J-S59023-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
          v.                                   :
                                               :
                                               :
    SHICON J. JORDAN                           :
                                               :
                 Appellant                     :   No. 313 EDA 2017

                 Appeal from the PCRA Order December 20, 2016
                 In the Court of Common Pleas of Monroe County
               Criminal Division at No(s): CP-45-CR-0002854-2013


BEFORE:        BENDER, P.J.E., OTT, J., and FITZGERALD, J.

MEMORANDUM BY OTT, J.:                               FILED DECEMBER 26, 2017

        Shicon J. Jordan appeals from the order entered December 20, 2016, in

the Court of Common Pleas of Monroe County, denying him relief on his

petition filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §

9541 et seq. In this timely appeal, Jordan argues the PCRA court erred in

failing to find trial counsel ineffective for failing to raise Commonwealth v.

Spenny, 128 A.3d 234 (Pa. Super. 2015), regarding the calculation of his

prior record score, at his resentencing hearing, held on April 26, 2016. At

resentencing, Jordan received an aggregate term of 74 to 148 months’




____________________________________________



    Former Justice specially assigned to the Superior Court.
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incarceration.1 After a thorough review of the submissions by the parties,

relevant law and the certified record, we affirm.

       The PCRA court related the following relevant information regarding the

underlying matter.

       [V]ideo surveillance footage showed that on November 2, 2013,
       [Jordan] and a female entered a Quality Inn hotel in Stroudsburg,
       Pennsylvania at approximately 7:23 p.m. and left at
       approximately 7:42 p.m. with a television. At about 10:00 p.m.
       on the same evening, a security guard in the same hotel found
       [Jordan] and the female in Room 239. There had been a guest in
       Room 239 the previous evening, but he had checked out on the
       morning of November 2nd. Room 239 was not registered to any
       person at 10:00 p.m., and [Jordan] had no authority to be in this
       room.

       The security guard found two televisions in Room 239, one of
       which was behind a curtain. Hotel personnel discovered that
       televisions were missing from Rooms 237 and 240. One had been
       removed from the hotel in the incident between 7:32 and 7:42
       p.m.; the other was found behind the curtain in Room 239. There
       was no evidence that any person other than [Jordan] or his female
       accomplice was in Room 237 or 240 when these rooms were
       burglarized.

PCRA Opinion, 12/20.2016 at 1-2.

       Jordan was convicted of the charges listed above and on September 23,

2014, received an aggregate sentence of 91 to 182 months’ incarceration.

Jordan filed a direct appeal, claiming his sentence was improperly based upon

an erroneous offense gravity score (OGS) for the burglary charge. A panel of

our court agreed with Jordan, vacated the sentence and remanded the matter
____________________________________________


1
  On July 3, 2014, a jury convicted Jordan of Burglary, Criminal Trespass,
Theft by Unlawful Taking, Attempted Theft, and Receiving Stolen Property. 18
Pa.C.S. §§ 903(a), 3503(a)(1)(i), 3921(a), 901(a), and 3925(a), respectively.

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for resentencing. See Commonwealth v. Jordan, 2016 WL 417415, filed

2/2/2016 (memorandum decision).              On April 26, 2016, Jordan was

resentenced to a term of 74 – 142 months’ incarceration.

      Between imposition of Jordan’s original sentence in 2014 and his

resentencing in 2016, a panel of our Court decided Commonwealth v.

Spenny, 128 A.3d 234 (Pa. Super. 2015), which set forth the methodology

for determining a defendant’s prior record score (PRS), when that score is

based upon out of state convictions. All of Jordan’s prior convictions were out

of state.   Despite this fact, Jordan’s counsel did not raise Spenny at the

resentencing. Accordingly, he now claims counsel was ineffective for failing

to challenge his prior record score pursuant to Spenny. This argument is

unavailing.

      “Our standard of review for issues arising from the denial of PCRA relief

is well-settled. We must determine whether the PCRA court's ruling is

supported by the record and free of legal error.” Commonwealth v.

Washington, 927 A.2d 586, 593 (Pa. 2007).

      Jordan has raised a single claim of ineffective assistance of counsel.

      In reviewing these claims, we are guided by a well-settled
      framework:

      Counsel is presumed to have been effective. To overcome this
      presumption, a PCRA petitioner must plead and prove that: (1)
      the underlying legal claim is of arguable merit; (2) counsel's action
      or inaction lacked any objectively reasonable basis designed to
      effectuate his client's interest; and (3) prejudice, to the effect that
      there was a reasonable probability of a different outcome if not
      for counsel's error.


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      If a petitioner fails to prove any of these [three] prongs, his claim
      fails.

Commonwealth v. Grove, 170 A.3d 1127, 1138 (Pa. Super. 2017) (citations

and quotation marks omitted).

      We relate two reasons why Jordan’s argument fails. First, Jordan has

failed to demonstrate any prejudice for trial counsel’s failure to argue Spenny.

He points to nothing in his prior record that would have been altered by a

Spenny analysis. If a Spenny analysis would not alter Jordan’s PRS, and

Jordan has suffered no prejudice, then the failure to raise the issue before the

resentencing court cannot constitute ineffective assistance of counsel. See

Grove, supra.

      Second, the trial court conducted an analysis of Jordan’s PRS, and the

method used by Probation Officer Rebecca Hamar to calculate the number as

5 which the trial court relied upon in fashioning Jordan’s sentence. The trial

court reasoned as follows:

      Probation Officer Rebecca Hamar testified at the October 17, 2016
      PCRA hearing that she prepared a PSI [Pre-Sentence
      Investigation] in this matter and calculated [Jordan’s] prior record
      score to be a five. Ms. Hamar testified that she was familiar with
      the requirements of 204 Pa.Code § 303.8, and applied the
      requirements thereof in calculating [Jordan’s] prior record score.
      Specifically, [Jordan] had an out of state conviction, Criminal Sale
      of a Controlled Substance, which had a Pennsylvania equivalent,
      which carried two points. [Jordan] also had an out of state felony
      conviction for Robbery.        Although there are Pennsylvania
      equivalents to Robbery, Officer Hamar did not have specific facts
      concerning this conviction, and therefore assigned the lowest
      number of prior record score points for this conviction, one, in
      conformance with Spenny. [Jordan] was also given an additional

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      two points for five other out of state convictions.3 Although all of
      these convictions were listed as felonies, Officer Hamar did not
      have the specific facts and therefore treated them as
      misdemeanors. This calculation of the prior record score, as set
      forth in greater detail in the PSI on page 1 and 15, was done in
      compliance with 204 Pa.Code § 303.8[(f)] and Spenny.

      Therefore, the prior record score calculation for sentencing
      purposes was accurate and legal. As such[,] arguing Spenny
      would have been meritless and Counsel cannot be found
      ineffective for failing to argue a baseless or meritless claim.

        3
         [Jordan] was convicted in New York state of the following:
        Criminal Possession of a Controlled Substance, Promoting
        contraband to Prisoners, and three separate convictions for
        Knowingly Make/Possess Dangerous Contraband in Prisons.

PCRA Court Opinion, 12/20/2016, at 4-5.

      Our review of Jordan’s brief, the certified record and relevant law leads

us to find the PCRA court’s order denying Jordan relief is supported by the

record and free from legal error.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/29/2017




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