Com. v. Brown, J.

J-S11005-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

:

v. :

:

:

JARON BROWN :

:

Appellant : No. 2151 EDA 2017

Appeal from the PCRA Order April 10, 2017

In the Court of Common Pleas of Philadelphia County

Criminal Division at No(s): CP-51-CR-0001112-2013,

CP-51-CR-0002978-2013, CP-51-CR-0003683-2013,

CP-51-CR-0014844-2012, CP-51-CR-0014848-2012,

CP-51-CR-0014853-2012

BEFORE: OTT, J., STABILE, J., and MUSMANNO, J.

MEMORANDUM BY OTT, J.: FILED JULY 24, 2018

Jaron Brown appeals from the order entered on April 10, 2017, in the

Court of Common Pleas of Philadelphia County denying him relief, without a

hearing, on his petitions filed pursuant to the Post Conviction Relief Act

(PCRA), 42 Pa.C.S. § 9541 et seq. In this timely appeal,1 Brown argues that

the trial court imposed an illegal mandatory minimum sentence under 42

Pa.C.S. § 9712(a). The PCRA court, which was also the trial court, noted

Brown was not sentenced pursuant to Section 9712(a) in this, or in any of the

____________________________________________

1 There are six related appeals that were disposed of at one time by a single

order. This appeal addresses the trial court docket number CP-51-CR-

0001112-2013, which was the third docket number listed on Brown’s notice

of appeal.

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cases. Our review of the certified record confirms the PCRA court’s finding.

Accordingly, we affirm.

Before we address the substance of this appeal, we first note that a

single order disposed of all the cases listed in the caption. Brown filed a single

notice of appeal from the order, despite the fact the order disposed of separate

matters. This was a common practice. However, our Supreme Court has

recently determined that in instances, such as is currently before us, where a

single order disposes of multiple cases, the appellant must file a notice of

appeal for each case. If the appellant files a single notice of appeal, the appeal

is to be quashed. See Commonwealth v. Walker, ____ A.3d ____ (Pa.,

June 1, 2018). The Walker decision is to be applied prospectively from the

date of the opinion. Id. at 13. Because this appeal was filed prior to the

Walker decision, we may address the substance of the appeal.

The PCRA court succinctly described the relevant history of this matter

as follows:

On December 12, 2013, Defendant Jaron Brown pled guilty

to six (6) counts each of Robbery (18 Pa.C.S.A. § 3701(a)(1)(ii)),

Conspiracy (18 Pa.C.S.A. § 903), and Possessing Instruments of

Crime (18 Pa.C.S.A. § 907(a)). On April 11, 2014, this Court

sentenced [Brown] to seven (7) to fourteen (14) years’

incarceration for each Robbery charge, seven (7) to fourteen (14)

years’ incarceration for each Conspiracy charge, to run

concurrently to the Robbery sentences, and five (5) years of

probation to run consecutive to the Robbery charges. No post-

sentence motions or direct appeals were filed.

On March 20, 2015, [Brown] filed a pro se petition under

the Post Conviction Relief Act (PCRA). On April 7, 2016, [Brown]

through counsel, filed an amended petition under the PCRA. On

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April 10, 2017, this Court denied [Brown’s] petition. On April 13,

2017, [Brown] filed a Notice of Appeal to the Superior Court of

Pennsylvania. [Brown] filed a Concise Statement of Matters

Complained of on Appeal on May 24, 2017, alleging that this Court

erred by failing to find that trial counsel was ineffective for failing

to raise the issue of unconstitutionality of the mandatory

sentences at sentencing or file a direct appeal regarding the issue.

PCRA Court Opinion, 6/26/2017, at 1-2.

“When reviewing the denial of a PCRA petition, our standard of review

is limited to examining whether the PCRA court's determination is supported

by evidence of record and whether it is free of legal error.” Commonwealth

v. Jordan, 182 A.3d 1046, 1049 (Pa. Super. 2018) (citations omitted).

Here, Brown asserts he was sentenced pursuant to the unconstitutional

mandatory minimum provisions of 42 Pa.C.S. § 9712(a). See Alleyne v.

United States, 570 U.S. 99 (2013) (any fact that increases the penalty for a

crime beyond the prescribed statutory minimum sentence be submitted to a

jury), Commonwealth v. Ferguson, 107 A.3d 206 (Pa. Super. 2015)

(Section 9712(a) is unconstitutional pursuant to Alleyne). He further asserts

trial counsel was ineffective for failing to challenge the imposition of the

mandatory minimum sentence either at sentencing or in a direct appeal.

The requirements for proving ineffective assistance of counsel are as

follows:

“[C]ounsel is presumed effective, and [appellant] bears the

burden of proving otherwise.” Commonwealth v. Steele, 599

Pa. 341, 961 A.2d 786, 796 (2008) (citing Commonwealth v.

Hall, 549 Pa. 269, 701 A.2d 190, 200-01 (1997)). To prevail on

an ineffectiveness claim, appellant must establish:

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(1) the underlying claim has arguable merit; (2) no

reasonable basis existed for counsel's actions or failure to

act; and (3) [appellant] suffered prejudice as a result of

counsel's error such that there is a reasonable probability

that the result of the proceeding would have been different

absent such error.

Commonwealth v. Lesko, 609 Pa. 128, 15 A.3d 345, 373-74

(2011) (citing Commonwealth v. Peirce, 515 Pa. 153, 527 A.2d

973, 975 (1987)). Failure to prove any prong of this test will

defeat an ineffectiveness claim. Commonwealth v. Basemore,

560 Pa. 258, 744 A.2d 717, 738 n. 23 (2000) (citation omitted).

“[I]f a claim fails under any necessary element of the Strickland

test, the court may proceed to that element first.” Lesko, at 374

(citations omitted). When an appellant fails to meaningfully

discuss each of the three ineffectiveness prongs, “he is not entitled

to relief, and we are constrained to find such claims waived for

lack of development.” Steele, at 797; see also Commonwealth

v. Walter, 600 Pa. 392, 966 A.2d 560, 566 (2009) (citation

omitted). Further, counsel cannot be deemed ineffective for failing

to raise a meritless claim. Commonwealth v. Washington, 592

Pa. 698, 927 A.2d 586, 603 (2007) (citations omitted).

Commonwealth v. Fears, 86 A.3d 795, 804 (Pa. 2014) (footnotes omitted).

Although it is Brown’s responsibility to provide this Court with a certified

record sufficient to review the issues raised, the notes of testimony from the

sentencing hearing have not been included. However, in five of the six cases

before this panel, including this matter, the certified record contains form DC-

300B (Part 1). This form, completed by the trial court, confirms Brown was

not subjected to a mandatory minimum sentence. The PCRA court aptly noted

that because Brown was not subjected to a mandatory minimum sentence,

his claim that counsel was ineffective for failing to challenge the imposition of

a mandatory minimum sentence is without merit. Because counsel cannot

be ineffective for failing to raise a meritless claim, the PCRA court’s denial of

Brown’s petition is supported by the certified record and is free from legal

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error. As such, we are required to affirm the PCRA court’s order denying

Brown relief.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 7/24/18

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