J-S63023-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

GREGORY DOWNIE,

                            Appellant                 No. 1659 EDA 2015


                   Appeal from the PCRA Order May 29, 2015
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0802351-2003


BEFORE: FORD ELLIOTT, P.J.E, SHOGAN and FITZGERALD,* JJ.

MEMORANDUM BY SHOGAN, J.:                         FILED OCTOBER 07, 2016

       Gregory Downie (“Appellant”) appeals from the order denying his

petition for relief filed pursuant to the Post Conviction Relief Act (“PCRA”),

42 Pa.C.S. §§ 9541–9546. We affirm.

       The instant case began at 10:15 p.m. on July 21, 2003, when

Appellant and a co-conspirator robbed Robert Mendez and his girlfriend at

gunpoint on Aramingo Avenue in Philadelphia. Following a jury trial presided

over by the late Honorable John J. Chiovero, the jury convicted Appellant of

robbery and carrying a firearm without a license. Judge Chiovero sentenced

Appellant on February 27, 2004, to incarceration for a mandatory term of


____________________________________________


*
    Former Justice specially assigned to the Superior Court.
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ten to twenty years as a “second strike” offender under 42 Pa.C.S. § 9714.1

For sentencing purposes, Appellant’s first strike occurred on July 10, 2000,

when Appellant pled guilty before the late Honorable Anthony J. DeFino to

charges of robbery and possessing instruments of crime.          Judge DeFino

sentenced Appellant to incarceration for eleven and one-half to twenty-three

months, followed by three years of reporting probation.

       Sitting as the PCRA court, the Honorable Denis P. Cohen summarized

the remaining procedural history as follows:

              On July 21, 2004, [Appellant] filed a timely pro se [PCRA]
       petition. On March 31, 2006, Judge Chiovero dismissed the
       petition. [Appellant] appealed the denial of PCRA relief. On
       June 11, 2008, the Superior Court found that PCRA counsel had
       failed to address any of [Appellant’s] issues on the merits. The
       Court reinstated [Appellant’s] PCRA petition and remanded for
       an evidentiary hearing on the ineffectiveness claim raised in the
       petition. On December 22, 2009, May 21, 2010, and July 2,
       2010, this [c]ourt held evidentiary hearings on those claims. On
       August 19, 2010, this [c]ourt reinstated [Appellant’s] right to
       direct appeal nunc pro tunc. Judgment of sentence was affirmed
       by the Pennsylvania Superior Court on September 21, 2011.
____________________________________________


1
    Section 9714 reads, in relevant part, as follows:

       (1)    Any person who is convicted in any court of this
              Commonwealth of a crime of violence shall, if at the time
              of the commission of the current offense the person had
              previously been convicted of a crime of violence, be
              sentenced to a minimum sentence of at least ten years of
              total confinement, notwithstanding any other provision of
              this title or other statute to the contrary.

42 Pa.C.S. § 9714(a)(1). The statute defines “crime of violence” as, inter
alia, “robbery as defined in 18 Pa.C.S. § 3701(a)(1)(i), (ii), or (iii).” Id. at
(g).



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      The Pennsylvania Supreme Court denied allocator [sic] on March
      14, 2012. On March 28, 2012, [Appellant] filed a second pro se
      PCRA petition. On January 21, 2014, [Appellant’s] counsel filed
      an amended PCRA petition. On May 29, 2015, this [c]ourt
      denied the petition. That same day, [Appellant] filed a Notice of
      Appeal. On June 9, 2015 this [c]ourt issued a [Pa.R.A.P.]
      1925(b) order. On June 30, 2015, [Appellant] responded with a
      Statement of Matters Complained [of] on Appeal. . . .

PCRA Court Opinion, 12/21/15, at 2.

      On appeal, Appellant presents the          following questions for our

consideration:

      I.    Whether the court erred in not granting relief on the PCRA
            petition alleging counsel was ineffective.

      II.   Whether the court erred in denying the Appellant’s PCRA
            petition without an evidentiary hearing on the issues raised
            in the amended PCRA petition regarding trial counsel’s
            ineffectiveness.

Appellant’s Brief at 8 (reordered for ease of disposition).

            Our review of a PCRA court’s decision is limited to
      examining whether the PCRA court’s findings of fact are
      supported by the record, and whether its conclusions of law are
      free from legal error. We view the findings of the PCRA court
      and the evidence of record in a light most favorable to the
      prevailing party. With respect to the PCRA court’s decision to
      deny a request for an evidentiary hearing, or to hold a limited
      evidentiary hearing, such a decision is within the discretion of
      the PCRA court and will not be overturned absent an abuse of
      discretion. The PCRA court’s credibility determinations, when
      supported by the record, are binding on this Court; however, we
      apply a de novo standard of review to the PCRA court’s legal
      conclusions.

Commonwealth v. Mason, 130 A.3d 601, 617 (Pa. 2015) (internal

citations and quotation marks omitted).




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       In the first issue, Appellant argues that trial counsel provided

ineffective assistance.2 In resolving questions of counsel’s effectiveness, we

begin with the presumption that counsel rendered effective assistance.

Commonwealth v. Bomar, 104 A.3d 1179, 1188 (Pa. 2014). To overcome

that presumption, the petitioner must establish: “(1) the underlying claim

has arguable merit; (2) no reasonable basis existed for counsel’s action or

failure to act; and (3) the petitioner suffered prejudice as a result of

counsel’s error, with prejudice measured by whether there is a reasonable

probability that the result of the proceeding would have been different.” Id.

(citation omitted). If the petitioner fails to prove any of these prongs, the

claim is subject to dismissal. Id.

       Appellant claims that trial counsel was ineffective by failing to file a

motion for reconsideration of sentence. Appellant’s Brief at 15. Appellant

asserts:

       There was no evidence presented by the Commonwealth as [to]
       any of the facts of the previous plea before Judge DeFino.

                                          * * *

____________________________________________


2
   We note with disapproval the minimal analysis of the three prongs of an
ineffective-assistance claim set forth in Appellant’s brief. Appellant’s Brief at
17. However, because this deficiency does not impede our review, we
decline to find waiver. But see Commonwealth v. Johnson, 985 A.2d
915, 924 (Pa. 2009) (“[W]here an appellate brief fails to provide any
discussion of a claim with citation to relevant authority or fails to develop the
issue in any other meaningful fashion capable of review, that claim is
waived[.]”).



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      [At sentencing t]he Appellant’s record before Judge Chiovero did
      not adequately establish by a preponderance of the evidence
      that Appellant had pled guilty to a robbery pursuant to
      §9714(a)(1) or (2) without the court having the benefit of the
      complete written record.

Id. at 16–17. In response, the Commonwealth argues:

      [Appellant] bore the burden to make a factual proffer to support
      this claim, and he failed to do so below. His claim failed for this
      reason alone.

            Moreover,     the   record    clearly   and    unequivocally
      documented that [Appellant’s] prior conviction was for the crime
      of robbery as a felony of the first degree[.] ... Judge Chiovero
      correctly applied the relevant “second strike” statute in imposing
      a mandatory ten-year-minimum sentence, and therefore
      sentencing counsel was not ineffective for not raising a futile
      challenge to the sentence.

Commonwealth’s     Brief   at   6–7   (citing   Pennsylvania   Commission   on

Sentencing pre-sentence report and the First Judicial District of Pennsylvania

Secure Court Summary) (footnotes omitted).

      The PCRA court concluded that Appellant failed to demonstrate

prejudice:

      [Appellant] fails to present any prejudice resulting from the
      failure to file a Motion for Reconsideration of Sentence.
      [Appellant] must demonstrate that there was a reasonable
      probability that, but for counsel’s ineffectiveness, the outcome of
      the proceedings would have been different. The Superior Court
      has concluded that a defendant’s failure to file a post-sentence
      motion “is not fatal to the defendant’s challenge to the
      mandatory minimum sentence, or any legality of sentencing
      claim for that matter, because the fundamental issue raised
      concerns the sentencing court’s constitutional or statutory
      authority to act as it did.” Commonwealth v. Foster, 17 A.3d
      332, 343–[3]44 (Pa. 2011).




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           In the instant case, the sentencing court was still within its
     statutory and constitutional authority to act as it did. At the
     time the crime was committed, a first degree felony Robbery
     could only fall under § 3701 (a)(1)(i), (ii), or (iii). The relevant
     portions of the statute reads [sic]:

           A person is guilty of robbery if, in the course of
           committing a theft, he: (i) inflicts serious bodily
           injury upon another; (ii) threatens another with or
           intentionally puts him in fear of immediate serious
           bodily injury; (iii) commits or threatens immediately
           to commit any felony of the first or second degree;
           (iv) inflicts bodily injury upon another or threatens
           another with or intentionally puts him in fear of
           immediate bodily injury; (v) physically takes or
           removes property from the person of another by
           force however slight . . . Robbery under subsection
           (a)(1)(iv) is a felony of the second degree; robbery
           under subsection (a)(1)(v) is a felony of the third
           degree; otherwise, it is a felony of the first degree.

     § 3701(a), (b). As the statute notes, the only provisions related
     to a first degree felony are §3701(a)(1)([i]), (ii), and (iii). All
     first degree felony robbery convictions fell within the provisions
     specified in § 9714. Thus, the 2000 Robbery conviction fell
     within the purview of § 9714 and necessarily constituted a “first
     strike.”... [A] Motion for Reconsideration would ultimately have
     been fruitless since § 9714 did, in fact, apply. Thus, [Appellant]
     suffered no prejudice from his counsel’s alleged failure to file a
     Motion for Reconsideration.

PCRA Court Opinion, 12/21/15, at 6–7 (an internal citation omitted).

     Upon review, we conclude that the record supports the PCRA court’s

factual findings and that its legal conclusion is without error.     The pre-

sentence report indicates that Appellant pled guilty on July 10, 2000, to

felony-one (“F1”) robbery. Commonwealth’s Motion to Dismiss, 2/13/15, at

Exhibit A. Similarly, the Secure Court Summary indicates that, on July 10,

2000, Appellant was sentenced on the 2000 F1 robbery conviction.        Id. at

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Exhibit B. Even without knowing the factual basis for Appellant’s plea to F1

robbery in 2000, Judge Chiovero legally sentenced Appellant in 2004 as a

“second strike” offender based on the documentation of record.          Thus,

Appellant failed to demonstrate how he was prejudiced by counsel’s failure

to file a post-sentence motion. Appellant is not entitled to relief.

      In the second issue, Appellant argues that the PCRA court erred in

denying him an evidentiary hearing on his ineffective assistance claim.

“There is no absolute right to an evidentiary hearing on a PCRA petition, and

if the PCRA court can determine from the record that no genuine issues of

material fact exist, then a hearing is not necessary.”     Commonwealth v.

Jones, 942 A.2d 903, 906 (Pa. Super. 2008) (quoting Commonwealth v.

Barbosa, 819 A.2d 81 (Pa. Super. 2003)). “[S]uch a decision is within the

discretion of the PCRA court and will not be overturned absent an abuse of

discretion.” Mason, 130 A.3d at 617.

      Here, as discussed above, the PCRA court correctly determined from

the record that Appellant was properly sentenced as a “second strike”

offender under section 9714; therefore, counsel was not ineffective in failing

to file a motion for reconsideration of sentence.      Because there were no

genuine issues of material fact regarding counsel’s effectiveness, we discern

no abuse of the PCRA court’s discretion in denying Appellant an evidentiary

hearing. Mason, 130 A.3d at 617.

      Order affirmed.


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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/7/2016




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