J-S62013-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA            :   IN THE SUPERIOR COURT OF
                                         :        PENNSYLVANIA
                                         :
              v.                         :
                                         :
                                         :
 C. DIVINE ALLAH                         :
                                         :
                   Appellant             :   No. 437 EDA 2018

               Appeal from the PCRA Order January 2, 2018
     In the Court of Common Pleas of Bucks County Criminal Division at
                      No(s): CP-09-CR-0007641-2014


BEFORE: LAZARUS, J., McLAUGHLIN, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY LAZARUS, J.:                     FILED NOVEMBER 19, 2018

      C. Divine Allah appeals from the order, entered in the Court of Common

Pleas of Bucks County, denying his petition filed pursuant to the Post

Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546.       Upon careful

review, we affirm, in substantial part based on the opinion authored by the

Honorable Diane E. Gibbons.

      On February 19, 2015, Allah entered an open plea of guilty to two counts

of possession with intent to deliver and one count each of possession of a

controlled substance, use/possession of drug paraphernalia and criminal use

of a communication facility. These charges arose from a controlled buy of

heroin and crack cocaine executed by the Bensalem Police Department with

the cooperation of a confidential informant.     That same day, Allah was

sentenced to an aggregate term of 5 to 18 years’ imprisonment.          Upon

consideration of Allah’s motion to reconsider sentence, on April 22, 2015, the
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trial court modified the sentence imposed for criminal use of a communication

facility, reducing the maximum sentence from 5 years’ to 2½ years’

incarceration.    This reduced Allah’s aggregate maximum sentence from 18

years to 15½ years’ incarceration. The court also determined that Allah was

an eligible offender under the Recidivism Risk Reduction Incentive Act1

(“RRRI”) and imposed an RRRI minimum sentence of 50 months.              Allah

appealed his judgment of sentence, which was affirmed by this Court on

January 27, 2016.        See Commonwealth v. Allah, 1507 EDA 2015 (Pa.

Super. filed 1/27/16) (unpublished memorandum decision).

        On March 4, 2016, Allah filed a timely pro se PCRA petition. The PCRA

court appointed counsel, followed by substitute counsel, who filed an amended

petition on May 24, 2017.          The Commonwealth filed a response and, on

September 12, 2017, the PCRA court notified Allah of its intent to dismiss his

petition without a hearing, pursuant to Pa.R.Crim.P. 907. On September 27,

2017, Allah filed a motion for leave to file an amended petition, which the

PCRA court granted. The Commonwealth filed an answer to Allah’s second

amended petition and, thereafter, by order dated January 2, 2017, the court

denied relief. Allah timely appealed and now raises the following claims for

our review:

        1. Did the [PCRA] court err in denying [Allah] an evidentiary
        hearing pursuant to the [PCRA] inasmuch as [Allah] had issues


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1   61 Pa.C.S.A. §§ 4501-4512.

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      meritorious of review that could only be properly considered
      following an evidentiary hearing?

      2. Did the [PCRA] court err in its determination, without a
      hearing, that trial counsel provided to [Allah] at the time of
      sentencing effective assistance of counsel despite trial counsel’s
      alleged failure to recognize that the sentencing guidelines used to
      sentence [Allah] miscalculated [his] prior record score, and thus
      the guideline ranges used to determine the appropriate sentence
      were inaccurate?

Brief of Appellant, at v.

      We begin by noting that our review of a PCRA court’s decision is limited

to examining whether the PCRA court’s findings of fact are supported by the

record, and whether its conclusions of law are free from legal error.

Commonwealth v. Colavita, 993 A.2d 874, 886 (Pa. 2010). The scope of

review is limited to the findings of the PCRA court and the evidence of record,

viewed in the light most favorable to the prevailing party at the PCRA court

level. Id.

      Here, the PCRA court dismissed Allah’s petition without a hearing.

Where a PCRA petition does not raise a “genuine issue[ ] of material fact,” the

reviewing court is not required to hold an evidentiary hearing on the petition.

Commonwealth v. Simpson, 66 A.3d 253, 260–61 (Pa. 2013); Pa.R.Crim.P.

907 (“A petition for post-conviction collateral relief may be granted without a

hearing when the petition and answer show that there is no genuine issue

concerning any material fact and that the defendant is entitled to relief as a

matter of law.”). Thus, to entitle himself to a hearing, a petitioner must raise

an issue of fact, which, if resolved in his favor, would justify relief.

Commonwealth v. D'Amato, 856 A.2d 806, 820 (Pa. 2004).

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       Allah’s primary claim involves an allegation of counsel’s ineffectiveness.

“It is well-established that counsel is presumed effective, and to rebut that

presumption,      the   PCRA     petitioner    must   demonstrate   that   counsel’s

performance was deficient and that such deficiency prejudiced him.”

Commonwealth v. Koehler, 36 A.3d 121, 132 (Pa. 2012), citing Strickland

v. Washington, 466 U.S. 668, 687–91 (1984). To prove that counsel was

ineffective, a petitioner must demonstrate that: (1) the underlying legal issue

has arguable merit; (2) counsel’s actions lacked an objective reasonable

basis; and (3) he was prejudiced by counsel’s act or omission. Koehler, 36

A.3d at 132.        Failure to prove any prong of this test will defeat an

ineffectiveness claim.      Commonwealth v. Fears, 86 A.3d 795, 804 (Pa.

2014).

       Allah asserts that the PCRA court erred in failing to find trial counsel

ineffective for not ensuring that his prior record score (“PRS”) was correctly

calculated and that the correct guideline ranges were used to determine his

sentence.2 In particular, Allah challenges the inclusion and grading of “many
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2A challenge involving the calculation and application of a PRS implicates that
discretionary aspects of sentencing. See Commonwealth v. Spenny, 128
A.3d 234, 241 (Pa. Super. 2015). A direct challenge to the discretionary
aspects of sentencing is not cognizable under the PCRA. See 42 Pa.C.S.A. §
9543(a)(2)(vii); Commonwealth v. Fowler, 930 A.2d 586, 593 (Pa. Super.
2007). However, 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. See Commonwealth v. Watson, 835 A.2d 786,
801 (Pa. Super. 2003) (“[A] claim regarding the discretionary aspects of [the
defendant’s] sentence, raised in the context of an ineffectiveness claim, would
be cognizable under the PCRA.”).


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of [his] foreign offenses, including, New Jersey [r]eceiving [s]tolen [p]roperty,

[t]ampering with [p]ublic [r]ecords, and [f]ailure to [t]urn [o]ver [c]ontrolled

[s]ubstance.” Brief of Appellant, at 17. Allah argues that the trial court “did

not identify the elements of the foreign convictions and on that basis alone,

identify the Pennsylvania statute that ‘is substantially identical in nature and

definition’ to the out-of-state offenses.”       Brief of Appellant, at 17.   Allah

concedes that the PCRA court, in denying relief, did perform a guidelines

calculation. See Brief of Appellant, at 12 (“[T]he only manner in which the

lower court could [conclude that the correct guidelines were used] is for the

lower court to review [Allah’s] criminal history and to perform a guideline

calculation. In reviewing the [o]pinion, it appears that the lower court did, in

fact[,] do this[.]”) (emphasis added). However, Allah claims that, because

the court did not do so on the record, in the context of a hearing, and because

his criminal history was not admitted into evidence, he “has no way of knowing

what the lower court actually reviewed.” Id. Allah’s claim is meritless.

       A petitioner is not entitled to relief on a claim of ineffectiveness unless

he pleads and proves all three prongs of the ineffectiveness test. Koehler,

supra. Here, Allah has failed to demonstrate that his underlying claim has

merit. Allah’s ineffectiveness claim is based on his assertion, unsupported by

specifically identified errors, that his PRS was inaccurately calculated. 3 While

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3 Under Pennsylvania’s sentencing guidelines, the calculation of the PRS
includes offenses committed both within the Commonwealth and in foreign,



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Allah generally asserts that “many of [his] foreign convictions,” Brief of

Appellant, at 17, were incorrectly included in his PRS, he does not identify

how, specifically, the court erred in its calculation, or suggest what he believes

his correct PRS to be. Nor does Allah claim that his rap sheet, on which his

PRS is based, is incorrect. Indeed, the trial court reviewed Allah’s extensive

New Jersey criminal history on the record at sentencing. See N.T. Sentencing,

2/19/15, at 27-30. Neither Allah nor his counsel disputed the accuracy of the

court’s recitation. Moreover, Allah attached as an exhibit to his amended PCRA

petition a copy of an email from the assistant district attorney to his own

counsel, setting forth his entire criminal history, prepared in contemplation of

sentencing for purposes of calculation of Allah’s PRS. He does not dispute that

the account of his prior record is correct.4       Finally, the Commonwealth




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out-of-state jurisdictions. See 204 Pa.Code § 303.8(a)-(f). An out-of-state
offense is scored “as a conviction for the current equivalent Pennsylvania
offense.” 204 Pa.Code § 303.8(f)(1). An “equivalent offense” is one “which
is substantially identical in nature and definition to the out-of-state or federal
offense when compared to the Pennsylvania offense.” Commonwealth v.
Northrip, 985 A.2d 734, 738 (Pa. 2009) (citation and brackets omitted).
When there is no current equivalent Pennsylvania offense, the score is
determined based on the current Pennsylvania grading of the offense based
on the maximum sentence permitted. 204 Pa.Code § 303.8(f)(3).

4 In his PCRA petition, Allah challenged the inclusion of one New Jersey
conviction, which was vacated subsequent to his sentencing in this matter, in
his PRS. Allah does not raise this issue on appeal. In any event, counsel
cannot be deemed ineffective for not objecting to the inclusion in the PRS of
an offense that, at the time, had not yet been vacated.


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attached Allah’s criminal record as an exhibit to its response to Allah’s second

amended PCRA petition. He does not dispute its accuracy.

       Nor does Allah suggest how the same information, presented in the

context of a PCRA hearing, would have resulted in a grant of relief. “PCRA

hearings are not discovery expeditions; rather, they are conducted when

necessary to offer the petitioner an opportunity to prove that which he already

has asserted, and only when his proffer establishes a colorable claim about

which there remains a material issue of fact.” Commonwealth v. Sneed, 45

A.3d 1096, 1107 (Pa. 2012).

       In sum, Allah has failed to raise an issue of material fact as to the

accuracy of the court’s calculation of his PRS. The trial court based its PRS

calculation on Allah’s criminal record, the contents of which he does not

dispute. In its opinion, the PCRA court engages in a thorough review of Allah’s

criminal history, identifies the equivalent Pennsylvania offenses and/or grades

as required under section 303.8(f) of the Sentencing Guidelines, and explains

how it arrived at a PRS of five. See PCRA Court Opinion, 4/13/18, at 4-12.

We can discern no error in the court’s calculation.5

       Because Allah has failed to plead and prove that there is arguable merit

to his claim that his PRS was improperly calculated, his ineffectiveness claim

must fail. Koehler, supra. Moreover, as Allah’s ineffectiveness claim fails as

a matter of law, he has failed to raise a general issue of material fact.
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5The parties are directed to attach a copy of the PCRA court’s opinion in the
event of further proceedings in this matter.

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Simpson, supra. Accordingly, the PCRA court did not commit an error of law

or abuse its discretion in dismissing his petition without a hearing.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/19/18




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