J-S79040-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :         PENNSYLVANIA
                      Appellee                 :
                                               :
               v.                              :
                                               :
    METTA M. WOODRUFF                          :
                                               :
                      Appellant                :      No. 1103 EDA 2017

                   Appeal from the PCRA Order March 27, 2017
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-1000821-2005


BEFORE: GANTMAN, P.J., LAZARUS, J., and OTT, J.

MEMORANDUM BY GANTMAN, P.J.:                        FILED DECEMBER 19, 2017

        Appellant, Metta M. Woodruff, appeals from the order entered in the

Philadelphia County Court of Common Pleas, which denied her first petition

filed pursuant to the Post Conviction Relief Act (“PCRA”).1 We affirm.

        In its opinion, the PCRA court accurately set forth the relevant facts

and procedural history of this case. Therefore, we have no reason to restate

them.

        Appellant raises one issue for our review:

           WAS COUNSEL INEFFECTIVE FOR FAILING TO RAISE THE
           ISSUE OF APPELLANT’S BEING SUBJECT TO AN ILLEGAL
           MANDATORY MINIMUM SENTENCE?

(Appellant’s Brief at 8).
____________________________________________


1   42 Pa.C.S.A. §§ 9541-9546.
J-S79040-17


       After a thorough review of the record, the briefs of the parties, the

applicable law, and the well-reasoned opinion of the Honorable Genece E.

Brinkley, we conclude Appellant’s issue on appeal merits no relief. The PCRA

court opinion comprehensively discusses and properly disposes of the

question presented. (See PCRA Court Opinion, filed May 17, 2017, at 3-7)

(finding: neither Pennsylvania Supreme Court nor United States Supreme

Court has declared Alleyne2 retroactive to cases in which defendant’s

judgment of sentence was already final before Alleyne decision; at time of

Appellant’s sentencing, Pennsylvania law provided that mandatory minimum

sentencing statutes did not violate Apprendi,3 so long as mandatory

minimum sentence did not increase overall penalty for crime beyond

statutory maximum;4 United States Supreme Court decided Alleyne on June

17, 2013, after Appellant’s judgment of sentence was final; if counsel had

made Apprendi challenge at time of Appellant’s sentencing, it would have

____________________________________________


2 Alleyne v. United States, 570 U.S. 99, 133 S.Ct. 2151, 186 L.Ed.2d 314
(2013).

3 Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435
(2000).

4  The trial court sentenced Appellant to a mandatory minimum five years’
imprisonment for her aggravated assault conviction, pursuant to 42
Pa.C.S.A. § 9712 (sentences for crimes of violence committed with
firearms). The overall sentence did not exceed the statutory maximum.
See 18 Pa.C.S.A. § 2702(b) (grading aggravated assault conviction under
subsection (a)(1) as first-degree felony); 18 Pa.C.S.A. § 1103(1) (fixing
statutory maximum for first-degree felony at 20 years).



                                           -2-
J-S79040-17


merited no relief;5 because Appellant’s judgment of sentence was already

final when Supreme Court announced Alleyne, Appellant is not entitled to

retroactive application of that decision).6      Accordingly, we affirm based on

the PCRA court’s opinion.

       Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/19/2017




____________________________________________


5 This case is distinguishable from Commonwealth v. Melendez-Negron,
123 A.3d 1087 (Pa.Super. 2015) (holding counsel was ineffective for
allowing defendant to plead guilty to offense subject to mandatory minimum
sentence where Alleyne was decided prior to defendant’s guilty plea and
sentencing, so counsel was on notice that legality of mandatory sentencing
schemes was questionable).

6 In its conclusion paragraph, the PCRA court states it denied relief after
review of the applicable case law, testimony, and statutes. We clarify that
the PCRA court did not hold an evidentiary hearing prior to denying PCRA
relief in this case.



                                           -3-
                                                                                          Circulated 11/30/2017 03:52 PM




                         IN THE COURT OF COMMON PLEAS
                    FIRST JUDICIAL DISTRICT OF PENNSYLVANIA
                             CRIMINAL TRIAL DIVISION


COMMONWEALTH                                                                       CP-51-CR-1000821-2005


                                                              FILED
       vs.
                                                     ¥AY l 7 2017
                                                Office ot Judicial R
                                                    Appea/S/Post      r:'rds       SUPERIOR COURT
METTA WOODRUFF                   CP-51-CR-1000621-2005 Comm. v 'lloodrlif, Metta
                                                    Opinion
                                                                                   1103 EDA 2017



BRINKLEY, J.
                                      11111111111111111 II II I
                                               7947453231
                                                                       Ill         MAY 17,2017

                                                   OPINION
       Defendant Metta Woodruff filed a petition for relief pursuant to the Post-Conviction

Relief Act, 42 Pa.C.S.A. § 9541 et seq. (eff. Jan. 16, 1996), raising a claim of ineffective

assistance of counsel and the retroactive application of a newly announced constitutional right.

After independent review of Defendant's pro se petition, PCRA counsel's amended petition and

second amended petition, the Commonwealth's Motion to Dismiss, and 907 Notice having been

sent and no further reply received from Defendant, this Court dismissed Defendant's petition

without a hearing based upon a lack of merit. Defendant appealed the dismissal of her petition to

the Superior Court. The sole issue addressed in this Opinion is whether this Court properly

dismissed Defendant's petition without a hearing based upon a lack of merit. This Court's

decision should be affirmed.

                           PROCEDURAL HISTORY AND FACTS

       On July 22, 2005, Defendant shot and paralyzed Maurice Price following an argument.

On September 24, 2007, following a jury trial before the Honorable John. J.Poserina, Jr.,
Defendant was found guilty of aggravated assault, recklessly endangering another person

(REAP), and possession of an instrument of crime (PIC). On November 13, 2007, Judge

Poserina granted defense counsel's motion for anew trial. On December 13, 2007, the

Commonwealth appealed the grant of a new trial. On August 7, 2009, the Superior Court

reversed and remanded the case for sentencing. On May 28, 2010, this Court1 sentenced

Defendant to a mandatory minimum sentence of 5 to 10 years' state incarceration on the

aggravated assault charge plus 20 to 40 months' state incarceration on the PIC charge, to run

consecutive to the sentence imposed on the aggravated assault charge. Defendant did not file a

direct appeal of her sentence.

           On March 7, 2011, Defendant filed a prose petition for relief pursuant to the PCRA. On

March 6, 2012, David S. Rudenstein, Esq., was appointed as PCRA counsel. On September 9,

2013, Defendant filed a prose motion for withdrawal of counsel. On July 28, 2015, this Court

granted Defendant's motion to withdraw counsel. On that same day, J. Matthew Wolfe, Esq.,

was appointed as PCRA counsel. On October 2, 2015, Mr. Wolfe filed an amended petition,

raising claims of ineffective assistance of counsel and the retroactive application of a

constitutional right based upon the United States Supreme Court's holding in Alleyne v. United

States. See Alleyne v United States, 570 U.S. 'tq, 133 S. Ct. 2151 (2013).

           On January 28, 2016, the Commonwealth filed a Motion to Dismiss, arguing that

Defendant's judgment of sentence had become final by the time of the Court's decision in

Alleyne and that neither the United States Supreme Court nor the Pennsylvania Supreme Court

had held that Alleyne applied retroactively to cases in which the judgment of sentence had

become final. On January 20, 2017, Mr. Wolfe filed a second amended petition to address the



I
    This matter was reassigned to this Court following Judge Poserina's retirement.

                                                            2
effect that the Pennsylvania Supreme Court's holding in Commonwealth v. Washington had

upon Defendant's petition. See Commonwealth v. Washington, 142 A.3d 810 (Pa. 2016). In this

second amended petition, Mr. Wolfe argued that, rather than seeking retroactive application of

Alleyne's holding, he was arguing that trial counsel was ineffective for failing to raise a

challenge to the sentence based upon the United States Supreme Court's holding in the related.

case of Apprendi v. New Jersey. See Apprendi v. New Jersey, 530 U.S. 466 (2000).

       On February 27, 2017, this Court sent Defendant a 907 Notice, indicating that her

petition would be dismissed based upon a lack of merit. Defendant did not reply to the 907

Notice. On March 27, 2017, following independent review of Defendant's prose petition, PCRA

counsel's first and second amended petitions, the Commonwealth's motion to dismiss, and 907

Notice having been sent and no reply received from Defendant, this Court dismissed Defendant's

petition without a hearing based upon a lack of merit. On March 30, 2017, Defendant appealed

the dismissal of her petition to the Superior Court.

                                              ISSUES

        I.     WHETHER THIS COURT PROPERLY DISMISSED DEFENDANT'S
               PETITION WITHOUT A HEARING BASED UPON A LACK OF MERIT.

                                          DISCUSSION

        I.     THIS COURT PROPERLY DISMISSED DEFENDANT'S PETITION
               WITHOUT A HEARING BASED UPON A LACK OF MERIT.

        When reviewing the denial of PCRA relief, the appellate court's review is limited to

determining whether the PCRA court's findings are supported by the record and without legal

error. Commonwealth v. Edmiston, 619 Pa. 549, 65 A.3d 339, 345 (2013) (citing

Commonwealth v. Breakiron, 566 Pa. 323, 781 A.2d 94, 97 n. 4 (2001)). The court's scope of

review is limited to the findings of the PCRA court and the evidence on the record of the PCRA



                                                  3
court's hearing, viewed in light most favorable to the prevailing party. Commonwealth v. Fahy,

598 Pa. 584, 959 A.2d 312, 316 (2008) (citing Commonwealth v. Duffey, 585 Pa. 493, 889 A.2d

56, 61 (2005)). The burden is on the petitioner in the PCRA petition to demonstrate by a

preponderance of the evidence that he or she is eligible for PCRA relief. 42 Pa.C.S.A § 9543.

       In Apprendi v. New Jersex, the United States Supreme Court held that, other than the fact

of prior conviction, any fact that increases the penalty for a crime beyond the statutory maximum

must be submitted to a jury and proved beyond a reasonable doubt. Commonwealth v. Johnson,

2006 PA Super 265, 910 A.2d 60, 67 (2006) (citing Apprendi v. New Jersey, 530 U.S. 466, 490

(2000)). In Harris v. United States, the United States Supreme Court declined to extend

Apprendi's holding to mandatory minimum sentences. Commonwealth v. Kleinicke, 2006 PA

Super 48, 895 A.2d 562, 570 (2006) (citing Harris v. United States, 536 U.S. 545 (2002)). In

Commonwealth v. Kleinicke, the Superior Court held that Pennsylvania's mandatory minimum

sentencing scheme did not violate Apprendi's holding as the imposition of a mandatory

minimum sentence did not increase the penalty for the crime beyond the statutory maximum. Id.

at 574-75. In Alleyne v. United States, the United States Supreme Court overruled Harris and

held that any facts leading to an increase in a mandatory minimum sentence are elements of the

crime and must be presented to a jury and proven beyond a reasonable doubt. Commonwealth v.

Valentine, 101 A.3d, 801, 809 (Pa.Super. 2014) (citing Alleynev United States, 133 S. Ct. 2151,

2155 (2013)).

       Even assuming that Alleyne did announce a new constitutional right, neither the

Pennsylvania Supreme Court, nor the United States Supreme Court has held that Alleyne is to be

applied retroactively to cases in which the judgment of sentence had become final.

Commonwealth v. Washington, 142 A.3d at 819-20 (Pa. 2016) See also Commonwealth v.



                                                4
Miller, 2014 PA Super 214, 102 A.3d 988, 994-95 (2014). A new rule of constitutional law is

applied retroactively to cases on collateral review only if the United States Supreme Court or the

Pennsylvania Supreme Court specifically holds it to be retroactively applicable to those cases.

Miller, 102 A.3d at 994-95 ( citing Commonwealth v. Phillips, 31 AJd 317, 320

(Pa.Super.2011). A judgment becomes final at the conclusion of direct review. including

discretionary review in the Supreme Court of the United States and the Supreme Court of

Pennsylvania, or at the expiration of time for seeking the review. Miller, 102 A.3d at 993 (citing

42 Pa.C.S.A. § 9545(b)(3)).

       To establish trial counsel's ineffectiveness, a petitioner must demonstrate: (1) the

underlying claim has arguable merit; (2) counsel had no reasonable basis for the course of action

or inaction chosen; and (3) counsel's action or inaction prejudiced the petitioner. Commonwealth

v. Freeland, 2014 PA Super 274, 106 A.3d 768, 775 (2014) (citing Commonwealth v. Pierce, 515

Pa. 153, 527 A.2d 973 (1987)). Counsel's assistance is deemed constitutionally effective once the

court determines that the defendant has not established any one of the prongs of the

ineffectiveness test. Id. (citing Commonwealth v. Rolan, 964 A.2d 398, 406 (Pa.Super.2008)).

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

Commonwealth v. Kelley, 2016 PA Super 64, 136 A.3d 1007, 1012 (2016) (citing

Commonwealth v. Poplawski, 852 A.2d 323, 327 (Pa.Super.2004)). Counsel cannot be

ineffective for failing to anticipate a change in the law. See Commonwealth v. Spotz, 616 Pa.

164, 47 A.3d 63, 122 (2012).

       In the case at bar, Defendant claims that trial counsel was ineffective for failing to

challenge the imposition of the mandatory minimum sentence based upon the Supreme Court's

holding in Apprendi. This claim is without merit. At the time that Defendant was sentenced, the



                                                 5
Superior Court already had addressed a similar claim in Kleinicke and rejected it. The Court's

holding in Kleinicke would remain the law in Pennsylvania until the Supreme Court announced

its holding in Alleyne on June 17, 2013. Consequently, trial counsel could not have been

ineffective for failing to challenge the mandatory minimum sentence imposed in this case as such

a claim would have been without merit. Moreover, as the 5 to 10 year mandatory minimum

sentence did not increase Defendant's penalty beyond the 20 year statutory maximum for

aggravated assault, any challenge to Defendant's sentence based upon Apprendi's holding would

have been meritless. Finally, trial counsel could not have been ineffective for failing to anticipate

that the Supreme Court would overrule its holding in Harris only 11 years after it was announced

and hold that any facts leading to an increase in a mandatory minimum sentence are elements of

the crime and must be presented to a jury and proven beyond a reasonable doubt. Thus,

Defendant's claim of ineffective assistance of counsel was without merit.

       Furthermore, as Defendant's judgment of sentence already was final by the time the

Supreme Court announced its holding in Alleyne, she is not entitled to the retroactive application

of that holding. Defendant's judgment of sentence became final on June 28, 2010, when her

ability to file a direct appeal expired. The Supreme Court did not announce its holding in Alleyne

until June 17, 2013, almost three years later. As the Pennsylvania Supreme Court made clear in

Commonwealth v. Washington, the holding in Alleyne does not apply retroactively to cases on

collateral review where the judgment of sentence already had become final, such as Defendant's.

Therefore, any claim that Defendant is entitled to the retroactive application of Alleyne's holding

is likewise without merit.




                                                  6
                                        CONCLUSION

       After review of the applicable case law, testimony and statutes, this Court committed no

error. Defendant's PCRA petition was properly dismissed based upon a lack of merit.

Accordingly, this Court's decision should be affirmed.




                                                7
