Opinion
J. S70015/18 No. 235 EDA 2018
01-29-2019
COMMONWEALTH OF PENNSYLVANIA v. SEAN GORDINE, Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the PCRA Order, January 12, 2018, in the Court of Common Pleas of Philadelphia County
Criminal Division at No. CP-51-CR-0005860-2007 BEFORE: GANTMAN, P.J., McLAUGHLIN, J., AND FORD ELLIOTT, P.J.E. MEMORANDUM BY FORD ELLIOTT, P.J.E.:
Sean Gordine appeals from the January 12, 2018 order entered by the Court of Common Pleas of Philadelphia County denying his petition filed pursuant to the Post Conviction Relief Act ("PCRA"), 42 Pa.C.S.A. §§ 9541-9546. After careful review, we affirm.
The PCRA court provided the following synopsis of the procedural history of this case:
On June 13, 2008, a jury presided over by the Honorable Carolyn Engle Temin[] found [appellant] not guilty of first-degree murder, but was hung on all other charges. Thereafter, a second jury found
[appellant] guilty of second-degree murder, four counts of robbery, three counts of aggravated assault, possessing an instrument of crime, and two counts of violation of the Uniform Firearms Act[ on December 14, 2012. Upon Judge Temin's retirement, the case was assigned to the Honorable Benjamin Lerner[,] who sentenced [appellant] to an aggregate term of forty years to life imprisonment on June 21, 2013. [Appellant] filed a post-sentence motion on July 1, 2013, which was denied on July 5, 2013. He filed a notice of appeal on July 24, 2013, and Judge Lerner issued an opinion on June 23, 2014. On December 17, 2014, the Superior Court affirmed the judgment of sentence.[] [Appellant] filed a pro se petition under the [PCRA] on April 7, 2016. On August 10, 2017, appointed counsel filed an amended PCRA petition. [The PCRA] court issued a notice of intent to dismiss the petition pursuant to Pennsylvania Rule of Criminal Procedure 907 on November 20, 2017. The petition was formally dismissed on January 12, 2018, and [appellant] filed a notice of appeal to the Superior Court. On January 16, 2018, [the PCRA] court ordered [appellant] to file a statement of matters complained of on appeal [pursuant to Pa.R.A.P. 1925(b)]. [Appellant] filed said statement on January 19, 2018.[]PCRA court opinion, 4/24/18 at 1-2.
Subsequent to the trial, former Judge Temin joined the Philadelphia Office of the District Attorney as First Assistant District Attorney. The Commonwealth filed notice pursuant to Pa.R.Prof.Conduct 1.12(c)(2). Therein, the Commonwealth certified that First Assistant District Attorney Temin "has disqualified herself and screened herself from any participation in this matter."
18 Pa.C.S.A. §§ 2502(b), 3701(a), 2702(a), 907(a), and 6105(a), respectively.
See Commonwealth v. Gordine , 116 A.3d 690 (Pa.Super. 2014) (unpublished memorandum). Appellant filed a petition for allowance of appeal with the Supreme Court of Pennsylvania, which was denied on July 8, 2015. See Commonwealth v. Gordine , 117 A.3d 1280 (Pa. 2015). Appellant did not file a writ of certiorari with the Supreme Court of the United States. Accordingly, for the purposes of the PCRA, appellant's judgment of sentence was final on October 6, 2015. See 42 Pa.C.S.A. 9545(b)(1).
The PCRA court filed an opinion pursuant to Pa.R.A.P. 1925(a) on April 24, 2018.
Appellant raises the following issues for our review:
1. Did the PCRA court err in dismissing appellant's PCRA petition because trial and direct appeal counsel were ineffective for not arguing that appellant's sentence is illegal because the sentences for felony murder and robbery should merge because, although there were multiple robbery complainants, appellant was sentenced for each despite the robberies occurring together in the course of the murder?Appellant's brief at 4 (unnecessary capitalization omitted).
2. Did the PCRA court err in dismissing Appellant's PCRA petition because appellant's sentence of 40 years to life for a non-fatal shooter juvenile is an effective life sentence and constitutes cruel and unusual punishment?
PCRA petitions are subject to the following standard of review:
"[A]s a general proposition, we review a 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. Dennis , [] 17 A.3d 297, 301 ([Pa.] 2011) (citation omitted). A PCRA court's credibility findings are to be accorded great deference, and where supported by the record, such determinations are binding on a reviewing court. Id., at 305 (citations omitted). To obtain PCRA relief, appellant must plead and prove by a preponderance of the evidence: (1) his conviction or sentence resulted from one of more of the errors enumerated in 42 Pa.C.S.[A.] § 9543(a)(2); (2) his claims have not been previously litigated or waived, id., § 9543(a)(3); and (3) "the failure to litigate the issue prior to or during trial . . . or on direct appeal could not have been the result of any rational, strategic or tactical decision by counsel[,]" id., § 9543(a)(4). An issue is previously litigated if "the
highest appellate court in which [appellant] could have had review as a matter of right has ruled on the merits of the issue[.]" Id., § 9544(a)(2). "[A]n issue is waived if [appellant] could have raised it but failed to do so before trial, at trial, . . . on appeal or in a prior state postconviction proceeding." Id., § 9544(b).Commonwealth v. Treiber , 121 A.3d 435, 444 (Pa. 2015).
In his first issue on appeal, appellant alleges ineffective assistance of his trial counsel and direct appeal counsel. Under the PCRA, an individual is eligible for post-conviction relief if the conviction was the result of "ineffective assistance of counsel which, in the circumstances of the particular case, so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place." 42 Pa.C.S.A. § 9543(a)(2)(ii). When considering whether counsel was ineffective, we are governed by the following standard:
[C]ounsel is presumed effective, and to rebut that presumption, the PCRA petitioner must demonstrate that counsel's performance was deficient and that such deficiency prejudiced him. Strickland v. Washington , 466 U.S. 668 [] (1984). This Court has described the Strickland standard as tripartite by dividing the performance element into two distinct components. Commonwealth v. Pierce , [] 527 A.2d 973, 975 ([Pa.] 1987). Accordingly, to prove counsel ineffective, the petitioner must demonstrate that: (1) the underlying legal issue has arguable merit; (2) counsel's actions lacked an objective reasonable basis; and (3) the petitioner was prejudiced by counsel's
act or omission. Id. A claim of ineffectiveness will be denied if the petitioner's evidence fails to satisfy any one of these prongs.
Commonwealth v. Perzel , 116 A.3d 670, 671-672 (Pa.Super. 2015), order vacated on other grounds , 166 A.3d 1213 (Pa. 2017). In cases where a petitioner is raising a layered ineffective assistance of counsel claim, "the critical inquiry is whether the first attorney that the defendant asserts was ineffective did, in fact, render ineffective assistance of counsel. If that attorney was effective, then subsequent counsel cannot be deemed ineffective for failing to raise the underlying issue." Commonwealth v. Rykard , 55 A.3d 1177, 1190 (Pa.Super. 2012), appeal denied , 64 A.3d 631 (Pa. 2013), quoting Commonwealth v. Burkett , 5 A.3d 1260, 1270 (Pa.Super. 2010).
Commonwealth v. Busanet , [] 54 A.3d 34, 45 ([Pa.] 2012) (citations formatted). Furthermore, "[i]n accord with these well-established criteria for review, [an appellant] must set forth and individually discuss substantively each prong of the [ Pierce ] test." Commonwealth v. Fitzgerald , 979 A.2d 908, 910 (Pa.Super. 2009).
Here, appellant contends that trial counsel was ineffective for failing to object to his sentence during the sentencing hearing. Appellant further avers that appellate counsel was ineffective for failing to raise the illegality of his sentence on direct appeal because appellant's sentence for second-degree murder and one of his robbery convictions should have merged for sentencing purposes. (Appellant's brief at 9.) Specifically, appellant alleges that in addition to sentencing him for second-degree murder, the trial court also sentenced him for the robbery conviction involving Mr. Thierry—the victim of the second-degree murder. ( Id. at 10.)
Appellant's claim is belied by the record and therefore lacks arguable merit. The trial court held a sentencing hearing on June 21, 2013 in which it sentenced appellant as follows:
The sentence of the Court is as follows:Notes of testimony, 6/21/13 at 36 (emphasis added).
On the [second] degree murder, the sentence is not less than 35 years, nor more than life in the State correctional system.
On the robbery counts, 5 to 10 years on each of the three robbery counts, not involving Mr. Thierry.
The jury convicted appellant of four counts of robbery, which included one count of robbery involving Mr. Thierry. (Notes of testimony, 12/14/12 at 70.) The record reflects that the trial court did merge the conviction of robbery involving Mr. Thierry with the second-degree murder conviction, as the trial court sentenced appellant for only three robbery convictions. Therefore, we find that appellant's first issue lacks arguable merit and the PCRA court did not abuse its discretion when it denied relief. Because trial counsel was deemed to have rendered effective assistance, the claim against direct appeal counsel must likewise fail. See Rykard , 55 A.3d at 1190.
The remaining three counts of robbery related to three other victims.
In his second issue on appeal, appellant argues that the PCRA court erred when it dismissed his PCRA petition because appellant's aggregate sentence of 40 years to life imprisonment constituted a de facto life sentence and was, therefore, cruel and unusual, in violation of both the United States and Pennsylvania Constitutions. (Appellant's brief at 11.)
Before we can determine the merits of appellant's second issue, we must first determine whether this issue is properly before us. On direct appeal, appellant raised several issues pertaining to the legality and constitutionality of his sentence. See generally Commonwealth v. Gordine , 116 A.3d 690 (Pa.Super. 2014) (unpublished memorandum). A previous panel of this court affirmed appellant's judgment of sentence. Id.
While the issues pertaining to the legality or constitutionality of the length of appellant's sentence appear to have been previously litigated as contemplated by the PCRA, our inquiry cannot end here. On direct appeal, appellant framed his issues under factors set forth by the Supreme Court of the United States in Miller v. Alabama , 567 U.S. 460 (2012). The Court, however, had not held Miller to apply retroactively. Subsequent to this court's affirmance of appellant's judgment of sentence, the High Court announced its decision in Montgomery v. Louisiana , 136 S.Ct. 718 (2016), on January 25, 2016. Therein, the Supreme Court applied its holding in Miller retroactively. Id. at 736. Appellant filed a timely PCRA petition after Montgomery was decided. Accordingly, the instant PCRA petition represents appellant's first opportunity to raise this issue in light of the Supreme Court's holding in Montgomery. Therefore, this issue is properly before us, and we shall consider the merits.
Appellant's issue has been addressed in great detail by both the Supreme Court of Pennsylvania in Commonwealth v. Batts , 163 A.3d 410 (Pa. 2017), and by this court in Commonwealth v. Foust , 180 A.3d 416 (Pa.Super. 2018). Specifically, this court held as follows:
For those defendants for whom the sentencing court determines that a [life without parole] sentence is inappropriate, it is our determination here that they are subject to a mandatory maximum sentence of life imprisonment as required by [42 Pa.C.S.A. §] 1102(a), accompanied by a minimum sentence determined by the common pleas court upon resentencing[.]Id. at 429, quoting Batts , 163 A.3d at 421. The Foust court determined that a term-of-years sentence of 30 years' imprisonment did not constitute a de facto sentence of life without the possibility of parole. Foust , 180 A.3d at 438. The court, however, explicitly "decline[d] to draw a bright line in this case delineating what constitutes a de facto [life without parole] sentence and what constitutes a constitutional term-of-years sentence[,]" and instead limited itself to the facts of the case before it. Id.
In Commonwealth v. Bebout , 186 A.3d 462, 469 (Pa.Super. 2018), this court determined that the defendant failed to meet his burden in establishing that his sentence of 45 years to life imprisonment constituted a de facto life without possibility of parole sentence. Absent a bright-line rule or test established to determine whether a term-of-years sentence constitutes a de facto life without possibility of parole sentence, we find, similar to the Bebout court, that appellant failed to meet his burden in establishing that his sentence of 35 years to life imprisonment constituted a de facto life without possibility of parole sentence.
There is a case currently pending before our supreme court addressing de facto life without possibility of parole sentences for juvenile offenders. See Commonwealth v. Felder , 187 A.3d 909 (Pa. 2018) (granting petition for allowance on appeal to determine whether a sentence of 50 years to life imprisonment imposed upon a juvenile constitutes a de facto life sentence with the possibility of parole).
Here, appellant was 16 years old at the time the crimes at issue were committed. He would be eligible for parole on February 8, 2047, at which point he would be 56 years old. --------
Order affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 1/29/19