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NON - PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENN SYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee
v. FELTON LEE GARDNER Appellant No. 1642 MDA 2014

Appeal from the PCRA Order September 17 , 2014 In the Court of Common Pleas of Lancaster County Criminal Division at No(s): CP
- 36
- CR
- 0001516
- 2009
BEFORE: BOWES, J., ALLEN, J., and LAZARUS, J. MEMORANDUM BY LAZARUS, J.: FILED JULY 07, 2015 Felton Lee Gardner appeals from the order of the Court of Common Pleas of Lancaster County that dismissed his petition filed pursuant to the Post Conviction Relief Act. 1 After careful review, we affirm based on the opinion authored by the Honorable Howard F. Knisely. On June 18, 2010, the trial court sentenced Gardner to 8 years and 6 months to 20 years’ imprisonment after a jury convicted him of aggravated assault, endangering the welfare of a child, and rec klessly endangering another person (REAP). The convictions arose out of Gardner’s physical abuse of his three
- year - old stepdaughter.

____________________________________________ 1 42 Pa.C.S. §§ 9541
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Gardner filed a direct appeal to this Court, which affirmed his judgment of sentence on March 30, 2011. Commonwealth v. Gardner , 26 A.3d 1211 (Pa. Super. 2011) (unpublished memorandum). He then filed a petition for allowance of appeal, which our Supreme Court denied on November 10, 2011. Commonwealth v. Gardner , 32 A.3d 1275 (Pa. 2011). Gardner filed a timely pro se PCRA petition on October 10, 2012. The court appointed counsel, who filed an amended petition on June 27, 2014. On August 26, 2014, having received an answer to the petition from the Commonwealth, the court issued a notice of intent to dismiss the petition
w ithout a hearing pursuant to Pennsylvania Rule of Criminal Procedure 907. The court dismissed the petition on September 17, 2014. Gardner filed a timely notice of appeal on September 26, 2014, and in response to an order from the trial court he filed a st atement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b) on October 17, 2014. The same day, the trial court filed its Rule 1925(a) opinion, relying on the 7
- page Rule 907 notice that it issued on August 26, 2014. On appeal, Gardner raises the following issue for our review: Whether the lower court erred in denying [Gardner’s] PCRA [petition] when counsel was ineffective by failing to litigate that the lower court erred when it considered that [Gardner] was subject to the mandatory minimum s entence of five years[’] incarceration under 42 Pa.C.S. § 9718(a)(2) even though the jury never found that the victim was less than the critical age required by the statute.J
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Appellant’s Brief, at 4. In his Rule 1925(a) opinion, which incorporates the Rule 907 notice, Judge Knisely reviews the appropriate standard for reviewing challenges to the effectiveness of trial counsel, citing Strickland v. Washington , 466 U.S. 668 (1984) and Commonwealth v. Pierce , 527 A.2d 973 (Pa. 1987). The focus of Gardner’s pe tition is that counsel was ineffective for failing to object at his June 18, 2010 sentencing hearing to the court’s consideration of the mandatory minimum sentence of five years’ incarceration for a person convicted of aggravated assault where the victim i s less than 13 years of age. See 42 Pa.C.S. § 9718(a)(2). Judge Knisely notes that pursuant to Alleyne v. United States , 133 S.Ct. 2151 (2013), the mandatory minimum sentencing provision is unconstitutional. However, Alleyne was decided after Gardner’s sentencing, and under these circumstances, trial counsel cannot be ineffective for failing to object to the mandatory minimum sentence. Furthermore, although the judge recognized the applicability of the mandatory minimum sentence at the 2010 sentencing h earing, the sentencing guidelines did not allow for a sentence as low as the mandatory minimum in light of the offense gravity score for aggravated assault and Gardner’s prior record score. Accordingly, Gardner could not establish that he was prejudiced b y the court’s reference to the mandatory minimum sentence.J
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After careful review of the parties’ briefs, the record and the relevant law, we agree with Judge Knisely’s analysis and affirm on the basis of his opinion. We instruct the parties to attach a copy of Judge Knisely’s decision in the event of further proceedings. Order affirmed. Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

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Tris t a M. Boyd, As s is t ant District Attorney Procedure the Court submit s those filings for purposes of Rule l925(a) of the Penn s ylvania Rules of Appell ate Court ' s Opinion and Order of August 25, 2014 stated the Court's r eas on s for d i smis s al. A s such, · Septe mber 16, 201 4. Defendant filed a timely notice of appeal o n S eptember 26, 2014. This the petition without a hearing. Defendant's peti tio n was ultimately dismissed by O r der o f and an amended PCRA petition was filed by counsel on June 2 7 , 2 0 1 4

. By Opinion and O r der o f August 25, 20 1 4, the Court provided notice, pursuant to Pa

. R.Crim

. P. 90 7 , of i ts 

### intent to 

### dismi s s Co ll ater al Re li ef Act ( " PCRA " ). 1 

### Defendant ti mely filed his 

### PCRA petition on October 2 , 2 0 1 2, Cou rt's dismissal of D e fendant ' s petition for co ll at e ral re li e f fi l ed pursuant to 

### the Post Conv i c tion D efen d ant Felton L ee Gardner bas appeal ed t o the Sup e rior Court of P e nnsylvania from this October 17 , 20 1 4 MEM O RA ND UM BY : KNISELY,



### J. FE L TO N LE E GARDNE R No

. 1 516 -2 009

vs. C O :M:M O NWEALTH O F PENNSYL V ANIA IN T HE CO UR T OF C O MMON PLE A S OF LANCAS T ER COUNTY, PENN S YLVANIA CRIMTNAL Circulated 06/08/2015 11:19 AM1 42 Pa.C.S.A. §§ 9541-46.

2 18 Pa.C.S.A. §2702. 3 18 Pa.C.S.A. §4304. 4 18 Pa.C.S.A. §2705. 

### petition. Counsel was appointed to represent Defendant and an amended PCRA petition was which was denied on November 10, 2011. On October 2, 2012, Defendant filed a prose PCRA 2011. Defendant then sought an allowance of appeal from the Pennsylvania Supreme Court, Quinn. The Superior Court of Pennsylvania affirmed thejudgment of sentence on Murch 30, July 16, 2010, Defendant 

### filed an appeal; he was represented on appeal by Attorney Vincent to 20 years of incarceration. Defendant Wl!S 

### represented by Attorney Karl Rominger at trial. On Endangering Another Person." Defendant was sentenced on June 18, 2010 to 

### a total term of 8!1i Assault," one count of Endangering the Welfare of a Child, 3 

### and one count of Recklessly On March 11, 2010, Defendant was convicted by a jury 

### of one count of Aggravated BACKGROUND 

### unless Defendant amends his petition within 20 days and provides a reviewable basis for relief. Defendant's petition without a hearing. Defendant's petition will be dismissed without a hearing pursuant to 

### Rule 907 of the Pennsylvania Rules of Criminal Procedure, of its intent to dismiss petition is meritless and Defendant is not entitled to PCRA relief. The Court submits this Notice, Relief Act ("PCRA''). 1 

### Upon review of the petition, the Court is satisfied that Defendant's Before the Court is Defendant's petition seeking relief pursuant to the Post Conviction Ruic 907 Notice 

### BY: KNISELY,J. FELTON LEE GARDNER

vs. IN THE COURT OF 

### COMMON PLEAS OF 

### LANCASTER COUNTY, PENNSYLVANIA CRIMINAL r- ~ ~ 0 0 .c:;-, ,-- p :t- rn v, c:: ;·.o -; en ;;, I'll N ..,_, m <.J ..<.; ',J.

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# ·. ,J N Augtist25, 2014 COMMONWEALTH OF 

### PENNSYLVANIA Circulated 06/08/2015 11:19 AM2

I. Ineffective Assistance of Trial Counsel Defendant's 

### claim challenges the effectiveness ofhis 

### trial counsel. It is well-established that counsel is presumed effective. 

### Strickland v. Washington, 466 U.S. 668, 689, 104 S.Ct. 2052, 2065 (1984). A PCRA petitioner bears the burden of rebutting that presumption by demonstrating that counsel's performance was deficient and that such deficiency prejudiced him. 

### Id The Pennsylvania Supreme Court divided the 

### Strickland standard into three prongs, two
prongs for deficient performance and one prong for prejudice. 

### Com. v. Koehler, 36 A.3d 121, 132 (Pa. 2012) (citing 

### Com. v. Pierce, 515 Pa. 153, 527 A.2d 

### 973, 975 (1987)). The resulting three prongs to prove counsel ineffective are: (I) the underlying claim has arguable merit; (2) counsel's actions lacked an objective reasonable basis; and (3) the defendant was prejudiced by counsel's act or omission. 

### Id. Counsel will not be deemed ineffective if any reasonable basis exists for his actions, and, even if counsel had no reasonable basis for his actions; a defendant is filed on June 27, 2014, alleging that Trial Counsel was ineffective for failing to object to the Trial Court's consideration of the mandatory minimum sentence of 5 years of incarceration because the jury did not find beyond a reasonable doubt 

### that the victim was less than 13 years of age as required by the Supreme Court's decision in 

### Alleyne v. United States, 133 S.Ct. 2151 (2013). The amended PCRA petition also alleged that even if Trial Counsel was not ineffective, the imposition of the mandatory minimum sentence is an illegal sentence and that the provision providing for the relevant mandatory 

### minimum sentence is not severable 

### from the provision providing that the age of the victim is not an element of an offense. DISCUSSION Circulated 06/08/2015 11:19 AM3

not entitled to relief if he fails to demonstrate prejudice. 

### Com. v. Loner, 836 A.2d 

### 125> 133 (Pa. Super. 2003)(citing 

### Com. v. Douglas, 645 A.2d 226, 231~2)(Pa. 1994)). Prejudice in the context of ineffective assistance of counsel requires a demonstration that there was a reasonable probability that but for counsel's error; the outcome of the proceeding would have been difference. 

### Com. v. Kimball, 724 A.2d 326, 331 (Pa. 1999). "A reasonable probability is a probability sufficient to undermine confidence in the outcome." 

### Com. v. Chambers, 807 A.2d 

### 872> 883 (Pa. 2002)(quoting 

### Strickland v. Washington , 466 U.S. 668, 694 (1984)). Prejudice occurs when the errors were so serious as to deprive the defendant of a trial whose result is reliable. id The Pennsylvania Supreme Court has held that courts "cannot impose upon trial counsel the qualities of a seer.,. For this reason, [courts] examine counsel's stewardship wider the standards as they existed at the time of his action .. , counsel wiU not be deemed ineffective for failing to predict future developments in the law," 

### Com. v. Triplett, 38 l A.2d 877, 881 (Pa. 1977); 

### Com. v. Fowler, 703 A.2d 1027 (Pa. 1987). In the instant case, Defendant was sentenced on June 18t 2010; the United States Supreme Court did not decide 

### Alleyne until June 17, 2013, almost exactly three years after Defendant's sentencing. Because counsel is not required 

### to predict the future, Trial Counsel cannot be found ineffective for failing to object to the imposition of the mandatory minimum sentence. Furthermore, Defendant cannot show that he suffered any prejudice. The Trial Court sentenced Defendant above the mandatory minimum sentence because Defendant's sentencing guidelines did not allow for a sentence as low as the mandatory minimum sentence. Aggravated Assault carries an offense gravity score of 11 and Defendant's prior record score was a 5. Therefore, Defendant's guideline sentence for the offense of Aggravated Assault was 72 mo n ths Circulated 06/08/2015 11:19 AM4

( 6 ye ar s) to 90 months (71h years), p l us or minus 12 mon ths fo r mi tigatin g and ag g r avating fac tors
. Endang e ring the Welfare o f a Chi ld carries an o ffense gravity score of 5, so Defendant's guid e l ine sente n c e fo r that off ense was 1 2 mouths 

### to 1 8 m on ths , plus o r minus 3 months for mitigating and aggrav ating fa ctors. Therefo re , th e outcome of Defendant' s se nte n cing proceeding wo ul d n ot have been any differen t even wi th out the mandat ory 

### minimum sent enc e . Be cause D efendan t has failed t o demons tr ate that his c l aim h a s arguab le m e ri t q r that he suffered prejudice, trial c o un s e l will not be deemed in e ffective. 

### ' Com

. 

### v. Lon e r, 836 A.2d 125, 133 (Pa

. Sup er. 2003)(citing 

### Co m . v. Dougla s , 645 A.2d 226, 231

- 2)(Pa

. 1 994 ) )

. 

### II. Ill ega l Sen t ence Th e Pen n sylvania Superior Co urt has h e l d that s e ntence s in v i olation of 

### All eyn e are illeg al sentences. 

### Co m. v. Watley, 81 A.3d 108 (Pa. S up er. 2013); 

### Co m . v . Thomps o n, 2014 WL

· 2131 9 65 (Pa

. Super : 20 1 4). In this case, however, although th e Co mmon w ealth had invoked th e mand atory minimum sen tence of fi v e ye ars of in car ce rati o n, D efe nd ant's g uideline s did not allow for a sentence of l e s s than fiv e years. As discussed above, De fe ndant's sen te ncing guid e lines called fo r 6 years t o 7 1h y ear s fo r th e aggr avat e d assault char g e alone. Furth erm o re, at

sen t e nci n g> th e Court c o nsid e red the fo ll owin g : 

### that Defend ant w as 36 y e ar s ol d , indic ati n g h e h ad sufficient maturity to unde r stand the si gn ifican ce of hi s ac t s ; th at Defendant i s intellig e nt

e n ough to un d erstand the s i gni fic an c e of his acts , h av i ng comp l eted 11th g ra de and attainin g his G

. E. D.; that Defend an t knows ho w to foll ow directions , as indi cated b y hi s w ork hi s to ry; the prior criminal record of D efe nd an t. (N

. T. S e nt e ncing, 6/ 18 / 1 0 , p . 1 5 -1 6)

. Th e C o urt al so specifical l y consid ered th e doctor' s t e stimon y r e lative 

### to th e p i ece o f ton g u e whi c h was b itte n out of th e thr e e- year- o l d victim ' s mouth and the excruc i ating pain th e child ha d t o g o through Circulated 06/08/2015 11:19 AM5

Provisions of this section sha11 not be an element of the crime, and notice thereof to the defendant shall not be required prior to conviction, but reasonable notice of the. sentencing: Seek Mandatory Sentence under 42 Pa.C.S.A. §9712.1, which requires the following proof at 

### Newman, 2014 Pa. Super. 178 (August 20, 2014). The Commonwealth filed a Notice of Intent to count of possessing an instrument of crime, and five counts of criminal conspiracy. 

### Com. v, possession of drug paraphernalia, one count of dealing in proceeds of unlawful activities, one to deliver cocaine) (''PWlD»), two counts of simple possession (cocaine), one count of In 

### Com. v. Newman, the defendant was convicted of two counts of possession with intent 

### Newman, 2014 Pa. Super. 17~ (August 20, 2014). similar "proof at sentencing" subsection was not severable from the rest of the statute. 

### Com. v. Pennsylvania Superior Court recently decided that another mandatory sentencing statute with a determined beyond a reasonable doubt by the finder of'fact, as required by 

### Alleyne. The minimum sentences based on a preponderance of the evidence standard, as opposed to being ( c) of §9718 is unconstitutional because it allows the sentencing court to apply the mandatory 108 (Pa. Super. 2013) and 

### Coin. v. Thompson, 2014 WL 2131965 (Pa. Super. 2014), subsection Based on the recent Pennsylvania Superior Court decisions of 

### Com. v. Watley, 81 AJd 

### ID. Severability of 42 Pa.C.S.A. §9718 aggravated nature of the crimes. 18. The sentence 

### was warranted because a lesser sentence would depreciate the seriousness and addition to the damage to her tongue, and that Defendant showed no remorse at any point. 

### Id. at three years old at the time of the offenses, that she was scarred with bum marks and welts, in during the course of that attack. 

### Id. at 17. The Court considered the fact that the victim was Circulated 06/08/2015 11:19 AM

### 6

allow for a sentence of less than five years, but rather called for 6 years to 71/z years for the mandatory minimum sentence of five years of incarceration, Defendant's guidelines did not the mandatory sentence, as discussed above. While the Commonwealth had invoked the Although the mandatory sentencing is unconstitutional, this Court did not sentence Defendant by 42 Pa.CS.A. §9718 is also not severable from the statute) rendering the statute unconstitutional. Based on the Pennsylvania Superior Court's recent decision in 

### Newman, subsection (c) of 42 Pa.C.S.A. §9718(c). The provisions of this section shall not be an element of the crime, and notice of the· provisions of this section to the defendant shall not be required prior to conviction, but reasonable notice of the Commonwealth's intention to proceed under this section shall be provided after conviction and before sentencing. The applicability of this section shall be determined at sentencing. The court shall consider any evidence presented at trial and shall afford the Commonwealth and the defendant an opportunity to present any necessary additional evidence and shall determine, by a preponderance of the evidence, if this section is applicable. §9718 reads: sentencing statute in this case, 42 Pa.C.S.A. §9718, is identical. Subsection (c) of 42 Pa.C.S.A. This Court recognizes that the "proof at sentencing" subsection of the mandatory (2013). 

### Newman, 2014 Pa. Super. 178 (August 20, 2014); 

### Alleyne v. United States, 133 S.Ct. 2151 was unconstitutional because it did not comply with the standard set forth 

### ii1Alleyne. Com. v. The 

### Superior Court in 

### Newman, found that 

### the sentencing practice under Section 9712.1 Commonwealth's intention to proceed under this section shall be provided after conviction and before sentencing. The applicability of this section shall be determined at sentencing. The court shall consider any evidence presented at trial and shall afford the Commonwealth and the defendant an opportunity to present any necessary additional evidence and shall determine, by a preponderance of the evidence, if this section is applicable, 42 Pa.C.S.A. §9712.l(c); 

### Com. v. Newman, 2014 Pa. Super. 178 (August 20, 2014). Circulated 06/08/2015 11:19 AM7

aggravated assault charge alone. Again) the Court took into account a variety of factors, not the 'mandatory minimum sentence , when it sentenced Defendant to 

### 8Yz to 20 years of incarceration, specifically the aggravated nature of the crime against the three year old victim. Therefore, the issue of severability of subsection ( c) of 42 PaC.S.A. §9718 is irrelevant to Defendant's claim, 

### as he was not sentenced under the mandatory 

### minimum statute. As each of Defendant's claims is rneritless , Defendant's petition is meritless. Defendant is not entitled to post

- conviction relief, and no purpose would be served by any further proceedings. Defendant is hereby provided notice of this Court's intent to dismiss his petition without a bearing. Defendant may respond within twenty (20) days from the date of this Notice to demonstrate that he is entitled to relief under the PCRA. Accordingly, I enter the following: Circulated 06/08/2015 11:19 AM