J-S47005-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

TERRENCE JAMES LUCAS,

Appellant No. 2221 MDA 2015

Appeal from the PCRA Order December 1, 2015

In the Court of Common Pleas of Lancaster County

Criminal Division at No(s): CP-36-CR-0001060-2014

BEFORE: SHOGAN, LAZARUS, and JENKINS, JJ.

MEMORANDUM BY SHOGAN, J.: FILED AUGUST 11, 2016

Terrence James Lucas (“Appellant”) appeals pro se from the 

December 1, 2015 order dismissing his petition for collateral relief filed 

pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541–

9546. We affirm.

The PCRA court summarized the history of this case as follows:

On Docket Number 1060-2014, [Appellant] was charged 

with one count of Criminal Attempt-Criminal Homicide, one count 

of Aggravated Assault, and one count of Possession of Firearm

Prohibited. On October 8, 2014, the Commonwealth provided 

notice to [Appellant] that the Commonwealth intended to seek 

imposition of a ten-year mandatory minimum sentence, based 

upon [Appellant’s] prior conviction of a “crime of violence,” 

pursuant to 42 Pa.C.S.A. § 9714(a)(1). The Commonwealth 

sought a mandatory sentence because [Appellant] was convicted 

on April 1, 2002 of Robbery.

That same day, [Appellant] entered a negotiated guilty 

plea to the charges of attempted homicide and possession of 
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firearm prohibited. Consistent with the plea agreement, the 

[c]ourt sentenced [Appellant] to ten to twenty years of 

imprisonment on the count of attempted homicide, invoking 

Pennsylvania’s second strike statute for repeat violent offenders, 

and three and one half to ten years imprisonment on the count 

of possession of firearm prohibited. The two counts were made 

consecutive to each other. In sum, [Appellant] was sentenced to 

an aggregate period of incarceration of not less than thirteen 

and one half years nor more than thirty years.

[Appellant] did not file a post-sentence motion or a direct 

appeal. As a result, his judgment became final under the PCRA 

on November 7, 2014, upon expiration of the time to file an 

appeal to the Superior Court of Pennsylvania. See Pa.R.A.P. 

903(a). He timely filed the instant pro se petition for PCRA relief 

on August 20, 2015, challenging the legality of his sentence in 

light of Alleyne v. United States and Commonwealth v. 

Newman.

9

 [Appellant] claims that his sentenced violated Alleyne

and it’s [sic] Pennsylvania progeny because the determination of 

whether section 9714(a)(1) was satisfied must be made by a 

fact-finder and proven beyond a reasonable doubt. Counsel was 

appointed to represent [Appellant] and filed a motion to 

withdraw as Counsel and a Turner/Finley letter on October 28, 

2015.

9

 Commonwealth v. Newman, 99 A.3d 86 (Pa.Super. 

2014)(held that 42 Pa. C.S.A. § 9712.1, which 

requires a mandatory minimum sentence for certain 

drug offenses committed with firearms, is 

unconstitutional under Alleyne).

PCRA Court Rule 907 Notice, 11/3/15, at 1–3 (some footnotes omitted). 

Following an independent review of the record, the PCRA court determined, 

“[N]o purpose would be served by any further proceedings and [Appellant] is 

not entitled to PCRA relief.” Id. at 1. The PCRA court filed a Pa.R.Crim.P. 

907 notice and order on November 3, 2015, advising Appellant of its intent 

to dismiss his petition and affording Appellant twenty days in which to file a 

response. Order, 11/3/15, at ¶ 1. The PCRA court also permitted counsel to 
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withdraw. Id. at ¶ 2. When no response was forthcoming, the PCRA court 

dismissed Appellant’s petition by order dated November 30, 2015, and 

docketed December 1, 2015. This appeal followed. Appellant and the PCRA 

court have complied with Pa.R.A.P. 1925.1

Appellant presents two questions for our consideration, which we 

reproduce below verbatim:

I.

 PETITIONER MAINTAINS THAT HIS MANDATORY 

MINIMUM SENTENCE(S) IS ILLEGAL AND THAT BY ENFORCING 

SUCH SENTENCE UPON THOSE WHO HAVE A PRIOR RECORD 

AND NOT FOR THOSE WHO DON’T CREATWES VIOLATIONS OF 

EQUAL PROTECTION, DUE PROCESS AND CRUEL AND UNUSUAL 

PUNISHMENT. LEAVING ALL PRIOR COUNSEL INEFFECTIVE FOR 

FAILING TO OBJECT OR RAISE SUCH CLAIM CREATING 

REVERSIBLE ERROR?

II.

 PETITIONER MAINTAINS THAT THE TRIAL COURT 

ABUSED IT’S DISCRETION BY SENTENCING HIM TO TWO 

MANDATORY MINIMUM SENTENCES AND THEN RUNNING THEM 

CONSECUTIVELY. FURTHER LEAVING ALL PRIOR COUNSEL 

INEFFECTIVE FOR FAILING TO OBJECT OR RAISE SUCH CLAIM 

ON APPEALCREATING REVERSIBLE ERROR?

Appellant’s Brief at 4.

Our standard of review of a trial court order granting or denying relief 

under the PCRA requires us to determine whether the decision of the PCRA 

court is supported by the evidence of record and is free of legal error. 

____________________________________________

1

 The PCRA court submitted the opinion accompanying its November 3, 

2015 Rule 907 Notice as its Pa.R.A.P. 1925(a) opinion. Memorandum, 

12/31/15.
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Commonwealth v. Perez, 103 A.3d 344, 347 (Pa. Super. 2014). “The 

PCRA court’s findings will not be disturbed unless there is no support for the 

findings in the certified record.” Commonwealth v. Lippert, 85 A.3d 1095, 

1100 (Pa. Super. 2014).

Initially, we note that, in both questions presented, Appellant raises 

claims of ineffective assistance of counsel (“IAC”). However, our review of 

the record reveals that, although Appellant raised an IAC claim related to 

plea counsel in his petition, he did not include any IAC claims in his Pa.R.A.P.

1925(b) statement. Therefore, his current IAC claims are waived. Pa.R.A.P. 

1925(b)(4)(vii); see also Perez, 103 A.3d at 347 n.1 (holding that issues 

not included in PCRA petitioner’s Pa.R.A.P. 1925(b) statement were waived 

for purposes of appeal).2 Thus, we address only the legality-of-sentence 

claims.

Appellant first argues that the mandatory minimum sentence he 

received is illegal under Alleyne v. United States, ___ U.S. ___, 133 S.Ct. 

2151 (2013). In his own words, Appellant “is challenging the permitance of 

a Judge to impose a mandatory minimum sentence without presenting the 

facts and circumstances to a jury, a Constitutionally recognized fact finder. 

____________________________________________

2

 Even if Appellant’s IAC claims were not waived, we would not grant him 

relief because both of his underlying sentencing claims lack merit. See 

Commonwealth v. Paddy, 15 A.3d 431, 443 (Pa.2011) (“Because we have 

determined that Appellant’s underlying claims lack merit, the PCRA court did 

not abuse its discretion in rejecting Appellant’s layered claims of 

ineffectiveness of counsel based upon those assertions.”).
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This would create an equal platform for all of those convicted of crimes 

which could receive mandatory minimum sentences.” Appellant’s Brief at 8. 

Appellant argues that, because not all crimes are similar, “an individual 

could commit a brutal and heinace [sic] crime and receive less punishment 

than an individual who committed a crime that is non-violent or not 

anywhere close to the degree of another just because of a prior conviction of 

a felony.” Id. at 7. We acknowledge Appellant’s attempt to present his 

challenge in a novel framework; however, we conclude that no relief is due.

“Alleyne held that any fact that, by law, increases the penalty for a 

crime must be treated as an element of the offense, submitted to a jury, 

rather than a judge, and found beyond a reasonable doubt.” 

Commonwealth v. Washington, ___ A.3d ___, 37 EAP 2015, 2016 WL 

3909088, at *1 (Pa. July 19, 2016); see also Apprendi v. New Jersey, 

530 U.S. 466, 490 (2000) (“[A]ny fact that increases the penalty for a crime 

beyond the prescribed statutory maximum must be submitted to a jury, and 

proved beyond a reasonable doubt.”).

Appellant’s mandatory minimum sentence was imposed pursuant to 42 

Pa.C.S. § 9714, which reads, in relevant part, as follows:

(a) Mandatory sentence.--

(1) Any person who is convicted in any court of this 

Commonwealth of a crime of violence shall, if at the time 

of the commission of the current offense the person had 

previously been convicted of a crime of violence, be 

sentenced to a minimum sentence of at least ten years of 
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total confinement, notwithstanding any other provision of 

this title or other statute to the contrary.

* * *

(d) Proof at sentencing.--Provisions of this section shall 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 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 sentencing court, prior to imposing sentence on an offender 

under subsection (a), shall have a complete record of the 

previous convictions of the offender, copies of which shall be 

furnished to the offender. If the offender or the attorney for the 

Commonwealth contests the accuracy of the record, the court 

shall schedule a hearing and direct the offender and the attorney 

for the Commonwealth to submit evidence regarding the 

previous convictions of the offender. The court shall then 

determine, by a preponderance of the evidence, the previous 

convictions of the offender and, if this section is applicable, shall 

impose sentence in accordance with this section. . . .

42 Pa.C.S. § 9714(a)(1), (d). 

Furthermore, as stated by the United States Supreme Court:

[T]he sentencing factor at issue here—recidivism—is a 

traditional, if not the most traditional, basis for a sentencing 

court’s increasing an offender’s sentence. Consistent with this 

tradition, the Court said long ago that a State need not allege a 

defendant’s prior conviction in the indictment or information that 

alleges the elements of an underlying crime, even though the 

conviction was necessary to bring the case within the statute. 

Graham v. West Virginia, 224 U.S. 616, 624, 32 S.Ct. 583, 

585–86, 56 L.Ed. 917 (1912). That conclusion followed, the 

Court said, from “the distinct nature of the issue,” and the fact 

that recidivism “does not relate to the commission of the 

offense, but goes to the punishment only, and therefore ... may 

be subsequently decided.” Id., at 629, 32 S.Ct., at 588 

(emphasis added). The Court has not deviated from this view. . . 

[T]o hold that the Constitution requires that recidivism be 

deemed an “element” of petitioner’s offense would mark an 

abrupt departure from a longstanding tradition of treating 
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recidivism as “go[ing] to the punishment only.” Graham, supra, 

at 629, 32 S.Ct., at 587–588. 

Almendarez-Torres v. United States, 523 U.S. 224, 243–244 (1998) 

(some internal citations omitted). Thus, because recidivism is a sentencing 

factor, not a factual element, the lower standard of proof in section 9714 

does not violate Alleyne. In fact, Apprendi and its progeny expressly 

delineate an exception to the general rule for “prior convictions.” See 

Apprendi, 530 U.S. at 490 (“Other than the fact of a prior conviction, any 

fact that increases the penalty for a crime beyond the prescribed statutory 

maximum must be submitted to a jury, and proved beyond a reasonable 

doubt.”); Alleyne, 133 S.C.t at 2160 n.1 (“In Almendarez-Torres, we 

recognized a narrow exception to [the] general rule for the fact of a prior 

conviction.”).

After analyzing and applying the above jurisprudence, the PCRA court 

concluded as follows:

Here, [Appellant] was legally sentenced under 42 Pa.C.S.A. 

§ 9714(a)(1). That statute provides for a mandatory minimum 

sentence for a defendant previously convicted of a crime of 

violence. The fact triggering [Appellant’s] mandatory minimum 

sentence was solely the existence of his prior conviction, which, 

under the law, need not be presented to a jury and proven 

beyond a reasonable doubt. As such, neither Alleyne nor 

Newman are applicable to [Appellant’s] case. The imposition of 

a mandatory minimum sentence on [Appellant] as a second 

strike offender was not unconstitutional. [Appellant] is not 

entitled to post-conviction relief, and no purpose would be 

served by any further proceedings.

PCRA Rule 907 Notice, 11/3/15, at 5. 
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Upon review, we conclude that the decision of the PCRA court is 

supported by the evidence of record and is free of legal error. Thus, 

Appellant’s legality-of-sentence claim does not merit relief. 

In response to Appellant’s trifold constitutional concerns—e.g., equal 

protection, due process, cruel and unusual punishment—we endorse the 

Commonwealth’s arguments:

[First,] equal protection objections to criminal recidivist statutes, 

those based upon prior conduct/convictions are subject to a 

rational basis analysis. . . . The underlying rational basis for 

imposing greater sentences upon recidivists is . . . to enhance 

punishment when the defendant has exhibited an unwillingness 

to reform his miscreant ways and to [conform] his life according 

to the law.

Commonwealth’s Brief at 8–9 (quoting Commonwealth v. Shawyer, 18 

A.3d 1190, 1197 (Pa. Super. 2011)). Here, Appellant has exhibited an 

unwillingness to reform his ways, to conform his life to the law, and to 

respect the value of human life.

Second, “Appellant’s due process claim is put forth with no specificity; 

he merely makes the bald assertion that his due process rights have been 

violated. . . . [T]he claim should be denied.” Commonwealth’s Brief at 9 

(citing Commonwealth v. Mann, 820 A.3d 788, 794 (Pa. Super. 2003)). 

See also Commonwealth v. Spotz, 896 A.2d 1191, 1229 (Pa. 2006) 

(“Other than making [a] bald assertion, Spotz does not direct the Court to 

any evidence to support his argument.”).
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Third, regarding Appellant’s cruel and unusual punishment claim, 

“there is no gross proportionality between the Appellant’s criminal conduct 

and the punishment imposed.” Commonwealths’ Brief at 12 (applying 

Commonwealth v. Baker, 78 A.3d 1044, 1051–1052 (Pa. 2013) (affirming 

that mandatory minimum sentence of twenty-five years as second offender 

for possession of child pornography did not violate prohibition against cruel 

and unusual punishment)). Here, Appellant pleaded guilty to attempted 

homicide as a repeat felony offender. His sentence of ten years for 

attempted homicide and his sentence of three and one-half years for the 

firearm violation were within the standard guideline ranges. Basic 

Sentencing Matrix (7th ed.), 204 Pa.Code § 303.16(a). Thus, we further 

conclude that Appellant’s aggregate sentence of thirteen and one-half to 

thirty years does not amount to cruel and unusual punishment and, 

therefore, is constitutionally sound.

In his second question presented, Appellant complains that the trial 

court erred in sentencing him (a) to a mandatory minimum sentence on the 

firearm charge where no notice of a sentencing enhancement was given and 

(b) to consecutive sentences. Appellant’s Brief at 8. The first complaint is 

belied by the record. Appellant did not receive a mandatory minimum or 

sentencing enhancement on the firearm conviction. Sentencing Guidelines 

Worksheet, 10/8/14. As the Commonwealth explains:

On the Firearm charge, a felony of the second degree, the 

maximum term of incarceration is ten years. 18 Pa.C.S. 
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§ 1103(2). On that charge, the Appellant received a sentence of 

three and one-half to ten years; he could have received five to 

ten years, so he received less than the statutory maximum.

Commonwealth’s Brief at 13. Thus, this claim does not merit relief.

The second complaint is a challenge to the discretionary aspects of 

Appellant’s sentence. See Commonwealth v. Moury, 992 A.2d 162, 169 

(Pa. Super. 2010) (claim that imposition of consecutive sentences was an 

abuse of discretion was a challenge to the discretionary aspects of 

sentencing). Requests for relief with respect to the discretionary aspects of 

sentence are not cognizable in PCRA proceedings. 42 Pa.C.S. § 9543(a)(2); 

Commonwealth v. Wrecks, 934 A.2d 1287, 1289 (Pa. Super. 2006). 

Accordingly, this claim does not afford Appellant relief.

In sum, Appellant’s various claims either lack merit or are not 

reviewable. Accordingly, we affirm the order dismissing his PCRA petition.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 8/11/2016