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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA :             IN THE SUPERIOR COURT OF
                                 :                  PENNSYLVANIA
                                 :
              v.                 :
                                 :
                                 :
     JAMES BROWN                 :
                                 :
                 Appellant       :             No. 3357 EDA 2016
                                 :

                Appeal from the PCRA Order September 23, 2016
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0004247-2015


BEFORE:      OTT, J., McLAUGHLIN, J., and RANSOM, J.

MEMORANDUM BY OTT, J.:                                     FILED MAY 15, 2018

        James Brown appeals, pro se, from the order entered on September 23,

2016, in the Court of Common Pleas of Philadelphia County, denying him

relief, without a hearing, on his petition filed pursuant to the Post Conviction

Relief Act (PCRA), 42 Pa.C.S. § 9541 et seq. In this timely appeal, Brown

raises a number of arguments, some of which seem to relate to his claim that

his guilty plea and sentence are, in some manner, illegal under Alleyne v.

United States, 133 S.Ct. 2151 (2013). Other claims appear to find fault with

the denial of his petition without a hearing. Appointed counsel filed a

Turner/Finley1 no merit letter with the PCRA court and was released from

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   Retired Senior Judge assigned to the Superior Court.

1Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth v.
Finley, 550 A.2d 213 (Pa. Super. 1988).
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representation.      Subsequently, the PCRA court, following proper notice

pursuant to Pa.R.Crim.P 907, dismissed the petition without a hearing. After

a thorough review of Appellant’s brief,2 relevant law, and the certified record,

we affirm.

        On July 14, 2015, Brown waived his right to a jury trial and pled guilty

to robbery, possession of an instrument of crime and VUFA.3         This was a

negotiated plea, i.e., in exchange for pleading guilty, nine other charges

against Brown were nolle prossed and an agreed upon sentence of 10 to 20

years’ incarceration followed by 5 years’ probation was imposed.4 Had Brown

gone to trial, he faced a mandatory minimum sentence of 25 years to life

imprisonment based upon his status as a repeat offender.5 See 42 Pa.C.S. §

9714.

        In his PCRA petition, Brown argued that his sentence was illegal under

Alleyne, supra.         In his Turner/Finley no-merit letter, PCRA counsel


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2   The Commonwealth opted not to file a brief in this matter.

3   18 Pa.C.S. §§ 3701(a)(1), 907(a), and 6105(a)(1).

4 The victim in this matter owed Brown money for yard work Brown had
performed. Apparently tired of waiting to be paid, Brown approached the
victim who was sitting on his own front steps. Brown produced a handgun,
demanded payment, and fired a shot toward the victim. The bullet struck the
concrete front steps. The victim produced $33.00, which he gave to Brown,
who then left. Brown was 70 years old at the time.

5 Brown’s prior record score pursuant to the sentencing guidelines was the
highest category possible – REVOC – Repeat Violent Offender Category. See
N.T. Guilty Plea, 7/14/2014, at 22.

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correctly stated that Alleyne does not apply to situations wherein the

mandatory minimum sentence is based upon prior convictions. See Alleyne,

133 S.Ct. at 2160 n. 1; Commonwealth v. Reid, 117 A.3d 777 (Pa. Super.

2015).   The PCRA court conducted an independent review of the certified

record and agreed with PCRA counsel that no meritorious claims were present.

Accordingly, the PCRA court denied the petition, following proper notice,

without a hearing. Brown did not obtain private counsel to replace appointed

PCRA counsel and did not amend his petition. However, in his appellant’s

brief, Brown altered his argument to claim trial counsel was ineffective for

coercing him into pleading guilty under the threat of an illegal mandatory

minimum sentence.

     We begin by noting: “Our standard of review of a PCRA court's dismissal

of a PCRA petition is limited to examining whether the PCRA court's

determination is supported by the record evidence and free of legal error.”

Commonwealth v. Root, 179 A.3d 511, 515-16 (Pa. Super. 2018) (citation

omitted).

     Further, regarding review where counsel has filed a Turner/Finley no-

merit letter, we are cognizant of the requirement that the court in which the

Turner/Finley no-merit letter is filed conduct its own independent review of

the record. See Commonwealth v. Reed, 107 A.3d 137, 140 (Pa. Super.

2014) (The necessary independent review requires counsel to file a “no-merit”

letter detailing the nature and extent of his review and list each issue the

petitioner wishes to have examined, explaining why those issues are

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meritless. The PCRA court, or an appellate court, if the no-merit letter is filed

before it, see Turner, supra, then must conduct its own independent

evaluation of the record and agree with counsel that the petition is without

merit....).     Instantly, both PCRA counsel and the PCRA court have

independently reviewed the record.

       As noted above, PCRA counsel addressed the sole issue raised in

Brown’s PCRA petition, namely, that his sentence was illegal pursuant to

Alleyne, supra. PCRA counsel correctly noted that Alleyne does not apply

where the mandatory minimum sentence has been imposed based upon the

fact of prior convictions.6 Further, and equally important, PCRA counsel noted
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6Alleyne v. United States, 133 S.Ct. 2151, 2160 n.1 (2013). See also,
Commonwealth v. Reid, 117 A.3d 777 (Pa. Super. 2105).

       In Alleyne, the Supreme Court of the United States held that the
       Sixth Amendment requires that any fact—other than a prior
       conviction—that increases a mandatory minimum sentence for an
       offense must be submitted to the jury and proven beyond a
       reasonable doubt. Importantly, Alleyne did not overturn prior
       precedent that prior convictions are sentencing factors and not
       elements of offenses. Alleyne, 133 S.Ct. at 2160 n. 1; see also
       Alemendarez-Torres v. United States, 523 U.S. 224, 243-44,
       118 S.Ct. 1219, 1230-31, 140 L.Ed.2d 350 (1998).

       Section 9714 increases mandatory minimum sentences based on
       prior convictions. See 42 Pa.C.S. § 9714(a)(1). Accordingly, this
       section is not unconstitutional under Alleyne. See Alleyne,
       supra; see also Commonwealth v. Akbar, 91 A.3d 227, 239
       n. 9 (Pa. Super. 2014), appeal granted and order vacated on
       other grounds, --- Pa. ----, 111 A.3d 168 (2015).

Id. at 784-85.




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that Brown did not receive a mandatory sentence. In fact, as part of the plea

agreement, the Commonwealth agreed to forego application of the mandatory

sentence otherwise applicable pursuant to 42 Pa.C.S. § 9714. PCRA counsel

averred he had reviewed the certified record and found no other meritorious

issues.   The PCRA court reviewed the no-merit letter and the record, and

agreed with PCRA counsel. The petition was dismissed without a hearing and

without any further filings from Brown.

       Also as noted above, on appeal Brown has amended his claims. The

PCRA court has stated in its Pa.R.A.P. 1925(a) opinion that these claims are

waived, as they were not raised in his PCRA petition. 7         See PCRA Court

Opinion, 7/31/2017, at 3. We agree.

       Although none of the issues raised in Brown’s brief have been preserved,

we note our agreement with the PCRA court, which briefly explained why

Brown’s arguments, even had they been preserved, were without merit.

Brown’s first two claims are of ineffective assistance of counsel and relate to

the alleged failure of counsel to properly investigate Alleyne and thereby
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7 We are not listing Brown’s questions as stated in his appellant’s brief because
they are not clearly rendered. For example, Question Two states:

       Whether PCRA counsel was ineffective            in failing to act in
       investigating the facts and surrounding         circumstances as to
       Appellant’s charged crimes, for purposes       of rendering effective
       assistance to Appellant at that stage of his   proceedings?

Appellant’s Brief at iii.

It is not until reading the argument itself that one discerns he complains that
Alleyne was not applied to his case.

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improperly recommend Brown accept the plea agreement rather than face the

prospect of the lengthy mandatory minimum sentence.            We have already

discussed that Alleyne does not apply to Brown’s situation; therefore, any

claim of ineffective assistance of counsel regarding Alleyne fails.

      Brown’s third and fourth arguments appear to argue the PCRA court

denied him due process by failing to permit him to file an amended PCRA

petition raising the ineffective assistance claims. The PCRA court correctly

noted that Brown never asked the PCRA court for leave to file an amended

petition and was given the opportunity to file additional claims after the

Turner/Finley no-merit letter was served as well as when he was notified

that, pursuant to Rule 907, his petition was going to be denied without a

hearing.

      In light of the foregoing, Brown is not entitled to relief.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/15/18




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