J-S59023-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

SHICON J. JORDAN 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 313 EDA 2017

Appeal from the PCRA Order December 20, 2016

In the Court of Common Pleas of Monroe County 

Criminal Division at No(s): CP-45-CR-0002854-2013

BEFORE: BENDER, P.J.E., OTT, J., and FITZGERALD, J.

MEMORANDUM BY OTT, J.: FILED DECEMBER 26, 2017

Shicon J. Jordan appeals from the order entered December 20, 2016, in 

the Court of Common Pleas of Monroe County, denying him relief on his 

petition filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S. § 

9541 et seq. In this timely appeal, Jordan argues the PCRA court erred in 

failing to find trial counsel ineffective for failing to raise Commonwealth v. 

Spenny, 128 A.3d 234 (Pa. Super. 2015), regarding the calculation of his 

prior record score, at his resentencing hearing, held on April 26, 2016. At 

resentencing, Jordan received an aggregate term of 74 to 148 months’ 

____________________________________________

 Former Justice specially assigned to the Superior Court.
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incarceration.1 After a thorough review of the submissions by the parties, 

relevant law and the certified record, we affirm.

The PCRA court related the following relevant information regarding the 

underlying matter.

[V]ideo surveillance footage showed that on November 2, 2013, 

[Jordan] and a female entered a Quality Inn hotel in Stroudsburg, 

Pennsylvania at approximately 7:23 p.m. and left at 

approximately 7:42 p.m. with a television. At about 10:00 p.m. 

on the same evening, a security guard in the same hotel found 

[Jordan] and the female in Room 239. There had been a guest in 

Room 239 the previous evening, but he had checked out on the 

morning of November 2nd. Room 239 was not registered to any 

person at 10:00 p.m., and [Jordan] had no authority to be in this 

room.

The security guard found two televisions in Room 239, one of 

which was behind a curtain. Hotel personnel discovered that 

televisions were missing from Rooms 237 and 240. One had been 

removed from the hotel in the incident between 7:32 and 7:42 

p.m.; the other was found behind the curtain in Room 239. There 

was no evidence that any person other than [Jordan] or his female 

accomplice was in Room 237 or 240 when these rooms were 

burglarized.

PCRA Opinion, 12/20.2016 at 1-2.

Jordan was convicted of the charges listed above and on September 23, 

2014, received an aggregate sentence of 91 to 182 months’ incarceration. 

Jordan filed a direct appeal, claiming his sentence was improperly based upon 

an erroneous offense gravity score (OGS) for the burglary charge. A panel of 

our court agreed with Jordan, vacated the sentence and remanded the matter 

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1 On July 3, 2014, a jury convicted Jordan of Burglary, Criminal Trespass, 

Theft by Unlawful Taking, Attempted Theft, and Receiving Stolen Property. 18 

Pa.C.S. §§ 903(a), 3503(a)(1)(i), 3921(a), 901(a), and 3925(a), respectively.
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for resentencing. See Commonwealth v. Jordan, 2016 WL 417415, filed 

2/2/2016 (memorandum decision). On April 26, 2016, Jordan was 

resentenced to a term of 74 – 142 months’ incarceration. 

Between imposition of Jordan’s original sentence in 2014 and his 

resentencing in 2016, a panel of our Court decided Commonwealth v. 

Spenny, 128 A.3d 234 (Pa. Super. 2015), which set forth the methodology 

for determining a defendant’s prior record score (PRS), when that score is 

based upon out of state convictions. All of Jordan’s prior convictions were out 

of state. Despite this fact, Jordan’s counsel did not raise Spenny at the 

resentencing. Accordingly, he now claims counsel was ineffective for failing 

to challenge his prior record score pursuant to Spenny. This argument is 

unavailing.

“Our standard of review for issues arising from the denial of PCRA relief 

is well-settled. We must determine whether the PCRA court's ruling is 

supported by the record and free of legal error.” Commonwealth v. 

Washington, 927 A.2d 586, 593 (Pa. 2007).

Jordan has raised a single claim of ineffective assistance of counsel.

In reviewing these claims, we are guided by a well-settled 

framework:

Counsel is presumed to have been effective. To overcome this 

presumption, a PCRA petitioner must plead and prove that: (1) 

the underlying legal claim is of arguable merit; (2) counsel's action 

or inaction lacked any objectively reasonable basis designed to 

effectuate his client's interest; and (3) prejudice, to the effect that 

there was a reasonable probability of a different outcome if not 

for counsel's error.
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If a petitioner fails to prove any of these [three] prongs, his claim 

fails.

Commonwealth v. Grove, 170 A.3d 1127, 1138 (Pa. Super. 2017) (citations 

and quotation marks omitted).

We relate two reasons why Jordan’s argument fails. First, Jordan has 

failed to demonstrate any prejudice for trial counsel’s failure to argue Spenny. 

He points to nothing in his prior record that would have been altered by a 

Spenny analysis. If a Spenny analysis would not alter Jordan’s PRS, and 

Jordan has suffered no prejudice, then the failure to raise the issue before the 

resentencing court cannot constitute ineffective assistance of counsel. See 

Grove, supra.

Second, the trial court conducted an analysis of Jordan’s PRS, and the 

method used by Probation Officer Rebecca Hamar to calculate the number as 

5 which the trial court relied upon in fashioning Jordan’s sentence. The trial 

court reasoned as follows:

Probation Officer Rebecca Hamar testified at the October 17, 2016 

PCRA hearing that she prepared a PSI [Pre-Sentence 

Investigation] in this matter and calculated [Jordan’s] prior record 

score to be a five. Ms. Hamar testified that she was familiar with 

the requirements of 204 Pa.Code § 303.8, and applied the 

requirements thereof in calculating [Jordan’s] prior record score. 

Specifically, [Jordan] had an out of state conviction, Criminal Sale 

of a Controlled Substance, which had a Pennsylvania equivalent, 

which carried two points. [Jordan] also had an out of state felony 

conviction for Robbery. Although there are Pennsylvania 

equivalents to Robbery, Officer Hamar did not have specific facts 

concerning this conviction, and therefore assigned the lowest 

number of prior record score points for this conviction, one, in 

conformance with Spenny. [Jordan] was also given an additional 
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two points for five other out of state convictions.3 Although all of 

these convictions were listed as felonies, Officer Hamar did not 

have the specific facts and therefore treated them as 

misdemeanors. This calculation of the prior record score, as set 

forth in greater detail in the PSI on page 1 and 15, was done in 

compliance with 204 Pa.Code § 303.8[(f)] and Spenny.

Therefore, the prior record score calculation for sentencing 

purposes was accurate and legal. As such[,] arguing Spenny

would have been meritless and Counsel cannot be found 

ineffective for failing to argue a baseless or meritless claim.

3 [Jordan] was convicted in New York state of the following: 

Criminal Possession of a Controlled Substance, Promoting 

contraband to Prisoners, and three separate convictions for 

Knowingly Make/Possess Dangerous Contraband in Prisons.

PCRA Court Opinion, 12/20/2016, at 4-5.

Our review of Jordan’s brief, the certified record and relevant law leads 

us to find the PCRA court’s order denying Jordan relief is supported by the 

record and free from legal error.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 9/29/2017