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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.                              :
                                               :
                                               :
    ROBERT CHARLES O’BRIEN                     :
                                               :
                      Appellant                :   No. 381 EDA 2017

                 Appeal from the PCRA Order January 13, 2017
     In the Court of Common Pleas of Delaware County Criminal Division at
                       No(s): CP-23-CR-0003564-2014


BEFORE: BOWES, J., NICHOLS, J., and RANSOM, J.*

MEMORANDUM BY BOWES, J.:                                      FILED JUNE 22, 2018

        Robert Charles O’Brien appeals from the January 13, 2017 order1 that

denied his petition filed pursuant to the Post Conviction Relief Act (“PCRA”),

42 Pa.C.S. §§ 9541-9546. We affirm.

        On April 1, 2015, Appellant entered a negotiated guilty plea to two

counts of possession of child pornography. Pursuant to the plea agreement,

Appellant    received    two    consecutive    sentences      of    five   to   ten   years

imprisonment        rather   than   the    twenty-five-year        mandatory     minimum

sentence that he faced based upon a prior conviction for possession of child

pornography in 2012.            See 42 Pa.C.S. § 9718.2(a)(1) (providing a


____________________________________________


1The order is dated January 11, 2017, but was not filed until January 13,
2017. We have amended the caption accordingly.


* Retired Senior Judge Assigned to the Superior Court.
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mandatory sentence of twenty-five to fifty years imprisonment for offenders

with a prior conviction of, inter alia, sexual abuse of children).            The plea

transcript    reveals    that   counsel        had   filed   motions   challenging   the

constitutionality of the mandatory-minimum statute pursuant to Alleyne v.

United States, 570 U.S. 99 (2013) (holding that a fact which triggers the

imposition of a mandatory minimum sentence is an element of the crime and

must, therefore, be determined beyond a reasonable doubt by the trier of

fact), and its progeny prior to the plea. However, Appellant withdrew those

motions based upon decisions that made it clear that prior convictions as

mandatory-minimum triggers do not run afoul of Alleyne. N.T., 4/1/15, at

11-12. On April 1, 2015, Appellant was sentenced to an aggregate term of

ten to twenty years imprisonment in accordance with the plea agreement.2

Id. at 26-27.

       Appellant did not file a direct appeal, but did file a timely, counseled

PCRA petition on April 28, 2016.               Therein, Appellant contended that his

guilty plea was induced by plea counsel’s ineffectiveness.                 Specifically,

Appellant claimed that he accepted the Commonwealth’s offer and pled

guilty to avoid “what he believed to be an otherwise unavoidable sentence”

of at least twenty-five years.          PCRA Petition, 4/28/16, at 2.         Appellant
____________________________________________


2 These new convictions constituted violations of his parole and probation in
his prior case, resulting in additional sentences of back time with immediate
parole, and two-and-one-half to seven years imprisonment, in that case.
N.T., 4/1/15, at 32-33.



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argued that plea counsel should have challenged the constitutionality of 42

Pa.C.S. § 9718.2(a)(1) as violating the Eight Amendment; Article I, Section

13 of the Pennsylvania Constitution; and due process.           PCRA Petition,

4/28/16, at 2-5.   Appellant asserted that he was entitled to relief “in the

form of a new sentencing without regard to the mandatory sentence and

giving full consideration to his individual circumstances.” Id. at 5.

      After the Commonwealth filed an answer, the PCRA court, pursuant to

Pa.R.Crim.P. 907(1), issued notice of its intent to dismiss Appellant’s petition

without a hearing. The PCRA court cited as its reason the fact that, as noted

by the Commonwealth in its answer, this Court and our Supreme Court have

rejected Appellant’s arguments in cases with similar circumstances. Notice

of Intent, 11/10/16, at n.3 (citing Commonwealth v. Baker, 78 A.3d 1044,

1045 (Pa. 2013), and Commonwealth v. Colon-Plaza, 136 A.3d 521, 523

(Pa.Super. 2016)).     Appellant filed a timely response to the notice in the

form of a memorandum of law supporting his claims and distinguishing his

case from Baker and Colon-Plaza. Response to Notice of Intent, 11/30/16,

at 2-11. Unpersuaded, the PCRA court denied Appellant’s petition by order

of January 13, 2011.

      Appellant filed a timely notice of appeal. The PCRA court did not order

Appellant to file a statement of errors complained of on appeal, but it did

author an opinion pursuant to Pa.R.A.P. 1925(a).       Appellant presents this

Court with the following question: “Did trial counsel provide ineffective


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assistance in failing to challenge the constitutionality of the mandatory

sentence that Appellant was facing under 42 Pa.C.S. § 9718.2(a)(1)?”

Appellant’s brief at 3.

      We begin our consideration of Appellant’s question with a review of the

applicable law.

            Our standard of review of the denial of a PCRA petition is
      limited to examining whether the record supports the court’s
      determination and whether the court’s decision is free of legal
      error. This Court grants great deference to the findings of the
      PCRA court if the record contains any support for those findings.

Commonwealth v. Rivera-Figueroa, 174 A.3d 674, 677 (Pa.Super. 2017)

(citations omitted).

      “A criminal defendant has the right to effective counsel during a plea

process as well as during a trial.” Commonwealth v. Kehr, 180 A.3d 754,

760 (Pa.Super. 2018) (internal quotation marks omitted).

            To prevail on a claim of ineffectiveness of counsel, a
      defendant must demonstrate (1) that the underlying claim is of
      arguable merit; (2) that counsel’s course of conduct was without
      a reasonable basis designed to effectuate his client’s interest;
      and (3) that he was prejudiced by counsel’s ineffectiveness. It is
      defendant’s burden to prove all three prongs of this standard.
      To sustain a claim of ineffectiveness, counsel’s approach must be
      so unreasonable that no competent lawyer would have chosen it.

Commonwealth v. Diaz, 913 A.2d 871, 873 (Pa.Super. 2006) (internal

quotation marks and citations omitted).

      “Allegations of ineffectiveness in connection with the entry of a guilty

plea will serve as a basis for relief only if the ineffectiveness caused the

defendant to enter an involuntary or unknowing plea.” Kehr, supra at 760.

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Furthermore, “with regard to the prejudice prong, where an appellant has

entered a guilty plea, the appellant must demonstrate it is reasonably

probable that, but for counsel’s errors, he would not have pleaded guilty and

would have gone to trial.”3 Commonwealth v. Timchak, 69 A.3d 765, 770

(Pa.Super. 2013).

       With these principles in mind, we first consider whether there is

arguable merit to the underlying claim that § 9718.2(a)(1) violates the

Eighth Amendment. The PCRA court held that there is not, based upon the

Baker and Colon-Plaza decisions. PCRA Court Opinion, 8/15/17, at 1.

       In Baker, our Supreme Court “granted allowance of appeal to address

whether Section 9718.2 of the Sentencing Code, mandating a 25–year

minimum sentence of imprisonment for offenders who have been twice

convicted of possessing child pornography, is grossly disproportionate to the

crime and, therefore, unconstitutional.” Baker, supra at 1047. The Court

noted that the applicable test under the Eighth Amendment is the three-

prong proportionality test enunciated in Solem v. Helm, 463 U.S. 277, 292

(1983). The test “examines: (i) the gravity of the offense and the harshness

of the penalty; (ii) the sentences imposed on other criminals in the same

jurisdiction; and (iii) the sentences imposed for commission of the same

____________________________________________


3 For purposes of our review, we shall accept as true that the sole motivating
factor in Appellant’s decision to plead guilty is the threat of a twenty-five to
fifty year sentence under § 9718.2(a)(1).



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crime in other jurisdictions.” Baker, supra at 1047. “[A] reviewing court is

not obligated to reach the second and third prongs of the test unless a

threshold comparison of the crime committed and the sentence imposed

leads to an inference of gross disproportionality.” Id. (internal quotation

marks omitted).

     Applying the Solem test to Baker’s twenty-five-to-fifty-year sentence

imposed under § 9718.2(a)(1), the High Court concluded that there was no

need to go beyond the first prong, as “a threshold comparison of the gravity

of a second conviction of possessing and viewing child pornography against

the imposition of a mandatory sentence of at least 25 years’ imprisonment

does not lead to an inference of gross disproportionality.” Id. at 1052.   The

Court acknowledged that it is “clearly a lengthy sentence,” but held that it

was not disproportionate to the crime. Id. As the Court explained,

     It bears repeating here that [Baker] was sentenced under a
     recidivist sentencing scheme. The fact that [Baker] is a repeat
     offender certainly goes to the gravity of his instant offense.
     Equally importantly, we cannot view [Baker’s] crimes as he
     suggests, in a manner that detaches them from the devastating
     victimization that child pornography produces.            [Baker’s]
     participation in the criminal subculture of viewing images of child
     sexual abuse for personal gratification is part and parcel of that
     victimization. [Baker’s] crime is his continued participation as an
     enabler of sexual crimes against children via his status as a
     possessor of child pornography.         Although [Baker] did not
     personally commit the underlying sexual abuse, he was certainly
     a willing voyeuristic participant in its commission after the fact,
     and it is his demand to possess images of child sexual abuse
     which permits and, to an extent, causes, the production of child
     pornography. It is unacceptably inaccurate to characterize or
     label [Baker’s] crime as the simple possession of “dirty pictures”
     or the use of an outlaw product. His crime is more accurately

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      understood as secondary or indirect participation in the sexual
      abuse and exploitation of innocent children for personal
      gratification. That is a very serious and grave offense. It is
      certainly no less grave than receiving $120.75 by false pretenses
      or shoplifting three golf clubs, recidivist offenses for which
      lengthier sentences of imprisonment than that imposed here
      were upheld against Eighth Amendment challenges by the
      Supreme Court of the United States.

Baker, supra at 1051–52 (citations and footnote omitted).

      In Colon-Plaza, the defendant also challenged the validity of

§ 9718.2(a)(1) under the Eighth Amendment. He contended that a twenty-

five-year minimum sentence was grossly disproportionate (1) to the

guideline range of nine to sixteen months that would have applied to him if it

were his first offense, and (2) to the mandatory minimum term of ten years

“applicable to what he calls the ‘more serious’ offense of a first-time forcible

rape of a child under 13 years of age[.]” Colon-Plaza, supra at 530.

      Examining the Baker decision and its application of the Solem three-

prong test, this Court held that the comparisons the defendant was making

were “inapposite to a first-prong, threshold assessment” of the test. Rather,

those comparisons went to the second prong (examination of the sentences

imposed on other criminals in the same jurisdiction), which is only reached if

the first-prong analysis leads to an inference of gross disproportionality.

This Court thus rejected the defendant’s challenge because he offered no

basis to distinguish the Baker Court’s reasoning in holding that the twenty-

five-year minimum mandated by § 9718.2(a)(1) for a recidivist consumer of




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child pornography did not create an inference of gross disproportionality.

Colon-Plaza, supra at 532.

      In the instant case, Appellant attempts to succeed where the

defendant in Colon-Plaza failed by distinguishing the impact of a twenty-

five-year sentence on him. He notes the circumstances of the defendant in

Baker, which were described by the Court as follows.

      [Baker was] thirty-three years of age on the date of sentencing,
      will be fifty-six years of age at the expiration of his minimum
      term of imprisonment, and eighty-one years of age at the
      expiration of his maximum sentence. This is an indeterminate
      sentence of years with the possibility of parole at some point
      following expiration of the mandatory minimum sentence. While
      clearly a lengthy sentence, presuming [Baker] will experience an
      average longevity, the sentence here is not tantamount to a life
      sentence without the possibility of parole which the High Court
      struck down in Solem, supra, as grossly disproportionate to the
      recidivist non-violent offense of passing a bad check in the
      amount of $100.

Baker, supra at 1052.

      Appellant    then     contrasts   his   own   circumstances,       arguing   that

application of § 9718.2(a)(1) to him would have resulted in a de facto life

sentence without possibility of parole.        Appellant’s brief at 8.    Specifically,

Appellant points to the fact that “at the time of sentencing, Appellant was 57

years old, had suffered a heart attack in 2010, a cardiac arrest in 2012, and

entered prison with diverticulitis and a resultant abscess.” Id.

      We are not persuaded. Our Supreme Court noted that “[a] searching

review of Eighth Amendment proportionality decisions shows that, with

respect   to   recidivist   sentencing    schemes,     successful   challenges     are

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extremely rare.”    Baker, supra at 1048.        “Indeed, the only successful

challenge was presented in Solem,” where the Court overturned a “sentence

of life imprisonment without the possibility of parole upon conviction of

passing a bad check in the amount of $100[.]” Id. (emphasis added).

      Appellant did not pass a bad $100 check.        He repeatedly victimized

young children. Despite his age and his medical conditions, Appellant was

just as willing and able as healthy, thirty-something Baker to participate in

the abuse of children.      The consequences Appellant faced for his prior

conviction were not enough to dissuade him from victimizing the two pre-

teen girls who performed sex acts in the videos he possessed. Affidavit of

Probable Cause, 5/5/14, at 2.      Moreover, Appellant was unable to check

recidivism even for the duration of his supervision for the prior offense.

Rather, he went right back to abusing children.

      Upon this record, we hold that Appellant has failed to raise an

inference of gross disproportionality, and his Eighth Amendment challenge

thus lacks arguable merit. Commonwealth v. Green, 593 A.2d 899, 900

(Pa.Super. 1991) (holding imposition of mandatory minimum sentence upon

sixty-six-year-old man with rheumatoid arthritis, hypertension, chronic

obstructive pulmonary disease, and a history of a myocardial infarction did

not constitute cruel and unusual punishment despite arguments that it

constituted “in effect a life sentence”).   As such, counsel was not ineffective

for failing to pursue it.   Commonwealth v. Spotz, 896 A.2d 1191, 1210


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(Pa. 2006) (“Counsel will not be deemed ineffective for failing to raise a

meritless claim.”).

      Appellant next argues that his plea counsel should have challenged the

applicability of § 9718.2(a)(1) to       him based upon the         Pennsylvania

Constitution, which provides in relevant part: “Excessive bail shall not be

required, nor excessive fines imposed, nor cruel punishments inflicted.” Pa.

Const. Art. I § 13.     Citing Chief Justice Castille’s concurrence in Baker,

Appellant contends that the use of “cruel punishments,” as opposed to the

federal Constitution’s “cruel and unusual punishments,” warrants a different

analysis of his claim under Pennsylvania law. Appellant’s brief at 14.

      This Court repeatedly has held, both pre- and post-Baker, that the

Pennsylvania Constitution provides no greater protection against cruel

punishments than that offered by the Eighth Amendment.                See, e.g.,

Commonwealth v. Bonner, 135 A.3d 592, 597 n.18 (Pa. Super. 2016)

(“The Pennsylvania prohibition against cruel and unusual punishment is

coextensive with the Eighth and Fourteenth Amendment of the United States

Constitution.”) (quoting Commonwealth v. Yasipour, 957 A.2d 734, 743

(Pa.Super. 2008)); Commonwealth v. Elia, 83 A.3d 254, 267 (Pa.Super.

2013) (“Pennsylvania courts have repeatedly and unanimously held that . . .

the   Pennsylvania    Constitution   affords   no   broader   protection   against

excessive sentences than that provided by the Eighth Amendment to the

United States Constitution.”) (internal quotation marks omitted).


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     Thus, the separate Pennsylvania Constitution-specific approach offered

by then-Chief Justice Castille in his Baker concurrence, and advocated by

Appellant in this case, is not the law.       Therefore, Appellant’s Article I,

Section 13 argument fails for the same reasons as his Eight Amendment

challenge, and plea counsel was not ineffective in failing to raise the non-

meritorious claim. Spotz, supra.

     Finally, Appellant alleges that counsel should have disputed the

potential application of the mandatory minimum sentence based upon his

due process right to individualized sentencing.    Appellant’s brief at 18 -20

(citing, inter alia, Commonwealth v. Martin, 351 A.2d 650, 658 (Pa. 1976)

(vacating sentences of three to ten years imprisonment, determined in

advance by three different judges as appropriate for heroin sales and

imposed upon unrelated defendants, based upon the failure to give

individualized consideration to the particular circumstances of each offense

and the separate characters of the defendants)).

     “[T]he legislature has the exclusive power to pronounce which acts are

crimes, to define crimes, and to fix the punishment for all crimes.”

Commonwealth v. Eisenberg, 98 A.3d 1268, 1283 (Pa. 2014) (internal

quotation   marks   omitted).   “There   is   no   constitutional   requirement

prohibiting the legislature from imposing a mandatory sentence where, in its

judgment, such a sentence is necessary.” Commonwealth v. Church, 522

A.2d 30, 34 (Pa. 1987). Rather, so long as the legislature does not mandate


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a cruel or arbitrary punishment, a mandatory minimum statute’s limitation

upon a trial court’s sentencing discretion does not violate due process. See,

e.g., Chapman v. United States, 500 U.S. 453, 465 (1991) (“Every person

has a fundamental right to liberty in the sense that the Government may not

punish him unless and until it proves his guilt beyond a reasonable doubt

. . . . But a person who has been so convicted is eligible for, and the court

may impose, whatever punishment is authorized by statute for his offense,

so long as that penalty is not cruel and unusual, and so long as the penalty

is not based on an arbitrary distinction that would violate the Due Process

Clause of the Fifth Amendment.”); Commonwealth v. Chmiel, 610 A.2d

1058, 1060 (Pa.Super. 1992) (rejecting due process challenge to statute

imposing mandatory minimum sentences for crimes against children).          We

have already determined that applying § 9718.2(a)(1) to Appellant would

not have been cruel and unusual, and Appellant does not argue that the

statute is arbitrary. Hence, Appellant’s due process challenge lacks arguable

merit, and plea counsel did not render ineffective assistance in failing to

raise it. Spotz, supra.

     We discern no merit to any of Appellant’s claims that plea counsel

rendered ineffective assistance that induced him to enter an unknowing or

involuntary guilty plea. As such, Appellant has failed to meet his burden of

convincing this Court that the PCRA court erred and relief is due.

Commonwealth       v.   Claffey,   80   A.3d   780,   787   (Pa.Super.   2013).


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Accordingly, we affirm the PCRA court’s order denying Appellant’s PCRA

petition.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/22/18




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