J-S09006-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

JEREL BROOKS 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 2144 EDA 2020

Appeal from the PCRA Order Entered October 6, 2020

In the Court of Common Pleas of Philadelphia County Criminal Division at 

No(s): CP-51-CR-0009258-2007

COMMONWEALTH OF PENNSYLVANIA

v.

JEREL BROOKS 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 2145 EDA 2020

Appeal from the PCRA Order Entered October 6, 2020

In the Court of Common Pleas of Philadelphia County Criminal Division at 

No(s): CP-51-CR-0009259-2007

COMMONWEALTH OF PENNSYLVANIA

v.

JEREL BROOKS 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 2146 EDA 2020

Appeal from the PCRA Order Entered October 6, 2020

In the Court of Common Pleas of Philadelphia County Criminal Division at 

No(s): CP-51-CR-0009260-2007
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BEFORE: LAZARUS, J., KUNSELMAN, J., and STEVENS, P.J.E.*

MEMORANDUM BY LAZARUS, J.: FILED JUNE 10, 2022

Jerel Brooks appeals1from the order, entered in the Court of Common 

Pleas of Philadelphia County, dismissing his petition filed pursuant to the Post 

Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. After our review, 

we affirm. 

On March 8, 2012, Brooks was convicted by a jury of numerous offenses 

in connection with the repeated sexual abuse of his paramour’s three young

daughters.2 Brooks was convicted, inter alia, of involuntary deviate sexual 

intercourse (“IDSI”) with a child under the age of 13.

3

 On April 11, 2013, the 

trial court sentenced Brooks to an aggregate term of 10 to 20 years’ 

incarceration, followed by five years of probation. Of relevance here, Brooks 

received a sentence of 7 to 14 years’ incarceration for IDSI. Brooks appealed 

to this Court, and we affirmed his judgment of sentence on July 15, 2014. 

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* Former Justice specially assigned to the Superior Court.

1 This case involves three separate docket numbers, one for each victim. 

Although Brooks filed three separate notices of appeal in compliance with

Commonwealth v. Walker, 185 A.3d 969 (Pa. 2018), his appellate claim is 

related to only one of the three docket numbers. Upon Brooks’ motion, this 

Court consolidated his three appeals. See Order, 6/24/21. See also

Pa.R.A.P. 513.

2 The charges involved twin girls, aged seven when the abuse began, and the 

twins’ eight-year-old sister.

3 18 Pa.C.S.A. § 3123(b).
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Commonwealth v. Brooks, 105 A.3d 791 (Pa. Super. 2014) (Table). Brooks 

did not seek allowance of appeal with our Supreme Court.

On April 15, 2015, Brooks filed a timely pro se PCRA petition, which he 

amended on February 29, 2016. The PCRA court appointed counsel, who filed 

amended petitions on May 14, 2018, and July 9, 2019. On August 27, 2020, 

the PCRA court issued a Pa.R.Crim.P. 907 notice of its intent to dismiss Brooks’ 

petition without a hearing. The court dismissed Brooks’ petition on October 

6, 2020. Brooks filed a timely notice of appeal, followed by a court-ordered 

Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal. He 

raises the following claim for our review:

[] PCRA counsel was ineffective for not challenging direct appeal 

counsel’s effectiveness for failing to raise the following sentencing 

claim on appeal: Jerel Brooks’ 7- to 14-year prison sentence in 

connection with his IDSI conviction in case number 9259-2007 is 

premised on 42 Pa.C.S.[A.] § 9718(a)(1)[,] which requires 

petitioners, like Brooks, to receive a mandatory minimum 

sentence of 5 to 10 years in prison for certain convictions, 

including IDSI. Section 9781(a)(1), though, is unconstitutional as 

dictated by Alleyne v. United States, 570 U.S. 99 (2013).[4] 

Brief of Appellant, at 3. 

We begin by noting our standard and scope of review:

This Court analyzes PCRA appeals in the light most favorable to 

the prevailing party at the PCRA level. Our review is limited to 

the findings of the PCRA court and the evidence of record and we 

do not disturb a PCRA court’s ruling if it is supported by evidence 

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4

In Alleyne, the United States Supreme Court held that any fact, other than 

a prior conviction, that triggers a mandatory minimum sentence is an element 

of the offense that must be found by the fact-finder beyond a reasonable 

doubt.
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of record and is free of legal error. Similarly, we grant great 

deference to the factual findings of the PCRA court and will not 

disturb those findings unless they have no support in the record. 

However, we afford no such deference to its legal conclusions. 

Where the petitioner raises questions of law, our standard of 

review is de novo and our scope of review is plenary. Finally, we 

may affirm a PCRA court’s decision on any grounds if the record 

supports it.

Commonwealth v. Dozier, 208 A.3d 1101, 1103 (Pa. Super. 2019).

Here, Brooks’ PCRA counsel alleges his own ineffectiveness5for failing 

to properly frame Brooks’ Alleyne-based illegality of sentencing claim.

Specifically, in Brooks’ second supplemental PCRA petition, counsel argued 

that the trial court imposed an illegal mandatory minimum sentence for IDSI 

pursuant to the version of section 9718(a)(1) then in effect, which was 

subsequently deemed unconstitutional under Alleyne. However, because the 

Pennsylvania Supreme Court held, in Commonwealth v. Washington, 142 

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5 As a general rule, counsel may not assert his own ineffectiveness. 

Commonwealth v. Spotz, 18 A.3d 244, 329 n.52 (Pa. 2011). However, 

where it is apparent from the record whether relief is due, we need not remand 

for the appointment of new counsel. Commonwealth v. McBee, 520 A.2d 

10, 13 (Pa. 1986). We may adjudicate a claim of counsel’s own ineffectiveness 

if “we can make a conclusive determination as to counsel’s ineffectiveness 

from the record.” Commonwealth v. Green, 709 A.2d 382, 384 (Pa. 1998). 

Recently, in Commonwealth v. Bradley, 261 A.3d 381 (Pa. 2021), our 

Supreme Court adopted a procedure whereby “a PCRA petitioner may, after a 

PCRA court denies relief, and after obtaining new counsel or acting pro

se, raise claims of PCRA counsel’s ineffectiveness at the first opportunity to 

do so, even if on appeal.” Id. at 401 (emphasis added). Although Bradley

does not contemplate the exact situation present in this matter, in which PCRA 

counsel raises his own ineffectiveness on collateral appeal, it also does not 

purport to override McBee. Where, as here, PCRA counsel’s assertion of his 

own ineffectiveness “vindicate[s Brooks’] right to effective PCRA counsel,” 

Bradley, 261 A.3d at 397, and we are able to make a conclusive 

determination as to the merits of the ineffectiveness claim from the record, 

McBee, supra, we may review the claim.
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A.3d 810 (Pa. 2016), that Alleyne’s new procedural rule does not apply 

retroactively to cases on collateral review, a stand-alone Alleyne claim would 

entitle Brooks to no PCRA relief. Rather, in order for the Alleyne claim to be 

cognizable, Brooks was required to couch it in terms of direct appellate 

counsel’s ineffectiveness for failing to challenge the legality of the IDSI 

sentence on direct appeal.6 Accordingly, Brooks asserts that PCRA counsel 

was ineffective for failing to properly present his Alleyne claim.

To establish a claim of counsel's ineffectiveness, a petitioner must 

overcome the presumption that counsel was effective by proving: “(1) that 

the underlying claim has merit; (2) counsel had no reasonable strategic basis 

for his or her action or inaction; and (3) but for the errors or omissions of 

counsel, there is a reasonable probability that the outcome of the proceedings 

would have been different.” Commonwealth v. Ousley, 21 A.3d 1238, 1244 

(Pa. Super. 2011) (citation omitted). “The failure to prove any one of the 

three prongs results in the failure of petitioner’s claim.” Id.

Here, Brooks’ underlying claim is that that his IDSI sentence is illegal 

because the court imposed an unconstitutional mandatory minimum sentence. 

Specifically, Brooks argues:

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6 Brooks’ direct appeal was pending when Alleyne was decided on June 17, 

2013. Accordingly, Brooks would have been entitled to the benefit of its 

holding. See Schriro v. Summerlin, 542 U.S. 348, 351 (2004) (“When a 

decision of [the U.S. Supreme] Court results in a ‘new rule,’ that rule applies 

to all criminal cases still pending on direct review.”).
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At Brooks’[] sentencing hearing, when the prosecutor referenced 

the IDSI conviction . . ., she reminded the trial court of [section] 

9718(a)(1)’s pre-2007[7] mandatory minimum provision requiring 

the court to impose a mandatory minimum of at least 5 to 10 

years in prison. The trial court adhered to the prosecutor’s 

request and [section] 9718(a)(1)’s pre-2007 mandatory minimum 

requirement when it imposed a 7- to 14-year prison sentence for 

the IDSI conviction[.]

Brief of Appellant, at 7. Brooks is entitled to no relief. 

Contrary to Brooks’ assertion, although the Commonwealth referenced 

the mandatory minimum at the outset of the sentencing hearing, Brooks was 

not sentenced in accordance with section 9718(a)(1). Rather, the 

Commonwealth requested guideline sentences across the board. The 

following exchange occurred at the conclusion of the Commonwealth’s 

sentencing argument:

[ASSISTANT DISTRICT ATTORNEY]: So[,] all that Your Honor has 

left to do is to protect society. And the guideline sentence for 

this case, involuntary deviate sexual intercourse, with 

nothing else considered, alone is 72 months to 40 years.

What I'm asking this Court to do is sentence this defendant to 20 

to 40 years[’] incarceration.

14 to 28 years on [the IDSI victim], which would be a guideline 

sentence on all charges to run consecutive.

And then three to six years[’] incarceration on the other two 

victims[, to] run consecutive[ly].

Again, guideline sentences on all charges.

* * *

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7 Section 9718(a)(1) was subsequently amended, effective January 1, 2007, 

to provide for a mandatory minimum sentence of 10 years’ incarceration for 

IDSI.
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THE COURT: Let me be clear, you are asking for what?

[ASSISTANT DISTRICT ATTORNEY]: 20 to 40 years[’] 

incarceration. Your Honor, that would be a guideline sentence 

on every charge to run consecutive.

N.T. Sentencing, 4/11/13, at 59-60 (emphasis added).

The sentence imposed by the court for Brooks’ IDSI conviction was a

standard guideline sentence of 7 to 14 years.8 Where a court does not 

sentence a defendant based on an unconstitutional mandatory sentencing 

statute, his sentence is not illegal on that ground. Commonwealth v. 

Zeigler, 112 A.3d 656 (Pa. Super. 2015). See also Commonwealth v. 

Russell, 209 A.3d 419, 424 (Pa. Super. 2019) (where trial court imposes 

sentence in accordance with guidelines and does not sentence in accordance 

with mandatory minimum sentencing scheme, appellant not entitled to relief 

under Alleyne).

Because Brooks’ underlying Alleyne claim is meritless, PCRA counsel 

cannot be deemed ineffective for failing to properly frame the issue in terms 

of direct appellate counsel’s ineffectiveness. Ousley, supra (petitioner must 

satisfy all three prongs of ineffectiveness test). Accordingly, the PCRA court

properly denied relief. 

Order affirmed.

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8 The guideline range for the offense of IDSI-child under 13, with an offense 

gravity score of 14, see 204 Pa.Code § 303.15, and Brooks’ prior record score 

of zero, is 72 months to the statutory limit of 40 years. See id. at § 303.16(a).
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 6/10/2022