J-S83018-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA            :   IN THE SUPERIOR COURT OF
                                        :        PENNSYLVANIA
                                        :
            v.                          :
                                        :
                                        :
TERRANCE WILSON                         :
                                        :
                  Appellant             :   No. 1106 EDA 2017

                Appeal from the PCRA Order March 24, 2017
  In the Court of Common Pleas of Philadelphia County Criminal Division at
                     No(s): CP-51-CR-0014373-2011


BEFORE: GANTMAN, P.J., OLSON, J., and DUBOW, J.

MEMORANDUM BY OLSON, J.:                       FILED FEBRUARY 20, 2018

     Appellant, Terrance Wilson, appeals from the order entered on March

24, 2017, dismissing his first petition filed pursuant to the Post Conviction

Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. We affirm.

     We briefly summarize the facts and procedural history of this case as

follows. On March 2, 2011, police attempted to stop a driver of an SUV who

they witnessed driving at a high rate of speed, narrowly missing a pedestrian

and an officer on Green Lane in Philadelphia, Pennsylvania.        The SUV

ultimately stopped at a dead end in an apartment complex. Appellant, the

passenger, exited the SUV and fled to the rear of the apartment complex.

Police pursued Appellant on foot and witnessed him discard two objects.

After Appellant’s arrest, police recovered the two items, clear plastic bags,

which contained 50 individual packets of crack cocaine weighing a total of 21
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grams.     Police also recovered $61.00 in cash from Appellant’s person in a

search incident to his arrest.

        On June 28, 2012, a jury convicted Appellant of possession with intent

to deliver a controlled substance (PWID), 35 P.S. § 780-113(a)(30).         On

October 4, 2012, the trial court sentenced Appellant to 10 to 20 years of

incarceration.    We affirmed Appellant’s judgment of sentence on May 28,

2014.     See Commonwealth v. Wilson, 104 A.3d 60 (Pa. Super. 2014)

(unpublished memorandum). Appellant did not appeal that determination.

        On July 14, 2014, Appellant filed a pro se PCRA petition. He filed an

amended pro se PCRA petition on December 1, 2014.             The PCRA court

appointed PCRA counsel, who filed an amended PCRA petition on November

17, 2015. The Commonwealth filed a motion to dismiss, almost a year later,

on November 14, 2016.             On January 13, 2017, the PCRA court sent

Appellant notice of its intent to dismiss the amended, counseled PCRA

petition without an evidentiary hearing pursuant to Pa.R.Crim.P. 907.       On

March 24, 2017, the PCRA court entered an order dismissing the PCRA

petition. This timely appeal resulted.1

        On appeal, Appellant presents the following issue for our review:


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1
   Appellant filed a notice of appeal on March 30, 2017. On March 31, 2017,
the PCRA court ordered Appellant to file a concise statement of errors
complained of on appeal pursuant to Pa.R.A.P. 1925(b). Appellant complied
timely on April 13, 2017. The PCRA court issued an opinion pursuant to
Pa.R.A.P. 1925(a) on May 16, 2017.



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       1. Should PCRA relief be granted where [Appellant] was subject
          to an illegal sentence and where counsel failed to raise the
          issue at trial or on direct appeal?

Appellant’s Brief at 8.

       Appellant claims that trial counsel was ineffective for failing to

challenge    the   imposition      of   an     unconstitutional   mandatory   minimum

sentence,2 which constitutes an illegal sentence. Id. at 11-17. Appellant

stresses that he is “challenging [trial] counsel’s ineffectiveness[,] rather than

the illegal sentence itself.” Id. at 14.

       Our standard of review is as follows:

       We review the denial of a PCRA [p]etition to determine whether
       the record supports the PCRA court's findings and whether its
       [o]rder is otherwise free of legal error. 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 trial level.

                               *               *           *

       In analyzing claims of ineffective assistance of counsel, we
       presume        that      trial counsel was     effective    unless
       the PCRA petitioner proves otherwise. In order to succeed on a
       claim    of ineffective assistance of counsel,    Appellant  must
       demonstrate (1) that the underlying claim is of arguable merit;
       (2) that counsel's performance lacked a reasonable basis; and
       (3) that the ineffectiveness of counsel caused the appellant
       prejudice.    Where the underlying claim lacks arguable
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2
   In his appellate brief, Appellant does not identify the mandatory minimum
sentencing provision implicated in this matter. Upon review of the certified
record, however, the Commonwealth averred that Appellant was subject to a
mandatory minimum sentence of five to 10 years of incarceration based
upon the weight of the narcotics recovered under 18 Pa.C.S.A. § 7508. See
Trial Court Opinion, 9/17/2013, at 11.



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         merit, counsel cannot be deemed ineffective for failing to raise it.
         Appellant bears the burden of proving each of these elements,
         and his failure to satisfy any prong of the ineffectiveness test
         requires rejection of the claim of ineffectiveness.

Commonwealth v. Jarosz, 152 A.3d 344, 350 (Pa. Super. 2016) (internal

citations, quotations, and original brackets omitted).

         Here, the PCRA court concluded:

         [Appellant] received a sentence of ten to twenty years of
         incarceration for his PWID conviction.       As explained in its
         [o]pinon on direct appeal, the trial court’s sentence was above
         both the mandatory minimum and the sentencing guidelines due
         to, inter alia, the short time frames between [Appellant’s] eight
         prior PWID convictions, the substantial rehabilitative needs of
         [Appellant], and the protection of the public based upon the
         nature and gravity of the offense. Thus, the trial court imposed
         a non-mandatory sentence that was not based upon a
         mandatory minimum statute that our appellate courts have
         deemed void by Alleyne [v. United States, 133 S.Ct. 2151
         (2013)]. The PCRA [c]ourt also notes that the Superior Court
         affirmed the trial court’s discretionary aspects of the
         non-mandatory sentence [on Appellant’s] direct appeal.

         In sum, the PCRA court determined that [Appellant’s] PCRA
         claims were patently frivolous and without support in the record.
         Moreover, there were no genuine issues of fact that would have
         required an evidentiary hearing. Thus, the PCRA court’s findings
         are adequately supported by the record and free of legal error;
         as such, this [C]ourt should affirm the PCRA court’s dismissal of
         [Appellant’s] amended petition for relief under the PCRA.

PCRA Court Opinion, 5/16/2017, at 2 (record and case citations omitted).

         Upon review, we agree with the PCRA court that dismissal of

Appellant’s collateral claims was supported by the record and free of legal

error.    On direct appeal, we noted that the trial court acknowledged “that

the applicable [s]entencing [g]uideline recommendation was twenty-seven

to thirty-six months’ of incarceration, plus or minus nine months for the

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aggravated and mitigated ranges, and the mandatory minimum sentence

was five years’ incarceration.”     See Wilson, 104 A.3d 60 (unpublished

memorandum) at *21 (record citations omitted).            We further noted that

“[w]hile the sentence imposed by the court was greater than the mandatory

minimum and the [s]entencing [g]uidelines recommendation, under the

circumstances of this case, that sentence was reasonable.”         Id., citing 42

Pa.C.S.A. § 9781(c)(3). We noted that “the trial court was informed by a

[pre-sentence investigation] report, the [s]entencing [g]uidelines, the

mandatory     minimum,   sentence     and   Appellant’s     in-court   sentencing

statement, and that it comprehensively set forth its reasons for the

sentence.” Id. We concluded that the trial court did not abuse its discretion

in sentencing Appellant, a career drug dealer, to a ten to twenty year

statutory maximum sentence.       Id., citing Commonwealth v. Lewis, 45

A.3d 405, 411-413 (Pa. Super. 2012) (affirming statutory maximum

sentence of not less than ten nor more than twenty years’ incarceration for

Lewis’ PWID conviction where it was his sixth PWID conviction and he sold

drugs since he was seventeen years old). We have previously determined

that when a trial court imposes a sentence that exceeds the statutory

mandatory minimum sentence, the court did not apply the mandatory




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minimum sentence, and the sentence is legal.           See Commonwealth v.

Zeigler, 112 A.3d 656, 662 (Pa. Super. 2015).3

       Here, Appellant received a sentence twice the length of the mandatory

minimum sentence suggested.            More importantly, the statutory maximum

sentence imposed here did not turn on a fact (i.e., the weight of the

narcotics recovered) as decided by a judge at sentencing and not a jury at

trial, deemed unconstitutional by Alleyne. The sentencing determination at

issue here turned exclusively on Appellant’s clear recidivist criminal history,

which is not forbidden by Alleyne or its progeny. Thus, Appellant did not

receive a mandatory minimum sentence and his sentence is legal. As such,

there is no arguable merit to Appellant’s claim that trial counsel was

ineffective for failing to challenge the imposition of an unconstitutional


____________________________________________


3
    More specifically, in Zeigler, we concluded:

       [W]e are aware that a mandatory minimum statute exists for
       [Zeigler’s] aggravated assault crime since he admitted to visibly
       possessing a firearm during its commission. 42 Pa.C.S. § 9712.
       Based on decisions from this Court, imposing such a mandatory
       is illegal. See Commonwealth v. Ferguson, 2015 PA Super 1,
       107 A.3d 206; cf. Commonwealth v. Newman, 99 A.3d 86
       (Pa. Super. 2014) (en banc). However, the sentencing court
       exceeded the mandatory minimum sentence when it applied the
       standard guideline range sentence where a deadly weapon was
       used. Hence, the court did not sentence the defendant based on
       the mandatory statute, and his sentence is not illegal on that
       ground.

Commonwealth v. Zeigler, 112 A.3d 656, 662 (Pa. Super. 2015).



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mandatory minimum sentence.        Hence, the PCRA court did not abuse its

discretion or err as a matter of law in dismissing Appellant’s PCRA petition.

      Order affirmed.




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/20/2018




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