J-S29037-20




NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA          :   IN THE SUPERIOR COURT OF
                                       :        PENNSYLVANIA
                                       :
              v.                       :
                                       :
                                       :
 JOSE LABOY                            :
                                       :
                   Appellant           :   No. 1056 EDA 2019

           Appeal from the PCRA Order Entered March 28, 2019
 In the Court of Common Pleas of Philadelphia County Criminal Division at
                     No(s): CP-51-CR-0000407-2015

 COMMONWEALTH OF PENNSYLVANIA          :   IN THE SUPERIOR COURT OF
                                       :        PENNSYLVANIA
                                       :
              v.                       :
                                       :
                                       :
 JOSE LABOY                            :
                                       :
                   Appellant           :   No. 1057 EDA 2019

           Appeal from the PCRA Order Entered March 28, 2019
 In the Court of Common Pleas of Philadelphia County Criminal Division at
                     No(s): CP-51-CR-0000410-2015

 COMMONWEALTH OF PENNSYLVANIA          :   IN THE SUPERIOR COURT OF
                                       :        PENNSYLVANIA
                                       :
              v.                       :
                                       :
                                       :
 JOSE LABOY                            :
                                       :
                   Appellant           :   No. 1058 EDA 2019

           Appeal from the PCRA Order Entered March 28, 2019
 In the Court of Common Pleas of Philadelphia County Criminal Division at
                     No(s): CP-51-CR-0000411-2015
J-S29037-20


    COMMONWEALTH OF PENNSYLVANIA                    :   IN THE SUPERIOR COURT OF
                                                    :        PENNSYLVANIA
                                                    :
                v.                                  :
                                                    :
                                                    :
    JOSE LABOY                                      :
                                                    :
                       Appellant                    :   No. 1059 EDA 2019

              Appeal from the PCRA Order Entered March 28, 2019
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                        No(s): CP-51-CR-0000412-2015


BEFORE: PANELLA, P.J., NICHOLS, J., and PELLEGRINI, J.*

MEMORANDUM BY PELLEGRINI, J.:                                  FILED JULY 29, 2020

        Jose Laboy (Laboy) appeals from the order entered in the Court of

Common Pleas of Philadelphia County (PCRA court) dismissing his timely first

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

9541-9546. We affirm.

                                               I.

        This case arises from Laboy’s conviction at the above-listed docket

numbers of two counts of robbery, three counts of burglary, one count of

aggravated assault, two counts of unlawful restraint, one count of firearms

not to be carried without a license, one count of carrying firearms in public,

three counts of criminal conspiracy, one count of possession of an instrument


____________________________________________


*   Retired Senior Judge assigned to the Superior Court.




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of a crime and one count of resisting arrest1 stemming from his burglary of

multiple residences and the gunpoint robbery of an elderly couple on the night

of November 22, 2014.          At about 10:00 p.m., the first complainant, Joan

Paslowski (Paslowski), heard a knock at her front door and observed Laboy,

along with another man who was never identified, peer into her mail slot. The

two men attempted to open her front door and remove her window screen.

Paslowski called 911 to report the break in. While waiting for police to arrive,

she observed Laboy and his co-conspirator leave her property and walk next

door to the home of Marie Regis (Regis) and her husband Antoine Linder

(Linder).

       Eighty-five year old Regis and ninety-two year old Linder heard a knock

on their front door and Regis opened it, expecting to see their grandson.

Laboy, armed with a hammer along with his accomplice, brandishing a

firearm, forced their way into the home. The men restrained both victims at

gunpoint by sitting them in chairs and tying them up with bedsheets, wrapping

the sheets around their heads to gag and blindfold them. Laboy ripped the

telephone from the wall and ransacked the residence, taking jewelry, a

television, $225.00 in cash and several bottles of prescription medication. The

men fled the property and broke into the back door of a third neighboring



____________________________________________


118 Pa.C.S. §§ 3701(a), 3502(a)(1), 2702(a), 2902, 6106, 6108, 903, 907
and 5104, respectively.


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residence but did not take anything because the items inside were primarily

heavy power tools.

       Philadelphia Police Officers Patrick Biles and David Mockus arrived at

Paslowski’s home to investigate the burglaries and Laboy and his accomplice

fled to a nearby wooded area. The officers spotted the men hiding in the tall

grass and moved to arrest them. As Officer Biles approached, Laboy lunged

at the officer, striking him headfirst in the knees and causing him to fall down

a steep hill. Officer Biles held onto Laboy, who fell down the hill with him and

attempted to flee upon regaining his footing. Officer Biles punched Laboy to

subdue and arrest him. Laboy provided a written confession to police while in

custody.

       On June 17, 2015, Laboy entered an open guilty plea to the above-

stated charges. The trial court deferred sentencing for preparation of mental

health and pre-sentence investigation (PSI) reports.       The court sentenced

Laboy on January 27, 2016, to an aggregate term of not less than eleven nor

more than twenty-two years’ incarceration, followed by ten years of

probation.2 Laboy initially filed a direct appeal but later withdrew it.

       On July 7, 2016, Laboy, acting pro se, filed the instant timely PCRA

petition.   Appointed counsel filed an amended petition on March 7, 2018,



____________________________________________


2Laboy filed an untimely pro se post-sentence motion on February 18, 2016,
seeking modification of his sentence.


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claiming that plea counsel was ineffective for failing to file a motion to

reconsider sentence. After issuing notice of its intent to do so, on March 28,

2019, the PCRA court entered its order dismissing the petition as frivolous.

See Pa.R.Crim.P. 907(1). This timely appeal followed. Laboy and the PCRA

court complied with Rule 1925. See Pa.R.A.P. 1925(a)-(b).

       On appeal, Laboy raises two interrelated issues in which he challenges

the effectiveness of plea counsel and the PCRA court’s decision not to hold an

evidentiary hearing on the matter.             Specifically, Laboy claims that counsel

should have filed a motion to modify his lengthy sentence because the

sentencing court did not give sufficient consideration to various mitigating

factors in his background, including his young age, lack of prior criminal

record, mental health issues, his remorsefulness for the crime and his family

support. We will address these issues together for ease of disposition.3

                                               A.

       Laboy’s core argument challenges the effectiveness of plea counsel.

See 42 Pa.C.S. § 9543(a)(2)(ii) (listing ineffective assistance of counsel as

basis for PCRA relief).      “The law presumes counsel has rendered effective

assistance.” Commonwealth v Postie, 200 A.3d 1015, 1022 (Pa. Super.

2018) (citation omitted).       “In general, to prevail on a claim of ineffective


____________________________________________


3We review a denial of PCRA relief to determine whether the findings of the
PCRA court are supported by the record and free of legal error. See
Commonwealth v. Treiber, 121 A.3d 435, 444 (Pa. 2015).


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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.”        Id. (citation

omitted). “The petitioner must demonstrate: (1) the underlying claim has

arguable merit; (2) counsel lacked a 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. (citation omitted). “The petitioner bears the burden of proving

all three prongs of the test.” Id. (citation omitted). Additionally, “counsel

cannot be found ineffective for failing to pursue a baseless or meritless claim.”

Commonwealth v. Adams-Smith, 209 A.3d 1011, 1019 (Pa. Super. 2019)

(citation omitted).

      “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.”            Id. (citation

omitted). A PCRA court’s decision to deny a request for an evidentiary hearing

will not be overturned absent an abuse of discretion. See Commonwealth

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




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                                               B.

       As noted above, Laboy claims that plea counsel was ineffective for failing

to file a post-sentence motion asserting the sentencing court failed to consider

various mitigating factors in imposing a term of eleven to twenty-two years’

incarceration followed by ten years of probation. Laboy contends that the

court neglected to consider that he was twenty years old at the time of the

burglaries; had no prior convictions; had mental health and drug abuse issues;

took responsibility for the offenses by pleading guilty; demonstrated remorse

during the proceedings; and had a family support system including a

daughter.4

       The record reflects that during Laboy’s plea colloquy, the trial court

made clear to him that his maximum exposure at sentencing was 177 years

of incarceration. (See N.T. Guilty Plea, 6/17/15, at 5). The Commonwealth

argued for imposition of a term of twenty to forty years’ imprisonment. It

cited to the unnecessarily traumatic attack on the elderly couple, in which

Laboy and his cohort held them at gunpoint, tied them up so they could not

move and wrapped bed linins around their entire faces to obstruct their vision



____________________________________________


4  Laboy’s underlying claim challenges the discretionary aspects of his
sentence. “Sentencing is a matter vested in the sound discretion of the
sentencing judge, whose judgment will not be disturbed absent an abuse of
discretion.” Commonwealth v. Ritchey, 779 A.2d 1183, 1185 (Pa. Super.
2001) (citation omitted). An appellant does not have an automatic right to
appeal the discretionary aspects of his sentence on direct appeal and must
petition this Court for permission to appeal. See 42 Pa.C.S. § 9781(b).

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and breathing. (See N.T. Sentencing, 1/27/16, at 8-10). It also pointed out

that although Laboy’s prior record score was zero, he had been arrested

numerous times for crimes of escalating violence, including for beating a man

with bricks. (See id. at 11, 15-16).

      Defense counsel argued for a five to ten-year sentence and emphasized

Laboy’s young age, lack of prior convictions and that he has ADHD hyperactive

and bipolar disorders along with substance abuse issues. (See id. at 5-6).

Laboy expressed that he felt sorry for everyone involved in this case, including

his family, and that although he was “involved” in the instant offenses, he

“didn’t do it, though.” (Id. at 19).

      The sentencing court, after considering these arguments along with the

information in the PSI and mental health reports, ran the counts for some of

the offenses concurrent to one another and imposed an aggregate sentence

within the sentencing guidelines. The sentence was considerably lower than

the   maximum     possible   sentence   and   the   term   requested   by   the

Commonwealth. The court explained its rationale for the sentence, stating:

            I have reviewed everything sir.          Quite frankly, it’s
      disturbing, to say the least.

            True remorse is not a fear of consequences; it’s a regret
      over motives. I think you are afraid of the consequences of your
      actions, not the actions that precipitated this.

             I mean, the burglary was bad enough. Robbery, elderly
      people, tying them down, rip their phone out so they can’t even
      call for help. To cover them up after they have just seen you, that
      has to be just plain torture. They already saw who you were.
      What’s the whole point of this?

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                                  *    *    *

         When we get to the aggravated assault . . . the officer you tried
      to kneecap, that was nothing more than a sheer attempt to injure
      the officer so he could not go anywhere near you. It was bad
      enough you did all these things, but not withstanding the fact that
      you were caught, you decided to go the extra step and try to knock
      out his knees, which you did manage to do. . . .

(Id. at 20, 22-23).

      As can be seen, the sentencing court carefully weighed all of the

mitigating and aggravating factors in this case in crafting its sentence.

Additionally, because the sentencing court considered both a PSI and mental

health report in determining an appropriate sentence, we presume that it was

aware of all relevant information regarding Laboy’s character and weighed

those considerations along with mitigating factors. See Commonwealth v.

Conte, 198 A.3d 1169, 1177 (Pa. Super. 2018), appeal denied, 206 A.3d 1029

(Pa. 2019).   We, therefore, agree with the PCRA court’s conclusion that

Laboy’s underlying claim challenging the discretionary aspects of his sentence

lacks merit and plea counsel was not ineffective for failing to pursue this

baseless claim. In addition, because there were no material facts at issue,

the PCRA court properly dismissed Laboy’s PCRA petition without a hearing.

      Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/29/2020




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