Com. v. O'Brien, R. ( 2018 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ROBERT CHARLES O’BRIEN :
:
Appellant : No. 381 EDA 2017
Appeal from the PCRA Order January 13, 2017
In the Court of Common Pleas of Delaware County Criminal Division at
No(s): CP-23-CR-0003564-2014
BEFORE: BOWES, J., NICHOLS, J., and RANSOM, J.*
MEMORANDUM BY BOWES, J.: FILED JUNE 22, 2018
Robert Charles O’Brien appeals from the January 13, 2017 order1 that
denied his petition filed pursuant to the Post Conviction Relief Act (“PCRA”),
42 Pa.C.S. §§ 9541-9546. We affirm.
On April 1, 2015, Appellant entered a negotiated guilty plea to two
counts of possession of child pornography. Pursuant to the plea agreement,
Appellant received two consecutive sentences of five to ten years
imprisonment rather than the twenty-five-year mandatory minimum
sentence that he faced based upon a prior conviction for possession of child
pornography in 2012. See 42 Pa.C.S. § 9718.2(a)(1) (providing a
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1The order is dated January 11, 2017, but was not filed until January 13,
2017. We have amended the caption accordingly.
* Retired Senior Judge Assigned to the Superior Court.
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mandatory sentence of twenty-five to fifty years imprisonment for offenders
with a prior conviction of, inter alia, sexual abuse of children). The plea
transcript reveals that counsel had filed motions challenging the
constitutionality of the mandatory-minimum statute pursuant to Alleyne v.
United States, 570 U.S. 99 (2013) (holding that a fact which triggers the
imposition of a mandatory minimum sentence is an element of the crime and
must, therefore, be determined beyond a reasonable doubt by the trier of
fact), and its progeny prior to the plea. However, Appellant withdrew those
motions based upon decisions that made it clear that prior convictions as
mandatory-minimum triggers do not run afoul of Alleyne. N.T., 4/1/15, at
11-12. On April 1, 2015, Appellant was sentenced to an aggregate term of
ten to twenty years imprisonment in accordance with the plea agreement.2
Id. at 26-27.
Appellant did not file a direct appeal, but did file a timely, counseled
PCRA petition on April 28, 2016. Therein, Appellant contended that his
guilty plea was induced by plea counsel’s ineffectiveness. Specifically,
Appellant claimed that he accepted the Commonwealth’s offer and pled
guilty to avoid “what he believed to be an otherwise unavoidable sentence”
of at least twenty-five years. PCRA Petition, 4/28/16, at 2. Appellant
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2 These new convictions constituted violations of his parole and probation in
his prior case, resulting in additional sentences of back time with immediate
parole, and two-and-one-half to seven years imprisonment, in that case.
N.T., 4/1/15, at 32-33.
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argued that plea counsel should have challenged the constitutionality of 42
Pa.C.S. § 9718.2(a)(1) as violating the Eight Amendment; Article I, Section
13 of the Pennsylvania Constitution; and due process. PCRA Petition,
4/28/16, at 2-5. Appellant asserted that he was entitled to relief “in the
form of a new sentencing without regard to the mandatory sentence and
giving full consideration to his individual circumstances.” Id. at 5.
After the Commonwealth filed an answer, the PCRA court, pursuant to
Pa.R.Crim.P. 907(1), issued notice of its intent to dismiss Appellant’s petition
without a hearing. The PCRA court cited as its reason the fact that, as noted
by the Commonwealth in its answer, this Court and our Supreme Court have
rejected Appellant’s arguments in cases with similar circumstances. Notice
of Intent, 11/10/16, at n.3 (citing Commonwealth v. Baker, 78 A.3d 1044,
1045 (Pa. 2013), and Commonwealth v. Colon-Plaza, 136 A.3d 521, 523
(Pa.Super. 2016)). Appellant filed a timely response to the notice in the
form of a memorandum of law supporting his claims and distinguishing his
case from Baker and Colon-Plaza. Response to Notice of Intent, 11/30/16,
at 2-11. Unpersuaded, the PCRA court denied Appellant’s petition by order
of January 13, 2011.
Appellant filed a timely notice of appeal. The PCRA court did not order
Appellant to file a statement of errors complained of on appeal, but it did
author an opinion pursuant to Pa.R.A.P. 1925(a). Appellant presents this
Court with the following question: “Did trial counsel provide ineffective
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assistance in failing to challenge the constitutionality of the mandatory
sentence that Appellant was facing under 42 Pa.C.S. § 9718.2(a)(1)?”
Appellant’s brief at 3.
We begin our consideration of Appellant’s question with a review of the
applicable law.
Our standard of review of the denial of a PCRA petition is
limited to examining whether the record supports the court’s
determination and whether the court’s decision is free of legal
error. This Court grants great deference to the findings of the
PCRA court if the record contains any support for those findings.
Commonwealth v. Rivera-Figueroa, 174 A.3d 674, 677 (Pa.Super. 2017)
(citations omitted).
“A criminal defendant has the right to effective counsel during a plea
process as well as during a trial.” Commonwealth v. Kehr, 180 A.3d 754,
760 (Pa.Super. 2018) (internal quotation marks omitted).
To prevail on a claim of ineffectiveness of counsel, a
defendant must demonstrate (1) that the underlying claim is of
arguable merit; (2) that counsel’s course of conduct was without
a reasonable basis designed to effectuate his client’s interest;
and (3) that he was prejudiced by counsel’s ineffectiveness. It is
defendant’s burden to prove all three prongs of this standard.
To sustain a claim of ineffectiveness, counsel’s approach must be
so unreasonable that no competent lawyer would have chosen it.
Commonwealth v. Diaz, 913 A.2d 871, 873 (Pa.Super. 2006) (internal
quotation marks and citations omitted).
“Allegations of ineffectiveness in connection with the entry of a guilty
plea will serve as a basis for relief only if the ineffectiveness caused the
defendant to enter an involuntary or unknowing plea.” Kehr, supra at 760.
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Furthermore, “with regard to the prejudice prong, where an appellant has
entered a guilty plea, the appellant must demonstrate it is reasonably
probable that, but for counsel’s errors, he would not have pleaded guilty and
would have gone to trial.”3 Commonwealth v. Timchak, 69 A.3d 765, 770
(Pa.Super. 2013).
With these principles in mind, we first consider whether there is
arguable merit to the underlying claim that § 9718.2(a)(1) violates the
Eighth Amendment. The PCRA court held that there is not, based upon the
Baker and Colon-Plaza decisions. PCRA Court Opinion, 8/15/17, at 1.
In Baker, our Supreme Court “granted allowance of appeal to address
whether Section 9718.2 of the Sentencing Code, mandating a 25–year
minimum sentence of imprisonment for offenders who have been twice
convicted of possessing child pornography, is grossly disproportionate to the
crime and, therefore, unconstitutional.” Baker, supra at 1047. The Court
noted that the applicable test under the Eighth Amendment is the three-
prong proportionality test enunciated in Solem v. Helm, 463 U.S. 277, 292
(1983). The test “examines: (i) the gravity of the offense and the harshness
of the penalty; (ii) the sentences imposed on other criminals in the same
jurisdiction; and (iii) the sentences imposed for commission of the same
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3 For purposes of our review, we shall accept as true that the sole motivating
factor in Appellant’s decision to plead guilty is the threat of a twenty-five to
fifty year sentence under § 9718.2(a)(1).
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crime in other jurisdictions.” Baker, supra at 1047. “[A] reviewing court is
not obligated to reach the second and third prongs of the test unless a
threshold comparison of the crime committed and the sentence imposed
leads to an inference of gross disproportionality.” Id. (internal quotation
marks omitted).
Applying the Solem test to Baker’s twenty-five-to-fifty-year sentence
imposed under § 9718.2(a)(1), the High Court concluded that there was no
need to go beyond the first prong, as “a threshold comparison of the gravity
of a second conviction of possessing and viewing child pornography against
the imposition of a mandatory sentence of at least 25 years’ imprisonment
does not lead to an inference of gross disproportionality.” Id. at 1052. The
Court acknowledged that it is “clearly a lengthy sentence,” but held that it
was not disproportionate to the crime. Id. As the Court explained,
It bears repeating here that [Baker] was sentenced under a
recidivist sentencing scheme. The fact that [Baker] is a repeat
offender certainly goes to the gravity of his instant offense.
Equally importantly, we cannot view [Baker’s] crimes as he
suggests, in a manner that detaches them from the devastating
victimization that child pornography produces. [Baker’s]
participation in the criminal subculture of viewing images of child
sexual abuse for personal gratification is part and parcel of that
victimization. [Baker’s] crime is his continued participation as an
enabler of sexual crimes against children via his status as a
possessor of child pornography. Although [Baker] did not
personally commit the underlying sexual abuse, he was certainly
a willing voyeuristic participant in its commission after the fact,
and it is his demand to possess images of child sexual abuse
which permits and, to an extent, causes, the production of child
pornography. It is unacceptably inaccurate to characterize or
label [Baker’s] crime as the simple possession of “dirty pictures”
or the use of an outlaw product. His crime is more accurately
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understood as secondary or indirect participation in the sexual
abuse and exploitation of innocent children for personal
gratification. That is a very serious and grave offense. It is
certainly no less grave than receiving $120.75 by false pretenses
or shoplifting three golf clubs, recidivist offenses for which
lengthier sentences of imprisonment than that imposed here
were upheld against Eighth Amendment challenges by the
Supreme Court of the United States.
Baker, supra at 1051–52 (citations and footnote omitted).
In Colon-Plaza, the defendant also challenged the validity of
§ 9718.2(a)(1) under the Eighth Amendment. He contended that a twenty-
five-year minimum sentence was grossly disproportionate (1) to the
guideline range of nine to sixteen months that would have applied to him if it
were his first offense, and (2) to the mandatory minimum term of ten years
“applicable to what he calls the ‘more serious’ offense of a first-time forcible
rape of a child under 13 years of age[.]” Colon-Plaza, supra at 530.
Examining the Baker decision and its application of the Solem three-
prong test, this Court held that the comparisons the defendant was making
were “inapposite to a first-prong, threshold assessment” of the test. Rather,
those comparisons went to the second prong (examination of the sentences
imposed on other criminals in the same jurisdiction), which is only reached if
the first-prong analysis leads to an inference of gross disproportionality.
This Court thus rejected the defendant’s challenge because he offered no
basis to distinguish the Baker Court’s reasoning in holding that the twenty-
five-year minimum mandated by § 9718.2(a)(1) for a recidivist consumer of
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child pornography did not create an inference of gross disproportionality.
Colon-Plaza, supra at 532.
In the instant case, Appellant attempts to succeed where the
defendant in Colon-Plaza failed by distinguishing the impact of a twenty-
five-year sentence on him. He notes the circumstances of the defendant in
Baker, which were described by the Court as follows.
[Baker was] thirty-three years of age on the date of sentencing,
will be fifty-six years of age at the expiration of his minimum
term of imprisonment, and eighty-one years of age at the
expiration of his maximum sentence. This is an indeterminate
sentence of years with the possibility of parole at some point
following expiration of the mandatory minimum sentence. While
clearly a lengthy sentence, presuming [Baker] will experience an
average longevity, the sentence here is not tantamount to a life
sentence without the possibility of parole which the High Court
struck down in Solem, supra, as grossly disproportionate to the
recidivist non-violent offense of passing a bad check in the
amount of $100.
Baker, supra at 1052.
Appellant then contrasts his own circumstances, arguing that
application of § 9718.2(a)(1) to him would have resulted in a de facto life
sentence without possibility of parole. Appellant’s brief at 8. Specifically,
Appellant points to the fact that “at the time of sentencing, Appellant was 57
years old, had suffered a heart attack in 2010, a cardiac arrest in 2012, and
entered prison with diverticulitis and a resultant abscess.” Id.
We are not persuaded. Our Supreme Court noted that “[a] searching
review of Eighth Amendment proportionality decisions shows that, with
respect to recidivist sentencing schemes, successful challenges are
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extremely rare.” Baker, supra at 1048. “Indeed, the only successful
challenge was presented in Solem,” where the Court overturned a “sentence
of life imprisonment without the possibility of parole upon conviction of
passing a bad check in the amount of $100[.]” Id. (emphasis added).
Appellant did not pass a bad $100 check. He repeatedly victimized
young children. Despite his age and his medical conditions, Appellant was
just as willing and able as healthy, thirty-something Baker to participate in
the abuse of children. The consequences Appellant faced for his prior
conviction were not enough to dissuade him from victimizing the two pre-
teen girls who performed sex acts in the videos he possessed. Affidavit of
Probable Cause, 5/5/14, at 2. Moreover, Appellant was unable to check
recidivism even for the duration of his supervision for the prior offense.
Rather, he went right back to abusing children.
Upon this record, we hold that Appellant has failed to raise an
inference of gross disproportionality, and his Eighth Amendment challenge
thus lacks arguable merit. Commonwealth v. Green, 593 A.2d 899, 900
(Pa.Super. 1991) (holding imposition of mandatory minimum sentence upon
sixty-six-year-old man with rheumatoid arthritis, hypertension, chronic
obstructive pulmonary disease, and a history of a myocardial infarction did
not constitute cruel and unusual punishment despite arguments that it
constituted “in effect a life sentence”). As such, counsel was not ineffective
for failing to pursue it. Commonwealth v. Spotz, 896 A.2d 1191, 1210
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(Pa. 2006) (“Counsel will not be deemed ineffective for failing to raise a
meritless claim.”).
Appellant next argues that his plea counsel should have challenged the
applicability of § 9718.2(a)(1) to him based upon the Pennsylvania
Constitution, which provides in relevant part: “Excessive bail shall not be
required, nor excessive fines imposed, nor cruel punishments inflicted.” Pa.
Const. Art. I § 13. Citing Chief Justice Castille’s concurrence in Baker,
Appellant contends that the use of “cruel punishments,” as opposed to the
federal Constitution’s “cruel and unusual punishments,” warrants a different
analysis of his claim under Pennsylvania law. Appellant’s brief at 14.
This Court repeatedly has held, both pre- and post-Baker, that the
Pennsylvania Constitution provides no greater protection against cruel
punishments than that offered by the Eighth Amendment. See, e.g.,
Commonwealth v. Bonner, 135 A.3d 592, 597 n.18 (Pa. Super. 2016)
(“The Pennsylvania prohibition against cruel and unusual punishment is
coextensive with the Eighth and Fourteenth Amendment of the United States
Constitution.”) (quoting Commonwealth v. Yasipour, 957 A.2d 734, 743
(Pa.Super. 2008)); Commonwealth v. Elia, 83 A.3d 254, 267 (Pa.Super.
2013) (“Pennsylvania courts have repeatedly and unanimously held that . . .
the Pennsylvania Constitution affords no broader protection against
excessive sentences than that provided by the Eighth Amendment to the
United States Constitution.”) (internal quotation marks omitted).
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Thus, the separate Pennsylvania Constitution-specific approach offered
by then-Chief Justice Castille in his Baker concurrence, and advocated by
Appellant in this case, is not the law. Therefore, Appellant’s Article I,
Section 13 argument fails for the same reasons as his Eight Amendment
challenge, and plea counsel was not ineffective in failing to raise the non-
meritorious claim. Spotz, supra.
Finally, Appellant alleges that counsel should have disputed the
potential application of the mandatory minimum sentence based upon his
due process right to individualized sentencing. Appellant’s brief at 18 -20
(citing, inter alia, Commonwealth v. Martin, 351 A.2d 650, 658 (Pa. 1976)
(vacating sentences of three to ten years imprisonment, determined in
advance by three different judges as appropriate for heroin sales and
imposed upon unrelated defendants, based upon the failure to give
individualized consideration to the particular circumstances of each offense
and the separate characters of the defendants)).
“[T]he legislature has the exclusive power to pronounce which acts are
crimes, to define crimes, and to fix the punishment for all crimes.”
Commonwealth v. Eisenberg, 98 A.3d 1268, 1283 (Pa. 2014) (internal
quotation marks omitted). “There is no constitutional requirement
prohibiting the legislature from imposing a mandatory sentence where, in its
judgment, such a sentence is necessary.” Commonwealth v. Church, 522
A.2d 30, 34 (Pa. 1987). Rather, so long as the legislature does not mandate
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a cruel or arbitrary punishment, a mandatory minimum statute’s limitation
upon a trial court’s sentencing discretion does not violate due process. See,
e.g., Chapman v. United States, 500 U.S. 453, 465 (1991) (“Every person
has a fundamental right to liberty in the sense that the Government may not
punish him unless and until it proves his guilt beyond a reasonable doubt
. . . . But a person who has been so convicted is eligible for, and the court
may impose, whatever punishment is authorized by statute for his offense,
so long as that penalty is not cruel and unusual, and so long as the penalty
is not based on an arbitrary distinction that would violate the Due Process
Clause of the Fifth Amendment.”); Commonwealth v. Chmiel, 610 A.2d
1058, 1060 (Pa.Super. 1992) (rejecting due process challenge to statute
imposing mandatory minimum sentences for crimes against children). We
have already determined that applying § 9718.2(a)(1) to Appellant would
not have been cruel and unusual, and Appellant does not argue that the
statute is arbitrary. Hence, Appellant’s due process challenge lacks arguable
merit, and plea counsel did not render ineffective assistance in failing to
raise it. Spotz, supra.
We discern no merit to any of Appellant’s claims that plea counsel
rendered ineffective assistance that induced him to enter an unknowing or
involuntary guilty plea. As such, Appellant has failed to meet his burden of
convincing this Court that the PCRA court erred and relief is due.
Commonwealth v. Claffey, 80 A.3d 780, 787 (Pa.Super. 2013).
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Accordingly, we affirm the PCRA court’s order denying Appellant’s PCRA
petition.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/22/18
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