United States Supreme Court’s decision in
Alleyne v. United States, ___ U.S. ___, 133 S.Ct. 2151, 186 L.Ed.2d 314
(2013) might apply to petitioners seeking relief in timely filed PCRA
petitions, Alleyne is inapplicable here as Alleyne does not affect mandatory
minimum sentences based on a prior conviction. See id. at ___ n.1, 133
S.Ct. at 2160 n.1, 186 L.Ed.2d at ___ n.1. See also Commonwealth v.
Miller, 102 A.3d 988 (Pa.Super. 2014) (explaining even if appellant’s PCRA
petition was timely, Alleyne would provide no relief where increase in
appellant’s minimum sentence was based on prior conviction).



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sentencing order confirms the court’s intention to impose sentences for

Appellant’s burglary and first-degree robbery convictions only, consistent

with Section 3502(d). (See Sentencing Order at 1.) See also 18 Pa.C.S.A.

§ 3502(d).    To the extent the court’s oral remarks at sentencing were

ambiguous, the written sentencing order still controls. See Borrin, supra.

Thus, the record belies Appellant’s claim that the court imposed an illegal

sentence for his third-degree robbery conviction. Accordingly, we affirm.

     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/6/2016




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