J-S02002-18

* Retired Senior Judge Assigned to the Superior Court.

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

ROBERT CHARLES O’BRIEN 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 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 order1that 

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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1 The order is dated January 11, 2017, but was not filed until January 13, 

2017. We have amended the caption accordingly. 
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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 threeprong 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 twentyfive-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 threeprong 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 twentyfive-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 twentyfive-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 preteen 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 nonmeritorious 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