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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
MELVIN ANTHONY HERNANDEZ
Appellant No. 3621 EDA 2015
Appeal from the PCRA Order October 28, 2015
In the Court of Common Pleas of Lehigh County
Criminal Division at No(s): CP-39-CR-0000042-2013
BEFORE: BOWES, PANELLA AND FITZGERALD,* JJ.
MEMORANDUM BY BOWES, J.: FILED OCTOBER 19, 2016
Melvin Anthony Hernandez appeals pro se from the denial of PCRA
relief. We affirm.
In this criminal action, Appellant was charged with robbery, burglary,
aggravated assault, theft by unlawful taking, receiving stolen property,
attempted unlawful restraint, and conspiracy to commit robbery. On June 5,
2013, Appellant tendered an open guilty plea to aggravated assault and
conspiracy to commit robbery. The underlying facts are as follows:
The charges stemmed from a brutal attack that occurred at
the Hamilton Tower apartment building in Allentown,
Pennsylvania, on November 18, 2012. That night, appellant and
an unidentified accomplice forcibly entered Apartment 315,
savagely beat its 46-year-old occupant and demanded that he
give them everything he had. During the attack, appellant and
the other robber tied the victim to a chair, attempted to slit his
throat with a folding knife, stabbed him in the torso with a
* Retired Senior Judge assigned to the Superior Court.
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screwdriver, hit him with a miniature baseball bat and repeatedly
punched him in the face and head. After leaving the scene,
appellant was arrested by police as he stepped from the
apartment elevator. He was covered in blood and was holding
the victim’s x-box video system. Appellant had other property of
the victim in his pockets. When the police entered Apartment
315, they found the badly injured victim, blood, the implements
used to restrain and assault the victim and a bag left behind by
the attackers filled with the victim’s personal property. The
victim was taken to the hospital where he was treated for a
broken nose, orbit fractures, a cut to his neck, a large blunt
force injury to his torso, and other abrasions and contusions.
The victim had reconstructive surgery on the right eye [and
another surgical procedure scheduled]. As a result of the attack,
the victim has short-term memory loss, severe headaches,
significant vision problems and depression for which he treats
with a therapist.
Trial Court Opinion, 9/8/14, at 1-2.
On July 23, 2013, Appellant was sentenced to ten to twenty years in
jail on the aggravated assault offense, which was the statutory maximum
sentence and exceeded the recommended guideline ranges, and he received
an aggravated range sentence on conspiracy of seven and one-half to fifteen
years incarceration. The sentences were ordered to be imposed
consecutively, for an aggregate term of seventeen and one-half to thirty-five
years imprisonment. Appellant did not file a direct appeal, but his direct
appeal rights were reinstated pursuant to a timely-filed PCRA petition. On
appeal, we rejected challenges to the discretionary aspects of the sentence
and affirmed. Commonwealth v. Hernandez, 121 A.3d 1142 (Pa.Super.
2015) (unpublished memorandum).
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On June 5, 2015, Appellant filed a timely petition for PCRA relief, and
counsel was appointed. Counsel thereafter moved to withdraw and filed a
no-merit letter. On October 1, 2015, counsel was granted leave to
withdraw, and the PCRA court thereafter issued notice of its intent to dismiss
the PCRA petition without a hearing pursuant to Pa.R.Crim.P. 907. After
Appellant filed objections to the notice, the PCRA petition was dismissed,
and this timely pro se appeal followed. Appellant raises these averments:
I. Did the PCRA court err as a matter of law when it
dismissed appellant's PCRA petition as frivolous?
II. Does Appellant's sentence violate the Pennsylvania and
United States Constitution(s) and Alleyne v. United States?
Appellant’s brief at 4.
Initially, we observe that this Court reviews the “denial of PCRA relief
to determine whether the findings of the PCRA court are supported by the
record and free of legal error.” Commonwealth v. Roane, 142 A.3d 79, 86
(Pa. Super. 2016) (quoting Commonwealth v. Treiber, 121 A.3d 435, 444
(Pa. 2015)). Herein, while Appellant purports to present two distinct claims,
they actually pertain to the identical position. Appellant first asserts that the
PCRA court’s finding of frivolity was erroneous since his sentences are illegal
based on the holding of the Supreme Court of the United States in Alleyne
v. United States, 133 S.Ct. 2151 (2013), which held that any fact, other
than a prior conviction, that is used to invoke a mandatory minimum
sentence must be submitted to a jury and found beyond a reasonable doubt.
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Appellant’s brief at 8. Appellant’s second averment is that he was sentenced
under a mandatory minimum statute infirm under Alleyne. Id. at 9.
There is a critical flaw in Appellant’s invocation of Alleyne. Our review
of the sentencing transcript confirms that no mandatory minimum sentence
was invoked or applied in this case. Indeed, none was even mentioned.
Instead, the court imposed sentence after consideration of a pre-sentence
report, the guidelines, impact statements from the victim and his sister, and
Appellant’s allocution. Its sentence was premised upon the fact that
Appellant: 1) was a member of a notorious gang and sold drugs to support
himself; 2) was on parole when the crime occurred; 3) committed “a number
of misconducts in the prison,” including one involving an assault; 4)
admitted during the pre-sentence investigation that he perpetrated “other
crimes for which he was never caught by the authorities;” 5) confessed to
the pre-sentence investigator that he killed a number of animals, including
dogs and cats; 6) engaged in a similar assault in the past; 7) used
“weapons[,] . . . [a] screwdriver, a knife, a rope or nylon cord” during the
assault at issue; and 8) had no employment history. N.T. Sentencing,
7/23/13, at 23-25. The court also weighed the serious impact that the crime
had on the victim and that Appellant and his accomplice evidenced a callow
disregard as to whether the victim lived or died. Id. at 25-26.
Significantly, in his appellate brief, Appellant fails to indicate which
mandatory minimum sentence he believes was applied. He suggests that,
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during sentencing, the court considered that he committed “an armed and
violent crime and pursuant thereto invoked a minimum sentence that”
violates Alleyne, supra. Appellant’s brief at 10 (emphasis in the original).
Appellant is mistaken. The court never mentioned that Appellant was armed
since he was not. Rather, it correctly noted that Appellant used weapons
consisting of a screwdriver and knife on his victim. Moreover, it did not
apply a mandatory minimum sentencing provision. Sine Appellant’s Alleyne
claim fails, the PCRA court did not commit an error in dismissing Appellant’s
petition.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/19/2016
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