Com. v. Patterson, D.

• Court: Superior Court of Pennsylvania
• Decided: February 21, 2018
• Docket: 573 EDA 2017
• Status: Unpublished

Opinion

J-S71008-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : DAVID PATTERSON : : Appellant : No. 573 EDA 2017

Appeal from the PCRA Order February 10, 2017 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0008764-2011, CP-51-CR-0010708-2011

BEFORE: PANELLA, J., STABILE, J., and PLATT, J.

JUDGMENT ORDER BY PANELLA, J.: FILED FEBRUARY 21, 2018

Appellant entered an open guilty plea to, among other charges,

persons not to possess firearms, 18 Pa.C.S.A. § 6105(a)(1). At sentencing,

the Commonwealth provided the court with the offense gravity score of ten,

prior record score of four, and the standard guideline range of 48 to 60

months, for the firearms conviction. See N.T., Sentencing, 1/3/13, at 25-

26.1 For that conviction, the court sentenced Appellant to a term of

imprisonment of five to ten years, a standard range sentence. See id., at

39. Appellant did not file a direct appeal.

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 Retired Senior Judge assigned to the Superior Court.

1 See also 204 Pa. Code § 303.15. Offense Listing (7th ed. 12/28/12); 204 Pa. Code. § 303.16. Basic Sentencing Matrix (7th ed. 12/28/12). J-S71008-17

Eleven months after sentencing, Appellant filed a pro se petition

pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-

9546, alleging plea counsel coerced him into pleading guilty. The PCRA court

appointed counsel who later filed an amended PCRA petition. In that

petition, counsel alleged “[t]he petitioner was subject to a mandatory

sentencing statute which has been determined to be unconstitutional,” the

“mandatory sentence was an illegal sentence,” and prior counsel’s

ineffectiveness in failing to raise this issue at sentencing or in a direct

appeal. Amended Petition Under the Post Conviction Relief Act, filed

2/27/16, at ¶¶ 1, 3, and 4.

The petition did not identify the objected-to conviction, nor did it

identify the mandatory minimum sentencing statute. The accompanying

memorandum of law filed in support of the petition, however, identified the

objected-to conviction as the firearms conviction, but oddly did not identify

the mandatory minimum sentencing statute. Presumably, counsel was

referring to 42 Pa.C.S.A. § 9712(a). In any event, the basis for the illegality

argument was Alleyne v. United States, 570 U.S. 99 (2013). The High

Court decided that case on June 17, 2013—five months after Appellant’s

sentencing.

The PCRA court provided Appellant notice and later denied the petition

without holding an evidentiary hearing. This timely appeal followed. On

appeal, Appellant argues plea counsel was ineffective for failing to challenge

what he maintains was an illegal sentence.

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Again, strangely, Appellant does not identify the mandatory minimum

sentencing statute. But perhaps the failure to even identify the statute is not

so strange: The court did not impose a mandatory minimum sentence in this

case. As noted, the court imposed a standard range sentence on the §

6105(a)(1) conviction. Neither the phrase “mandatory minimum” nor the

concept was ever even referred to at sentencing.2 The PCRA court

committed no error in dismissing this utterly frivolous claim.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 2/21/2018

2 We would be remiss if we did not point out to Appellant “Alleyne does not apply retroactively to cases pending on collateral review….” Commonwealth v. Washington, 142 A.3d 810, 820 (Pa. 2016). See also Commonwealth v. Riggle, 119 A.3d 1058, 1067 (Pa. Super. 2015) (“Alleyne is not entitled to retroactive effect in this PCRA setting.”) His effort to argue otherwise in his brief is simply wrong. Further, Alleyne came out months after Appellant’s sentencing. “[C]ounsel cannot be ineffective for failing to predict changes in the law.” Commonwealth v. Tilley, 780 A.2d 649, 653 (Pa. 2001) (citation omitted).

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