J-S70016-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
               v.                              :
                                               :
                                               :
    AARON WALTER ROBINSON                      :
                                               :
                       Appellant               :   No. 852 MDA 2017

                    Appeal from the PCRA Order May 3, 2017
     In the Court of Common Pleas of Lancaster County Criminal Division at
                       No(s): CP-36-CR-0001681-2012


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

MEMORANDUM BY SHOGAN, J.:                               FILED JANUARY 24, 2018

       Aaron Walter Robinson (“Appellant”) appeals pro se from the order

denying his petition for relief filed under the Post Conviction Relief Act

(“PCRA”), 42 Pa.C.S. § 9541–9546.              We affirm in part the order denying

collateral   relief,   vacate   the   judgment     of   sentence   and   remand   for

resentencing.

       This case arose out of multiple armed robberies and kidnappings of

Leroy Freeman in December of 2011 by Appellant and a co-defendant.1 The

Commonwealth charged Appellant with three counts of robbery, two counts

of kidnapping to facilitate a felony, criminal conspiracy, theft by extortion,
____________________________________________


1  We adopt the PCRA court’s factual summary of this case, which is
supported by the certified record. PCRA Court Opinion, 5/3/17, at 1–2.
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and unlawful restraint/risking serious injury.2 Appellant absconded, but the

United States Marshal’s Fugitive Task Force eventually apprehended him on

February 2, 2012, in Richmond, Virginia. Following a three-day trial, a jury

convicted Appellant of the foregoing offenses on January 18, 2013. Prior to

sentencing, the Commonwealth filed two notices of its intent to seek

mandatory minimum sentences:             a minimum of ten years of incarceration

because Appellant had a prior conviction for a crime of violence in 1993, and

a minimum of five years of incarceration pursuant to 42 Pa.C.S. § 9712(a)

because Appellant committed the instant offenses with a firearm.

       The trial court sentenced Appellant on April 2, 2013, to incarceration

for an aggregate term of thirty-six to seventy-two years.         Appellant filed

post-sentence motions, which the trial court denied on July 9, 2013.         We

affirmed Appellant’s judgment of sentence, and the Pennsylvania Supreme

Court denied allowance of appeal. Commonwealth v. Robinson, 104 A.3d

60, 1281 MDA 2013 (Pa. Super. filed May 27, 2014) (unpublished

memorandum), appeal denied, 104 A.3d 525, 446 MAL 2014 (Pa. filed

December 10, 2014).

       Appellant filed a timely pro se PCRA petition, challenging the

effectiveness of trial and appellate counsel and the imposition of mandatory

minimum sentences. Petition, 7/24/15, at ¶ 6. The PCRA court appointed
____________________________________________


2  18 Pa.C.S. §§ 3701(a)(1)(ii), 2901(A)(2), 903(A)(1), 3923(A)(1), and
2902(A)(1), respectively.



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counsel and granted leave to file an amended petition.                       Following two

extensions for review of Appellant’s               collateral    claims, PCRA counsel

concluded that Appellant’s petition did not present any issues of arguable

merit.      Consequently,      counsel     filed   a    no-merit    letter    pursuant    to

Turner/Finley3 and a petition to withdraw on March 2, 2016.

       The PCRA court determined that “there were no disputed issues of

fact, [Appellant] was not entitled to relief, and no purpose would be served

by   any   further    proceedings.”        PCRA        Court   Opinion,   5/3/17,   at    5.

Accordingly, the PCRA court filed a notice of its intention to dismiss

Appellant’s petition without a hearing. Order, 3/7/16. Appellant did not file

a response to counsel’s petition to withdraw or the PCRA court’s notice. The

PCRA court then dismissed Appellant’s petition and granted counsel leave to

withdraw. Order, 5/3/17. The PCRA court did not direct Appellant to file a

concise statement of errors complained of on appeal pursuant to Pa.R.A.P.

1925(b), but it filed a Rule 1925(a) opinion, relying on its May 3, 2017

opinion and order dismissing Appellant’s petition.

       On appeal, Appellant presents three questions for our consideration:

       1. Whether court[-]appointed PCRA counsel complied                    with the
          Turner/Finley withdrawal requirements as set                       forth in
          Commonwealth v. Turner, 518 Pa. 491, 544 A.2d                      927 (Pa.
          1988), and Commonwealth v. Finley, 379 Pa. Super.                  390, 550
          A.2d 213 (Pa. Super. 1988)?
____________________________________________


3  Commonwealth v. Turner, 544 A.2d 927 (Pa.                                   1988),    and
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988).



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      2. Whether the Appellant was illegally sentenced under 42
         Pa.C.S.A.     §9712(A), which     has   been    deemed
         unconstitutional?

      3. Whether court-appointed counsel, Janice L. Martino Longer,
         Esquire was ineffective during trial, sentencing, and on
         appeal?

Appellant’s Brief at 6 (full capitalization and bold omitted).

      When reviewing the propriety of an order denying PCRA relief, we

consider the record “in the light most favorable to the prevailing party at the

PCRA level.”   Commonwealth v. Stultz, 114 A.3d 865, 872 (Pa. Super.

2015) (quoting Commonwealth v. Henkel, 90 A.3d 16, 20 (Pa. Super.

2014) (en banc)). This Court is limited to determining whether the evidence

of record supports the conclusions of the PCRA court and whether the ruling

is free of legal error. Commonwealth v. Rykard, 55 A.3d 1177, 1183 (Pa.

Super. 2012). We grant great deference to the PCRA court’s findings that

are supported in the record and will not disturb them unless they have no

support in the certified record.    Commonwealth v. Rigg, 84 A.3d 1080,

1084 (Pa. Super. 2014).

      In his first issue, Appellant argues that PCRA counsel “did not comply

with the Turner/Finley withdrawal requirements because she failed to

identify each and every issue the Appellant raised in his initial pro se PCRA

filing[.]” Appellant’s Brief at 16. Specifically, Appellant claims, for the first

time, that PCRA counsel was ineffective for failing to raise trial counsel’s

ineffectiveness in not challenging the legality of Appellant’s sentence. Id. at

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14–24. Because the PCRA court did not order a Rule 1925(b) statement of

errors, it did not address this issue.

      Upon review, we are compelled to conclude that Appellant has waived

this issue.   In doing so, we rely on our analysis of the same situation in

another case:

      [T]he PCRA court’s Rule 907 notice was adequate where the
      court advised the parties of its reasons for dismissal and
      informing them of the twenty-day time limit to file a response to
      the notice. Here, the PCRA court’s Rule 907 notice indicated the
      reason for dismissal was Appellant’s issues lacked merit and
      alerted Appellant to the twenty-day response period. The court
      sent the Rule 907 notice to Appellant, Appellant’s counsel, and
      the District Attorney’s Office. The rule does not impose on the
      court any duty to explain to Appellant how to proceed or respond
      to the notice.

            Appellant had an affirmative duty to preserve his claims. If
      Appellant wanted to assert claims of ineffective assistance of
      PCRA counsel, he should have consulted counsel and/or the
      court to learn the correct procedure. Instead, Appellant did
      nothing in the [period] between the court’s Rule 907 notice and
      dismissal of the petition. Thus, Appellant’s substantive issues
      concerning PCRA counsel’s assistance are waived, because
      Appellant failed to respond to the PCRA court’s Rule 907 notice
      at any time before the court dismissed his petition. Once
      Appellant filed a notice of appeal, he waived his right to complain
      about PCRA counsel’s stewardship, because Appellant was
      unable to raise those claims for the first time [on appeal].

             Moreover, throughout the PCRA proceedings Appellant, as
      petitioner, bore the burden to plead and prove his claims. See
      42 Pa.C.S.A. §§ 9543(a), 9545(b). See, e.g., Commonwealth
      v. Bardo, ___ Pa. ___, 105 A.3d 678 (2014) (explaining counsel
      is presumed effective and petitioner bears burden to prove
      ineffective assistance of counsel); Commonwealth v. Pitts,
      603 Pa. 1, 981 A.2d 875 (2009) (noting petitioner must satisfy
      rigorous burden to warrant evidentiary hearing for claims);
      Commonwealth v. Clark, 599 Pa. 204, 961 A.2d 80 (2008),
      cert. denied, 558 U.S. 1082, 130 S.Ct. 810, 175 L.Ed.2d 569

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       (2009) (stating petitioner bears burden to demonstrate his
       issues have not been previously litigated or waived). Compare
       Commonwealth v. Ligons, 601 Pa. 103, 971 A.2d 1125 (2009)
       (plurality) (stating where PCRA petitioner in capital case had
       evidentiary hearing on his PCRA claims, and Rule 907 notice was
       not implicated, petitioner could raise ineffective assistance of
       PCRA counsel claims for first time on appeal from denial of PCRA
       relief). Given Appellant’s affirmative duties to preserve his claims
       of PCRA counsel’s service, in the context of Rule 907 notice,
       Appellant cannot shift the burden to the court to instruct
       Appellant how to do so.

Commonwealth v. Smith, 121 A.3d 1049, 1055 (Pa. Super. 2015) (some

internal citations omitted).      Accordingly, because Appellant has waived his

first issue, we decline to address it on the merits.

       Next, Appellant argues that his sentence is illegal pursuant to Alleyne

v. United States, 570 U.S. 99 (2013), because it included a mandatory

minimum sentence based on 42 Pa.C.S. § 9712,4 which has been deemed


____________________________________________


4   42 Pa.C.S. § 9712 provides:

       (a) Mandatory sentence.—Except as provided under section
       9716 (relating to two or more mandatory minimum sentences
       applicable), any person who is convicted in any court of this
       Commonwealth of a crime of violence as defined in section
       9714(g) (relating to sentences for second and subsequent
       offenses), shall, if the person visibly possessed a firearm or a
       replica of a firearm, whether or not the firearm or replica was
       loaded or functional, that placed the victim in reasonable fear of
       death or serious bodily injury, during the commission of the
       offense, be sentenced to a minimum sentence of at least five
       years of total confinement notwithstanding any other provision
       of this title or other statute to the contrary. Such persons shall
       not be eligible for parole, probation, work release or furlough.

(Footnote Continued Next Page)


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unconstitutional.     Appellant’s Brief at 25.   According to Appellant, his

Alleyne-based claim is “a non-waivable challenge to the legality of a

sentence that could be raised on direct appeal, or in a timely filed PCRA

petition.” Id. at 31.

      Again, the PCRA court did not address Appellant’s sentencing claim.

As for the Commonwealth, it argues that:

      [t]his issue, whether [Appellant’s] mandatory minimum
      sentences are unconstitutional, and what ground or grounds
      might exist for such a claim, was not addressed by PCRA
      counsel’s “no merit” letter, nor by the PCRA [c]ourt. Even
      assuming that the original claim in the pro se petition can be
      said to be based on Alleyne, [Appellant] is not entitled to relief.

            In Alleyne, the United States Supreme Court held that any
      fact which allows for the imposition of a mandatory minimum
      sentence is an element of the offense which must be submitted
      to the jury and found beyond a reasonable doubt. Alleyne, 135
      S. Ct. at 2153. The Pennsylvania Supreme Court and the United
      States Court of Appeals for the Third Circuit have held that
      Alleyne is not given retroactive effect.    Commonwealth v.
      Washington, 142 A.3d 810 (Pa. 2016); United States v. Reyes,
      755 F.3d 210 (3rd. Cir. 2014).

                                         * * *

(Footnote Continued) _______________________

      (b) Proof at sentencing.—Provisions of this section shall not
      be an element of the crime and notice thereof to the defendant
      shall not be required prior to conviction, but reasonable notice of
      the Commonwealth's intention to proceed under this section
      shall be provided after conviction and before sentencing. The
      applicability of this section shall be determined at sentencing.
      The court shall consider any evidence presented at trial and shall
      afford the Commonwealth and the defendant an opportunity to
      present any necessary additional evidence and shall determine,
      by a preponderance of the evidence, if this section is applicable.



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            [Appellant’s] Judgment of sentence became final on March
     10, 2015, when the time for seeking review in the United States
     Supreme Court expired. The earliest that [Appellant] could be
     said to have challenged the constitutionality of his mandatory
     minimum sentence based on Alleyne, supra, is on July 24, 2015,
     when his pro se petition was filed. As Alleyne does not apply
     retroactively to cases on collateral review, [Appellant] is not
     entitled to relief.

Commonwealth’s Brief at 12–14.

     Upon review, we disagree with the Commonwealth that Appellant’s

sentencing challenge must fail. Generally, an Alleyne claim does not apply

retroactively to cases on collateral review.      See Commonwealth v.

Washington, 142 A.3d 810, 820 (Pa. 2016). However, in Commonwealth

v. Ruiz, 131 A.3d 54 (Pa. Super 2015), this Court recognized that an

Alleyne claim constitutes a non-waivable challenge to the legality of a

sentence and may be raised for the first time in a timely-filed PCRA petition

if the petitioner’s judgment of sentence was not final when Alleyne was

decided. Ruiz, 131 A.3d at 60–61.

     Here, the trial court sentenced Appellant on April 2, 2013, and his

judgment of sentence became final on March 10, 2015.           42 Pa.C.S. §

9545(b)(3).   Alleyne was decided in the interim, on June 17, 2013.

Because Appellant’s judgment of sentence was not final when Alleyne was

decided and he timely filed a PCRA petition that included a legality-of-

sentence claim, Alleyne is applicable to Appellant’s case. Ruiz, 131 A.3d at

60–61.    Thus, applying Alleyne, we agree with Appellant that the

mandatory minimum sentence imposed under 42 Pa.C.S. § 9712 is illegal.

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See Commonwealth v. Valentine, 101 A.3d 801 (Pa. Super. 2014)

(“Because Alleyne and [Commonwealth v.] Newman, [99 A.3d 86

(Pa.Super.2014) (en banc)] render [Section] 9712 . . . unconstitutional, we

vacate the judgment of sentence and remand for the re-imposition of

sentence without consideration of any mandatory minimum sentence as

provided by [Section] 9712. . . .”).5

       Finally, Appellant challenges the representation of his trial counsel.

Appellant’s Brief at 31. Our Supreme Court has long stated that in order to

succeed on a claim of ineffective assistance of counsel (“IAC”), an appellant

must demonstrate (1) that the underlying claim is of arguable merit; (2)

that counsel’s performance lacked a reasonable basis; and (3) that the

ineffectiveness of counsel caused the appellant prejudice. Commonwealth

v. Pierce, 786 A.2d 203, 213 (Pa. 2001).

       Specifically, Appellant claims that trial counsel:

       was ineffective for failing to properly advise [Appellant] of his
       sentencing guidelines for the charges he was facing when
       discussing the plea offer from the District Attorney’s office. . . .
       Had [Appellant] been given the proper information as to how he
       might be sentenced, it is very plausible that [he] would have
       eagerly accepted the plea that was being offered of nine (9)

____________________________________________


5 However, we note that the mandatory minimum sentence imposed under
42 Pa.C.S. § 9714, is not illegal. See Commonwealth v. Riggle, 119 A.3d
1058, 1064 (Pa. Super. 2015) (“In Alleyne, the Supreme Court held that
the constitutional jury trial right requires any fact, other than a prior
conviction, that triggers a mandatory minimum sentence to be proven
beyond a reasonable doubt before the finder of fact.” (emphasis supplied)).



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      years had       it   not   been    for   his   counsel’s      unconstitutional
      deficiency.

Appellant’s Brief at 31, 33.           The Commonwealth counters that, because

Appellant raises trial counsel’s ineffectiveness with regard to his sentencing

for   the   first   time   in    his   appellate     brief,   his    claim   is   untimely.

Commonwealth’s Brief at 7.

      The PCRA court recognized that Appellant raised—and PCRA counsel

addressed in her no-merit letter—a claim that trial counsel was ineffective

for failing “to advise [Appellant] that a ten-year mandatory [sentence]

applied to his case.”      PCRA Court Opinion, 5/3/17, at 9.             The PCRA court

concluded that this claim lacked merit. Id.

      Upon review, we discern no abuse of the PCRA court’s discretion in

rejecting Appellant’s final argument. Although Appellant raised an IAC claim

about trial counsel in his PCRA petition, PCRA Petition, 7/24/15, at ¶ 6, he

failed to demonstrate that the underlying claim is of arguable merit. In fact,

the PCRA court explained that the record belies Appellant’s argument:

            Next, [Appellant] complains that trial counsel was
      ineffective for failing to inform him that if convicted he would be
      subject to a mandatory sentence of ten years’ incarceration
      pursuant to 42 Pa.C.S.A. § 9714(a). The record establishes that
      [Appellant] was advised as early as June 25, 2012, during a
      bond hearing, that he was looking at a minimum ten-year
      sentence in this case. The prosecutor specifically stated: “This
      would be a second strike. So at a minimum, the defendant is
      looking at a sentence of 10 years in this case.” (N.T., Bond
      Hearing at [78–79]). Accordingly, this claim lacks merit and
      must be dismissed.




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PCRA Court Opinion, 5/3/17, at 17. The record supports the PRCA court’s

findings, and its legal conclusion is without error.   Thus, Appellant’s final

issue does not warrant relief.

      Based on the foregoing, we vacate Appellant’s judgment of sentence

and remand for resentencing consistent with this Memorandum. We affirm

the PCRA court’s denial of collateral relief on Appellant’s IAC claims about

PCRA counsel and trial counsel.

      Order denying collateral relief affirmed in part. Judgment of sentence

vacated. Case remanded for resentencing. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/24/2018




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