J-S41043-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                     IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

JHOLY IDY,

                            Appellant                  No. 2689 EDA 2015


                  Appeal from the PCRA Order August 18, 2015
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0006367-2007

BEFORE: BENDER, P.J.E., DUBOW, J., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.:                           FILED MAY 24, 2016

        Appellant Jholy Idy appeals the order entered in the Court of Common

Pleas of Philadelphia County on August 18, 2015, dismissing without a

hearing his first counseled petition filed pursuant to the Post Conviction

Relief Act (“PCRA”).1 Following a review of the record, we affirm.

        In our disposition of Appellant’s direct appeal, we related the following

factual and procedural history of Appellant’s case:

              The victims J.W. (born in 1986) and M.W. (born in 1988)
        and their siblings resided in multiple locations in Philadelphia,
        Upper Darby, and Canada during the period between 1994 and
        2003.1 The victims’ parents were from the Congo, and their
        mother made frequent extended trips home, eventually
        returning there permanently in 1994 or 1995. The victims’ father
        worked long hours and was often away for extended periods of
        time. While the children lived by themselves, Appellant, a close
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1
    42 Pa.C.S.A. §§ 9541-46.



*Former Justice specially assigned to the Superior Court.
J-S41043-16


     family friend, would bring over food and care for the children
     after school; this care included disciplining the children by
     beating them with a stick that had metal wires attached to it.
             In 1994, the family was living in a home [ ] on Juniata
     Street in Philadelphia[.] J.W. was eight years old. On one
     occasion, the parents asked Appellant to carry eight-year-old
     J.W. upstairs. Appellant placed her on her bed next to her sister,
     pulled down her pants, and licked her vagina. On another
     occasion, while she was sitting in the living room, Appellant put
     his hands down J.W.[’s] pants and began to masturbate her.
     J.W.’s mother entered the room as Appellant was pulling his
     hands out of J.W.’s pants. When her mother asked her about the
     incident, J.W. denied the abuse because she was afraid her
     mother would be angry.
             When J.W. was in third grade, the family moved to
     Woodhaven Road in Philadelphia. One day, while she was alone
     in the house with Appellant, Appellant lifted her onto the kitchen
     counter, touched her breasts, removed her underwear, and
     rubbed his penis between her vaginal lips. Appellant repeated
     this conduct on other occasions in the bedroom and living room.
     He also digitally penetrated her vagina multiple times, while the
     family was living on Woodhaven Road.
             M.W. was approximately eight years old when the family
     lived on Woodhaven Road. One night, while she and the other
     children were watching television, Appellant got behind M.W. as
     she was lying on her side on the sofa, placed a blanket over the
     two of them, and told her to pull her pants down. When M.W.
     complied, Appellant put his penis in her vagina. This was not the
     first time this had happened. Another night, M.W. awoke to find
     Appellant performing oral sex on her. On another day, M.W. was
     alone with Appellant, who forcibly anally raped her.
             Following the mother’s departure for Africa, the family
     moved to Upper Darby, Pennsylvania. As the father was often
     away, Appellant visited the children daily to bring food. J.W.
     recalled that one day, when she got out of school early,
     Appellant touched her breasts, put his hand down her pants, and
     anally raped her. J.W. tried to call the police, but Appellant, a
     trained boxer, restrained her. J.W. submitted to the on-going
     abuse because she was afraid Appellant would beat her. J.W.
     stated that, while residing in Upper Darby, Appellant anally
     raped her in the bedroom, the bathroom, and the garage, and
     would force her to perform oral sex on him. M.W. stated that,
     while residing in Upper Darby, Appellant would force her to


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     perform oral sex on him on almost a daily basis. Appellant would
     also force her to engage in anal sex.
            In 2000, the children moved to Canada to reside with
     relatives. During the two years they resided in Canada, they had
     only telephone contact with Appellant.
            When the children returned to the United States, they first
     resided at 60th and Edgewood Streets in Philadelphia, then in an
     abandoned house on Tioga Street that had no electricity, and
     then returned to 60th and Edgewood Streets. While residing on
     Tioga Street, J.W., who was seventeen years old, stated that
     Appellant grabbed her, put his hands down her shirt, and tried to
     put his hand down her pants. On that occasion, and on later
     occasions, J.W. was able to push Appellant away. M.W. stated
     that, while on Tioga Street, Appellant touched her breasts and
     vagina and forced her to submit to oral sex. On one occasion,
     she was getting out of the shower when Appellant pulled the
     towel off her and said, “Let me eat your coochie.” Appellant’s
     wife, Carol, became suspicious of Appellant and questioned both
     girls. J.W. told her that Appellant had anally raped both of them.
     Carol confronted Appellant, who persuaded her not to tell the
     victims’ father about the abuse. The abuse then ceased. 2 Carol
     told the victims not to tell anyone about the abuse because if
     they did, the Department of Human Services would take them
     away. In 2007, the children’s older half-sister came to visit and
     the girls disclosed the abuse to her. She encouraged the girls to
     report the abuse to their father and the police. Appellant was
     arrested on April 24, 2007.
            A jury trial took place beginning on August 25, 2009, and
     ending on September 1, 2009. The jury convicted Appellant of
     aggravated indecent assault, indecent assault, endangering the
     welfare of a child (“EWOC”) and corrupting the morals of a minor
     with respect to J.W., but acquitted him of rape and involuntary
     deviate sexual intercourse (IDSI). The jury convicted Appellant
     of rape, IDSI, aggravated indecent assault, indecent assault,
     EWOC, and corrupting the morals of a minor with respect to
     M.W.
            On February 17, 2010, Appellant was sentenced to an
     aggregate term of incarceration of twenty-four (24) to sixty-two




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       and one-half (62 ½) years.[2] Appellant did not file post-sentence
       motions. Appellant filed the instant, timely appeal. Appellant was
       ordered to file a concise statement of errors complained of on
       appeal pursuant to Pa. R.A.P. 1925(b). Appellant filed a timely
       statement. Appellant requested and was granted an extension of
       time to file a supplemental statement. Appellant filed the
       supplemental statement, and asked and was granted an
       extension of time to file a third statement. Appellant did not file
       the third statement. The trial court issued an opinion.
       ____
       1
         The underlying facts and procedural history in this matter are
       taken from the notes of testimony from Appellant’s August 26,
       2009, through September 1, 2009[,] trial and the trial court’s
       July 20, 2010[,] opinion.
       2
          The girls continued to visit Appellant at work because he was
       “family” and to ask him for money to feed the family.

Commonwealth v. Idy, No. 737 EDA 2010, unpublished memorandum at

1-5 (Pa. Super. filed April 29, 2011).

       Appellant raised eight issues on direct review, and a panel of this

Court found all of them to be waived, meritless or both.       Relevant to the

instant matter, this Court determined Appellant had waived his challenge to

the discretionary aspects of his sentence for his failure to raise it in a post-

sentence motion and to include a concise statement of the reasons relied

upon for allowance of appeal pursuant to Pa.R.A.P. 2119(f) in his brief;

therefore, the merits of that claim were never addressed. Id. at 27-28.




____________________________________________


2
  The trial court formally ruled that Appellant was not a sexually violent
predator and, therefore, “[did] not have to fulfill the requirements of the law
in that regard.” N.T. Sentencing, 2/17/10, at 12.



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       On December 26, 2012, Appellant filed the instant PCRA petition, pro

se, and appointed counsel filed an amended petition on February 24, 2015.3

In his amended petition, Appellant asserted, inter alia, that his constitutional

rights had been violated as a result of trial counsel’s ineffectiveness for

failing, without justification, to file a post-sentence motion and requested

that the trial court grant him the right to file a post-sentence motion and

appeal nunc pro tunc. See Amended Petition Under Post Conviction Relief

Act, filed 2/24/15, at ¶¶ 13-15, 18.4

       After providing Appellant with notice of its intent to dismiss the

petition pursuant to Pennsylvania Rule of Criminal Procedure 907(1), the

PCRA court dismissed Appellant’s petition without a hearing on August 18,

2015. A timely appeal followed.

____________________________________________


3
  The trial court imposed the judgment of sentence on February 17, 2010,
and this Court affirmed Appellant's judgment of sentence on April 29, 2011.
The Pennsylvania Supreme Court denied Appellant's petition for allowance of
appeal on September 28, 2011.         Accordingly, Appellant's judgment of
sentence became final on December 28, 2011, ninety days after the
Pennsylvania Supreme Court denied Appellant's petition for allowance of
appeal and the time for filing a petition for review with the United States
Supreme Court expired. 42 Pa.C.S. § 9545(b)(3); U.S.Sup.Ct.R. 13. Thus,
the instant PCRA petition is timely.
4
  While this Court has determined a claim challenging the discretionary
aspects of a sentence is not cognizable under the PCRA, Commonwealth v.
Wrecks, 934 A.2d 1287, 1289 (Pa.Super. 2007), we have held that a claim
regarding the discretionary aspects of a sentence raised in the context of an
ineffectiveness claim is cognizable under the PCRA. Commonwealth v.
Watson, 835 A.2d 786, 801 (Pa.Super. 2003).




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       In his brief, Appellant raises the following issue for our review:

             Whether the PCRA [c]ourt erred by denying [Appellant]
       grant of an appeal nunc pro tunc because trial counsel was
       ineffective for failing to file a motion for reconsideration of
       sentence that was in the aggravated guideline range and this
       issue was waived for appellate review.

Brief for Appellant at 3.5

       Our standard of review following the grant or denial of post-conviction

relief is limited to examining whether the PCRA court's determination is

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

Commonwealth v. Morales, 549 Pa. 400, 408, 701 A.2d 516, 520 (1997).

“The PCRA court's factual determinations are entitled to deference, but its

legal determinations are subject to our plenary review.” Commonwealth v.

Hawkins, 586 Pa. 366, 376, 894 A.2d 716, 722 (2006); see also

Commonwealth v. Jones, 590 Pa. 202, 243, 912 A.2d 268, 293 (2006)

(findings of post-conviction court which hears evidence and passes on

____________________________________________


5
  In the Amended PCRA petition, PCRA counsel noted that Appellant had
failed to include the docket number for the case involving J.W., docketed at
CP-51-CR-0006366-2007, on his pro se PCRA petition; therefore, counsel
posited a request for post-conviction relief in this matter would be untimely.
See Amended Petition Under Post Conviction Relief Act, filed 4/24/15, at 3
n. 1 (unnumbered); Brief for Appellant at 9. As such, Appellant purports to
challenge only his sentence for his crimes against M.W. However, filings
pertaining to both criminal informations were filed to docket, CP-51-CR-
0006367-2007, Appellant was tried before a jury for his crimes perpetrated
against both girls, and he received one judgment of sentence. Appellant is
entitled to one appeal from any final order of a lower court. See Pa.R.A.P.
341. As such, we will consider his sentence in its entirety.




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credibility of witnesses should be given great deference); Commonwealth

v. White, 557 Pa. 408, 421, 734 A.2d 374, 381 (1999) (appellate court is

bound by credibility determinations of PCRA court where its findings are

supported by record).

      Additionally, our standard of review for claims of ineffective assistance

of counsel is well-settled. Counsel is presumed to be effective, and the

burden    of   demonstrating     ineffectiveness   rests   on    the   appellant.

Commonwealth v. Rivera, 10 A.3d 1276, 1279 (Pa.Super. 2010).                  To

overcome this presumption, Appellant must establish three factors: (1) that

the underlying claim has merit; (2) counsel had no reasonable strategic

basis for his or her action or inaction; and (3) but for counsel's errors or

omissions, there is a reasonable probability that the outcome of the

proceedings would have been different. The failure to prove any one of the

three prongs results in the failure of the petitioner's claim. Id.

      On appeal, while in the “Statement of the Questions Presented”

portion of his brief Appellant frames his issue in terms of trial counsel’s

rendering ineffective assistance by failing to preserve challenges to the

discretionary aspects of his sentence, he essentially contends counsel

rendered ineffective assistance in failing to challenge the discretionary

aspects of his sentence.    Although he acknowledges the sentence the trial

court imposed was within the statutory legal limits, Appellant maintains he

was prejudiced by trial counsel’s failure to file a post-sentence motion for


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reconsideration of that sentence because it was excessive and fell outside

the aggravated range of the Sentencing Guidelines.      Brief for Appellant at

11, 17-18. Appellant states that after it imposed Appellant’s sentence, the

sentencing court “signaled that [it] might reconsider the sentence” and cites

to the following statement the court made on the record during the

sentencing hearing in support of this claim:

            THE COURT: . . . “And I can also say that my intention
      was to only impose guidelines sentences here, so [if] to some
      inadvertence on my part I have strayed in any way above the
      guidelines, I would welcome any kind of communication within
      the next 30 days, I guess, or the next 15 days.

                                    ***
                   All right, because I believe there were multiple
      aggravating factors which amply justified my giving him the
      individualized sentence that he deserves, which includes several
      aggravating range sentences, but it was never my intention to
      give him an above-range sentence.         So again, if there is
      anything in that regard, I welcome that from either counsel.

Brief for Appellant at 11, 20, (citing N.T. Sentencing, 2/17/10, at 34-35).

Appellant further contends the sentencing court improperly considered the

fact that he was an illegal alien as an aggravating factor in fashioning his

sentence. Brief for Appellant at 19 (citing N.T. Sentencing, 2/17/10, at 24-

25). In light of the foregoing, Appellant claims “[t]here was no reasonable

basis for counsel’s failure to object or his failure to preserve the sentencing

issue for direct appeal.” Brief for Appellant at 21.

      To the extent Appellant alleges the sentencing court erred in running

some of his sentences consecutively and that it considered improper factors


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in placing his sentence in the aggravated range, he has raised a substantial

question. See Commonwealth v. Stewart, 867 A.2d 589, 592 (Pa.Super.

2005); Commonwealth v. Zirkle, 107 A.3d 127, 133-34 (Pa.Super. 2014).

It is noteworthy that Appellant nowhere asserts he asked trial counsel to file

a post-sentence motion on his behalf, although he clearly was made aware

of his right to file such motion. N.T. Sentencing, 2/17/10, at 34. Assuming,

arguendo, Appellant did request that trial counsel file a post-sentence

motion,   we    will     deem    Appellant’s   claim     to        have   arguable   merit.

Commonwealth v. Lawrence, 960 A.2d 473, 478 (Pa.Super. 2008).

      In Commonwealth v. Reaves, 592 Pa. 134, 148-50, 923 A.2d 1119,

1128-29 (2007), our Supreme Court explained that while there are some

limited situations in which prejudice may be presumed by counsel's inaction,

the   failure   to     file   post-sentence    motions        is    not   one   of   them.

Notwithstanding, in reaffirming this holding in Commonwealth v. Liston,

602 Pa. 10, 977 A.2d 1089 (2009), our Supreme Court further provided that

“[p]resumably, since post-sentence motions are optional ... rarely will

counsel be deemed to have been ineffective for failing to file them except,

for example, when the claim involves the discretionary aspects of sentence

or a challenge to a verdict on weight of the evidence grounds, claims which

must be raised in the trial court to be preserved for purposes of appellate

review.” Liston, 602 Pa. at 33 n.9, 977 A.2d at 1094 n.9 (citation omitted).

“Moreover, we need not remand for hearing as appellate counsel's failure to


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perfect on appeal a discretionary sentencing claim which has arguable merit

is without any reasonable basis designed to effectuate his client's interest.

We need only determine whether counsel's failure rises to the level of

prejudice to afford him relief.”               Lawrence, supra, at 478. (citation

omitted).      Herein, we find Appellant has not demonstrated that the

sentencing court abused its discretion in imposing his sentence. It follows

that Appellant cannot establish he was prejudiced by trial counsel’s failure to

file a post-sentence motion.

       It is axiomatic that sentencing is a matter vested in the sound

discretion of the sentencing court, and this Court will not disturb a sentence

on appeal absent a manifest abuse of discretion. Commonwealth v.

Clarke, 70 A.3d 1281, 1287 (Pa.Super. 2013).              In the matter sub judice,

the sentencing court clarified at the sentencing hearing that it would not

apply the 2005 Sentencing Guidelines when fashioning Appellant’s sentence

as his crimes had ceased by that time.             Instead, it applied the 1994 and

1997 Sentencing Guidelines when handing down Appellant’s aggregate

sentence. N.T. Sentencing, 2/17/10, at 35-36.6             In doing so, it imposed

sentences within the aggravated range of the 1997 Sentencing Guidelines

for the rape, IDSI, aggravated indecent assault and indecent assault
____________________________________________


6
  Counsel and the trial court essentially agreed as to the applicable
Sentencing Guidelines, and Appellant did not object to the sentencing court’s
application of them at the sentencing hearing, nor does Appellant challenge
the court’s application of the 1994 and 1997 Sentencing Guidelines herein.



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convictions. As the trial court noted in its Opinion filed pursuant to Pa.R.A.P.

1925(a), only the corruption of minors sentence was outside the Sentencing

Guidelines.    Trial Court Opinion, filed 7/20/10 at 21.       Specifically, that

sentence exceeded the 1994 guidelines by three months, but it ran

concurrently to the standard range sentence imposed under both the 1994

and 1997 Sentencing Guidelines on the endangering the welfare of a child

conviction. N.T. Sentencing, 2/17/10, at 8-9, 28.

      Our review of the aggregate sentence in this case reveals that the

sentencing court properly considered, both explicitly and implicitly, the need

to protect society, the impact on the victims, their family and society, the

nature and circumstances of Appellant’s offenses, and his criminal history

and characteristics. Importantly, the sentencing court indicated on the

record   it   had   reviewed   the   presentence   investigation   report.    N.T.

Sentencing, 2/17/10, at 23; see also Commonwealth v. Griffin, 65 A.3d

932, 937 (Pa.Super. 2013) (internal quotation marks and citation omitted)

(stating that “[w]here the sentencing court had the benefit of a presentence

investigation report ..., we can assume the sentencing court was aware of

relevant information regarding the defendant's character and weighed those

considerations along with mitigating statutory factors.”).         Also, Appellant

especially benefitted from the sentencing court’s determination he was not a

sexually violent predator. In doing so, the sentencing court explained that

its two goals were the protection of society, which it deemed to be


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paramount, and a determination of what would be “good” for Appellant. It

further indicated that “based on all the circumstances here, it would not be

necessary for [Appellant] to be found to be a sexually violent predator. That

part of the law is purely to protect society and I believe it may not be

necessary here.” N.T. Sentencing, 2/17/10, at 12.

     While the sentencing court did indicate that it regarded someone who

was in the United States illegally to be an “aggravating factor” and that it

found no mitigating factors, the sentencing court further explained that

pursuant   to   this     Court’s   precedent,    it   would   find   no   aggravating

circumstances in the crimes Appellant committed other than “the usual

horrible repulsive nature of those crimes when an adult takes advantage of

young children.”       Id. at 24-25. The sentencing court obviously was deeply

troubled that Appellant, a trusted family friend and caretaker for two young

girls, systematically and repeatedly sexually and physically abused them.

The court indicated it was particularly disturbed by Appellant’s lack of

remorse and refusal to accept responsibility for his actions and found this

attitude to be an aggravating factor. Id. at 25-26. It further considered the

multiple occasions on which Appellant victimized J.W. and M.W. to be an

aggravating factor. Id. at 26.

     Appellant utterly has failed to explain how any argument pertaining to

the discretionary aspects of his sentence set forth in a post-sentence motion

would have formed the basis for a successful challenge to his sentence.


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Other than iterating general allegations in this regard, Appellant has not

demonstrated any prejudice based upon counsel’s failure to timely file a

post-sentence motion challenging the discretionary aspects of his sentence,

i.e., that if counsel had raised the issue there would be a reasonable

probability that he would have received a lesser sentence.           In its Rule

1925(a) Opinion, the sentencing court acknowledged it indicated Appellant

may file a post-sentence motion, but it further explained that its intention

was only to “invite[] counsel to bring any guideline errors to my attention

during the hearing. Since there were no such errors, no motion could have

been successful if filed.” Trial Court Opinion, filed 9/21/15, at 5. Moreover,

the trial court suggested that had Appellant done so, it may have been

inclined to impose a harsher sentence:

     [C]ounsel had a very reasonable basis for not asking this court
     to reconsider [Appellant’s] sentence because all the sentences
     were within the guidelines. The illegal immigrant [Appellant]
     repeatedly raped and sexually assaulted two sisters for years
     and was given an extremely lenient sentence for his crimes by
     this court on only six counts of sexual assault crimes. It was
     reasonable that [Appellant] and counsel were satisfied with the
     sentence within the 10 days to file the motion. If asked to
     review [Appellant’s] sentence, this court could have potentially
     reconsidered that the sentence was too lenient and re-imposed a
     more proportional sentence to petitioner’s horrific abuse of these
     victims. Instead[] of taking this chance, it would be reasonable
     for [Appellant] and his attorney to choose to keep his generous
     sentence intact, and decide instead to appeal, which they did, on
     the specific claim that “[t]he sentencing court gave the appellant
     a sentence that was illegal, well beyond the applicable guidelines
     and was tantamount to cruel and unusual punishment.” See
     Trial Court Opinion, July 20, 2010, p. 20. An illegal sentencing
     claim with constitutional error would not require a post-sentence
     motion to be filed. . . . Filing a direct appeal on the constitutional

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      claim was a rational, strategic decision by counsel to keep the
      lenient sentence imposed by this court, and instead, attempt to
      have the sentence reviewed and overturned as illegal on
      constitutional grounds.

Trial Court Opinion, filed 9/21/15, at 8 (footnotes omitted).

      This Court agrees with the PCRA court’s assessment that the sentence

was not manifestly excessive under the circumstances of this case and no

abuse of discretion attended its imposition.       Thus, Appellant suffered no

prejudice and counsel was not ineffective for failing to file a post-sentence

motion.   See Commonwealth v. Watson, 835 A.2d 786, 799 (Pa.Super.

2003) (concluding an appellant’s ineffectiveness claim failed where the

underlying   discretionary   aspects    of   sentencing   claim   lacked   merit).

Accordingly, the PCRA court properly dismissed Appellant’s PCRA petition.

      Order affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/24/2016




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