J-S56034-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA,                 IN THE SUPERIOR COURT
                                                            OF
                                                       PENNSYLVANIA
                             Appellee

                        v.

    JAKHAN WILLIAMS,

                             Appellant               No. 3384 EDA 2016


                Appeal from the PCRA Order September 28, 2016
              in the Court of Common Pleas of Philadelphia County
                Criminal amber09@example.com.: CP-51-CR-0005561-2009


BEFORE: BOWES, J., STABILE, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                        FILED NOVEMBER 09, 2017

        Appellant, Jakhan Williams, appeals from the order of September 28,

2016, which dismissed, without a hearing, his first timely, counseled petition

brought under the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-

9546.1 We affirm.

        We take the underlying facts and procedural history in this matter from

this Court’s March 5, 2013 decision on direct appeal, the PCRA court’s January

11, 2017 opinion, and our independent review of the certified record.

        . . . On February 1, 2008, Appellant was arrested and charged
        with attempted murder, aggravated assault, criminal conspiracy,

____________________________________________


*   Retired Senior Judge assigned to the Superior Court.

1 We note that, despite requesting and being granted two extensions of time,
the Commonwealth filed a late brief in this matter.
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     possession of a firearm by a prohibited person, possession of an
     unlicensed firearm, possession of a firearm by a minor, possession
     of a firearm in public in Philadelphia, possession of an instrument
     of crime, simple assault, and reckless endangerment.            The
     charges were filed after Appellant and Nuri Murray attempted to
     rob Rafael Teet on November 21, 2007. The victim was located
     on the driveway of 5626 Litchfield Street, Philadelphia, and had
     just completed a conversation with an eyewitness who was located
     in a car. Mr. Teet was holding his one-year-old son, who was
     unharmed, during the incident. Appellant and Murray, both of
     whom possessed guns, approached Mr. Teet to rob him. Mr. Teet
     told the two assailants to leave him alone while his son was
     present. Appellant then opened fire and struck the victim, who
     was protecting the baby, multiple times in the leg and chest. In
     the hospital, Mr. Teet positively identified Appellant and Murray as
     the two men who attempted to rob him. Appellant was convicted
     of [aggravated assault, conspiracy to commit aggravated assault,
     and possession of an instrument of crime], but he was acquitted
     of the remaining charges. Sentence was imposed on April 5,
     2011. Appellant did not file a post-sentence motion, but did
     initiate [a] timely[, direct] appeal on May 4, 2011.

(Commonwealth       v.   Williams,    No.   179    EDA    2012,   unpublished

memorandum at *1-2 (Pa. Super. March 5, 2013) (footnote omitted)).

     On March 5, 2013, this Court affirmed the judgment of sentence. (See

id.). Appellant did not seek leave to appeal to the Pennsylvania Supreme

Court.

     On February 24, 2014, Appellant, acting pro se, filed the instant, timely

PCRA petition. The PCRA court appointed counsel, who filed an amended PCRA

petition on July 17, 2015. On June 29, 2016, the PCRA court issued notice of

its intent to dismiss the petition pursuant to Pennsylvania Rule of Criminal

Procedure 907(1). Appellant did not file a response. On September 28, 2016,

the court dismissed Appellant’s PCRA petition.


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       On October 27, 2016, Appellant filed a timely notice of appeal. The trial

court did not order Appellant to file a concise statement of errors complained

of on appeal. See Pa.R.A.P. 1925(b). Despite this, Appellant filed a Rule

1925(b) statement on December 28, 2016. See id. On January 11, 2017,

the PCRA court issued an opinion. See Pa.R.A.P. 1925(a).

       On appeal, Appellant raises the following question for our review.2

       1. Should the Appellant’s sentence be vacated as he was subject
          to an unconstitutional mandatory minimum sentence?

(Appellant’s Brief, at 8).

       Appellant appeals from the denial of his PCRA petition. Our standard of

review is settled.      We review the denial of a post-conviction petition to

determine whether the record supports the PCRA court’s findings and whether

its order is otherwise free of legal error. See Commonwealth v. Faulk, 21
A.3d 1196, 1199 (Pa. Super. 2011). To be eligible for relief pursuant to the

PCRA, Appellant must establish, inter alia, that his conviction or sentence

resulted from one or more of the enumerated errors or defects found in 42

Pa.C.S.A. § 9543(a)(2).         See 42 Pa.C.S.A. § 9543(a)(2).     He must also

establish that the issues raised in the PCRA petition have not been previously

litigated or waived. See 42 Pa.C.S.A. § 9543(a)(3). An allegation of error “is

waived if the petitioner could have raised it but failed to do so before trial, at



____________________________________________


2 Despite requesting, and being granted, two extensions of time, the
Commonwealth has not filed a brief in this matter.

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trial, during unitary review, on appeal or in a prior state postconviction

proceeding.” 42 Pa.C.S.A. § 9544(b). Further,

             . . . a PCRA petitioner is not automatically entitled to an
       evidentiary hearing.     We review the PCRA court’s decision
       dismissing a petition without a hearing for an abuse of discretion.

                     [T]he right to an evidentiary hearing on a post-
              conviction petition is not absolute. It is within the
              PCRA court’s discretion to decline to hold a hearing if
              the petitioner’s claim is patently frivolous and has no
              support either in the record or other evidence. It is
              the responsibility of the reviewing court on appeal to
              examine each issue raised in the PCRA petition in light
              of the record certified before it in order to determine
              if the PCRA court erred in its determination that there
              were no genuine issues of material fact in controversy
              and in denying relief without conducting an
              evidentiary hearing.

Commonwealth v. Miller, 102 A.3d 988, 992 (Pa. Super. 2014) (citations

omitted).

       Appellant contends that he was sentenced to an illegal mandatory

minimum sentence “for offen[s]es committed with a firearm.”3 (Appellant’s


____________________________________________


3 Appellant also contends that he received ineffective assistance of sentencing
counsel. (See Appellant’s Brief, at 14-17). Appellant did not include this
claim in his statement of the questions involved. (See id. at 8). The Rules
of Appellate Procedure provide that issues to be resolved must be included in
the statement of questions involved or “fairly suggested” by it. Pa.R.A.P.
2116(a). This issue is not included in the statement of questions involved,
nor is it “fairly suggested” by it. Thus, we hold that Appellant has waived this
claim. See Commonwealth v. Harris, 979 A.2d 387, 397 (Pa. Super. 2009)
(holding claim waived when not included in statement of questions involved).
In any event, as discussed infra, Appellant’s illegal sentence claim lacks merit
and we will not fault counsel for failing to object to, or file a motion challenging
a legal sentence.


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Brief, at 9; see id. at 11-14). Appellant claims that his sentence violated the

United States Supreme Court’s decision in Apprendi v. New Jersey, 530
U.S. 466 (2000). (See id. at 11-14). We disagree.

        In his brief, Appellant does not specify which charge was subject to the

mandatory minimum. (See Appellant’s Brief, at 9-17). Appellant also does

not cite to the record to support his contention that he was sentenced to a

mandatory minimum sentence. (See id.).

        In its opinion, the PCRA court discussed its disposition of Appellant’s

illegal sentence claim as follows:

        In a supporting memorandum, the illegality of the sentences was
        solely defined as their having been imposed under unspecified
        mandatory minimum sentencing laws without the jury having
        determined the unspecified facts that triggered their imposition.
        As will be shown, while the Commonwealth requested, and the
        sentencing court did briefly mention, the mandatories, it actually
        based its decision on aggravating factors instead.

               At the sentencing hearing, the Commonwealth summarized
        the factors of record which it considered pertinent to the court’s
        consideration. In addition to [Appellant’s] particularly heinous
        conduct in perpetrating the crimes, as described by [the trial court
        in its Rule 1925(a) opinion on direct appeal], and noting that two
        of the convictions were subject to mandatory sentencing statutes,
        the prosecutor pointed out that, while [Appellant’s] prior record
        score was only [one], that score did not reflect his ten juvenile
        arrests,[4] which resulted in six adjudications and eleven
        commitments to delinquent institutions, subsequent criminal
        convictions for PWID and felony burglary and two disciplinary
        infractions while in prison awaiting trial and sentencing in this
        case. He had fired thirteen shots at the victim, while the victim’s
        one-year-old son was nearby, and struck him multiple times in the
        legs, pelvis, abdomen and ribs causing him to have to undergo
____________________________________________


4   Appellant committed the underlying offenses at age eighteen.

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     several surgical and other medical procedures. While it must be
     conceded that the court did consider the mandatory sentencing
     provisions which were subsequently ruled unconstitutional in
     Commonwealth v. Valentine, 2014 Pa. Super. 220, 101 A.3d
801, (2014), [appeal denied, 124 A.3d 309 (Pa. 2015)], the record
     shows that it did so only perfunctorily, did not employ them, had
     more than adequate justification for imposing sentences near to
     the maximum but within the appropriate parameters, and did
     nothing that could have rendered the sentences illegal in any other
     ways. The record clearly reflects that the court was provided with
     and took into account the appropriate presentence reports, one of
     which set forth the applicable sentencing guidelines.

           THE [SENTENCING] COURT: [Appellant], rise. If you
           recall there was testimony in this case that there
           [were] two assailants. Some of the defendants with
           the guns and the defendant made the phone call, you
           know I did it and that kind of testimony. [Appellant]
           was eighteen years old at the time of these crimes.

                I make that point because the Commonwealth
           asked that I impose the mandatory and that the
           mandatory sentencing requirement apply. With
           [Appellant] being the actual shooter, there is no
           argument there. . . .

                 Based on [Appellant’s] record, the sentence I
           would give is the same even if the mandatory did not
           apply, so that is clear. On the aggravated assault it is
           [not less than eight nor more than sixteen] years,
           which is the upper end of the standard range. The
           conspiracy is [seven] years consecutive probation and
           possession of the instrument of a crime is [five] years
           probation to run concurrent on the probation of the
           conspiracy bill. . . .

     Notes of Testimony, Sentencing Volume 1, April 05, 2011.

(PCRA Court Opinion, 1/11/17, at 7-9) (footnote omitted).

     We have reviewed the notes of testimony in question.             The record

reflects that both the aggravated assault and conspiracy counts were subject


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to a mandatory minimum sentence. (See N.T. Sentencing, 4/05/11, at 4-5).

Further, the record demonstrates that the Commonwealth was requesting that

Appellant be sentenced above the mandatory minimum on the aggravated

assault charge but to the mandatory minimum on the conspiracy charge.

(See id. at 5-8). The record shows that trial court did not sentence Appellant

to a mandatory minimum on the conspiracy charge, and, based on

aggravating sentencing factors, sentenced him not to a mandatory minimum,

but to a sentence in the upward end of the standard range for aggravated

assault. (See id. at 8-9). We have held that where the sentence exceeds the

mandatory minimum sentence and the trial court did not base the sentence

on the mandatory minimum, a sentence cannot be found to be illegal on that

basis.     See Commonwealth v. Zeigler, 112 A.3d 656, 662 (Pa. Super.

2015).

         Thus, as the record supports the PCRA court’s findings that Appellant

was not sentenced to a mandatory minimum sentence, the PCRA court did not

err in dismissing Appellant’s PCRA petition. See Falk, amber09@example.com.

         Order affirmed.

         Judge Stabile joins the Memorandum.

         Judge Bowes concurs in the result.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/9/2017




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