J-S71013-16



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA


                     v.

MELVIN ANTHONY HERNANDEZ

                          Appellant                 No. 3621 EDA 2015


               Appeal from the PCRA Order October 28, 2015
              In the Court of Common Pleas of Lehigh County
            Criminal Division at No(s): CP-39-CR-0000042-2013


BEFORE: BOWES, PANELLA AND FITZGERALD,* JJ.

MEMORANDUM BY BOWES, J.:                         FILED OCTOBER 19, 2016

      Melvin Anthony Hernandez appeals pro se from the denial of PCRA

relief. We affirm.

      In this criminal action, Appellant was charged with robbery, burglary,

aggravated assault, theft by unlawful taking, receiving stolen property,

attempted unlawful restraint, and conspiracy to commit robbery. On June 5,

2013, Appellant tendered an open guilty plea to aggravated assault and

conspiracy to commit robbery. The underlying facts are as follows:

            The charges stemmed from a brutal attack that occurred at
      the Hamilton Tower apartment building in Allentown,
      Pennsylvania, on November 18, 2012. That night, appellant and
      an unidentified accomplice forcibly entered Apartment 315,
      savagely beat its 46-year-old occupant and demanded that he
      give them everything he had. During the attack, appellant and
      the other robber tied the victim to a chair, attempted to slit his
      throat with a folding knife, stabbed him in the torso with a

* Retired Senior Judge assigned to the Superior Court.
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        screwdriver, hit him with a miniature baseball bat and repeatedly
        punched him in the face and head. After leaving the scene,
        appellant was arrested by police as he stepped from the
        apartment elevator. He was covered in blood and was holding
        the victim’s x-box video system. Appellant had other property of
        the victim in his pockets. When the police entered Apartment
        315, they found the badly injured victim, blood, the implements
        used to restrain and assault the victim and a bag left behind by
        the attackers filled with the victim’s personal property. The
        victim was taken to the hospital where he was treated for a
        broken nose, orbit fractures, a cut to his neck, a large blunt
        force injury to his torso, and other abrasions and contusions.
        The victim had reconstructive surgery on the right eye [and
        another surgical procedure scheduled]. As a result of the attack,
        the victim has short-term memory loss, severe headaches,
        significant vision problems and depression for which he treats
        with a therapist.

Trial Court Opinion, 9/8/14, at 1-2.

        On July 23, 2013, Appellant was sentenced to ten to twenty years in

jail on the aggravated assault offense, which was the statutory maximum

sentence and exceeded the recommended guideline ranges, and he received

an aggravated range sentence on conspiracy of seven and one-half to fifteen

years    incarceration.     The   sentences   were   ordered   to   be   imposed

consecutively, for an aggregate term of seventeen and one-half to thirty-five

years imprisonment.       Appellant did not file a direct appeal, but his direct

appeal rights were reinstated pursuant to a timely-filed PCRA petition. On

appeal, we rejected challenges to the discretionary aspects of the sentence

and affirmed. Commonwealth v. Hernandez, 121 A.3d 1142 (Pa.Super.

2015) (unpublished memorandum).




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      On June 5, 2015, Appellant filed a timely petition for PCRA relief, and

counsel was appointed. Counsel thereafter moved to withdraw and filed a

no-merit letter.    On October 1, 2015, counsel was granted leave to

withdraw, and the PCRA court thereafter issued notice of its intent to dismiss

the PCRA petition without a hearing pursuant to Pa.R.Crim.P. 907.          After

Appellant filed objections to the notice, the PCRA petition was dismissed,

and this timely pro se appeal followed. Appellant raises these averments:

            I. Did the PCRA court err as a matter of law when it
      dismissed appellant's PCRA petition as frivolous?

            II. Does Appellant's sentence violate the Pennsylvania and
      United States Constitution(s) and Alleyne v. United States?

Appellant’s brief at 4.

      Initially, we observe that this Court reviews the “denial of PCRA relief

to determine whether the findings of the PCRA court are supported by the

record and free of legal error.” Commonwealth v. Roane, 142 A.3d 79, 86

(Pa. Super. 2016) (quoting Commonwealth v. Treiber, 121 A.3d 435, 444

(Pa. 2015)). Herein, while Appellant purports to present two distinct claims,

they actually pertain to the identical position. Appellant first asserts that the

PCRA court’s finding of frivolity was erroneous since his sentences are illegal

based on the holding of the Supreme Court of the United States in Alleyne

v. United States, 133 S.Ct. 2151 (2013), which held that any fact, other

than a prior conviction, that is used to invoke a mandatory minimum

sentence must be submitted to a jury and found beyond a reasonable doubt.

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Appellant’s brief at 8. Appellant’s second averment is that he was sentenced

under a mandatory minimum statute infirm under Alleyne. Id. at 9.

      There is a critical flaw in Appellant’s invocation of Alleyne. Our review

of the sentencing transcript confirms that no mandatory minimum sentence

was invoked or applied in this case.     Indeed, none was even mentioned.

Instead, the court imposed sentence after consideration of a pre-sentence

report, the guidelines, impact statements from the victim and his sister, and

Appellant’s allocution.   Its sentence was premised upon the fact that

Appellant: 1) was a member of a notorious gang and sold drugs to support

himself; 2) was on parole when the crime occurred; 3) committed “a number

of misconducts in the prison,” including one involving an assault; 4)

admitted during the pre-sentence investigation that he perpetrated “other

crimes for which he was never caught by the authorities;” 5) confessed to

the pre-sentence investigator that he killed a number of animals, including

dogs and cats; 6) engaged in a similar assault in the past; 7) used

“weapons[,] . . . [a] screwdriver, a knife, a rope or nylon cord” during the

assault at issue; and 8) had no employment history.          N.T. Sentencing,

7/23/13, at 23-25. The court also weighed the serious impact that the crime

had on the victim and that Appellant and his accomplice evidenced a callow

disregard as to whether the victim lived or died. Id. at 25-26.

      Significantly, in his appellate brief, Appellant fails to indicate which

mandatory minimum sentence he believes was applied. He suggests that,

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during sentencing, the court considered that he committed “an armed and

violent crime and pursuant thereto invoked a minimum sentence that”

violates Alleyne, supra. Appellant’s brief at 10 (emphasis in the original).

Appellant is mistaken. The court never mentioned that Appellant was armed

since he was not.   Rather, it correctly noted that Appellant used weapons

consisting of a screwdriver and knife on his victim.    Moreover, it did not

apply a mandatory minimum sentencing provision. Sine Appellant’s Alleyne

claim fails, the PCRA court did not commit an error in dismissing Appellant’s

petition.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/19/2016




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