J-S08026-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : JONATHAN T. MOORE, : : Appellant. : No. 541 EDA 2018
Appeal from the PCRA Order, January 19, 2018, in the Court of Common Pleas of Philadelphia County, Criminal Division at No(s): CP-51-CR-0014039-2010, CP-51-CR-0014051-2010.
BEFORE: BENDER, P.J.E., KUNSELMAN, J., and STEVENS*, P.J.E.
MEMORANDUM BY KUNSELMAN, J.: FILED MAY 03, 2019
Jonathan T. Moore appeals from the order denying his first petition filed
pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-
9546. We affirm.
The pertinent facts and partial procedural history are as follows: On
September 19, 2011, a jury convicted Moore of one count of robbery, one
count of criminal conspiracy, two counts of a carrying a firearm without a
license, and two counts of possessing an instrument of crime. Additionally,
following a subsequent bench trial, the trial court convicted Moore of an
additional firearm violation. On November 4, 2011, the trial court imposed an
aggregate sentence of thirteen to twenty-six years of imprisonment. Included
in this aggregate, the trial imposed consecutive five to ten-year sentences for
____________________________________ * Former Justice specially assigned to the Superior Court. J-S08026-19
Moore’s robbery and conspiracy convictions. The trial court denied Moore’s
post-sentence motion as untimely.
Moore filed a timely appeal to this Court, in which he raised three issues,
including a challenge to the discretionary aspects of his sentence. Finding no
merit to the first two issues, and concluding that Moore had not preserved his
discretionary challenge, we affirmed his judgment of sentence on May 23,
2013. Commonwealth v. Moore, 81 A.2d 987 (Pa. Super. 2013)
(unpublished memorandum).
Moore’s counsel did not file a timely petition for allowance of appeal to
our Supreme Court. Thus, for PCRA purposes, his judgment of sentence would
have become final on June 1, 2013. However, Moore thereafter filed a pro se
“Application for Leave to File Allocatur Nunc Pro Tunc” to our Supreme Court,
as well as several other filings. Ultimately, the high court remanded the case
for appointment of new counsel, who was to file a petition for allowance of
appeal within sixty days of his appointment. New counsel filed the petition on
October 14, 2014, and our Supreme Court denied it on January 22, 2015.
On August 10, 2015, Moore filed the timely PCRA petition at issue. The
PCRA court appointed counsel. Thereafter, PCRA counsel filed an amended
petition, in which Moore asserted that appellate counsel was ineffective for
failing to file a petition for allowance of appeal to our Supreme Court raising
a claim that the mandatory minimum sentences imposed by the trial court for
his robbery and conspiracy convictions violated Alleyne v. U.S., 133 S.Ct.
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2151 (2013).1 Alleyne was decided approximately one month after this Court
affirmed Moore’s judgment of sentence.
The Commonwealth filed a motion to dismiss Moore’s PCRA petition. On
November 20, 2017, the PCRA Court issued Pa.R.Crim.P. 907 notice of its
intent to dismiss the petition without a hearing. Moore did not file a response.
By order entered January 19, 2018, the PCRA court dismissed the PCRA
petition. This appeal followed.2 Both Moore and the PCRA court have complied
with Pa.R.A.P. 1925.
In his sole issue raised on appeal, Moore claims that the PCRA court
erred when it denied his amended PCRA petition. See Moore’s Brief at 3.
According to Moore:
[His] appellate counsel was ineffective for having failed to raise the Alleyne issue at the first available opportunity which was in the Pennsylvania Supreme Court. That was clear ineffectiveness as the inaction of that counsel deprived [Moore] of relief pursuant to [Alleyne, supra]. Thus, this matter should be remanded to the Sentencing Court for a new Sentencing Hearing which can take into account the Alleyne Decision.
Moore’s Brief at 5. ____________________________________________
1 In Alleyne, the Supreme Court of the United States held that the Sixth Amendment to the U.S. Constitution requires that facts that increase a mandatory minimum sentence for an offense must be submitted to a jury and proven beyond a reasonable doubt. See Alleyne, 133 S.Ct. at 2163.
2Although Moore’s notice of appeal contains two docket numbers, it was filed prior to our Supreme Court’s decision in Commonwealth v. Walker, 185 A.3d 969 (Pa. 2018) (requiring separate notices of appeal for each docket number).
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“Our standard of review for issues arising from the denial of PCRA relief
is well-settled. We must determine whether the PCRA court’s ruling is
supported by the record and free of legal error.” Commonwealth v. Spotz,
171 A.3d 675, 678 (Pa. 2017). The PCRA petitioner has the burden of
persuading an appellate court that the PCRA court erred and that such error
warrants post-conviction relief. Commonwealth v. Wholaver, 177 A.3d
136, 144-45 (Pa. 2018). This Court may affirm an order denying post-
conviction relief for any reason supported by the record. Id. at 145.
To be entitled to relief on a claim of ineffective assistance of counsel, a
PCRA petitioner must establish that (1) the underlying claim is of arguable
merit; (2) there was no reasonable basis for counsel’s action or failure to act;
and (3) but for counsel’s error, there is a “reasonable probability the result of
the proceeding would have been different.” Commonwealth v. Treiber, 121
A.3d 435, 444 (Pa. 2015). Failure to satisfy any of the three prongs is fatal
to a claim of ineffective assistance of counsel. Commonwealth v. Spotz, 84
A.3d 294, 311 (Pa. 2014).
Moreover, we presume counsel’s assistance was effective, and the PCRA
petitioner bears the burden of proving otherwise. Id., see also
Commonwealth v. Lesko, 15 A.3d 345, 380 (Pa. 2011) (explaining, “[w]hen
evaluating ineffectiveness claims, ‘judicial scrutiny of counsel’s performance
must be highly deferential’” (citation omitted)). Additionally, the right to an
evidentiary hearing on the merits of a PCRA petition is not absolute.
Commonwealth v. Wah, 42 A.3d 335, 338 (Pa. Super. 2012).
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Moore’s ineffectiveness claim lacks arguable merit. Because his
judgment of sentence was not final when Alleyne was decided, Moore could
raise the alleged Alleyne violation in a timely filed PCRA petition. See
generally, Commonwealth v. Ruiz, 131 A.3d 54 (Pa. Super. 2015). Thus,
Moore’s prior counsel did not need to raise the Alleyne issue in his petition
for allowance of appeal to our Supreme Court in order to preserve it.
Unfortunately, for Moore, however, the trial court did not sentence
Moore to a mandatory minimum sentence for either his robbery or conspiracy
convictions. As the PCRA court explained:
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J-S08026-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : JONATHAN T. MOORE, : : Appellant. : No. 541 EDA 2018
Appeal from the PCRA Order, January 19, 2018, in the Court of Common Pleas of Philadelphia County, Criminal Division at No(s): CP-51-CR-0014039-2010, CP-51-CR-0014051-2010.
BEFORE: BENDER, P.J.E., KUNSELMAN, J., and STEVENS*, P.J.E.
MEMORANDUM BY KUNSELMAN, J.: FILED MAY 03, 2019
Jonathan T. Moore appeals from the order denying his first petition filed
pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-
9546. We affirm.
The pertinent facts and partial procedural history are as follows: On
September 19, 2011, a jury convicted Moore of one count of robbery, one
count of criminal conspiracy, two counts of a carrying a firearm without a
license, and two counts of possessing an instrument of crime. Additionally,
following a subsequent bench trial, the trial court convicted Moore of an
additional firearm violation. On November 4, 2011, the trial court imposed an
aggregate sentence of thirteen to twenty-six years of imprisonment. Included
in this aggregate, the trial imposed consecutive five to ten-year sentences for
____________________________________ * Former Justice specially assigned to the Superior Court. J-S08026-19
Moore’s robbery and conspiracy convictions. The trial court denied Moore’s
post-sentence motion as untimely.
Moore filed a timely appeal to this Court, in which he raised three issues,
including a challenge to the discretionary aspects of his sentence. Finding no
merit to the first two issues, and concluding that Moore had not preserved his
discretionary challenge, we affirmed his judgment of sentence on May 23,
2013. Commonwealth v. Moore, 81 A.2d 987 (Pa. Super. 2013)
(unpublished memorandum).
Moore’s counsel did not file a timely petition for allowance of appeal to
our Supreme Court. Thus, for PCRA purposes, his judgment of sentence would
have become final on June 1, 2013. However, Moore thereafter filed a pro se
“Application for Leave to File Allocatur Nunc Pro Tunc” to our Supreme Court,
as well as several other filings. Ultimately, the high court remanded the case
for appointment of new counsel, who was to file a petition for allowance of
appeal within sixty days of his appointment. New counsel filed the petition on
October 14, 2014, and our Supreme Court denied it on January 22, 2015.
On August 10, 2015, Moore filed the timely PCRA petition at issue. The
PCRA court appointed counsel. Thereafter, PCRA counsel filed an amended
petition, in which Moore asserted that appellate counsel was ineffective for
failing to file a petition for allowance of appeal to our Supreme Court raising
a claim that the mandatory minimum sentences imposed by the trial court for
his robbery and conspiracy convictions violated Alleyne v. U.S., 133 S.Ct.
-2- J-S08026-19
2151 (2013).1 Alleyne was decided approximately one month after this Court
affirmed Moore’s judgment of sentence.
The Commonwealth filed a motion to dismiss Moore’s PCRA petition. On
November 20, 2017, the PCRA Court issued Pa.R.Crim.P. 907 notice of its
intent to dismiss the petition without a hearing. Moore did not file a response.
By order entered January 19, 2018, the PCRA court dismissed the PCRA
petition. This appeal followed.2 Both Moore and the PCRA court have complied
with Pa.R.A.P. 1925.
In his sole issue raised on appeal, Moore claims that the PCRA court
erred when it denied his amended PCRA petition. See Moore’s Brief at 3.
According to Moore:
[His] appellate counsel was ineffective for having failed to raise the Alleyne issue at the first available opportunity which was in the Pennsylvania Supreme Court. That was clear ineffectiveness as the inaction of that counsel deprived [Moore] of relief pursuant to [Alleyne, supra]. Thus, this matter should be remanded to the Sentencing Court for a new Sentencing Hearing which can take into account the Alleyne Decision.
Moore’s Brief at 5. ____________________________________________
1 In Alleyne, the Supreme Court of the United States held that the Sixth Amendment to the U.S. Constitution requires that facts that increase a mandatory minimum sentence for an offense must be submitted to a jury and proven beyond a reasonable doubt. See Alleyne, 133 S.Ct. at 2163.
2Although Moore’s notice of appeal contains two docket numbers, it was filed prior to our Supreme Court’s decision in Commonwealth v. Walker, 185 A.3d 969 (Pa. 2018) (requiring separate notices of appeal for each docket number).
-3- J-S08026-19
“Our standard of review for issues arising from the denial of PCRA relief
is well-settled. We must determine whether the PCRA court’s ruling is
supported by the record and free of legal error.” Commonwealth v. Spotz,
171 A.3d 675, 678 (Pa. 2017). The PCRA petitioner has the burden of
persuading an appellate court that the PCRA court erred and that such error
warrants post-conviction relief. Commonwealth v. Wholaver, 177 A.3d
136, 144-45 (Pa. 2018). This Court may affirm an order denying post-
conviction relief for any reason supported by the record. Id. at 145.
To be entitled to relief on a claim of ineffective assistance of counsel, a
PCRA petitioner must establish that (1) the underlying claim is of arguable
merit; (2) there was no reasonable basis for counsel’s action or failure to act;
and (3) but for counsel’s error, there is a “reasonable probability the result of
the proceeding would have been different.” Commonwealth v. Treiber, 121
A.3d 435, 444 (Pa. 2015). Failure to satisfy any of the three prongs is fatal
to a claim of ineffective assistance of counsel. Commonwealth v. Spotz, 84
A.3d 294, 311 (Pa. 2014).
Moreover, we presume counsel’s assistance was effective, and the PCRA
petitioner bears the burden of proving otherwise. Id., see also
Commonwealth v. Lesko, 15 A.3d 345, 380 (Pa. 2011) (explaining, “[w]hen
evaluating ineffectiveness claims, ‘judicial scrutiny of counsel’s performance
must be highly deferential’” (citation omitted)). Additionally, the right to an
evidentiary hearing on the merits of a PCRA petition is not absolute.
Commonwealth v. Wah, 42 A.3d 335, 338 (Pa. Super. 2012).
-4- J-S08026-19
Moore’s ineffectiveness claim lacks arguable merit. Because his
judgment of sentence was not final when Alleyne was decided, Moore could
raise the alleged Alleyne violation in a timely filed PCRA petition. See
generally, Commonwealth v. Ruiz, 131 A.3d 54 (Pa. Super. 2015). Thus,
Moore’s prior counsel did not need to raise the Alleyne issue in his petition
for allowance of appeal to our Supreme Court in order to preserve it.
Unfortunately, for Moore, however, the trial court did not sentence
Moore to a mandatory minimum sentence for either his robbery or conspiracy
convictions. As the PCRA court explained:
[T]his Court did not impose a mandatory minimum, but rather, a guideline range sentence tailored to the specific facts and circumstances of this case. More specifically, the record establishes that the Court “very carefully” considered [Moore’s] presentence report as well as the sentencing guidelines prior to imposing sentence and expressly considered the nature and circumstances of [Moore’s] offenses, the protection of the public, the gravity of the offenses, the character and condition of [Moore], including his utter lack of remorse, as well as his substantial criminal history. (See N.T., 11/04/11, pp. 5-18). Based on all these considerations, the Court found [Moore] to be a danger to society and greatly in need of rehabilitation. (See id. at 17). Thus, contrary to [Moore’s] contention, the record demonstrates that the Court imposed a guideline-range sentence tailored to the specific facts and circumstances of this case. As such, [Moore’s] underlying sentencing claim is without merit.
PCRA Court Opinion, 10/24/18, at 19.
Our review of the record supports the PCRA court’s statement that,
when acting as the trial court, it did not include a mandatory minimum when
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imposing a sentence for Moore’s robbery and conspiracy convictions. The
PCRA court therefore correctly denied Moore’s amended PCRA petition, and
we affirm its order denying Moore post-conviction relief.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 5/3/19
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