Com. v. Atkinson, T.

J-S51029-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

:

v. :

:

:

TODD DONALD ATKINSON :

:

Appellant : No. 976 MDA 2020

Appeal from the PCRA Order Entered July 9, 2020

In the Court of Common Pleas of Lancaster County Criminal Division at

No(s): CP-36-CR-0000336-2015

BEFORE: MURRAY, J., McLAUGHLIN, J., and McCAFFERY, J.

MEMORANDUM BY McLAUGHLIN, J.: FILED FEBRUARY 17, 2021

Todd Donald Atkinson appeals pro se from the order dismissing his Post

Conviction Relief Act (“PCRA”) petition. See 42 Pa.C.S.A. §§ 9541-9546. We

affirm based on the PCRA court’s opinion.

The PCRA court aptly summarized the underlying facts:

Atkinson was arrested on December 18, 2014, and charged

with six counts of sexual abuse of children, child pornography, and

one count of criminal use of communication facility.[1] This criminal

prosecution arose from a September 5, 2014, undercover

investigation by the Pennsylvania State Police into internet

sharing of child pornography that led to a computer, the IP

address of which traced back to Quiche Amour, LLC, at the home

address of Atkinson.

When Atkinson was arrested on these charges, he was on

probation for two counts of indecent assault of a person less than

13 years of age, criminal solicitation for indecent assault of a

person less than 13 years of age, endangering the welfare of

____________________________________________

1 18 Pa.C.S.A. §§ 6312(d), and 7512(a), respectfully.

J-S51029-20

children, corruption of minors, and indecent exposure, and is a

registered Tier III Megan’s Law offender.

***

A jury convicted Atkinson on all counts. He was ordered to

undergo an assessment by the Sexual Offenders Assessment

Board prior to sentencing. Atkinson was found to have not met

the statutory criteria for sexually violent predator (SVP) status.

On September 27, 2016, Atkinson was sentenced to 25 to 50

years of incarceration on each count of child pornography plus five

years of probation for the charge of criminal use of communication

facility. All sentences were to be served concurrently. No post-

sentence motions were filed.

A direct appeal to the Superior Court of Pennsylvania was

filed on October 26, 2016, and a three-judge panel of the Superior

Court affirmed Atkinson’s judgment of sentence in an unpublished

memorandum opinion on January 17, 2018. See

Commonwealth v. Atkinson, 183 A.3d 1064 (Table) (Pa. Super.

Jan. 17, 2018). See also Commonwealth v. Atkinson, 2018 WL

[460962] (Pa. Super. Jan. 17, 2018). A petition for allowance of

appeal was denied by the Supreme Court of Pennsylvania on June

22, 2018. Commonwealth v. Atkinson, 647 Pa. 24, 187 A.3d

912 (Table) (2018).

***

On August 12, 2019, Atkinson filed, pro se, a timely PCRA

petition. In this petition, Atkinson challenges the legality of his

mandatory minimum sentences in light of the United States

Supreme Court’s 2013 decision in Alleyne v. United States, 570

U.S. 99 (2013), and trial and appellate counsels’ ineffectiveness

in failing to raise the Alleyne violation. Pursuant to Rule 904(A)

of the Pennsylvania Rules of Criminal Procedure, Dennis C.

Dougherty, Esquire, was appointed on August 16, 2019, to

represent Atkinson on his collateral claims, and granted leave to

file an amended petition within 60 days. Counsel requested a 60-

day extension, which was granted on October 15, 2019.

On November 1, 2019, Atkinson filed a “Motion for

Withdrawal of Appointed Counsel and to Proceed Pro Se,” citing

“irreconcilable conflict and difference of opinion on the manner in

which this case should be litigated.” Motion for Withdrawal at 2.

-2-

J-S51029-20

Following a Grazier[2] Hearing held via video-conference on March

16, 2020, Atkinson’s motion to proceed pro se was granted, and

Attorney Dougherty was granted leave to withdraw his

appearance in this matter.

PCRA Ct. Op., 5/28/20, at 1-5 (footnotes omitted).

After denying a motion Atkinson filed regarding additional discovery, the

PCRA court issued Rule 907 notice of intent to dismiss Atkinson’s petition

without a hearing, together with an opinion dated May 28, 2020. See

Pa.R.Crim.P. 907. Atkinson filed a response, which the PCRA court treated as

an amended PCRA petition. The PCRA court issued an order denying Atkinson’s

petition on July 7, 2020, based upon the reasoning set forth in its May 28,

2020 opinion. Atkinson filed a timely appeal and the PCRA court issued a

Pa.R.A.P. 1925(a) opinion on July 20, 2020 relying on its earlier opinion.

Atkinson raises the following issues:

1. Does the sentence imposed of a mandatory minimum

sentence of 25 to 50 years violate the Apprendi[3] and

Alleyne Supreme Court decisions which are preserved

and properly raised in [Atkinson’s] PCRA petition and

supplemental PCRA petitions?

2. Did the decision[] in Commonwealth v. Muniz, [] 164

A.3d 1189 (Pa. 2017) apply to [Atkinson’s] case being he

had a timely filed PCRA petition when Muniz was decided

by the higher courts?

3. Did the trial court err by denying [Atkinson] an

evidentiary hearing on the merits of his timely filed PCRA

[petition] and should his case be remanded due to the

illegal sentence imposed because of Judge based facts

____________________________________________

2 Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).

3 Apprendi v. New Jersey, 530 U.S. 466 (2000).

-3-

J-S51029-20

not found by a jury beyond a reasonable doubt pursuant

to Appendi v. New Jersey, (2000) and its progeny

Alleyne v. United States, (2013)?

4. Is the mandatory minimum sentence imposed

unconstitutional pursuant to Apprendi and Alleyne

mandates, was trial counsel ineffective for failure to

object to illegal and unconstitutional sentencing

provisions imposed against [Atkinson]?

5. What statutes and provisions was [Atkinson] sentenced

to and are these sentencing statutes and provisions

unconstitutional and must they be vacated on remand?

6. Does the following case [law] apply to [Atkinson’s] case

and warrant a remand and vacating of the illegal

sentence[:] Commonwealth v. Wolfe, 2014 Pa.Super.

Lexis 4977 (2014); Alleyne v. United States, 133 S.Ct

2151 (2013); Commonwealth v. Newman, 99 A.3d 86

(Pa.Super. 2014); Apprendi v. New Jersey, (2000);

Commonwealth v. Golson (Pa.Super[.] June 4, 2018);

Commonwealth v. Butcher, 2019 Pa.Super unpub.

LEXIS 2208; Commonwealth v. Muniz, . . . 164 A.3d

1189 (Pa. 2017)?

7. Does [Atkinson] deserve a “reduction of sentence”

consistent with the recent decision in Muniz as offense

grading had been downgraded?

8. Is [Atkinson’s] sentence pursuant to 42 Pa.C.S.A. §

9799.14 illegal and subject to remand and resentencing

due to the Sixth Amendment violation and

unconstitutional statutes?

9. [Atkinson] was denied effective assistance of counsel due

to counsel’s failure to object to the unconstitutional

minimum and maximum sentencing provisions when

Alleyne was decided before [Atkinson’s] sentencing?

[sic]

10. Trial and sentencing counsel was ineffective for failing to

object to the illegal sentence the court was imposing as

clearly unconstitutional in light of Supreme Court ruling

in Alleyne any “facts” that increases [sic] the minimum

or maximum sentence must be charged in the

-4-

J-S51029-20

information and submitted to the jury and proven beyond

a reasonable doubt standard? [sic]

Atkinson’s Br. at 5-7 (numbering and case italicization added).

“Our standard of review for an order denying PCRA relief is whether the

record supports the PCRA court’s determination, and whether the PCRA court’s

determination is free of legal error.” Commonwealth v. Phillips, 31 A.3d

317, 319 (Pa.Super. 2011).

In this case, although he presents ten issues, Atkinson’s claims all

concern his contention that the trial court imposed an illegal sentence

pursuant to Alleyne.4 He maintains that because the trial court imposed a

mandatory minimum sentence for repeat sex offenders pursuant to 42

Pa.C.S.A. § 9718.2, his constitutional rights were violated. Likewise, he argues

that his trial counsel was ineffective for failing to raise this issue.

The PCRA court found Atkinson’s Alleyne claim lacked merit because

the trial court sentenced him based upon his prior convictions. “Alleyne held

____________________________________________

4 Atkinson’s pro se brief fails to comply with the Pennsylvania Rules of

Appellate Procedure because he presents all argument in one section instead

of separate sections for each issue. See Pa.R.A.P. 2119(a) (stating that the

argument section of the parties’ briefs “shall be divided into as many parts as

there are questions to be argued; and shall have at the head of each part--in

distinctive type or in type distinctly displayed--the particular point treated

therein, followed by such discussion and citation of authorities as are deemed

pertinent”). Nevertheless, because the failings of Atkinson’s brief do not

hamper our review, we decline to find his issues waived. However, to the

extent that Atkinson attempts to present other, unrelated arguments for the

first time in his appellate brief, we find these thinly developed issues waived.

See Pa.R.A.P. 302(a); Commonwealth v. Murchinson, 899 A.2d 1159,

1162-63 (Pa.Super. 2006) (stating appellant waives issues under Rule

2119(a) where appellant does not develop meaningful argument with specific

references to relevant case law and the record to support claims).

-5-

J-S51029-20

that any fact that, by law, increases the penalty for a crime must be treated

as an element of the offense, submitted to a jury, rather than a judge, and

found beyond a reasonable doubt.” Commonwealth v. Washington, 142

A.3d 810, 812 (Pa. 2016) (citation omitted). However, “[p]rior convictions are

the remaining exception to Apprendi . . . and Alleyne . . . insofar as a fact

finder is not required to determine disputed convictions beyond a reasonable

doubt to comport with the Sixth Amendment jury trial right.” Commonwealth

v. Golson, 189 A.3d 994, 1002 (Pa.Super. 2018) (citations omitted)

(upholding imposition of 25 to 50 year mandatory minimum pursuant to

Section 9718.2 based upon a prior conviction).

After a review of the parties’ briefs, the certified record, and the relevant

law, we find no error in the trial court’s analysis. The PCRA court properly

found, in its May 28, 2020 opinion, that Atkinson’s issue lacked merit because

the trial court sentenced him to a mandatory minimum sentence, under

Section 9718.2 of the sentencing code, due to past convictions. Thus, we

affirm based on the well-reasoned opinion of the Honorable David L. Ashworth.

See PCRA Ct. Op. at 6-8.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 02/17/2021

-6-

1_Opinion and Notice

Circulated 01/29/2021 05:08 PM

IN THE COURT OF COMMON PLEAS OF LANCASTER COUNTY, PENNSYLVANIA

CRIMINAL

COMMONWEALTH OF PENNSYLVANIA :

v. No. 0336-2015

TODD DONALD ATKINSON

OPINION

BY: ASHWORTH, P.J., MAY 28, 2020

Todd Donald Atkinson has filed, pro se, a petition pursuant to the Post

Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. For the reasons set forth

below, Atkinson is being notified pursuant to section 907 of the PCRA that this petition

will be dismissed in 30 days without a hearing.'

I. Background

Atkinson was arrested on December 18, 2014, and charged with six counts of

sexual abuse of children, child pornography, and one count of criminal use f

communication facility.2 This criminal prosecution arose from a September 5, 2014,

undercover investigation by the Pennsylvania State Police into internet sharing of child

pornography that led to a computer, the IP address of which traced back to Quiche

Amour, LLC, at the home address of Atkinson.

'Under Rule 907 f

the Pennsylvania Rules of Criminal Procedure, a PCRA court may

dispose of post conviction collateral relief petitions without a hearing if it is satisfied after

reviewing the materials submitted that no genuine issues of material fact exist and that the

petitioner is not entitled to post conviction relief. Pa.R.Crim.P. 907(1).

218 Pa.C.S.A. § 6312(d), and 18 Pa.C.S.A. § 7512(a), respectively.

1_Opinion and Notice

When Atkinson was arrested on these charges, he was on probation for two

counts of indecent assault of a person less than 13 years of age, criminal solicitation for

indecent assault of a person less than 13 years of age, endangering the welfare of

children, corruption of minors, and indecent exposure,3 and is a registered Tier Ill

Megan's Law offender.4

On June 25, 2015, Atkinson filed an omnibus pre-trial motion seeking to

suppress certain evidence seized by the police during the execution of a search warrant

at Atkinson's home, as well as statements made by Atkinson to the police at that time.'

Atkinson further sought to suppress all evidence resulting from the search of a business

property belonging to Atkinson's wife, on the basis that the consent given by his wife for

the search was not voluntarily. Following a hearing on November 4, 2015, separate

orders were entered on November 30, 2015, denying the suppression motion and

motion in limine after finding that (1) there was sufficient probable cause for the warrant

for the search of Atkinson's home, (2) Atkinson's statement regarding past viewing of

child pornography in the home was not the result of custodial interrogation, and (3)

Atkinson's wife's consent to the search of her business was voluntary.

On the first day of trial in April 2016, scheduled before the Honorable James P.

Cullen, now retired, Atkinson filed motions to reopen the suppression hearing and to

318 Pa.C.S.A. § 3126(a)(7), 18 Pa.C.S.A. § 902(a), 18 Pa.C.S.A. § 4304(a)(1), 18

Pa.C.S.A. § 6301(a)(1), and 18 Pa.C.S.A. § 3127(a), respectively.

442 Pa.C.S.A. § 9799.14(d).

50n the same date, June 25, 2015, Atkinson also filed a motion in limine to exclude the

statements made by Atkinson to the police during the execution of a search warrant that he had

viewed child pornography in the past.

2

1_Opinion and Notice

exclude his statement about viewing child pornography in the past. Judge Cullen

denied these motions, and trial commenced. A jury convicted Atkinson on all counts.

He was ordered to undergo an assessment by the Sexual Offenders Assessment Board

prior to sentencing. Atkinson was found to have not met the statutory criteria for

sexually violent predator (SVP) status. On September 27, 2016, Atkinson was

sentenced to 25 to 50 years of incarceration on each count of child pornography' plus

five years of probation for the charge of criminal use of communication facility. All

sentences were to be served concurrently. No post -sentence motions were filed.

A direct appeal to the Superior Court of Pennsylvania was filed on October 26,

2016, and a three -judge panel of the Superior Court affirmed Atkinson's judgment of

sentence in an unpublished memorandum opinion on January 17, 2018.7 See

Commonwealth v. Atkinson, 183 A.3d 1064 (Table) (Pa. Super. Jan. 17, 2018). See

also Commonwealth v. Atkinson, 2018 WL 4460962 (Pa. Super. Jan. 17, 2018). A

petition for allowance of appeal was denied by the Supreme Court of Pennsylvania on

June 22, 2018. Commonwealth v. Atkinson, 647 Pa. 24, 187 A.3d 912 (Table)

(2018). Atkinson was represented during his pre-trial, trial and appeal by privately -

retained counsel, M. Alexandra Bradley, Esquire, and Adam W. Bompadre, Esquire,

from the West Chester, Pennsylvania firm of Lee A. Ciccarelli, P.C.

6This was the mandatory minimum sentence for a second offense pursuant to 42

Pa.C.S.A. § 9718.2(a)(1). For sentencing purposes, under 42 Pa.C.S.A. § 9799.14(6), (14),

Atkinson's prior conviction under 18 Pa.C.S.A. § 3126(a)(7) and his convictions under 18

Pa.C.S.A. § 6312(d) constituted tier one sexual offenses. See Commonwealth v. Colon -

Plaza, 136 A.3d 521 (Pa. Super. 2016).

'Atkinson raised just one issue on appeal: whether the court erred in denying his

motions in limine and admitting, over defense objection at trial, Atkinson's statement that he

had viewed child pornography in the past.

3

1_Opinion and Notice

On August 12, 2019, Atkinson filed, pro se, a timely' PCRA petition. In this

petition, Atkinson challenges the legality of his mandatory minimum sentences in light

of the United States Supreme Court's 2013 decision in Alleyne v. United States, 570

U.S. 99 (2013),9 and trial and appellate counsels' ineffectiveness in failing to raise the

Alleyne violation. Pursuant to Rule 904(A) of the Pennsylvania Rules of Criminal

Procedure, Dennis C. Dougherty, Esquire, was appointed on August 16, 2019, to

represent Atkinson on his collateral claims, and granted leave to file an amended

'For purposes of the PCRA, a judgment of sentence becomes final at the conclusion of

direct review, which includes discretionary review in the Supreme Court of the United States

and the Supreme Court of Pennsylvania, or at the expiration of the time for seeking such

review. 42 Pa.C.S.A. § 9545(b)(3). See also Commonwealth v. Jones, 54 A.3d 14, 17 (Pa.

Super. 2012). A petitioner who seeks review in the U.S. Supreme Court has 90 days to do so

after the Pennsylvania Supreme Court enters an order denying relief. Commonwealth v.

Monaco, 996 A.2d 1076, 1081 n.2 (Pa. Super. 2010); U.S. Sup.Ct.R. 13 (providing "[a] petition

for writ of certiorari seeking review of a judgment of a lower state court that is subject to

discretionary review by the state court of last resort is timely when filed with the Clerk within 90

days after entry of the order denying discretionary review."). See also Commonwealth v.

Fairiror, 809 A.2d 396, 398 (Pa. Super. 2002) (statute of limitations for filing petition for post

conviction relief did not begin to run until defendant's period for filing petition for certiorari in the

United States Supreme Court lapsed).

As noted above, Atkinson's judgment of sentence was affirmed by the Superior

Court on January 17, 2018, and his petition for allowance of appeal was denied by the Supreme

Court of Pennsylvania on June 22, 2018. Pursuant to section 9545(b)(3), Atkinson's judgment

-

of sentence became final for PCRA purposes 90 days later on or about September 17, 2018

- when the time expired for Atkinson to file a petition for certiorari with the Supreme Court of

the United States. See 42 Pa.C.S.A. § 9545(b)(3); U.S. Sup.Ct.R. 13. Accordingly, Atkinson

had one year from September 17, 2018, in which to file a timely PCRA petition. His petition was

filed on August 12, 2019 and, thus, is timely.

9In Alleyne, the United States Supreme Court held "[a]ny fact that, by law, increases the

penalty for a crime is an 'element' that must be submitted to the jury and found beyond a

reasonable doubt." 570 U.S. at 102. Owens' mandatory minimum sentences were imposed

pursuant to sections 7508 and 6317 of the Crimes Code, which have been deemed

unconstitutional pursuant to Alleyne. See Commonwealth v. DiMatteo, 644 Pa. 463, 478, 177

A.3d 182, 191 (2018) (holding 42 Pa.C.S.A. § 7508 unconstitutional because it allowed a judge

to increase a sentence for conviction of drug offenses based on the weight and classification of

the controlled substance); Commonwealth v. Hopkins, 632 Pa. 36, 55-56, 117 A.3d 247, 258-

59 (2015) (holding 42 Pa.C.S.A. § 6317 unconstitutional because it allowed a judge to increase

a sentence for conviction of drug offenses based on the occurrence of the offense within 1,000

feet of a school).

4

1_Opinion and Notice

petition within 60 days. Counsel requested a 60 -day extension, which was granted on

October 15, 2019.

On November 1, 2019, Atkinson filed a "Motion for Withdrawal of Appointed

Counsel and to Proceed Pro Se," citing "irreconcilable conflict and difference of opinion

on the manner in which this case should be litigated." Motion for Withdrawal at ¶ 2.

Following a Grazierl° Hearing held via video -conference on March 16, 2020,11

Atkinson's motion to proceed pro se was granted, and Attorney Dougherty was granted

leave to withdraw his appearance in this matter.

On November 18, 2019, Atkinson filed, pro se, a "Motion for Discovery Pursuant

to Pa.R.Cr.P. 573(B)." This motion was originally stayed pending the scheduled

Grazier hearing. On March 16, 2020, Atkinson's motion for PCRA discovery was

denied, pursuant to Pa.R.Crim.P. 902(E)(1).12

"'Commonwealth v. Grazier, 552 Pa. 9, 713 A.2d 81 (1998) (when a waiver of the right

to counsel is sought at the post -conviction and appellate stages, an on -the -record determination

must be made that the waiver is a knowing, intelligent and voluntary one).

"The hearing was originally scheduled for January 9, 2020, but had to be rescheduled

due to video problems at SCI -Forest.

12Under Rule 902(E)(1), which applies in all cases except on the first counseled petition

in a death penalty case, "no discovery shall be permitted at any stage of the [PCRA]

proceedings, except upon leave of court after a showing of exceptional circumstances."

Pa.R.Crim.P. 902(E)(1). Neither the PCRA nor the Rules of Criminal Procedure define the term

"exceptional circumstances." Commonwealth v. Frey, 41 A.3d 605, 611 (Pa. Super. 2012).

Rather, it is for the trial court, in its discretion, to determine whether a case is exceptional and

warrants discovery. Id. See also Commonwealth v. Watley, 153 A.3d 1034, 1048 (Pa. Super.

2016). Here, Atkinson's discovery requests failed to meet the burden of demonstrating

exceptional circumstances. He made only the bald assertion that "[t]he material requested

recordsO are very important and necessary, pertinent of pending appeals in Federal Court."

Motion for Discovery at li 2. He failed to demonstrate how the requested documents were

exculpatory, or why the discovery requests were exceptional. As the five issues raised in this

PCRA petition relate to the legality of his mandatory minimum sentences in light of Alleyne, the

requested discovery simply has no bearing on this case.

5

1_Opinion and Notice

II. Discussion

Atkinson claims in the instant PCRA petition that the court imposed

unconstitutional mandatory sentences for his sexual abuse of children, child

pornography convictions and that he should be granted relief since this legality-of-

sentence issue is cognizable under the PCRA." He further contends all prior counsel

were ineffective in failing to challenge his illegal sentence.

In Alleyne, the United States Supreme Court established that "[a]ny fact that, by

law, increases the penalty for a crime is an 'element' that must be submitted to the jury

and found beyond a reasonable doubt." Alleyne, 570 U.S. at 102.

Applying Alleyne, the courts of this Commonwealth have determined

our mandatory minimum sentencing statutes are unconstitutional where

the language of those statutes 'permits the trial court, as opposed to

the jury, to increase a defendant's minimum sentence based upon a

preponderance of the evidence' standard.

Commonwealth v. Golson, 189 A.3d 994, 1000 (Pa. Super. 2018) (citing

Commonwealth v. Newman, 99 A.3d 86, 98 (Pa. Super. 2014)).

The United States Supreme Court, however, has recognized a narrow exception

to this rule. Prior convictions, by their very nature, already result from the submission of

facts to a factfinder under the beyond-a -reasonable doubt standard. As our Superior

Court noted in Commonwealth v. Miller, 102 A.3d 988 (Pa. Super. 2014):

"Issues pertaining to Alleyne go directly to the legality of the sentence and are

cognizable. Commonwealth v. Lawrence, 99 A.3d 116, 123 (Pa. Super. 2014). Retroactivity is

not an impediment here where Atkinson's sentence of September 27, 2016, was imposed after

Alleyne was decided, and Atkinson filed a timely PCRA petition. See Commonwealth v. Ruiz,

131 A.3d 54, 59-60 (Pa. Super. 2015) (a defendant can raise an Alleyne challenge in a timely

PCRA petition so long as his judgment of sentence was not yet final when Alleyne was decided

on June 17, 2013).

6

1_Opinion and Notice

The [United States] Supreme Court's decision in Almendarez-Torres

v. United States, 523 U.S. 224 ... (1998)[,] held that the fact of a prior

conviction does not need to be submitted to the jury and found beyond

a reasonable doubt. Id. at 246.... Alleyne explicitly noted that

Almendarez-Torres remains good law. See Alleyne, supra at [111]

n.1 (stating, "[i]n Almendarez-Torres, we recognized a narrow

exception ... for the fact of a prior conviction").

Id. at 995 n.5. Accordingly, mandatory-minimum sentences based on prior convictions

inherently satisfy the requirements of Alleyne. See Golson, supra at 999-1000

(upholding imposition of mandatory 25 to 50 year mandatory minimum pursuant to

Section 9718.2 based upon a prior conviction); see also Commonwealth v. Resto, 645

Pa. 196, 201 n.1, 179 A.3d 18, 21 n.1 (2018) (plurality) (noting that "under prevailing

federal jurisprudence, [previous] convictions are not treated as a type of fact implicating

Alleyne"); Commonwealth v. Bragg, 133 A.3d 328, 333 (Pa. Super. 2016), affirmed,

642 Pa. 13, 169 A.3d 1024 (2017) (per curiam) (acknowledging that the United States

Supreme Court has recognized a "narrow exception" to Alleyne for prior convictions).

Atkinson was sentenced pursuant to section 9718.2 of the Sentencing Code

which provides for a 25-year mandatory minimum sentence for repeat sex offenders.

Section 9718.2(a) states:

(a) Mandatory sentence. --

(1) Any person who is convicted in any court of this Commonwealth

of an offense set forth in section 9799.14 (relating to sexual offenses

and tier system) shall, if at the time of the commission of the current

offense the person had previously been convicted of an offense set

forth in section 9799.14 or an equivalent crime under the laws of this

Commonwealth in effect at the time of the commission of that

offense or an equivalent crime in another jurisdiction, 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. Upon such conviction, the court shall give the person oral

and written notice of the penalties under paragraph (2) for a third

7

1_Opinion and Notice

conviction. Failure to provide such notice shall not render the

offender ineligible to be sentenced under paragraph (2).

42 Pa.C.S.A. § 9718.2 (emphasis added). The fact that can trigger the mandatory -

minimum sentence set forth in Section 9718.2(a)(1) is a prior conviction. Accordingly,

Section 9718.2(a)(1) can never run afoul of Alleyne.

Atkinson does not dispute that he was convicted previously of qualifying offenses

under this statute, specifically, indecent assault of a person less than 13 years of age

and corruption of minors.14 Accordingly, Atkinson was subject to mandatory sentences

as a repeat offender. His sentence is not illegal and does not violate Alleyne.

In his second issue, Atkinson avers that all prior counsel rendered ineffective

assistance in failing to challenge the legality of Atkinson's sentences pursuant to

Alleyne. The underlying claim lacks merit for the reasons discussed above, in

connection with Atkinson's first issue. Thus, trial and appellate counsel cannot be

deemed ineffective for failing to raise this issue. See Commonwealth v. Treiber, 632

Pa. 449, 466, 121 A.3d 435, 445 (2015) (stating that "counsel cannot be deemed

ineffective for failing to raise a meritless claim").

Ill. Conclusion

For the reasons set forth above, Todd Donald Atkinson's pro se petition for post

conviction relief will be dismissed, without a hearing, in 30 days, during which time

Atkinson may file an amended petition or otherwise respond to this Rule 907 Notice.

Accordingly, enter the following:

I

'418 Pa.C.S.A. § 3126(a)(7), and 18 Pa.C.S.A. § 6301(a)(1), respectively.

8

1_Opinion and Notice

IN THE COURT OF COMMON PLEAS OF LANCASTER COUNTY, PENNSYLVANIA

CRIMINAL

COMMONWEALTH OF PENNSYLVANIA :

v. No. 0336-2015

TODD DONALD ATKINSON

Pa. R.CRIM.P. 907 NOTICE

TO: TODD DONALD ATKINSON Date: MAY 28, 2020

You are hereby advised that, after a review of your pro se PCRA Petition and the

matters of record relating to your claims, your request for post -conviction relief will be

denied without further proceedings, in 30 days from the date of this Notice, for the

following reasons:

1. There are no genuine issues concerning any material fact;

2. You are not entitled to post-conviction collateral relief; and

3. No purpose would be served by any further proceedings.

If you wish to file an amended petition or to otherwise respond to this

Notice, you must do so within 30 days of the date of this Notice.

ADA

" PR SIDENT JUDGE

Copies to: Mari L. Andracchio, Assistant District Attorney

Todd Donald Atkinson, #MS 0675, SCI -Forest, P.O. Box 307, 286

Woodland Drive, Marienville, PA 16239-0307

2_Order Denying Amended -Petition for Post-Conviction Collateral Relief

IN THE COURT OF COMMON PLEAS OF LANCASTER COUNTY, PENNSYLVANIA

CRIMINAL

COMMONWEALTH OF PENNSYLVANIA

v. No. 0336-2015 L

TODD DONALD ATKINSON

ORDER

AND NOW, this 7th day of July, 2020, upon consideration of Todd Donald

Atkinson's "Objection and Response to 907 Intent to Dismiss PCRA Petition and

Alleyne Challenge", which the Court deems an Amended Petition for Relief Pursuant to

the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-46, and for the reasons

set forth in this Court's Opinion of May 28, 2020, it is hereby ORDERED that Petitioner's

Amended PCRA Petition is DENIED without a hearing.

Pursuant to Pa.R.Crim.P. 908(E), this Court advises Petitioner that he has the

right to appeal from this Order. Petitioner shall have 30 days from the date of this final

Order to appeal to the Superior Court of Pennsylvania. Failure to appeal within 30 days

will result in the loss of appellate rights.

It is further ORDERED that Petitioner shall have the right, if indigent, to appeal in

forma pauperis.

ORTH

P SIDENT JUDGE