J-S47005-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                      IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA
                        Appellee

                   v.

TERRENCE JAMES LUCAS,

                        Appellant                     No. 2221 MDA 2015


              Appeal from the PCRA Order December 1, 2015
            In the Court of Common Pleas of Lancaster County
           Criminal Division at No(s): CP-36-CR-0001060-2014


BEFORE: SHOGAN, LAZARUS, and JENKINS, JJ.

MEMORANDUM BY SHOGAN, J.:                            FILED AUGUST 11, 2016

     Terrence   James    Lucas     (“Appellant”)   appeals   pro   se   from   the

December 1, 2015 order dismissing his petition for collateral relief filed

pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541–

9546. We affirm.

     The PCRA court summarized the history of this case as follows:

           On Docket Number 1060-2014, [Appellant] was charged
     with one count of Criminal Attempt-Criminal Homicide, one count
     of Aggravated Assault, and one count of Possession of Firearm
     Prohibited. On October 8, 2014, the Commonwealth provided
     notice to [Appellant] that the Commonwealth intended to seek
     imposition of a ten-year mandatory minimum sentence, based
     upon [Appellant’s] prior conviction of a “crime of violence,”
     pursuant to 42 Pa.C.S.A. § 9714(a)(1). The Commonwealth
     sought a mandatory sentence because [Appellant] was convicted
     on April 1, 2002 of Robbery.

           That same day, [Appellant] entered a negotiated guilty
     plea to the charges of attempted homicide and possession of
J-S47005-16


      firearm prohibited. Consistent with the plea agreement, the
      [c]ourt sentenced [Appellant] to ten to twenty years of
      imprisonment on the count of attempted homicide, invoking
      Pennsylvania’s second strike statute for repeat violent offenders,
      and three and one half to ten years imprisonment on the count
      of possession of firearm prohibited. The two counts were made
      consecutive to each other. In sum, [Appellant] was sentenced to
      an aggregate period of incarceration of not less than thirteen
      and one half years nor more than thirty years.

             [Appellant] did not file a post-sentence motion or a direct
      appeal. As a result, his judgment became final under the PCRA
      on November 7, 2014, upon expiration of the time to file an
      appeal to the Superior Court of Pennsylvania. See Pa.R.A.P.
      903(a). He timely filed the instant pro se petition for PCRA relief
      on August 20, 2015, challenging the legality of his sentence in
      light of Alleyne v. United States and Commonwealth v.
      Newman.9 [Appellant] claims that his sentenced violated Alleyne
      and it’s [sic] Pennsylvania progeny because the determination of
      whether section 9714(a)(1) was satisfied must be made by a
      fact-finder and proven beyond a reasonable doubt. Counsel was
      appointed to represent [Appellant] and filed a motion to
      withdraw as Counsel and a Turner/Finley letter on October 28,
      2015.
            9
              Commonwealth v. Newman, 99 A.3d 86 (Pa.Super.
            2014)(held that 42 Pa. C.S.A. § 9712.1, which
            requires a mandatory minimum sentence for certain
            drug    offenses   committed     with firearms, is
            unconstitutional under Alleyne).

PCRA Court Rule 907 Notice, 11/3/15, at 1–3 (some footnotes omitted).

Following an independent review of the record, the PCRA court determined,

“[N]o purpose would be served by any further proceedings and [Appellant] is

not entitled to PCRA relief.” Id. at 1. The PCRA court filed a Pa.R.Crim.P.

907 notice and order on November 3, 2015, advising Appellant of its intent

to dismiss his petition and affording Appellant twenty days in which to file a

response. Order, 11/3/15, at ¶ 1. The PCRA court also permitted counsel to

                                     -2-
J-S47005-16


withdraw. Id. at ¶ 2. When no response was forthcoming, the PCRA court

dismissed Appellant’s petition by order dated November 30, 2015, and

docketed December 1, 2015. This appeal followed. Appellant and the PCRA

court have complied with Pa.R.A.P. 1925.1

       Appellant presents two questions for our consideration, which we

reproduce below verbatim:

            I.
              PETITIONER MAINTAINS   THAT   HIS   MANDATORY
       MINIMUM SENTENCE(S) IS ILLEGAL AND THAT BY ENFORCING
       SUCH SENTENCE UPON THOSE WHO HAVE A PRIOR RECORD
       AND NOT FOR THOSE WHO DON’T CREATWES VIOLATIONS OF
       EQUAL PROTECTION, DUE PROCESS AND CRUEL AND UNUSUAL
       PUNISHMENT. LEAVING ALL PRIOR COUNSEL INEFFECTIVE FOR
       FAILING TO OBJECT OR RAISE SUCH CLAIM CREATING
       REVERSIBLE ERROR?

            II.
              PETITIONER MAINTAINS THAT THE TRIAL COURT
       ABUSED IT’S DISCRETION BY SENTENCING HIM TO TWO
       MANDATORY MINIMUM SENTENCES AND THEN RUNNING THEM
       CONSECUTIVELY.    FURTHER LEAVING ALL PRIOR COUNSEL
       INEFFECTIVE FOR FAILING TO OBJECT OR RAISE SUCH CLAIM
       ON APPEALCREATING REVERSIBLE ERROR?

Appellant’s Brief at 4.

       Our standard of review of a trial court order granting or denying relief

under the PCRA requires us to determine whether the decision of the PCRA

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

____________________________________________


1
   The PCRA court submitted the opinion accompanying its November 3,
2015 Rule 907 Notice as its Pa.R.A.P. 1925(a) opinion. Memorandum,
12/31/15.



                                           -3-
J-S47005-16


Commonwealth v. Perez, 103 A.3d 344, 347 (Pa. Super. 2014).                “The

PCRA court’s findings will not be disturbed unless there is no support for the

findings in the certified record.” Commonwealth v. Lippert, 85 A.3d 1095,

1100 (Pa. Super. 2014).

       Initially, we note that, in both questions presented, Appellant raises

claims of ineffective assistance of counsel (“IAC”). However, our review of

the record reveals that, although Appellant raised an IAC claim related to

plea counsel in his petition, he did not include any IAC claims in his Pa.R.A.P.

1925(b) statement. Therefore, his current IAC claims are waived. Pa.R.A.P.

1925(b)(4)(vii); see also Perez, 103 A.3d at 347 n.1 (holding that issues

not included in PCRA petitioner’s Pa.R.A.P. 1925(b) statement were waived

for purposes of appeal).2        Thus, we address only the legality-of-sentence

claims.

       Appellant first argues that the mandatory minimum sentence he

received is illegal under Alleyne v. United States, ___ U.S. ___, 133 S.Ct.

2151 (2013). In his own words, Appellant “is challenging the permitance of

a Judge to impose a mandatory minimum sentence without presenting the

facts and circumstances to a jury, a Constitutionally recognized fact finder.
____________________________________________


2
   Even if Appellant’s IAC claims were not waived, we would not grant him
relief because both of his underlying sentencing claims lack merit. See
Commonwealth v. Paddy, 15 A.3d 431, 443 (Pa.2011) (“Because we have
determined that Appellant’s underlying claims lack merit, the PCRA court did
not abuse its discretion in rejecting Appellant’s layered claims of
ineffectiveness of counsel based upon those assertions.”).



                                           -4-
J-S47005-16


This would create an equal platform for all of those convicted of crimes

which could receive mandatory minimum sentences.” Appellant’s Brief at 8.

Appellant argues that, because not all crimes are similar, “an individual

could commit a brutal and heinace [sic] crime and receive less punishment

than an individual who committed a crime that is non-violent or not

anywhere close to the degree of another just because of a prior conviction of

a felony.”   Id. at 7.   We acknowledge Appellant’s attempt to present his

challenge in a novel framework; however, we conclude that no relief is due.

      “Alleyne held that any fact that, by law, increases the penalty for a

crime must be treated as an element of the offense, submitted to a jury,

rather   than   a   judge,   and   found   beyond    a   reasonable   doubt.”

Commonwealth v. Washington, ___ A.3d ___, 37 EAP 2015, 2016 WL

3909088, at *1 (Pa. July 19, 2016); see also Apprendi v. New Jersey,

530 U.S. 466, 490 (2000) (“[A]ny fact that increases the penalty for a crime

beyond the prescribed statutory maximum must be submitted to a jury, and

proved beyond a reasonable doubt.”).

      Appellant’s mandatory minimum sentence was imposed pursuant to 42

Pa.C.S. § 9714, which reads, in relevant part, as follows:

      (a) Mandatory sentence.--

         (1) Any person who is convicted in any court of this
         Commonwealth of a crime of violence shall, if at the time
         of the commission of the current offense the person had
         previously been convicted of a crime of violence, be
         sentenced to a minimum sentence of at least ten years of


                                    -5-
J-S47005-16


        total confinement, notwithstanding any other provision of
        this title or other statute to the contrary.

                                    * * *

     (d) 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 sentencing court, prior to imposing sentence on an offender
     under subsection (a), shall have a complete record of the
     previous convictions of the offender, copies of which shall be
     furnished to the offender. If the offender or the attorney for the
     Commonwealth contests the accuracy of the record, the court
     shall schedule a hearing and direct the offender and the attorney
     for the Commonwealth to submit evidence regarding the
     previous convictions of the offender.        The court shall then
     determine, by a preponderance of the evidence, the previous
     convictions of the offender and, if this section is applicable, shall
     impose sentence in accordance with this section. . . .

42 Pa.C.S. § 9714(a)(1), (d).

     Furthermore, as stated by the United States Supreme Court:

     [T]he sentencing factor at issue here—recidivism—is a
     traditional, if not the most traditional, basis for a sentencing
     court’s increasing an offender’s sentence. Consistent with this
     tradition, the Court said long ago that a State need not allege a
     defendant’s prior conviction in the indictment or information that
     alleges the elements of an underlying crime, even though the
     conviction was necessary to bring the case within the statute.
     Graham v. West Virginia, 224 U.S. 616, 624, 32 S.Ct. 583,
     585–86, 56 L.Ed. 917 (1912). That conclusion followed, the
     Court said, from “the distinct nature of the issue,” and the fact
     that recidivism “does not relate to the commission of the
     offense, but goes to the punishment only, and therefore ... may
     be subsequently decided.” Id., at 629, 32 S.Ct., at 588
     (emphasis added). The Court has not deviated from this view. . .
     [T]o hold that the Constitution requires that recidivism be
     deemed an “element” of petitioner’s offense would mark an
     abrupt departure from a longstanding tradition of treating

                                     -6-
J-S47005-16


      recidivism as “go[ing] to the punishment only.” Graham, supra,
      at 629, 32 S.Ct., at 587–588.

Almendarez-Torres v. United States, 523 U.S. 224, 243–244 (1998)

(some internal citations omitted). Thus, because recidivism is a sentencing

factor, not a factual element, the lower standard of proof in section 9714

does not violate Alleyne.    In fact, Apprendi and its progeny expressly

delineate an exception to the general rule for “prior convictions.”       See

Apprendi, 530 U.S. at 490 (“Other than the fact of a prior conviction, any

fact that increases the penalty for a crime beyond the prescribed statutory

maximum must be submitted to a jury, and proved beyond a reasonable

doubt.”); Alleyne, 133 S.C.t at 2160 n.1 (“In Almendarez-Torres, we

recognized a narrow exception to [the] general rule for the fact of a prior

conviction.”).

      After analyzing and applying the above jurisprudence, the PCRA court

concluded as follows:

             Here, [Appellant] was legally sentenced under 42 Pa.C.S.A.
      § 9714(a)(1). That statute provides for a mandatory minimum
      sentence for a defendant previously convicted of a crime of
      violence. The fact triggering [Appellant’s] mandatory minimum
      sentence was solely the existence of his prior conviction, which,
      under the law, need not be presented to a jury and proven
      beyond a reasonable doubt.         As such, neither Alleyne nor
      Newman are applicable to [Appellant’s] case. The imposition of
      a mandatory minimum sentence on [Appellant] as a second
      strike offender was not unconstitutional.      [Appellant] is not
      entitled to post-conviction relief, and no purpose would be
      served by any further proceedings.

PCRA Rule 907 Notice, 11/3/15, at 5.


                                    -7-
J-S47005-16


      Upon review, we conclude that the decision of the PCRA court is

supported by the evidence of record and is free of legal error.               Thus,

Appellant’s legality-of-sentence claim does not merit relief.

      In response to Appellant’s trifold constitutional concerns—e.g., equal

protection, due process, cruel and unusual punishment—we endorse the

Commonwealth’s arguments:

      [First,] equal protection objections to criminal recidivist statutes,
      those based upon prior conduct/convictions are subject to a
      rational basis analysis. . . . The underlying rational basis for
      imposing greater sentences upon recidivists is . . . to enhance
      punishment when the defendant has exhibited an unwillingness
      to reform his miscreant ways and to [conform] his life according
      to the law.

Commonwealth’s Brief at 8–9 (quoting Commonwealth v. Shawyer, 18

A.3d 1190, 1197 (Pa. Super. 2011)).         Here, Appellant has exhibited an

unwillingness to reform his ways, to conform his life to the law, and to

respect the value of human life.

      Second, “Appellant’s due process claim is put forth with no specificity;

he merely makes the bald assertion that his due process rights have been

violated. . . . [T]he claim should be denied.” Commonwealth’s Brief at 9

(citing Commonwealth v. Mann, 820 A.3d 788, 794 (Pa. Super. 2003)).

See also Commonwealth v. Spotz, 896 A.2d 1191, 1229 (Pa. 2006)

(“Other than making [a] bald assertion, Spotz does not direct the Court to

any evidence to support his argument.”).




                                      -8-
J-S47005-16


      Third, regarding Appellant’s cruel and unusual punishment claim,

“there is no gross proportionality between the Appellant’s criminal conduct

and the punishment imposed.”            Commonwealths’ Brief at 12 (applying

Commonwealth v. Baker, 78 A.3d 1044, 1051–1052 (Pa. 2013) (affirming

that mandatory minimum sentence of twenty-five years as second offender

for possession of child pornography did not violate prohibition against cruel

and unusual punishment)).       Here, Appellant pleaded guilty to attempted

homicide as a repeat felony offender.          His sentence of ten years for

attempted homicide and his sentence of three and one-half years for the

firearm violation were within the standard guideline ranges.            Basic

Sentencing Matrix (7th ed.), 204 Pa.Code § 303.16(a).       Thus, we further

conclude that Appellant’s aggregate sentence of thirteen and one-half to

thirty years does not amount to cruel and unusual punishment and,

therefore, is constitutionally sound.

      In his second question presented, Appellant complains that the trial

court erred in sentencing him (a) to a mandatory minimum sentence on the

firearm charge where no notice of a sentencing enhancement was given and

(b) to consecutive sentences. Appellant’s Brief at 8. The first complaint is

belied by the record.   Appellant did not receive a mandatory minimum or

sentencing enhancement on the firearm conviction.       Sentencing Guidelines

Worksheet, 10/8/14. As the Commonwealth explains:

      On the Firearm charge, a felony of the second degree, the
      maximum term of incarceration is ten years.    18 Pa.C.S.

                                        -9-
J-S47005-16


      § 1103(2). On that charge, the Appellant received a sentence of
      three and one-half to ten years; he could have received five to
      ten years, so he received less than the statutory maximum.

Commonwealth’s Brief at 13. Thus, this claim does not merit relief.

      The second complaint is a challenge to the discretionary aspects of

Appellant’s sentence. See Commonwealth v. Moury, 992 A.2d 162, 169

(Pa. Super. 2010) (claim that imposition of consecutive sentences was an

abuse of discretion was a challenge to the discretionary aspects of

sentencing). Requests for relief with respect to the discretionary aspects of

sentence are not cognizable in PCRA proceedings. 42 Pa.C.S. § 9543(a)(2);

Commonwealth v. Wrecks, 934 A.2d 1287, 1289 (Pa. Super. 2006).

Accordingly, this claim does not afford Appellant relief.

      In sum, Appellant’s various claims either lack merit or are not

reviewable. Accordingly, we affirm the order dismissing his PCRA petition.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/11/2016




                                     - 10 -
