### J -S51029
- 20

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

v.
TODD DONALD ATKINSON

Appellant : : : : : : : : : IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 976 MDA 2020 Appeal from the PCRA Order Entered July 9, 2020 In the Court of Common Pleas of Lancaster County Criminal Division at

No(s): CP
- 36
-CR
- 0000336
- 2015
BEFORE: MURRAY, J., McLAUGHLIN, J., and McCAFFERY, J. MEMORANDUM BY McLAUGHLIN, J.: FILED FEBRUARY 17, 2021 Todd Donald Atkinson appeals pro se from the order dismissing his Post Conviction Relief Act (“PCRA”) petition
. See 42 Pa.C.S.A. § § 9541
-9546. We affirm based on the PCRA court’s opinion. The PCRA court aptly summarized the underlying facts: Atkinson was arrested on December 18, 2014, and charged with six counts of sexual abuse of children, child pornography, and one count of criminal use of communication facility. [ 1 ] 

### This criminal prosecution arose from a September 5, 2014, undercover investigation by the Pennsylvania State Police into internet sharing of child pornography that led to a computer, the IP address of which traced back to Quiche Amour, LLC, at the home address of Atkinson. When Atkinson was arrested on these charges, he was on probation for two counts of indecent assault of a person less than 13 years of age, criminal solicitation for indecent assault of a person less than 13 years of age, endangering the welfare of

_________________ ____________________ _______ 1 

### 18 Pa.C.S.A. §§ 6312(d), and 7512(a) , respectfully.

### J -S51029
- 20

- 2
-

children, corruption of minors, and indece nt exposure, and is a registered Tier I II Megan ’s Law offender. * * * A jury co nvicted Atkinson on all counts. He was ordered to undergo an assessment by the Sexual Offenders Assessment Board prior to sentencing. Atkinson was found to have not met the statutory criteria for sexually violent predator (SVP) status. On September 27, 2016, Atkinson was sentenced to 25 to 50 years of incarceration on each count of child pornography plus five years of probation for the charge of criminal use of communication faci lity. All sentences were to be served concurrently. No post
sentence motions were filed. A direct appeal to the Superior Court of Pennsylvania was filed on October 26, 2016, and a three
-judge panel of the Superior Court affirmed Atkinson’s judgment of sentence in an unpublished memorand um opinion on January 17, 2018. See Commonwealth v. Atkinson, 183 A.3d 1064 (Table) (Pa. Super. Jan. 17, 2018). See also Commonwealth v. Atkinson, 2018 WL [46096 2 ] (Pa. Super. Jan. 17, 2018). A petition for allowance of appea l was denied by the S upreme Court of Pennsylvania on June 22, 2018. Commonwealth v. Atkinson, 647 Pa. 24, 187 A.3d 912 (Table) (2018). * * * On August 12, 2019, Atkinson filed, pro se, a timely PCRA petition. In this petition, Atkinson challenges the legality of his mandatory minimum sentences in light of the United States Supreme Court’s 2013 decision in Alleyne v. United States, 570 U.S. 99 (2013), a nd trial and appellate counsels’ ineffectiveness in failing to raise the Alleyne violation. Pursuant to Rule 904(A) of the Pennsylvania Rules of Criminal Procedure, Dennis C. Dougherty, Esquire, was appointed on August 16, 2019, to represent Atkinson on his collateral claims, and granted leave to file an amended petition within 60 days . Counsel requested a 60
- day extension, which was granted on October 15, 2019. On Nove mber 1, 2019, Atkinson filed a “ Motion for Withdrawal of Appointed Counsel and to Proceed Pro Se,” citing “ irreconcilable conflict and difference of opinion on the manner in which this case should be litigated.” Motion for Withdrawal at 2
.

### J -S51029
- 20

- 3
-

Following a Grazier[ 2 ] 

### Hearing held via video
-conference on March 16, 2020, Atkinson’s motion to proceed pro se was granted, and Attorney Dougherty was granted leave to withdraw his appearance in this matter. PCRA Ct. Op. , 5/28/20 , at 1
- 5 (footnotes omitted)
. After denying a motion Atkinson filed regarding additional discovery, the PCRA court issued Rule 907 notice of intent to dismiss Atkinson’s petition without a hearing , together with an opinion dated May 28, 2020
. See Pa.R.Crim.P. 907. Atkinson filed a response, which the PCRA court treated as an amended PCRA petition. The PCRA court issued an order denying Atkinson’s petition on July 7, 2020 , based upon the reasoning set forth in its May 28, 2020 o pinion
. Atkinson filed a timely appeal and the PCRA court issued a Pa.R.A.P. 1925(a) opinion on July 20, 2020 relying on its earlier opinion. Atkinson raises the following issues: 1. Does the sentence imposed of a mandatory minimum sentence of 25 to 50 years violate the Apprendi[ 3 ] 

### and Alleyne Supreme Court decisions which are preserved and properly raised in [Atkinson’s] PCRA petition and supplemental PCRA petitions? 2. Did the decision[] in Commonwealth v. Muniz, [] 164 A.3d 1189 (Pa. 2017) apply to [Atkinson’s] case being he had a timely filed PCRA petition when Muniz was decided by the higher courts? 3. Did the trial court err by denying [Atkinson] an evidentiary hearing on the merits of his timely filed PCRA [petition] and should his case be remanded due to the illegal sentence imposed because of Judge based facts

_________________ ____________________ _______ 2 

### Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).
3 

### Apprendi v. New Jersey, 530 U.S. 466 (2000).

### J -S51029
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- 4 - not found by a jury beyond a reasonable doubt pursuant to Appendi v. New Jersey, (2000) and its progeny Alley ne v. United States, (2013)? 4. Is the mandatory minimum sentence imposed unconstitutional pursuant to Apprendi and Alleyne mandates, was trial counsel ineffective for failure to object to illegal and unconstitutional sentencing provisions imposed against [Atkinson]? 5. What statutes and provisions was [Atkinson] sentenced to and are these sentencing statutes and provisions unconstitutional and must they be vacated on remand? 6. Does the following case [ law] apply to [Atkinson’s] case and warrant a remand and vacating of the illegal sentence [ : ] Commonwealth v. Wolf e, 2014 Pa.Super. Lexis 4977 (2014) ; Alleyne v. United States, 133 S.Ct 2151 (2013); Commonwealth v. Newman, 99 A.3d 86 (Pa.Super. 2014); Apprendi v. New Jer sey, (2000); Commonwealth v. Golson (Pa.Super[. ] June 4, 2018); Commonwealth v. Butcher, 2019 Pa.Super unpub
. LEXIS 2208; Commonwealth v. Muniz, . . . 164 A.3d 1189 (Pa. 2017)? 7. Does [Atkinson] deserve a “reduction of sentence” consistent with the recent decision in Muniz as offense grading had been downgraded? 8. Is [Atkinson’s] sentence pursuant to 42 Pa.C.S.A. § 9799.14 illegal and subject to remand and resentencing due to the Sixth Amendment violation and unconstitutional statutes? 9. [Atkinson] was denied effective assistan ce of counsel due to counsel’s failure to object to the unconstitutional minimum and maximum sentencing provisions when Alleyne was decided before [Atkinson’s] sentencing? [sic] 10. Trial and sentencing counsel was ineffective for failing to object to the illegal sentence the court was imposing as clearly unconstitutional in light of Supreme Court ruling in Alleyne any “facts” that increases [sic] the minimum or maximum sentence must be charged in the

### J -S51029
- 20

- 5 - information and submitted to the jury and proven beyond a reasonable doubt standard? [sic] Atkinson ’s Br. at 5
- 7 (numbering and case italicization added)
. “Our standard of review for an order denying PCRA relief is whether the record supports the PCRA court’s determination, and whether the PCRA court’s determination is free of legal error.” Commonwealth v. Phillips, 31 A.3d 317, 319 (Pa.Super. 2011). In this case, although he presents ten issues, Atkinson’s claims all concern his contention that the trial court imposed an illegal sentence pursuant to Alleyne
. 4 

### He maintains that because the trial court imposed a mandatory minimum sentence for repeat sex offenders pursuant to 42 Pa.C.S.A. § 9718.2, his constitutional rights were violated. Likewise, he argues that his trial counsel was ineffective for failing to raise this issue. The PCRA court found Atkinson’s Alleyne claim lacked merit because the trial court sentenced him based upon his prior convictions. “Alleyne held

_________________ ____________________ _______ 4 

### Atkinson’s pro se brief fails to comply with the Pennsylvania Rules of Appellate Procedure because he presents all argument in one section instead of separate sections for each issue. See Pa.R.A.P. 2119(a) (stating that the argument section of the parties’ briefs “shall be divided into as many parts as there are questions to be argued; and shall have at the head of each part
-- in distinctive type or in type distinctly displayed
--the particular point treated therein, followed by such discussion and citation of authorities as are deemed pertinent”). Nevertheless, because the failings of Atkinson’s brief do not hamper our review, we decline to find his issues waived. However, to the extent that Atkinson attempts to present other, unrelated arguments for the first time in his appellate brief, we find these thinly developed issues waived. See Pa.R.A.P. 302(a); Commonwealth v. Murchinson, 899 A.2d 1159, 1162
- 63 (Pa.Super. 2006) (stating appellant waives issues under Rule 2119(a) where appellant does not develop mea ningful argument with specific references to relevant case law and the record to support claims).

### J -S51029
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- 6
-

that any fact th at, 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, 142 A.3d 810, 812 (Pa. 2016) (citation omitted). However, “[p] rior convictions are the remaining exception to Apprendi . . . and Alleyne . . . insofar as a fact finder is not required to determine disputed convictions beyond a reasonable doubt to comport with the Sixth Amendment jury trial right.” Commonwealth v. Golson, 189 A.3d 994, 1002 (Pa.Super. 2018) (citations omitted) (upholding imposition of 25 to 50 year mandatory minimum pursuant to Section 9718.2 based upon a prior conviction). After a review of the parties’ briefs, the certified record, and the relevant law, we find no error in the trial court’s analysis. The PCRA court properly found, in its May 28, 2020 opinion, that Atkinson’s issue lacked merit because the trial court sentenced him to a mandatory minimum sentence, under Section 9718.2 of the sentencing code, due to past convictions. Thus, we affirm based on the well
- reasoned opinion of the Honorable David L. Ashworth. See PCRA Ct. Op. at 6
-8
. Order affirmed. Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary Date: 02/17/20211_Opinion and Notice

Circulated 01/29/2021 05:08 PM

IN THE COURT OF COMMON PLEAS OF 

### LANCASTER COUNTY, PENNSYLVANIA 

## CRIMINAL
COMMONWEALTH OF 

### PENNSYLVANIA

:
v. TODD DONALD 

### ATKINSON 

## OPINION

BY: 

### ASHWORTH, P.J., MAY 28, 2020 No. 

### 0336-2015

Todd Donald Atkinson has filed, pro se, a petition 

### pursuant to 

### the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. For 

### the reasons set forth below, Atkinson is being notified pursuant to section 907 of the PCRA that this petition will be dismissed in 30 days 

### without a 

### hearing.'

I. 

### Background
Atkinson was arrested on December 18, 2014, and charged with six counts of sexual abuse 

### of children, child pornography, and one count of criminal use 

# f

communication facility.2 This criminal prosecution arose from a 

### September 5, 2014, undercover investigation by the Pennsylvania State Police into internet sharing of child pornography 

### that led to a computer, the IP address 

### of which traced back to Quiche Amour, LLC, at the home address of Atkinson.

'Under Rule 907 

# f the Pennsylvania Rules of Criminal Procedure, a PCRA court may dispose of post conviction collateral relief petitions without a hearing if it is satisfied after reviewing the materials submitted that no genuine issues of material fact exist and that the petitioner is not entitled to post conviction relief. Pa.R.Crim.P. 907(1).
218 Pa.C.S.A. § 6312(d), and 18 Pa.C.S.A. § 7512(a), respectively.1_Opinion and Notice



### When Atkinson was arrested on 

### these charges, he was on 

### probation for two counts 

### of indecent assault 

### of a person less than 13 

### years 

### of age, criminal solicitation 

### for indecent assault 

### of a person less than 13 

### years 

### of age, 

### endangering the welfare 

### of children, 

### corruption of minors, and 

### indecent exposure,3 and is a 

### registered 

### Tier Ill Megan's Law offender.4 On June 25, 2015, 

### Atkinson filed an 

### omnibus pre-trial motion seeking to suppress certain evidence seized by 

### the police during the execution 

### of a search warrant at 

### Atkinson's home, as well as statements made by 

### Atkinson to 

### the police at 

### that 

### time.' Atkinson 

### further sought to 

### suppress all evidence resulting from the search 

### of a business property belonging to Atkinson's wife, on 

### the basis that 

### the consent given by his wife 

### for the search was not voluntarily. Following a hearing on 

### November 4, 2015, separate orders were entered on 

### November 30, 2015, denying the suppression motion and motion in limine 

### after finding that (1) there was sufficient 

### probable cause 

### for the warrant 

### for the search 

### of Atkinson's home, (2) 

### Atkinson's statement regarding past viewing 

### of child 

### pornography in the home was not the result 

### of custodial interrogation, and (3) 

### Atkinson's wife's consent to the search 

### of her business was voluntary. On the 

### first day 

### of trial in April 2016, scheduled before the Honorable James P. Cullen, now retired, 

### Atkinson filed motions to reopen the 

### suppression hearing and to

318 Pa.C.S.A. § 3126(a)(7), 18 Pa.C.S.A. § 902(a), 18 Pa.C.S.A. § 4304(a)(1), 18 Pa.C.S.A. § 6301(a)(1), and 18 Pa.C.S.A. § 3127(a), respectively. 442 Pa.C.S.A. § 9799.14(d). 50n the same date, June 25, 2015, Atkinson also filed a motion in limine to exclude the statements made by Atkinson to the police during the execution of a search warrant that he had viewed child pornography in the past. 21_Opinion and Notice

exclude his 

### statement about viewing child pornography in 

### the past. 

### Judge Cullen denied 

### these motions, and trial 

### commenced. A 

### jury convicted 

### Atkinson on all counts. He 

### was ordered to undergo an 

### assessment by the Sexual Offenders 

### Assessment Board prior 

### to sentencing. Atkinson was found to have not met the 

### statutory criteria 

### for sexually violent 

### predator (SVP) status. On 

### September 27, 2016, Atkinson was sentenced to 25 to 50 years 

### of incarceration on each 

### count 

### of child 

### pornography' plus five 

### years 

### of probation 

### for the charge 

### of criminal use 

### of communication facility. All 

### sentences were to be served concurrently. No post-sentence motions were filed. A direct appeal to 

### the Superior Court 

### of Pennsylvania was filed on 

### October 26, 2016, and a 

### three-judge panel 

### of the Superior 

### Court affirmed 

### Atkinson's judgment 

### of sentence in an 

### unpublished memorandum opinion on 

### January 17, 2018.7 See 

### Commonwealth v. 

### Atkinson, 183 

### A.3d 1064 (Table) (Pa. 

### Super. Jan. 17, 2018). See also 

### Commonwealth v. 

### Atkinson, 2018 WL 4460962 (Pa. Super. Jan. 17, 2018). 

### A petition for allowance 

### of appeal was denied by the Supreme Court 

### of Pennsylvania on June 22, 2018. 

### Commonwealth v. 

### Atkinson, 647 Pa. 24, 187 A.3d 912 (Table) (2018). 

### Atkinson was represented during his pre-trial, trial and appeal by privately- retained counsel, M. 

### Alexandra Bradley, Esquire, and 

### Adam W. Bompadre, Esquire, from the 

### West Chester, Pennsylvania firm 

### of Lee A. Ciccarelli, P.C.

6This was the mandatory minimum sentence for a second offense pursuant to 42 Pa.C.S.A. § 9718.2(a)(1). For sentencing purposes, under 42 Pa.C.S.A. § 9799.14(6), (14), Atkinson's prior conviction under 18 Pa.C.S.A. § 3126(a)(7) and his convictions under 18 Pa.C.S.A. § 6312(d) constituted tier one sexual offenses. See 

### Commonwealth v. Colon - Plaza, 136 A.3d 521 (Pa. Super. 2016). 'Atkinson raised just one issue on appeal: whether the court erred in denying his motions in limine and admitting, over defense objection at trial, Atkinson's statement that he had viewed child pornography in the past. 31_Opinion and Notice

On 

### August 12, 2019, 

### Atkinson filed, pro se, a 

### timely' PCRA petition. In this petition, 

### Atkinson challenges the legality 

### of his 

### mandatory minimum sentences in light 

### of the United States Supreme Court's 2013 decision in 

### Alleyne v. 

### United States, 570 U.S. 99 (2013),9 and trial and 

### appellate counsels' ineffectiveness in 

### failing to raise the 

### Alleyne violation. Pursuant to Rule 904(A) 

### of the 

### Pennsylvania Rules 

### of Criminal Procedure, Dennis C. Dougherty, Esquire, was appointed on 

### August 16, 2019, to 

### represent Atkinson on his 

### collateral claims, and granted leave to file an amended
'For purposes of the PCRA, a judgment of sentence becomes final at the conclusion of direct review, which includes discretionary review in the Supreme Court of the United States and the Supreme Court of Pennsylvania, or at the expiration of the time for seeking such review. 42 Pa.C.S.A. § 9545(b)(3). 

### See also Commonwealth v. Jones, 54 A.3d 14, 17 (Pa. Super. 2012). A petitioner who seeks review in the U.S. Supreme Court has 90 days to do so after the Pennsylvania Supreme Court enters an order denying relief. Commonwealth v. Monaco, 996 A.2d 1076, 1081 n.2 (Pa. Super. 2010); U.S. Sup.Ct.R. 13 (providing "[a] petition for writ of certiorari seeking review of a judgment of a lower state court that is subject to discretionary review by the state court of last resort is timely when filed with the Clerk within 90 days after entry of the order denying discretionary review."). 

### See also Commonwealth v. Fairiror, 809 A.2d 396, 398 (Pa. Super. 2002) (statute of limitations for filing petition for post conviction relief did not begin to run until defendant's period for filing petition for certiorari in the United States Supreme Court lapsed). As noted above, Atkinson's judgment of sentence was affirmed by the Superior Court on January 17, 2018, and his petition for allowance of appeal was denied by the Supreme Court of Pennsylvania on June 22, 2018. Pursuant to section 9545(b)(3), Atkinson's judgment of sentence became final for PCRA purposes 90 days later 

# - on or about September 17, 2018 

# - when the time expired for Atkinson to file a petition for certiorari with the Supreme Court of the United States. 

### See 42 Pa.C.S.A. § 9545(b)(3); U.S. Sup.Ct.R. 13. Accordingly, Atkinson had one year from September 17, 2018, in which to file a timely PCRA petition. His petition was filed on August 12, 2019 and, thus, is timely.
9In Alleyne, the United States Supreme Court held "[a]ny fact that, by law, increases the penalty for a crime is an 'element' that must be submitted to the jury and found beyond a reasonable doubt." 570 U.S. at 102. Owens' mandatory minimum sentences were imposed pursuant to sections 7508 and 6317 of the Crimes Code, which have been deemed unconstitutional pursuant to Alleyne. 

### See Commonwealth v. DiMatteo, 644 Pa. 463, 478, 177 A.3d 182, 191 (2018) (holding 42 Pa.C.S.A. § 7508 unconstitutional because it allowed a judge to increase a sentence for conviction of drug offenses based on the weight and classification of the controlled substance); Commonwealth v. Hopkins, 632 Pa. 36, 55-56, 117 A.3d 247, 258- 59 (2015) (holding 42 Pa.C.S.A. § 6317 unconstitutional because it allowed a judge to increase a sentence for conviction of drug offenses based on the occurrence of the offense within 1,000 feet of a school). 41_Opinion and Notice

petition within 60 days. Counsel requested a 60-day extension, which was granted on 

### October 15, 2019. On 

### November 1, 2019, 

### Atkinson filed a "Motion 

### for Withdrawal of Appointed Counsel and to Proceed Pro Se," citing "irreconcilable conflict and 

### difference 

### of opinion
on 

### the manner in which this case should be litigated." Motion 

### for Withdrawal at 

### ¶ 2. Following a 

### Grazierl° Hearing held via video-conference on March 16, 2020,11 

### Atkinson's motion to proceed 

### pro se 

### was granted, and 

### Attorney Dougherty was granted leave to 

### withdraw his 

### appearance in this matter. On 

### November 18, 2019, 

### Atkinson filed, 

### pro se, a "Motion 

### for Discovery Pursuant to Pa.R.Cr.P. 573(B)." This motion was originally stayed pending the scheduled 

### Grazier hearing. On March 16, 2020, 

### Atkinson's motion 

### for PCRA discovery was denied, pursuant to Pa.R.Crim.P. 902(E)(1).12



### "'Commonwealth v. Grazier, 552 Pa. 9, 713 A.2d 81 (1998) (when a waiver of the right to counsel is sought at the post-conviction and appellate stages, an on -the-record determination must be made that the waiver is a knowing, intelligent and voluntary one). 

### "The hearing was originally scheduled for January 9, 2020, but had to be rescheduled due to video problems at SCI -Forest. 12Under Rule 902(E)(1), which applies in all cases except on the first counseled petition in a death penalty case, "no discovery shall be permitted at any stage of the [PCRA] proceedings, except upon leave of court after a showing of exceptional circumstances." Pa.R.Crim.P. 902(E)(1). Neither the PCRA nor the Rules of Criminal Procedure define the term "exceptional circumstances." Commonwealth v. Frey, 41 A.3d 605, 611 (Pa. Super. 2012). Rather, it is for the trial court, in its discretion, to determine whether a case is exceptional and warrants discovery. Id. See also 

### Commonwealth v. Watley, 153 A.3d 1034, 1048 (Pa. Super. 2016). Here, Atkinson's discovery requests failed to meet the burden of demonstrating exceptional circumstances. He made only the bald assertion that "[t]he material requested recordsO are very important and necessary, pertinent of pending appeals in Federal Court." Motion for Discovery at 

### li 2. He failed to demonstrate how the requested documents were exculpatory, or why the discovery requests were exceptional. As the five issues raised in this PCRA petition relate to the legality of his mandatory minimum sentences in light of Alleyne, the requested discovery simply has no bearing on this case. 51_Opinion and Notice

II. 

### Discussion
Atkinson claims in 

### the instant PCRA petition that the court imposed unconstitutional mandatory sentences for his sexual 

### abuse 

### of children, child 

### pornography convictions and 

### that he should be granted 

### relief since this legality 

### -of - sentence issue is 

### cognizable under the 

### PCRA." He 

### further contends all prior counsel
were ineffective in 

### failing to 

### challenge his illegal sentence. In 

### Alleyne, the United States 

### Supreme Court established that "[a]ny fact that, by law, increases the penalty 

### for a crime is an 

### 'element' that must be 

### submitted to the 

### jury and found beyond a 

### reasonable doubt." 

### Alleyne, 570 U.S. at 102. Applying 

### Alleyne, the courts 

### of this Commonwealth have 

### determined our mandatory minimum sentencing statutes are 

### unconstitutional where the language 

### of those statutes 'permits the trial court, as 

### opposed to 

### the jury, to 

### increase a 

### defendant's minimum sentence based upon a 

### preponderance 

### of the evidence' standard. 

### Commonwealth v. 

### Golson, 189 A.3d 994, 1000 (Pa. Super. 

### 2018) (citing 

### Commonwealth v. 

### Newman, 99 A.3d 86, 98 (Pa. Super. 2014)). The United 

### States Supreme Court, however, has recognized a narrow exception to this rule. Prior convictions, by 

### their very nature, 

### already result from 

### the submission 

### of facts to a 

### factfinder under the beyond-a 

### -reasonable doubt standard. As 

### our Superior Court noted in 

### Commonwealth v. 

### Miller, 102 A.3d 988 (Pa. Super. 2014):
"Issues pertaining to Alleyne go directly to the legality of the sentence and are cognizable. 

### Commonwealth v. Lawrence, 99 A.3d 116, 123 (Pa. Super. 2014). Retroactivity is not an impediment here where Atkinson's sentence of September 27, 2016, was imposed after Alleyne was decided, and Atkinson filed a timely PCRA petition. See Commonwealth v. Ruiz, 131 A.3d 54, 59-60 (Pa. Super. 2015) (a defendant can raise an Alleyne challenge in a timely PCRA petition so long as his judgment of sentence was not yet final when Alleyne was decided on June 17, 2013). 61_Opinion and Notice

The [United States] Supreme Court's decision in 

### Almendarez-Torres v. 

### United States, 523 U.S. 224

... (1998)[,] held 

### that the fact 

### of a prior conviction does not need to be submitted to the 

### jury and 

### found beyond a 

### reasonable doubt. Id. at 246.... 

### Alleyne explicitly noted 

### that 

### Almendarez-Torres remains 

### good law. See 

### Alleyne, supra at [111] n.1 (stating, "[i]n 

### Almendarez-Torres, we recognized a narrow exception

... 

### for the fact 

### of a prior conviction"). Id. at 995 n.5. Accordingly, mandatory-minimum sentences based on 

### prior convictions inherently satisfy the requirements of 

### Alleyne. See 

### Golson, supra at 

### 999-1000 (upholding imposition 

### of mandatory 25 to 50 

### year mandatory minimum pursuant to Section 

### 9718.2 based upon a 

### prior conviction); see also 

### Commonwealth v. 

### Resto, 645 Pa. 196, 201 n.1, 179 A.3d 18, 21 n.1 (2018) (plurality) (noting that "under prevailing federal jurisprudence, [previous] convictions are not treated as a type 

### of fact implicating 

### Alleyne"); 

### Commonwealth v. 

### Bragg, 133 A.3d 328, 333 (Pa. Super. 2016), affirmed, 642 Pa. 13, 169 A.3d 1024 (2017) 

### (per curiam) (acknowledging 

### that the United States Supreme Court has recognized a "narrow exception" to 

### Alleyne for prior convictions). Atkinson was sentenced pursuant to section 9718.2 

### of the Sentencing Code which provides 

### for a 25

### -year mandatory minimum sentence 

### for repeat sex offenders. Section 9718.2(a) states: (a) 

### Mandatory sentence.-- (1) 

### Any person who is convicted in any 

### court 

### of this 

### Commonwealth of an 

### offense set forth in 

### section 9799.14 (relating to sexual 

### offenses and 

### tier system) shall, 

### if at the time 

### of the commission of the current offense the person had 

### previously been convicted 

### of an 

### offense set forth in section 9799.14 or an equivalent crime under the laws 

### of this 

### Commonwealth in 

### effect at the time 

### of the commission 

### of that offense or an 

### equivalent crime in 

### another jurisdiction, be 

### sentenced to a minimum sentence 

### of at least 25 years 

### of total confinement, notwithstanding any 

### other provision 

### of this title or 

### other statute to the contrary. Upon such conviction, the 

### court shall give 

### the person oral and written notice 

### of the penalties under paragraph (2) 

### for a third
71_Opinion and Notice

conviction. Failure to provide such notice shall not render the 

### offender ineligible to be 

### sentenced under paragraph (2). 42 Pa.C.S.A. § 9718.2 (emphasis added). The 

### fact that can 

### trigger the mandatory- minimum sentence set forth in Section 9718.2(a)(1) is a 

### prior conviction. Accordingly, Section 9718.2(a)(1) can never run afoul 

### of Alleyne. Atkinson does not dispute 

### that he 

### was convicted previously 

### of qualifying offenses under this statute, specifically, indecent assault 

### of a person less than 13 

### years 

### of age and corruption 

### of minors.14 

### Accordingly, Atkinson was subject to 

### mandatory sentences
as a repeat offender. His sentence is not illegal and does not violate 

### Alleyne.
In his second issue, 

### Atkinson avers that all prior counsel rendered ineffective assistance in 

### failing to 

### challenge the legality 

### of Atkinson's sentences pursuant to 

### Alleyne. The underlying claim lacks merit 

### for the reasons discussed above, in 

### connection with 

### Atkinson's first issue. Thus, 

### trial and 

### appellate 

### counsel cannot be deemed ineffective 

### for failing to 

### raise 

### this issue. See 

### Commonwealth v. 

### Treiber, 632 Pa. 449, 466, 121 A.3d 435, 445 (2015) (stating 

### that "counsel 

### cannot be deemed ineffective 

### for failing to raise a meritless claim").


### Ill. 

### Conclusion
For the reasons set 

### forth above, Todd Donald 

### Atkinson's pro se petition for post conviction relief will be dismissed, without a hearing, in 30 days, during which time Atkinson may file an amended petition or otherwise respond to this Rule 907 Notice. Accordingly, I 

### enter the following:

'418 Pa.C.S.A. § 3126(a)(7), and 18 Pa.C.S.A. § 6301(a)(1), respectively. 81_Opinion and Notice

IN THE COURT OF COMMON 

### PLEAS OF 

### LANCASTER COUNTY, 

### PENNSYLVANIA 

## CRIMINAL
COMMONWEALTH OF 

### PENNSYLVANIA

:
v. TODD DONALD ATKINSON No. 

### 0336-2015

Pa. 

### R.CRIM.P. 907 NOTICE
TO: TODD DONALD ATKINSON Date: MAY 28, 2020 You are hereby advised that, 

### after a review 

### of your pro se PCRA Petition and 

### the matters 

### of record relating to 

### your claims, 

### your request 

### for post-conviction 

### relief will be denied 

### without further proceedings, in 30 days from the date 

### of this Notice, 

### for the following reasons:
1. There are no genuine issues concerning any material fact; 2. You are not entitled to post-conviction collateral relief; and 3. No 

### purpose would be served by 

### any 

### further proceedings. 

### If you 

### wish to 

### file an 

### amended 

### petition or to 

### otherwise respond to 

### this Notice, you 

### must do 

### so 

### within 30 

### days 

### of the date 

### of this Notice.

ADA

" 

### PR SIDENT 

### JUDGE Copies to: Mari L. Andracchio, 

### Assistant District 

### Attorney Todd Donald Atkinson, #MS 0675, SCI -Forest, P.O. Box 307, 286 

### Woodland Drive, Marienville, PA 16239-03072_Order Denying Amended -Petition for Post-Conviction Collateral Relief

IN THE COURT OF COMMON 

### PLEAS OF 

### LANCASTER COUNTY, 

### PENNSYLVANIA CRIMINAL
COMMONWEALTH OF 

### PENNSYLVANIA

v. TODD DONALD ATKINSON No. 0336-2015 L



### ORDER AND NOW, 

### this 7th day 

### of July, 2020, upon 

### consideration of Todd Donald 

### Atkinson's "Objection and 

### Response to 907 Intent to Dismiss PCRA Petition and 

### Alleyne Challenge", which the Court deems an 

### Amended Petition for 

### Relief Pursuant to the Post Conviction 

### Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-46, and 

### for the reasons set forth in this 

### Court's Opinion 

### of May 28, 2020, it is hereby ORDERED that Petitioner's Amended PCRA Petition is DENIED without a hearing. Pursuant to 

### Pa.R.Crim.P. 908(E), this Court advises Petitioner 

### that he has the right to 

### appeal from this Order. 

### Petitioner shall have 30 days from the 

### date of this final Order to appeal to the Superior 

### Court 

### of Pennsylvania. Failure to appeal within 30 days will result in 

### the loss 

### of appellate rights. It is 

### further ORDERED that Petitioner shall have the right, if indigent, to appeal in forma pauperis.

ORTH P SIDENT JUDGE