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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
DAVID J. BROOKS :
:
Appellant : No. 951 MDA 2018
Appeal from the PCRA Order May 25, 2018
In the Court of Common Pleas of Dauphin County Criminal Division at
No(s): CP-22-CR-0003977-2014
BEFORE: SHOGAN, J., NICHOLS, J., and STRASSBURGER, J.*
MEMORANDUM BY NICHOLS, J.: FILED NOVEMBER 14, 2018
Appellant David J. Brooks appeals pro se from the order dismissing his
first petition filed under the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§
9541-9546. Appellant argues that his sentence as a third-strike offender is
illegal, and that both appellate and PCRA counsel were ineffective for failing
to pursue that issue on appeal. We affirm.
On January 13, 2016, a jury found Appellant guilty of rape, corruption
of minors, and unlawful contact with a minor.1 On March 22, 2016, the trial
court sentenced Appellant to life imprisonment for rape, a consecutive term
of twenty-five to fifty years’ imprisonment for corruption of minors, and a
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* Retired Senior Judge assigned to the Superior Court.
1 18 Pa.C.S. §§ 3121(a)(1), 6301(a)(1)(ii), and 6318(a)(1), respectively.
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concurrent term of imprisonment of ten to twenty years for unlawful contact.2
Appellant timely appealed to this Court, and we affirmed his judgment of
sentence on April 10, 2017.3 See Commonwealth v. Brooks, 972 MDA 2016
(Pa. Super. filed Apr. 10, 2017) (unpublished mem.).
Appellant filed a timely first pro se PCRA petition on November 3, 2017.
The court appointed counsel, who filed a petition to withdraw and a
Turner/Finley4 no-merit letter on May 3, 2018. On May 8, 2018, the PCRA
court issued a notice of intent to dismiss Appellant’s petition without a hearing
under Pa.R.Crim.P. 907, and granted PCRA counsel’s petition to withdraw.
Appellant filed a Rule 907 response on May 22, 2018, raising a claim based
on PCRA counsel’s ineffectiveness. See Appellant’s 907 Resp., 5/22/18.
The PCRA court dismissed Appellant’s PCRA petition on May 25, 2018.
Appellant’s timely notice of appeal was docketed on June 12, 2018. The PCRA
court issued an order to file a Pa.R.A.P. 1925(b) statement on June 25, 2018.
Appellant’s statement was docketed on July 9, 2018. On July 17, 2018, the
PCRA court issued a statement in lieu of a memorandum opinion, and
incorporated its May 25, 2018 order, which incorporated its May 8, 2018 order.
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2 At trial, Appellant waived his right to counsel, and, after an on-the-record
colloquy, he represented himself with the assistance of stand-by counsel. See
N.T., 1/12/16, at 4-19.
3 Counsel was appointed to represent Appellant on direct appeal.
4Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth v.
Finley, 550 A.2d 213 (Pa. Super. 1988).
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Appellant raises three issues on appeal, which we have reordered as
follows:
1. Whether [the] sentencing court committed an error of law in
finding that the conviction of a 2001 unarmed robbery [was]
substantially similar to subsection 3701(A)(1)(i)(ii) and (iii)
Pennsylvania’s robbery statute thereby making the sentence
issued under 42 [Pa.]C.S.A. [§] 9714 illegal.
2. Whether PCRA counsel failed to carefully review the elements
of this 2001 unarmed robbery offense in terms of classification
of conduct [proscribed, s]atisfying [Section] 3701 (A)(i)(ii)(iii)
and (vi)(v)(vi).
3. Whether sentencing appellant to life in prison without parole
was an illegal sentence and/or violated his fifth, six and
fourteenth amendment rights under the United States
[C]onstitution and article 1 section six and nine of the
Pennsylvania [C]onstitution because the decision was based
upon a factual determination made by the trial court instead of
a jury.
Appellant’s Brief at 3.
Our standard of review is well-settled:
We review an order dismissing a petition under the PCRA in the
light most favorable to the prevailing party at the PCRA level. This
review is limited to the findings of the PCRA court and the evidence
of record. We will not disturb a PCRA court’s ruling if it is supported
by evidence of record and is free of legal error. This Court may
affirm a PCRA court’s decision on any grounds if the record
supports it. Further, we grant great deference to the factual
findings of the PCRA court and will not disturb those findings
unless they have no support in the record. However, we afford no
such deference to its legal conclusions. Where the petitioner raises
questions of law, our standard of review is de novo and our scope
of review plenary.
Commonwealth v. Ford, 44 A.3d 1190, 1194 (Pa. Super. 2012) (citations
omitted).
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In his first issue, Appellant argues that his 2001 conviction for “unarmed
robbery” is not an enumerated crime of violence under Section 9714(g), and,
therefore, it was improperly counted as a second strike at sentencing.
Appellant’s Brief at 8. Appellant concludes that based on this error, he was
incorrectly sentenced as a third-strike offender under 42 Pa.C.S. § 9714(a)(2).
Id.
Initially, we note that a challenge to the applicability of a mandatory
sentencing statute such as Section 9714 is a challenge to the legality of the
sentence. See Commonwealth v. Shiffler, 879 A.2d 185, 188-89 (Pa.
2005) (explaining that a challenge to the applicability of Section 9714 raises
a question of statutory construction, which is a pure question of law
implicating the legality of the sentence). Accordingly, this claim cannot be
waived. See Commonwealth v. Rivera, 154 A.3d 370, 379 (Pa. Super.
2017) (en banc) (stating that a claim that implicates the legality of a sentence
cannot be waived on appeal), appeal denied, 169 A.3d 1072 (Pa. 2017).
Pursuant to Section 9714(a)(2),
[w]here the person had at the time of the commission of the
current offense previously been convicted of two or more such
crimes of violence arising from separate criminal transactions, the
person shall be sentenced to a minimum sentence of at least 25
years of total confinement, notwithstanding any other provision of
this title or other statute to the contrary. . . .
42 Pa.C.S. § 9714(a)(2). Section 9714(g) contains several offenses that
qualify as “crimes of violence,” including robbery, as defined in 18 Pa.C.S. §
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3701(a)(1)(i), (ii) or (iii), rape, and aggravated indecent assault.5 See 42
Pa.C.S. § 9714(g).
Here, at sentencing, the Commonwealth explained to the court:
By further background, we would note that by
correspondence of February 5th of 2016, although we had
previously indicated so on the record, we did file our formal
notification to [Appellant] that we would be seeking
mandatories in this case, specifically for a second crime of
sexual violence under Title 42 Section 9718.1, and also for
a third crime of violence under Title 42 Section 9714.
We did enclose the certified records[6] as well as
required by the statute in reference to this matter.
And I did want to make sure, we also provided that as part
of the pre-sentence report as well.
N.T. Sentencing Hr’g, 3/22/16, at 6-7 (emphasis added).
Our review of the record confirms that Appellant was properly sentenced
as a third-strike offender. First, he was convicted of aggravated indecent
assault in 1990. See Docket No. CP-22-CR-2538-1990. Aggravated indecent
assault is an enumerated crime of violence under Section 9714(g), and,
therefore, constitutes Appellant’s first strike. See 42 Pa.C.S. § 9714(g).
In 2001, Appellant pled guilty to robbery, which is also an enumerated
offense under Section 9714(g). See Docket No. CP-22-CR-1345-2001. This
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5 18 Pa.C.S. § 3125.
6 Although it appears that the trial court had Appellant’s criminal background
at sentencing, the details of Appellant’s 2001 robbery conviction were not
included in the certified record. However, upon informal inquiry, the trial court
advised us that Appellant’s 2001 guilty plea was for robbery under 18 Pa.C.S.
§ 3701(a)(1)(ii) (robbery with threat of serious bodily injury), which is an
enumerated offense in Section 9714(g).
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conviction counted as Appellant’s second strike under Section 9714. See 42
Pa.C.S. § 9714(g). Although Appellant does not dispute the fact that he was
convicted under 3701(a)(1)(ii) for threatening serious bodily injury, he
suggests that because it was an “unarmed robbery,” it cannot be considered
a crime of violence. Appellant’s Brief at 4. However, given the fact that he
pled to an offense specifically enumerated in Section 9714(g), Appellant’s
argument is without merit.
In the instant case, Appellant was convicted of rape, also an enumerated
offense under Section 9714(g). See 42 Pa.C.S. § 9714(g). Accordingly, this
resulted in Appellant’s third strike and the imposition of the mandatory
sentence at issue. See Pa.C.S. § 9714(a)(2). Therefore, we agree with the
PCRA court that Appellant was properly sentenced as a third-strike offender,
as he had two prior convictions for violent crimes at the time he was convicted
for a third enumerated crime in Section 9714(g).
In his second issue, Appellant claims that both trial counsel and PCRA
counsel were ineffective for failing to challenge the trial court’s conclusion that
Appellant’s 2001 robbery conviction was his second strike. Appellant’s Brief
at 24-25. He further argues that PCRA counsel was ineffective for mentioning
Appellant’s previous burglary conviction7 in his Turner/Finley letter and for
failing to obtain records from the clerk of courts to ascertain whether the
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7In an unrelated matter, at Docket No. CP-22-CR-1580-1995, Appellant was
convicted of burglary. This conviction, however, was not the basis of his
underlying third-strike offender sentence. See PCRA Ct. Order, 5/8/18, at 3.
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burglary conviction constituted another crime of violence. Id. He asserts that
“such evidence would have been beneficial to [Appellant’s] appeal and lack
thereof was prejudicial.” Id. at 26.
To establish a claim of ineffective assistance of counsel, a petitioner
“must show, by a preponderance of the evidence, ineffectiveness which, in
the circumstances of the particular case, so undermined the truth-determining
process that no reliable adjudication of guilt or innocence could have taken
place.” Commonwealth v. Turetsky, 925 A.2d 876, 880 (Pa. Super. 2007)
(citation omitted). It is presumed that the petitioner’s counsel was effective,
unless the petitioner proves otherwise. Commonwealth v. Williams, 732
A.2d 1167, 1177 (Pa. 1999). Therefore, a petitioner must prove (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. Commonwealth v. Washington, 927 A.2d 586, 594
(Pa. 2007). A claim of ineffectiveness will be denied if the petitioner’s
evidence fails to satisfy any one of these prongs. Id.
Here, as discussed above, Appellant’s sentence was properly based on
three convictions for crimes of violence under Section 9714 (robbery under 18
Pa.C.S. § 3701(a)(1)(ii), rape, and aggravated indecent assault). See 42
Pa.C.S. § 9714(g). Therefore, neither appellate counsel nor PCRA counsel
was ineffective for failing to challenge the trial court’s conclusion that the
robbery was Appellant’s second strike. See Commonwealth v. Travaglia,
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661 A.2d 352, 357 (Pa. 1995) (“[C]ounsel cannot be deemed ineffective for
failing to pursue a meritless claim[.]” (citation omitted)).
Regarding Appellant’s claim of PCRA counsel’s ineffectiveness, we note
that Appellant’s burglary conviction was not part of the conviction for which
he received a sentence as a third-strike offender.8 See PCRA Ct. Order,
5/8/18, at 3. Therefore, Appellant has failed to establish that he has been
prejudiced. Accordingly, no relief is due. See Washington, 927 A.2d at 594.
In his final issue, Appellant claims that his constitutional rights were
violated because defendants are “entitled to a jury determination on any fact
on which the legislature conditions an increase in their maximum
punishment.” Appellant’s Brief at 19. Appellant engages in a lengthy
discussion of relevant case law. Id.
In Apprendi v. New Jersey, 530 U.S. 466 (2000), the United States
Supreme Court concluded:
Other than the fact of a prior conviction, any fact that
increases the penalty for a crime beyond the prescribed statutory
maximum must be submitted to a jury, and proved beyond a
reasonable doubt.... “[I]t is unconstitutional for a legislature to
remove from the jury the assessment of facts that increase the
prescribed range of penalties to which a criminal defendant is
exposed. It is equally clear that such facts must be established
beyond a reasonable doubt.”
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8 Although the PCRA court mentioned Appellant’s burglary conviction in its
opinion, it noted that the mandatory sentence was based on Appellant’s
convictions for robbery, indecent assault, and rape. See PCRA Ct. Order,
5/8/18, at 3-4.
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Apprendi, 530 U.S. at 490 (citation omitted and emphasis added).
In United States v. Alleyne, 570 U.S. 99 (2013), the United States
Supreme Court extended Apprendi principles to mandatory minimum
statutes.9 Alleyne, 570 U.S. at 111-13. However, the Alleyne Court did not
disturb the view that a prior conviction need not be found by a jury beyond a
reasonable doubt. See id. at 111 n.1 (discussing Almendarez–Torres v.
United States, 523 U.S. 224 (1998)).
In Commonwealth v. Lane, 941 A.2d 34, 37 (Pa. Super. 2008) (en
banc), this Court considered a challenge to Section 9714(a)(2) based on
Apprendi. We explained that:
By its terms, the statute requires a mandatory minimum sentence
of at least 25 years of total confinement upon a conviction of a
third crime of violence. The statute affords the court discretion to
impose a life sentence without parole if the court determines that
25 years of total confinement would be insufficient to protect the
public safety.
The range of permissible sentences is expanded only by a showing
that the defendant has committed two previous crimes of violence.
After such a showing, it is then within the discretion of the court
to impose a sentence of life imprisonment without parole. As such,
the court is free to take account of factual matters not determined
by a jury and to increase the sentence.
***
Section 9714(a)(2) does not require a jury determination as to
the protection of public safety. This section only requires the
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9 We note that the Pennsylvania Supreme Court has held that Alleyne does
not apply retroactively in a PCRA proceeding. See Commonwealth v.
Washington, 142 A.3d 910, 820 (Pa. 2016). However, because Alleyne was
decided before Appellant’s sentencing, and Appellant’s PCRA petition was
timely filed, Alleyne is applicable to this case.
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showing of two prior convictions for crimes of violence before it
affords the trial court discretion to impose a life sentence.
Because the trial court had the statutory discretion, but was not
mandated to impose a life sentence, we hold that the trial court
did not err in its imposition of sentence [of life without the
possibility of parole]. We determine that the court did not violate
[the a]ppellant’s constitutional rights by considering facts that
were not determined by the jury, but properly exercised its
discretion to consider the protection of public safety in reaching
its sentencing decision[.]
Lane, 941 A.2d at 37 (citations and footnote omitted).
The Lane Court’s analysis applies here. Appellant had two prior
convictions for crimes of violence under Section 9714 at the time the trial
court imposed its sentence in the instant matter. As noted in Lane,
Appellant’s prior convictions increased the range of penalties for the instant
rape conviction to a minimum of twenty-five years’ imprisonment to a
maximum of life without parole. See 42 Pa.C.S. § 9714(a)(2), (e). However,
because Appellant’s prior convictions increased the permissible minimum and
maximum sentences, jury findings were not required, and that trial court
retained the discretion to impose a sentence of life imprisonment without
parole. See Lane, 941 A.2d at 37. Thus, Appellant’s claim fails.
Accordingly, we agree with the PCRA court that Appellant has failed to
raise any meritorious claims for PCRA relief, and conclude that the PCRA
court’s findings are supported by the record. See Ford, 44 A.3d at 1194.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/14/2018
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