J-S28040-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                       IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA
                            Appellee

                       v.

FELTON LEE GARDNER

                            Appellant                   No. 1642 MDA 2014


                Appeal from the PCRA Order September 17, 2014
               In the Court of Common Pleas of Lancaster County
              Criminal Division at No(s): CP-36-CR-0001516-2009


BEFORE: BOWES, J., ALLEN, J., and LAZARUS, J.

MEMORANDUM BY LAZARUS, J.:                                FILED JULY 07, 2015

        Felton Lee Gardner appeals from the order of the Court of Common

Pleas of Lancaster County that dismissed his petition filed pursuant to the

Post Conviction Relief Act.1        After careful review, we affirm based on the

opinion authored by the Honorable Howard F. Knisely.

        On June 18, 2010, the trial court sentenced Gardner to 8 years and 6

months to 20 years’ imprisonment after a jury convicted him of aggravated

assault, endangering the welfare of a child, and recklessly endangering

another person (REAP).          The convictions arose out of Gardner’s physical

abuse of his three-year-old stepdaughter.



____________________________________________


1
    42 Pa.C.S. §§ 9541-9546.
J-S28040-15



      Gardner filed a direct appeal to this Court, which affirmed his

judgment of sentence on March 30, 2011. Commonwealth v. Gardner, 26

A.3d 1211 (Pa. Super. 2011) (unpublished memorandum). He then filed a

petition for allowance of appeal, which our Supreme Court denied on

November 10, 2011.      Commonwealth v. Gardner, 32 A.3d 1275 (Pa.

2011).

      Gardner filed a timely pro se PCRA petition on October 10, 2012. The

court appointed counsel, who filed an amended petition on June 27, 2014.

On August 26, 2014, having received an answer to the petition from the

Commonwealth, the court issued a notice of intent to dismiss the petition

without a hearing pursuant to Pennsylvania Rule of Criminal Procedure 907.

The court dismissed the petition on September 17, 2014.

      Gardner filed a timely notice of appeal on September 26, 2014, and in

response to an order from the trial court he filed a statement of errors

complained of on appeal pursuant to Pa.R.A.P. 1925(b) on October 17,

2014. The same day, the trial court filed its Rule 1925(a) opinion, relying on

the 7-page Rule 907 notice that it issued on August 26, 2014.

      On appeal, Gardner raises the following issue for our review:

      Whether the lower court erred in denying [Gardner’s] PCRA
      [petition] when counsel was ineffective by failing to litigate that
      the lower court erred when it considered that [Gardner] was
      subject to the mandatory minimum sentence of five years[’]
      incarceration under 42 Pa.C.S. § 9718(a)(2) even though the
      jury never found that the victim was less than the critical age
      required by the statute.



                                     -2-
J-S28040-15



Appellant’s Brief, at 4.

      In his Rule 1925(a) opinion, which incorporates the Rule 907 notice,

Judge Knisely reviews the appropriate standard for reviewing challenges to

the effectiveness of trial counsel, citing Strickland v. Washington, 466

U.S. 668 (1984) and Commonwealth v. Pierce, 527 A.2d 973 (Pa. 1987).

      The focus of Gardner’s petition is that counsel was ineffective for

failing to object at his June 18, 2010 sentencing hearing to the court’s

consideration     of   the   mandatory    minimum       sentence   of    five   years’

incarceration for a person convicted of aggravated assault where the victim

is less than 13 years of age. See 42 Pa.C.S. § 9718(a)(2). Judge Knisely

notes that pursuant to Alleyne v. United States, 133 S.Ct. 2151 (2013),

the mandatory minimum sentencing provision is unconstitutional. However,

Alleyne     was   decided    after   Gardner’s   sentencing,   and      under   these

circumstances, trial counsel cannot be ineffective for failing to object to the

mandatory minimum sentence.

      Furthermore, although the judge recognized the applicability of the

mandatory    minimum sentence          at the    2010    sentencing hearing, the

sentencing guidelines did not allow for a sentence as low as the mandatory

minimum in light of the offense gravity score for aggravated assault and

Gardner’s prior record score. Accordingly, Gardner could not establish that

he was prejudiced by the court’s reference to the mandatory minimum

sentence.




                                         -3-
J-S28040-15



      After careful review of the parties’ briefs, the record and the relevant

law, we agree with Judge Knisely’s analysis and affirm on the basis of his

opinion. We instruct the parties to attach a copy of Judge Knisely’s decision

in the event of further proceedings.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/7/2015




                                       -4-
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                        IN THE COURT OF COMMON PLEAS OF LANCASTER COUNTY, PENNSYLVANIA
                                                   CRIMTNAL

              CO:M:MONWEALTH                    OF PENNSYLVANIA

                                     vs.                                               No. 1516-2009

              FELTON LEE GARDNER


                                                               MEMORANDUM
              BY: KNISELY,J.                                                                           October 17, 2014

                             Defendant Felton Lee Gardner bas appealed to the Superior Court of Pennsylvania from this

              Court's dismissal of Defendant's petition for collateral relief filed pursuant to the Post Conviction

              Collateral Relief Act ("PCRA").1 Defendant timely filed his PCRA petition on October 2, 2012,

              and an amended PCRA petition was filed by counsel on June 27, 2014. By Opinion and Order of

              August 25, 2014, the Court provided notice, pursuant to Pa.R.Crim.P. 907, of its intent to dismiss

              the petition without a hearing. Defendant's petition was ultimately dismissed by Order of

             · September 16, 2014. Defendant filed a timely notice of appeal on September 26, 2014. This

              Court's Opinion and Order of August 25, 2014 stated the Court's reasons for dismissal. As such,

              the Court submits those filings for purposes of Rule l925(a) of the Pennsylvania Rules of Appellate

              Procedure

I certlfy this document to be. filed

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              142       Pa.C.S.A. §§ 9541~46.
                                                                                          Circulated 06/08/2015 11:19 AM




       IN THE COURT OF COMMON PLEAS OF LANCASTER COUNTY, PENNSYLVANIA
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    BY: KNISELY,J.
                                                Ruic 907 Notice                               ,J c:n
                                                                                         ·.Augtist25,
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                                                                                                      2014
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           Before the Court is Defendant's petition seeking relief pursuant to the Post Conviction

    Relief Act ("PCRA''). 1 Upon review of the petition, the Court is satisfied that Defendant's

    petition is meritless and Defendant is not entitled to PCRA relief. The Court submits this Notice,

    pursuant   to   Rule 907 of the Pennsylvania Rules of Criminal Procedure, of its intent to dismiss

    Defendant's petition without a hearing. Defendant's petition will be dismissed without a hearing

unless Defendant amends his petition within 20 days and provides a reviewable basis for relief.

                                                   BACKGROUND

           On March 11, 2010, Defendant was convicted by a jury of one count of Aggravated

Assault," one count of Endangering the Welfare of a Child,3 and one count of Recklessly

Endangering Another Person." Defendant was sentenced on June 18, 2010 to a total term of 8!1i

to 20 years of incarceration. Defendant         Wl!S   represented by Attorney Karl Rominger at trial. On

July 16, 2010, Defendant filed an appeal; he was represented on appeal by Attorney Vincent

Quinn. The Superior Court of Pennsylvania affirmed the judgment of sentence on Murch 30,

2011. Defendant then sought an allowance of appeal from the Pennsylvania Supreme Court,

which was denied on November 10, 2011. On October 2, 2012, Defendant filed a prose PCRA

petition. Counsel was appointed to represent Defendant and an amended PCRA petition was

1   42 Pa.C.S.A.    §§ 9541-46.
2
    18 Pa.C.S.A.    §2702.
3   18 Pa.C.S.A.    §4304.
4   18 Pa.C.S.A.    §2705.
                                                                                     Circulated 06/08/2015 11:19 AM




filed on June 27, 2014, alleging that Trial Counsel was ineffective for failing to object to the

Trial Court's consideration of the mandatory minimum sentence of 5 years of incarceration

because the jury did not find beyond a reasonable doubt that the victim was less than 13 years of

age as required by the Supreme Court's decision in Alleyne v. United States, 133 S.Ct. 2151

(2013). The amended PCRA petition also alleged that even if Trial Counsel was not ineffective,

the imposition of the mandatory minimum sentence is an illegal sentence and that the provision

providing for the relevant mandatory minimum sentence is not severable from the provision

providing that the age of the victim is not an element of an offense.

                                           DISCUSSION

        I.      Ineffective Assistance of Trial Counsel

        Defendant's claim challenges the effectiveness ofhis trial counsel. It is well-established

that counsel is presumed effective. Strickland v. Washington, 466 U.S. 668, 689, 104 S.Ct. 2052,

2065 (1984). A PCRA petitioner bears the burden of rebutting that presumption by

demonstrating that counsel's performance was deficient and that such deficiency prejudiced him.

Id The Pennsylvania Supreme Court divided the Strickland standard into three prongs, two

prongs for deficient performance and one prong for prejudice. Com. v. Koehler, 36 A.3d 121,

132 (Pa. 2012) (citing Com. v. Pierce, 515 Pa. 153, 527 A.2d 973, 975 (1987)). The resulting

three prongs to prove counsel ineffective are: (I) the underlying claim has arguable merit; (2)

counsel's actions lacked an objective reasonable basis; and (3) the defendant was prejudiced by

counsel's act or omission. Id. Counsel will not be deemed ineffective if any reasonable basis

exists for his actions, and, even if counsel had no reasonable basis for his actions; a defendant is




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not entitled to relief if he fails to demonstrate prejudice. Com. v. Loner, 836 A.2d 125> 133 (Pa.

Super. 2003)(citing Com. v. Douglas, 645 A.2d 226, 231~2)(Pa. 1994)).

        Prejudice in the context of ineffective assistance of counsel requires a demonstration that

there was a reasonable probability that but for counsel's error; the outcome of the proceeding

would have been difference. Com. v. Kimball, 724 A.2d 326, 331 (Pa. 1999). "A reasonable

probability is a probability sufficient to undermine confidence in the outcome." Com. v.

Chambers, 807 A.2d 872> 883 (Pa. 2002)(quoting Strickland v. Washington, 466 U.S. 668, 694

(1984)). Prejudice occurs when the errors were so serious as to deprive the defendant of a trial

whose result is reliable. id The Pennsylvania Supreme Court has held that courts "cannot

impose upon trial counsel the qualities of a seer.,. For this reason, [courts] examine counsel's

stewardship wider the standards as they existed at the time of his action .. , counsel wiU not be

deemed ineffective for failing to predict future developments in the law," Com. v. Triplett, 38 l

A.2d 877, 881 (Pa. 1977); Com. v. Fowler, 703 A.2d 1027 (Pa. 1987).

        In the instant case, Defendant was sentenced on June 18t 2010; the United States

Supreme Court did not decide Alleyne until June 17, 2013, almost exactly three years after

Defendant's sentencing. Because counsel is not required to predict the future, Trial Counsel

cannot be found ineffective for failing to object to the imposition of the mandatory minimum

sentence. Furthermore, Defendant cannot show that he suffered any prejudice. The Trial Court

sentenced Defendant above the mandatory minimum sentence because Defendant's sentencing

guidelines did not allow for a sentence as low as the mandatory minimum sentence. Aggravated

Assault carries an offense gravity score of 11 and Defendant's prior record score was a 5.

Therefore, Defendant's guideline sentence for the offense of Aggravated Assault was 72 months


                                                 3
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(6 years) to 90 months (71h years), plus or minus 12 months for mitigating and aggravating

factors. Endangering the Welfare of a Child carries an offense gravity score of 5, so Defendant's

guideline sentence for that offense was 12 mouths to 18 months, plus or minus 3 months for

mitigating and aggravating factors. Therefore, the outcome of Defendant's sentencing

proceeding would not have been any different even without the mandatory minimum sentence.

Because Defendant has failed to demonstrate that his claim has arguable merit qr that he suffered

prejudice, trial counsel will not be deemed ineffective. 'Com. v. Loner, 836 A.2d 125, 133 (Pa.

Super. 2003)(citing Com. v. Douglas, 645 A.2d 226, 231-2)(Pa. 1994)).

       II.      Illegal Sentence

       The Pennsylvania Superior Court has held that sentences in violation of Alleyne are

illegal sentences. Com. v. Watley, 81 A.3d 108 (Pa. Super. 2013); Com. v. Thompson, 2014 WL

·2131965 (Pa. Super:2014).    In this case, however, although the Commonwealth had invoked the

mandatory minimum sentence of five years of incarceration, Defendant's guidelines did not

allow for a sentence of less than five years. As discussed above, Defendant's sentencing

guidelines called for 6 years to 71h years for the aggravated assault charge alone. Furthermore, at

sentencing> the Court considered the following: that Defendant was 36 years old, indicating he

had sufficient maturity to understand the significance of his acts; that Defendant is intelligent

enough to understand the significance of his acts, having completed 11th grade and attaining his

G.E.D.; that Defendant knows how to follow directions, as indicated by his work history; the

prior criminal record of Defendant. (N.T. Sentencing, 6/18/10, p. 15-16).     The Court also

specifically considered the doctor's testimony relative to the piece of tongue which was bitten

out of the three-year-old victim's mouth and the excruciating pain the child had to go through


                                                  4
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 during the course of that attack. Id. at 17. The Court considered the fact that the victim was

three years old at the time of the offenses, that she was scarred with bum marks and welts, in

 addition to the damage to her tongue, and that Defendant showed no remorse at any point. Id. at

 18.   The sentence was warranted because a lesser sentence would depreciate the seriousness and

aggravated nature of the crimes.

          ID.    Severability of 42 Pa.C.S.A.§9718

          Based on the recent Pennsylvania Superior Court decisions of Com. v. Watley, 81 AJd

108 (Pa. Super. 2013) and Coin. v. Thompson, 2014 WL 2131965 (Pa. Super. 2014), subsection

( c) of §9718 is unconstitutional because it allows the sentencing court to apply the mandatory

minimum sentences based on a preponderance of the evidence standard, as opposed to being

determined beyond a reasonable doubt by the finder of'fact, as required by Alleyne. The

Pennsylvania Superior Court recently decided that another mandatory sentencing statute with a

similar "proof at sentencing" subsection was not severable from the rest of the statute. Com. v.

Newman, 2014 Pa. Super. 17~ (August 20, 2014).

         In Com. v. Newman, the defendant was convicted of two counts of possession with intent

to deliver cocaine) (''PWlD»), two counts of simple possession (cocaine), one count of

possession of drug paraphernalia, one count of dealing in proceeds of unlawful activities, one

count of possessing an instrument of crime, and five counts of criminal conspiracy. Com. v,

Newman, 2014 Pa. Super. 178 (August 20, 2014). The Commonwealth filed a Notice of Intent to

Seek Mandatory Sentence under 42 Pa.C.S.A. §9712.1, which requires the following proof at

sentencing:

         Provisions of this section sha11 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.

                                                   5
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          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,
          42 Pa.C.S.A. §9712.l(c); Com. v. Newman, 2014 Pa. Super. 178 (August 20, 2014).

          The Superior Court in Newman, found that the sentencing practice under Section 9712.1

was unconstitutional because it did not comply with the standard set forth ii1Alleyne. Com. v.

Newman, 2014 Pa. Super. 178 (August 20, 2014); Alleyne v. United States, 133 S.Ct. 2151

(2013).

          This Court recognizes that the "proof at sentencing" subsection of the mandatory

sentencing statute in this case, 42 Pa.C.S.A. §9718, is identical. Subsection (c) of 42 Pa.C.S.A.

§9718 reads:

          The provisions of this section shall not be an element of the crime, and notice of the·
          provisions of this section 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.
                                                                         42 Pa.C.S.A. §9718(c).

          Based on the Pennsylvania Superior Court's recent decision in Newman, subsection (c) of

42 Pa.CS.A. §9718 is also not severable from the statute) rendering the statute unconstitutional.

Although the mandatory sentencing is unconstitutional, this Court did not sentence Defendant by

the mandatory sentence, as discussed above. While the Commonwealth had invoked the

mandatory minimum sentence of five years of incarceration, Defendant's guidelines did not

allow for a sentence of less than five years, but rather called for 6 years to 71/z years for the


                                                   6
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aggravated assault charge alone. Again) the Court took into account a variety of factors, not the

'mandatory minimum sentence, when it sentenced Defendant to 8Yz to 20 years of incarceration,

specifically the aggravated nature of the crime against the three year old victim. Therefore, the

issue of severability of subsection ( c) of 42 PaC.S.A. §9718 is irrelevant to Defendant's claim,

as he was not sentenced under the mandatory minimum statute.

        As each of Defendant's claims is rneritless, Defendant's petition is meritless. Defendant

is not entitled to post-conviction relief, and no purpose would be served by any further

proceedings.   Defendant is hereby provided notice of this Court's intent to dismiss his petition

without a bearing. Defendant may respond within twenty (20) days from the date of this Notice

to demonstrate that he is entitled to relief under the PCRA. Accordingly, I enter the following:




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