J-A25013-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA              :   IN THE SUPERIOR COURT OF
                                           :        PENNSYLVANIA
                                           :
              v.                           :
                                           :
                                           :
 LAMONT CAESAR,                            :
                                           :
                           Appellant       :   No. 2575 EDA 2017

                 Appeal from the PCRA Order August 3, 2017
  In the Court of Common Pleas of Philadelphia County Criminal Division at
                     No(s): CP-51-CR-0300183-2005,
            CP-51-CR-0300191-2005, CP-51-CR-0900721-2005

BEFORE: PANELLA, J., DUBOW, J., and KUNSELMAN, J.

MEMORANDUM BY DUBOW, J.:                           FILED JANUARY 24, 2019

      Appellant, Lamont Caesar, appeals from the Order dismissing his first

Petition, filed pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.

§§ 9541-9546. On appeal, he asserts counsel provided ineffective assistance

for failing to preserve certain issues pertaining to the discretionary aspects of

his sentence, and claims that his sentence is illegal pursuant to Alleyne v.

United States, 570 U.S. 99 (2013). After careful review, we affirm.

      On January 20, 2006, Appellant entered open guilty pleas on three

different dockets to multiple counts of robbery, aggravated assault, attempted

murder, and various firearms offenses that he committed during a three-day

crime spree in October 2004. The court subsequently sentenced him on the

three dockets to an aggregate term of twenty to forty-eight years’

imprisonment. Appellant did not file a timely appeal from his Judgment of

Sentence.
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        Following reinstatement of Appellant’s direct appeal rights nunc pro tunc

and a subsequent appeal, this Court affirmed Appellant’s Judgment of

Sentence on June 23, 2014.1              Appellant did not seek review with the

Pennsylvania Supreme Court.

        On January 16, 2015, Appellant timely filed the instant PCRA Petition,

pro se, and filed Amended Petitions pro se on February 22, 2015, and April

14, 2015. The PCRA court appointed counsel who filed an Amended Petition

on August 2, 2016, and a Supplemental Amended Petition on February 22,

2017.

        On May 16, 2017, the Commonwealth filed a Motion to Dismiss. After

issuing a Notice pursuant to Pa.R.Crim.P. 907 and an Amended Rule 907

Notice, on August 3, 2017, the PCRA court dismissed Appellant’s Petition

without a hearing.2

        This appeal followed. Both Appellant and the PCRA court complied with

Pa.R.A.P. 1925.

____________________________________________


1 Commonwealth v. Caesar, 1813 EDA 2009 (Pa. Super. filed June 23,
2014) (unpublished memorandum). On direct appeal, Appellant challenged
only the discretionary aspects of sentence, asserting that the sentencing court
did not weigh mitigating facts. We concluded that Appellant waived issues
pertaining to the trial court’s alleged failure to state on the record (1) the
guideline ranges for the offenses; and (2) adequate reasons for those
sentences which exceeded the standard range of the guidelines, for failing to
raise the issues in his Pa.R.A.P. 1925(b) Statement or in his statement of the
questions involved. Id. at 8.

2The Honorable William J. Mazzola, who sat as the PCRA court, also presided
at Appellant’s sentencing proceeding.


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       We review the denial of a PCRA Petition to determine whether the record

supports the PCRA court’s findings and whether its order is otherwise free of

legal error. Commonwealth v. Fears, 86 A.3d 795, 803 (Pa. 2014). There

is no right to a PCRA hearing; a hearing is unnecessary where the PCRA court

can determine from the record that there are no genuine issues of material

fact. Pa.R.Crim.P. 907(a); Commonwealth v. Jones, 942 A.2d 903, 906

(Pa. Super. 2008).

       In his Brief, Appellant raises three issues:3 (1) the PCRA court erred in

dismissing the Petition without holding a hearing; (2) appellate counsel

provided ineffective assistance for failing to preserve certain alleged

sentencing court errors in a post-sentence motion or in his Rule 1925(b)

statement; and (3) his sentence is illegal pursuant to Alleyne, supra.

       The law presumes counsel has rendered effective assistance, and the

burden     of   demonstrating       ineffectiveness   rests   with   an   appellant.

Commonwealth v. Rivera, 10 A.3d 1276, 1279 (Pa. Super. 2010).                    To


____________________________________________


3 Appellant’s counselled Brief contains a Statement of Questions Involved
consisting merely of two general claims of PCRA court error: failure to hold a
hearing and the denial of relief on his layered ineffectiveness claims. See
Appellant’s Brief at 8. We remind counsel that Pa.R.A.P. 2116(a) requires the
Statement of Questions Involved to “state concisely the issues to be resolved”
and provides that “[n]o question will be considered unless it is stated in the
[S]tatement of [Q]uestions [I]nvolved or is fairly suggested thereby.”
Pa.R.A.P. 2116(a). Notwithstanding that Appellant did not raise an issue
regarding the legality of his sentence in the Statement of Questions Involved,
we will address the merits of that claim, as well as the other claims, set forth
in the brief. See Commonwealth v. Archer, 722 A.2d 203, 209 (Pa. Super.
1998) (explaining that a defendant cannot waive an illegal sentence claim).

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satisfy this burden, Appellant must plead and prove by a preponderance of

the evidence that: (1) the underlying legal claim has arguable merit; (2)

counsel had no reasonable basis for acting or failing to act; and (3) the

petitioner   suffered   resulting    prejudice.   Commonwealth v. Reyes-

Rodriguez, 111 A.3d 775, 780 (Pa. Super. 2015); Commonwealth v.

Pierce, 527 A.2d 973, 975-76 (Pa. 1987). A petitioner must prove all three

factors or the claim fails. Commonwealth v. Baumhammers, 92 A.3d 708,

719 (Pa. 2014). Courts will not find counsel ineffective for failing to pursue a

baseless or meritless claim.        Commonwealth v. Taylor, 933 A.2d 1035,

1042 (Pa. Super. 2007).

      In the context of a challenge to appellate counsel’s stewardship for

failing to raise specific challenges to the discretionary aspects of a sentence,

prejudice may be established only by pleading and proving that the challenge

would have resulted in “a reduction in the sentence.” Commonwealth v.

Reaves, 923 A.2d 1119, 1132 (Pa. 2007).

      Appellant argues that appellate counsel provided ineffective assistance

because the Rule 1925(b) Statement did not raise the following two

sentencing court errors of merit: (1) the sentencing court failed to state the

guideline ranges for the offenses; and (2) the sentencing court failed to state

an adequate reason for sentencing Appellant in the aggravated range.

Appellant’s Brief at 19. Appellant concludes that because appellate counsel

failed to raise these issues and the Superior Court determined that Appellant,


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thus, waived them, he was denied the opportunity to prove that the trial court

erred in failing to “give sufficient attention to” four mitigating factors when

sentencing Appellant. Id. at 20-21.

      Contrary to Appellant’s contention, appellate counsel did challenge the

sentencing court’s alleged failure to consider and apply mitigating factors at

sentencing, and this Court concluded that the issue did not present a

substantial question. However, the Court also observed that

      [T]he court had the benefit of a PSI report. ‘Our Supreme Court
      has ruled that where pre-sentence reports exist, the presumption
      will stand that the sentencing judge was both aware of and
      appropriately weighed all relevant information contained there.’
      [Commonwealth v.]Griffin, [804 A.2d 1, 8 (Pa. Super. 2002)],
      citing Commonwealth v. Devers, 546 A.2d 12, 18 (Pa. 1988).

      At any rate, we note that there was extensive discussion
      concerning [A]ppellant’s drug problem and that he was allegedly
      abusing Xanax and marijuana at the time of the incidents. The
      trial court considered this testimony as well as other mitigating
      evidence offered by the defense, including from [A]ppellant’s
      family members. Certainly the trial court was well aware of
      [A]ppellant’s lack of a criminal history. The trial court noted that
      it could have imposed a far longer sentence, but was swayed by
      the testimony of [A]ppellant’s family. The trial court did state as
      an aggravating factor that [A]ppellant victimized some of the
      same people twice during this three-day crime spree. In short,
      there is simply nothing to support [A]ppellant’s baseless argument
      that the trial court did not weigh mitigating evidence together with
      all other factors in fashioning [A]ppellant’s sentence. There is
      nothing to review here.

Caesar, supra, at 7-8.

      Accordingly, Appellant’s claim fails as appellate counsel did raise a claim

regarding the application of mitigating factors and the Superior Court

considered the trial court’s use of them.

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      With respect to his claim that appellate counsel should have raised a

claim in his Rule 1925(b) Statement that the sentencing court failed to state

its reasons on the record, Appellant fails to acknowledge that, in the context

of an ineffectiveness review, he must first prove that the underlying challenge

is meritorious.   That is, Appellant must first show that the appellate court

would have found that the trial court did not state its reasons on the record

and the appellate court, as a result, would have remanded for resentencing

on that basis.

      A sentencing court is required to place on the record its reasons for the

imposition of the sentence. 42 Pa.C.S. § 9721(b). As we noted above, the

sentencing judge can satisfy this requirement by identifying on the record that

he was informed by a presentence report. Commonwealth v. Pennington,

751 A.2d 212, 217 (Pa. Super. 2000). Where the sentencing court has the

benefit of a pre-sentence report, the law presumes that the court “was aware

of the relevant information regarding the defendant’s character and weighed

those considerations along with the mitigating statutory factors” delineated in

the Sentencing Code.     Commonwealth v. Devers, 546 A.2d 12, 18 (Pa.

1988).    “Having been fully informed by the pre-sentence report, the

sentencing court’s discretion should not be disturbed.” Id.

      Where a sentence exceeds the guidelines, the Sentencing Code requires

a trial judge to demonstrate, on the record, “his awareness of the guideline

ranges.” Commonwealth v. Griffin, 804 A.2d 1, 7 (Pa. Super. 2002)


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(citation omitted).      “Having done so, the sentencing court may, in an

appropriate case, deviate from the guidelines by fashioning a sentence which

takes into account the protection of the public, the rehabilitative needs of the

defendant, and the gravity of the particular offense as it relates to the impact

on the life of the victim and the community.” Id. at 8.      “In doing so, the

sentencing judge must state of record the factual basis and specific reasons

which compelled him or her to deviate from the guideline ranges.”           Id.

(citation omitted). “When evaluating a claim of this type, it is necessary to

remember that the sentencing guidelines are advisory only.         Id. (citation

omitted).

       Appellant fails to specify which sentences appellate counsel should have

challenged and does not attempt to inform us of the applicable sentencing

guidelines or the statutory maximums that are at issue.4 Given “Appellant's

failure to develop meaningful argument with specific reference to the record

in support of his claim[],” Commonwealth v. Murchinson, 899 A.2d 1159,

1162 (Pa. Super. 2006), we are constrained to find his claim waived. See

Commonwealth v. Irby, 700 A.2d 463, 464 (Pa. Super. 1997) (holding that

“arguments which are not sufficiently developed are waived”); see also

Commonwealth v. Kane, 10 A.3d 327, 331 (Pa. Super. 2010) (citation


____________________________________________


4We note that the sentencing court had the benefit of Appellant’s PSI report,
and so stated on the record at sentencing. See N.T. Sentencing, 3/29/06, at
63-69; PCRA Ct. Op., 12/5/17, at 6; Caesar, supra, at 7-8.


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omitted) (“This Court will not act as counsel and will not develop arguments

on   behalf   of   an   appellant.”);   Pa.R.A.P.   2119   (delineating   briefing

requirements).

      Further, contrary to Appellant’s belief that his sentence was “harsh and

unreasonable and would have raised a substantial question on appeal,”

Appellant’s Brief at 21, this bare averment lacks the specificity needed to

establish a claim of arguable merit. Additionally, the Superior Court already

concluded that Appellant’s claim does not raise a substantial question.

Accordingly, this ineffective assistance of counsel claim fails. See Caesar,

1813 EDA 2009, at 6.

      In his last issue, Appellant argues, without citation to the record and

with no factual context pertaining to his own case, that “his sentence is illegal

because the mandatory minimum sentencing provision of 42 Pa.C.S. § 9712

is unconstitutional.” Appellant’s Brief at 22. He notes, after a meandering

review of case law that ends with a discussion of Alleyne v. United States,

133 S.Ct. 2151 (2013), that “Section 9712 [is unconstitutional because it]

permits the trial court, as opposed to the jury, to increase a minimum

sentence based upon a preponderance of the evidence that the defendant

visibly possessed a firearm and placed the victim in reasonable fear of death

of serious bodily injury.” Appellant’s Brief at 25-26.

      The PCRA Court, however, found that it did not impose a mandatory

minimum sentence. See PCRA Ct. Op. at 14, citing N.T. Sentencing, 3/29/06,


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at 63-69. Thus, Alleyne does not apply. Our review confirms that the court

did not make any mention of the imposition of a mandatory minimum.

     Based on the foregoing, the PCRA court did not abuse its discretion in

dismissing Appellant’s PCRA Petition without a hearing. See Jones, supra at

906 (holding that a hearing is not necessary where the PCRA court can discern

from the record “that there are no genuine issues of material fact.”). We,

thus, affirm the PCRA court’s Order.

     Order affirmed.

     Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/24/19




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