J

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NON

- PRECEDENTIAL DECISION

- SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

JEREL BROOKS

Appellant :
:
:
:
:
:
:
:
: 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 :
:
:
:
:
:
:
:
: 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 :
:
:
:
:
:
:
:
: 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

- 2007J

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- 2

-

BEFORE: LAZARUS, J., KUNSELMAN, J., and STEVENS, P.J.E. *

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

Jerel Brooks appeals 1 from 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 convic ted 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.

_________________ __________ ______ ____ _______

* Former Justice specially assigned to the Superior Court.

1 This case involve s 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)

.J

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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 di smiss 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 f ollowing 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), tho ugh, 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 part y 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

_________________ __________ ______ ____ _______

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.J

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of record and is free of legal error. Similarly, we grant great deference t o 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 ineffectiveness 5 for 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 a n illegal mandatory minimum sentence for IDSI

pu rsuant 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

_________________ __________ ______ ____ _______

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 rem and 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.” Commonweal th 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 d oes 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 , 26 1 A.3d at 397, and we are able to make a conclusive determination as to the merit s of the ineffectiveness claim from the record, McBee , supra , we may review the claim.J

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-

A.3d 810 (Pa. 2016), that Alleyne ’s new proc edural rule does not apply

retroactively to cases on collateral review, a stand

- alone Alleyne claim would

entitle Brooks to no PCRA relief. Rather, i n order for the Al l eyne claim to be

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

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 impo sed an unconstitutional mandatory minimum sentence.

Specifically, Brooks argues:

_________________ __________ ______ ____ _______

6 Brooks’ direct appeal was pending when Alleyne was decided on June 17, 2013. Accordin gly, 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 r eview.”).J

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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 minim um 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 priso n 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 Yo ur 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 [, t o ] run consecu tive [ly]

. Again, guideline sentences on all charges

.

* * *

_________________ __________ ______ ____ _______

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.J

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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 consecu tive

. 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 mandat ory 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 c ounsel

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 den ied relief

.
Order affirmed.

_________________ __________ ______ ____ _______

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).J

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Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 6/10/2022