J-S60020-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    DAVID J. BROOKS                            :
                                               :
                       Appellant               :   No. 951 MDA 2018

                   Appeal from the PCRA Order May 25, 2018
      In the Court of Common Pleas of Dauphin County Criminal Division at
                        No(s): CP-22-CR-0003977-2014


BEFORE: SHOGAN, J., NICHOLS, J., and STRASSBURGER, J.*

MEMORANDUM BY NICHOLS, J.:                          FILED NOVEMBER 14, 2018

        Appellant David J. Brooks appeals pro se from the order dismissing his

first petition filed under the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§

9541-9546. Appellant argues that his sentence as a third-strike offender is

illegal, and that both appellate and PCRA counsel were ineffective for failing

to pursue that issue on appeal. We affirm.

        On January 13, 2016, a jury found Appellant guilty of rape, corruption

of minors, and unlawful contact with a minor.1 On March 22, 2016, the trial

court sentenced Appellant to life imprisonment for rape, a consecutive term

of twenty-five to fifty years’ imprisonment for corruption of minors, and a

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* Retired Senior Judge assigned to the Superior Court.

1   18 Pa.C.S. §§ 3121(a)(1), 6301(a)(1)(ii), and 6318(a)(1), respectively.
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concurrent term of imprisonment of ten to twenty years for unlawful contact.2

Appellant timely appealed to this Court, and we affirmed his judgment of

sentence on April 10, 2017.3 See Commonwealth v. Brooks, 972 MDA 2016

(Pa. Super. filed Apr. 10, 2017) (unpublished mem.).

        Appellant filed a timely first pro se PCRA petition on November 3, 2017.

The court appointed counsel, who filed a petition to withdraw and a

Turner/Finley4 no-merit letter on May 3, 2018. On May 8, 2018, the PCRA

court issued a notice of intent to dismiss Appellant’s petition without a hearing

under Pa.R.Crim.P. 907, and granted PCRA counsel’s petition to withdraw.

Appellant filed a Rule 907 response on May 22, 2018, raising a claim based

on PCRA counsel’s ineffectiveness. See Appellant’s 907 Resp., 5/22/18.

        The PCRA court dismissed Appellant’s PCRA petition on May 25, 2018.

Appellant’s timely notice of appeal was docketed on June 12, 2018. The PCRA

court issued an order to file a Pa.R.A.P. 1925(b) statement on June 25, 2018.

Appellant’s statement was docketed on July 9, 2018. On July 17, 2018, the

PCRA court issued a statement in lieu of a memorandum opinion, and

incorporated its May 25, 2018 order, which incorporated its May 8, 2018 order.


____________________________________________


2 At trial, Appellant waived his right to counsel, and, after an on-the-record
colloquy, he represented himself with the assistance of stand-by counsel. See
N.T., 1/12/16, at 4-19.

3   Counsel was appointed to represent Appellant on direct appeal.

4Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth v.
Finley, 550 A.2d 213 (Pa. Super. 1988).

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      Appellant raises three issues on appeal, which we have reordered as

follows:

      1. Whether [the] sentencing court committed an error of law in
         finding that the conviction of a 2001 unarmed robbery [was]
         substantially similar to subsection 3701(A)(1)(i)(ii) and (iii)
         Pennsylvania’s robbery statute thereby making the sentence
         issued under 42 [Pa.]C.S.A. [§] 9714 illegal.

      2. Whether PCRA counsel failed to carefully review the elements
         of this 2001 unarmed robbery offense in terms of classification
         of conduct [proscribed, s]atisfying [Section] 3701 (A)(i)(ii)(iii)
         and (vi)(v)(vi).

      3. Whether sentencing appellant to life in prison without parole
         was an illegal sentence and/or violated his fifth, six and
         fourteenth amendment rights under the United States
         [C]onstitution and article 1 section six and nine of the
         Pennsylvania [C]onstitution because the decision was based
         upon a factual determination made by the trial court instead of
         a jury.

Appellant’s Brief at 3.

      Our standard of review is well-settled:

      We review an order dismissing a petition under the PCRA in the
      light most favorable to the prevailing party at the PCRA level. This
      review is limited to the findings of the PCRA court and the evidence
      of record. We will not disturb a PCRA court’s ruling if it is supported
      by evidence of record and is free of legal error. This Court may
      affirm a PCRA court’s decision on any grounds if the record
      supports it. Further, we grant great deference to the factual
      findings of the PCRA court and will not disturb those findings
      unless they have no support in the record. However, we afford no
      such deference to its legal conclusions. Where the petitioner raises
      questions of law, our standard of review is de novo and our scope
      of review plenary.

Commonwealth v. Ford, 44 A.3d 1190, 1194 (Pa. Super. 2012) (citations

omitted).


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      In his first issue, Appellant argues that his 2001 conviction for “unarmed

robbery” is not an enumerated crime of violence under Section 9714(g), and,

therefore, it was improperly counted as a second strike at sentencing.

Appellant’s Brief at 8. Appellant concludes that based on this error, he was

incorrectly sentenced as a third-strike offender under 42 Pa.C.S. § 9714(a)(2).

Id.

      Initially, we note that a challenge to the applicability of a mandatory

sentencing statute such as Section 9714 is a challenge to the legality of the

sentence.    See Commonwealth v. Shiffler, 879 A.2d 185, 188-89 (Pa.

2005) (explaining that a challenge to the applicability of Section 9714 raises

a question of statutory construction, which is a pure question of law

implicating the legality of the sentence). Accordingly, this claim cannot be

waived.     See Commonwealth v. Rivera, 154 A.3d 370, 379 (Pa. Super.

2017) (en banc) (stating that a claim that implicates the legality of a sentence

cannot be waived on appeal), appeal denied, 169 A.3d 1072 (Pa. 2017).

      Pursuant to Section 9714(a)(2),

      [w]here the person had at the time of the commission of the
      current offense previously been convicted of two or more such
      crimes of violence arising from separate criminal transactions, the
      person shall be sentenced to a minimum sentence of at least 25
      years of total confinement, notwithstanding any other provision of
      this title or other statute to the contrary. . . .

42 Pa.C.S. § 9714(a)(2).     Section 9714(g) contains several offenses that

qualify as “crimes of violence,” including robbery, as defined in 18 Pa.C.S. §




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3701(a)(1)(i), (ii) or (iii), rape, and aggravated indecent assault.5 See 42

Pa.C.S. § 9714(g).

        Here, at sentencing, the Commonwealth explained to the court:

           By further background, we would note that by
           correspondence of February 5th of 2016, although we had
           previously indicated so on the record, we did file our formal
           notification to [Appellant] that we would be seeking
           mandatories in this case, specifically for a second crime of
           sexual violence under Title 42 Section 9718.1, and also for
           a third crime of violence under Title 42 Section 9714.
           We did enclose the certified records[6] as well as
           required by the statute in reference to this matter.
           And I did want to make sure, we also provided that as part
           of the pre-sentence report as well.

N.T. Sentencing Hr’g, 3/22/16, at 6-7 (emphasis added).

        Our review of the record confirms that Appellant was properly sentenced

as a third-strike offender.       First, he was convicted of aggravated indecent

assault in 1990. See Docket No. CP-22-CR-2538-1990. Aggravated indecent

assault is an enumerated crime of violence under Section 9714(g), and,

therefore, constitutes Appellant’s first strike. See 42 Pa.C.S. § 9714(g).

        In 2001, Appellant pled guilty to robbery, which is also an enumerated

offense under Section 9714(g). See Docket No. CP-22-CR-1345-2001. This
____________________________________________


5   18 Pa.C.S. § 3125.

6 Although it appears that the trial court had Appellant’s criminal background
at sentencing, the details of Appellant’s 2001 robbery conviction were not
included in the certified record. However, upon informal inquiry, the trial court
advised us that Appellant’s 2001 guilty plea was for robbery under 18 Pa.C.S.
§ 3701(a)(1)(ii) (robbery with threat of serious bodily injury), which is an
enumerated offense in Section 9714(g).


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conviction counted as Appellant’s second strike under Section 9714. See 42

Pa.C.S. § 9714(g). Although Appellant does not dispute the fact that he was

convicted under 3701(a)(1)(ii) for threatening serious bodily injury, he

suggests that because it was an “unarmed robbery,” it cannot be considered

a crime of violence. Appellant’s Brief at 4. However, given the fact that he

pled to an offense specifically enumerated in Section 9714(g), Appellant’s

argument is without merit.

       In the instant case, Appellant was convicted of rape, also an enumerated

offense under Section 9714(g). See 42 Pa.C.S. § 9714(g). Accordingly, this

resulted in Appellant’s third strike and the imposition of the mandatory

sentence at issue. See Pa.C.S. § 9714(a)(2). Therefore, we agree with the

PCRA court that Appellant was properly sentenced as a third-strike offender,

as he had two prior convictions for violent crimes at the time he was convicted

for a third enumerated crime in Section 9714(g).

       In his second issue, Appellant claims that both trial counsel and PCRA

counsel were ineffective for failing to challenge the trial court’s conclusion that

Appellant’s 2001 robbery conviction was his second strike. Appellant’s Brief

at 24-25. He further argues that PCRA counsel was ineffective for mentioning

Appellant’s previous burglary conviction7 in his Turner/Finley letter and for

failing to obtain records from the clerk of courts to ascertain whether the

____________________________________________


7In an unrelated matter, at Docket No. CP-22-CR-1580-1995, Appellant was
convicted of burglary. This conviction, however, was not the basis of his
underlying third-strike offender sentence. See PCRA Ct. Order, 5/8/18, at 3.

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burglary conviction constituted another crime of violence. Id. He asserts that

“such evidence would have been beneficial to [Appellant’s] appeal and lack

thereof was prejudicial.” Id. at 26.

      To establish a claim of ineffective assistance of counsel, a petitioner

“must show, by a preponderance of the evidence, ineffectiveness 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, 880 (Pa. Super. 2007)

(citation omitted). It is presumed that the petitioner’s counsel was effective,

unless the petitioner proves otherwise. Commonwealth v. Williams, 732

A.2d 1167, 1177 (Pa. 1999). Therefore, a petitioner must prove (1) that the

underlying claim is of arguable merit; (2) that counsel’s performance lacked

a reasonable basis; and (3) that the ineffectiveness of counsel caused the

appellant prejudice. Commonwealth v. Washington, 927 A.2d 586, 594

(Pa. 2007).   A claim of ineffectiveness will be denied if the petitioner’s

evidence fails to satisfy any one of these prongs. Id.

      Here, as discussed above, Appellant’s sentence was properly based on

three convictions for crimes of violence under Section 9714 (robbery under 18

Pa.C.S. § 3701(a)(1)(ii), rape, and aggravated indecent assault).      See 42

Pa.C.S. § 9714(g).   Therefore, neither appellate counsel nor PCRA counsel

was ineffective for failing to challenge the trial court’s conclusion that the

robbery was Appellant’s second strike. See Commonwealth v. Travaglia,




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661 A.2d 352, 357 (Pa. 1995) (“[C]ounsel cannot be deemed ineffective for

failing to pursue a meritless claim[.]” (citation omitted)).

       Regarding Appellant’s claim of PCRA counsel’s ineffectiveness, we note

that Appellant’s burglary conviction was not part of the conviction for which

he received a sentence as a third-strike offender.8              See PCRA Ct. Order,

5/8/18, at 3. Therefore, Appellant has failed to establish that he has been

prejudiced. Accordingly, no relief is due. See Washington, 927 A.2d at 594.

       In his final issue, Appellant claims that his constitutional rights were

violated because defendants are “entitled to a jury determination on any fact

on   which    the    legislature   conditions    an   increase    in   their   maximum

punishment.”        Appellant’s Brief at 19.      Appellant engages in a lengthy

discussion of relevant case law. Id.

       In Apprendi v. New Jersey, 530 U.S. 466 (2000), the United States

Supreme Court concluded:

       Other than the fact of a prior conviction, any fact that
       increases the penalty for a crime beyond the prescribed statutory
       maximum must be submitted to a jury, and proved beyond a
       reasonable doubt.... “[I]t is unconstitutional for a legislature to
       remove from the jury the assessment of facts that increase the
       prescribed range of penalties to which a criminal defendant is
       exposed. It is equally clear that such facts must be established
       beyond a reasonable doubt.”

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8 Although the PCRA court mentioned Appellant’s burglary conviction in its
opinion, it noted that the mandatory sentence was based on Appellant’s
convictions for robbery, indecent assault, and rape. See PCRA Ct. Order,
5/8/18, at 3-4.



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Apprendi, 530 U.S. at 490 (citation omitted and emphasis added).

       In United States v. Alleyne, 570 U.S. 99 (2013), the United States

Supreme Court extended Apprendi principles to mandatory minimum

statutes.9 Alleyne, 570 U.S. at 111-13. However, the Alleyne Court did not

disturb the view that a prior conviction need not be found by a jury beyond a

reasonable doubt. See id. at 111 n.1 (discussing Almendarez–Torres v.

United States, 523 U.S. 224 (1998)).

       In Commonwealth v. Lane, 941 A.2d 34, 37 (Pa. Super. 2008) (en

banc), this Court considered a challenge to Section 9714(a)(2) based on

Apprendi. We explained that:

       By its terms, the statute requires a mandatory minimum sentence
       of at least 25 years of total confinement upon a conviction of a
       third crime of violence. The statute affords the court discretion to
       impose a life sentence without parole if the court determines that
       25 years of total confinement would be insufficient to protect the
       public safety.

       The range of permissible sentences is expanded only by a showing
       that the defendant has committed two previous crimes of violence.
       After such a showing, it is then within the discretion of the court
       to impose a sentence of life imprisonment without parole. As such,
       the court is free to take account of factual matters not determined
       by a jury and to increase the sentence.

                                          ***

       Section 9714(a)(2) does not require a jury determination as to
       the protection of public safety. This section only requires the
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9 We note that the Pennsylvania Supreme Court has held that Alleyne does
not apply retroactively in a PCRA proceeding. See Commonwealth v.
Washington, 142 A.3d 910, 820 (Pa. 2016). However, because Alleyne was
decided before Appellant’s sentencing, and Appellant’s PCRA petition was
timely filed, Alleyne is applicable to this case.

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      showing of two prior convictions for crimes of violence before it
      affords the trial court discretion to impose a life sentence.
      Because the trial court had the statutory discretion, but was not
      mandated to impose a life sentence, we hold that the trial court
      did not err in its imposition of sentence [of life without the
      possibility of parole]. We determine that the court did not violate
      [the a]ppellant’s constitutional rights by considering facts that
      were not determined by the jury, but properly exercised its
      discretion to consider the protection of public safety in reaching
      its sentencing decision[.]

Lane, 941 A.2d at 37 (citations and footnote omitted).

      The Lane Court’s analysis applies here.        Appellant had two prior

convictions for crimes of violence under Section 9714 at the time the trial

court imposed its sentence in the instant matter.         As noted in Lane,

Appellant’s prior convictions increased the range of penalties for the instant

rape conviction to a minimum of twenty-five years’ imprisonment to a

maximum of life without parole. See 42 Pa.C.S. § 9714(a)(2), (e). However,

because Appellant’s prior convictions increased the permissible minimum and

maximum sentences, jury findings were not required, and that trial court

retained the discretion to impose a sentence of life imprisonment without

parole. See Lane, 941 A.2d at 37. Thus, Appellant’s claim fails.

      Accordingly, we agree with the PCRA court that Appellant has failed to

raise any meritorious claims for PCRA relief, and conclude that the PCRA

court’s findings are supported by the record. See Ford, 44 A.3d at 1194.

      Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/14/2018




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