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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
GREGORY DOWNIE,
Appellant No. 1659 EDA 2015
Appeal from the PCRA Order May 29, 2015
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0802351-2003
BEFORE: FORD ELLIOTT, P.J.E, SHOGAN and FITZGERALD,* JJ.
MEMORANDUM BY SHOGAN, J.: FILED OCTOBER 07, 2016
Gregory Downie (“Appellant”) appeals from the order denying his
petition for relief filed pursuant to the Post Conviction Relief Act (“PCRA”),
42 Pa.C.S. §§ 9541–9546. We affirm.
The instant case began at 10:15 p.m. on July 21, 2003, when
Appellant and a co-conspirator robbed Robert Mendez and his girlfriend at
gunpoint on Aramingo Avenue in Philadelphia. Following a jury trial presided
over by the late Honorable John J. Chiovero, the jury convicted Appellant of
robbery and carrying a firearm without a license. Judge Chiovero sentenced
Appellant on February 27, 2004, to incarceration for a mandatory term of
____________________________________________
*
Former Justice specially assigned to the Superior Court.
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ten to twenty years as a “second strike” offender under 42 Pa.C.S. § 9714.1
For sentencing purposes, Appellant’s first strike occurred on July 10, 2000,
when Appellant pled guilty before the late Honorable Anthony J. DeFino to
charges of robbery and possessing instruments of crime. Judge DeFino
sentenced Appellant to incarceration for eleven and one-half to twenty-three
months, followed by three years of reporting probation.
Sitting as the PCRA court, the Honorable Denis P. Cohen summarized
the remaining procedural history as follows:
On July 21, 2004, [Appellant] filed a timely pro se [PCRA]
petition. On March 31, 2006, Judge Chiovero dismissed the
petition. [Appellant] appealed the denial of PCRA relief. On
June 11, 2008, the Superior Court found that PCRA counsel had
failed to address any of [Appellant’s] issues on the merits. The
Court reinstated [Appellant’s] PCRA petition and remanded for
an evidentiary hearing on the ineffectiveness claim raised in the
petition. On December 22, 2009, May 21, 2010, and July 2,
2010, this [c]ourt held evidentiary hearings on those claims. On
August 19, 2010, this [c]ourt reinstated [Appellant’s] right to
direct appeal nunc pro tunc. Judgment of sentence was affirmed
by the Pennsylvania Superior Court on September 21, 2011.
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1
Section 9714 reads, in relevant part, as follows:
(1) Any person who is convicted in any court of this
Commonwealth of a crime of violence shall, if at the time
of the commission of the current offense the person had
previously been convicted of a crime of violence, be
sentenced to a minimum sentence of at least ten years of
total confinement, notwithstanding any other provision of
this title or other statute to the contrary.
42 Pa.C.S. § 9714(a)(1). The statute defines “crime of violence” as, inter
alia, “robbery as defined in 18 Pa.C.S. § 3701(a)(1)(i), (ii), or (iii).” Id. at
(g).
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The Pennsylvania Supreme Court denied allocator [sic] on March
14, 2012. On March 28, 2012, [Appellant] filed a second pro se
PCRA petition. On January 21, 2014, [Appellant’s] counsel filed
an amended PCRA petition. On May 29, 2015, this [c]ourt
denied the petition. That same day, [Appellant] filed a Notice of
Appeal. On June 9, 2015 this [c]ourt issued a [Pa.R.A.P.]
1925(b) order. On June 30, 2015, [Appellant] responded with a
Statement of Matters Complained [of] on Appeal. . . .
PCRA Court Opinion, 12/21/15, at 2.
On appeal, Appellant presents the following questions for our
consideration:
I. Whether the court erred in not granting relief on the PCRA
petition alleging counsel was ineffective.
II. Whether the court erred in denying the Appellant’s PCRA
petition without an evidentiary hearing on the issues raised
in the amended PCRA petition regarding trial counsel’s
ineffectiveness.
Appellant’s Brief at 8 (reordered for ease of disposition).
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. We view the findings of the PCRA court
and the evidence of record in a light most favorable to the
prevailing party. With respect to the PCRA court’s decision to
deny a request for an evidentiary hearing, or to hold a limited
evidentiary hearing, such a decision is within the discretion of
the PCRA court and will not be overturned absent an abuse of
discretion. The PCRA court’s credibility determinations, when
supported by the record, are binding on this Court; however, we
apply a de novo standard of review to the PCRA court’s legal
conclusions.
Commonwealth v. Mason, 130 A.3d 601, 617 (Pa. 2015) (internal
citations and quotation marks omitted).
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In the first issue, Appellant argues that trial counsel provided
ineffective assistance.2 In resolving questions of counsel’s effectiveness, we
begin with the presumption that counsel rendered effective assistance.
Commonwealth v. Bomar, 104 A.3d 1179, 1188 (Pa. 2014). To overcome
that presumption, the petitioner must establish: “(1) the underlying claim
has arguable merit; (2) no reasonable basis existed for counsel’s action or
failure to act; and (3) the petitioner suffered prejudice as a result of
counsel’s error, with prejudice measured by whether there is a reasonable
probability that the result of the proceeding would have been different.” Id.
(citation omitted). If the petitioner fails to prove any of these prongs, the
claim is subject to dismissal. Id.
Appellant claims that trial counsel was ineffective by failing to file a
motion for reconsideration of sentence. Appellant’s Brief at 15. Appellant
asserts:
There was no evidence presented by the Commonwealth as [to]
any of the facts of the previous plea before Judge DeFino.
* * *
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2
We note with disapproval the minimal analysis of the three prongs of an
ineffective-assistance claim set forth in Appellant’s brief. Appellant’s Brief at
17. However, because this deficiency does not impede our review, we
decline to find waiver. But see Commonwealth v. Johnson, 985 A.2d
915, 924 (Pa. 2009) (“[W]here an appellate brief fails to provide any
discussion of a claim with citation to relevant authority or fails to develop the
issue in any other meaningful fashion capable of review, that claim is
waived[.]”).
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[At sentencing t]he Appellant’s record before Judge Chiovero did
not adequately establish by a preponderance of the evidence
that Appellant had pled guilty to a robbery pursuant to
§9714(a)(1) or (2) without the court having the benefit of the
complete written record.
Id. at 16–17. In response, the Commonwealth argues:
[Appellant] bore the burden to make a factual proffer to support
this claim, and he failed to do so below. His claim failed for this
reason alone.
Moreover, the record clearly and unequivocally
documented that [Appellant’s] prior conviction was for the crime
of robbery as a felony of the first degree[.] ... Judge Chiovero
correctly applied the relevant “second strike” statute in imposing
a mandatory ten-year-minimum sentence, and therefore
sentencing counsel was not ineffective for not raising a futile
challenge to the sentence.
Commonwealth’s Brief at 6–7 (citing Pennsylvania Commission on
Sentencing pre-sentence report and the First Judicial District of Pennsylvania
Secure Court Summary) (footnotes omitted).
The PCRA court concluded that Appellant failed to demonstrate
prejudice:
[Appellant] fails to present any prejudice resulting from the
failure to file a Motion for Reconsideration of Sentence.
[Appellant] must demonstrate that there was a reasonable
probability that, but for counsel’s ineffectiveness, the outcome of
the proceedings would have been different. The Superior Court
has concluded that a defendant’s failure to file a post-sentence
motion “is not fatal to the defendant’s challenge to the
mandatory minimum sentence, or any legality of sentencing
claim for that matter, because the fundamental issue raised
concerns the sentencing court’s constitutional or statutory
authority to act as it did.” Commonwealth v. Foster, 17 A.3d
332, 343–[3]44 (Pa. 2011).
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In the instant case, the sentencing court was still within its
statutory and constitutional authority to act as it did. At the
time the crime was committed, a first degree felony Robbery
could only fall under § 3701 (a)(1)(i), (ii), or (iii). The relevant
portions of the statute reads [sic]:
A person is guilty of robbery if, in the course of
committing a theft, he: (i) inflicts serious bodily
injury upon another; (ii) threatens another with or
intentionally puts him in fear of immediate serious
bodily injury; (iii) commits or threatens immediately
to commit any felony of the first or second degree;
(iv) inflicts bodily injury upon another or threatens
another with or intentionally puts him in fear of
immediate bodily injury; (v) physically takes or
removes property from the person of another by
force however slight . . . Robbery under subsection
(a)(1)(iv) is a felony of the second degree; robbery
under subsection (a)(1)(v) is a felony of the third
degree; otherwise, it is a felony of the first degree.
§ 3701(a), (b). As the statute notes, the only provisions related
to a first degree felony are §3701(a)(1)([i]), (ii), and (iii). All
first degree felony robbery convictions fell within the provisions
specified in § 9714. Thus, the 2000 Robbery conviction fell
within the purview of § 9714 and necessarily constituted a “first
strike.”... [A] Motion for Reconsideration would ultimately have
been fruitless since § 9714 did, in fact, apply. Thus, [Appellant]
suffered no prejudice from his counsel’s alleged failure to file a
Motion for Reconsideration.
PCRA Court Opinion, 12/21/15, at 6–7 (an internal citation omitted).
Upon review, we conclude that the record supports the PCRA court’s
factual findings and that its legal conclusion is without error. The pre-
sentence report indicates that Appellant pled guilty on July 10, 2000, to
felony-one (“F1”) robbery. Commonwealth’s Motion to Dismiss, 2/13/15, at
Exhibit A. Similarly, the Secure Court Summary indicates that, on July 10,
2000, Appellant was sentenced on the 2000 F1 robbery conviction. Id. at
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Exhibit B. Even without knowing the factual basis for Appellant’s plea to F1
robbery in 2000, Judge Chiovero legally sentenced Appellant in 2004 as a
“second strike” offender based on the documentation of record. Thus,
Appellant failed to demonstrate how he was prejudiced by counsel’s failure
to file a post-sentence motion. Appellant is not entitled to relief.
In the second issue, Appellant argues that the PCRA court erred in
denying him an evidentiary hearing on his ineffective assistance claim.
“There is no absolute right to an evidentiary hearing on a PCRA petition, and
if the PCRA court can determine from the record that no genuine issues of
material fact exist, then a hearing is not necessary.” Commonwealth v.
Jones, 942 A.2d 903, 906 (Pa. Super. 2008) (quoting Commonwealth v.
Barbosa, 819 A.2d 81 (Pa. Super. 2003)). “[S]uch a decision is within the
discretion of the PCRA court and will not be overturned absent an abuse of
discretion.” Mason, 130 A.3d at 617.
Here, as discussed above, the PCRA court correctly determined from
the record that Appellant was properly sentenced as a “second strike”
offender under section 9714; therefore, counsel was not ineffective in failing
to file a motion for reconsideration of sentence. Because there were no
genuine issues of material fact regarding counsel’s effectiveness, we discern
no abuse of the PCRA court’s discretion in denying Appellant an evidentiary
hearing. Mason, 130 A.3d at 617.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/7/2016
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