Opinion
579 MDA 2023 J-A23027-23
02-06-2024
COMMONWEALTH OF PENNSYLVANIA v. AARON WALTER ROBINSON Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
Appeal from the PCRA Order Entered April 4, 2023 In the Court of Common Pleas of Lancaster County Criminal Division at No(s): CP-36-CR-0001681-2012
BEFORE: LAZARUS, J., McLAUGHLIN, J., and STEVENS, P.J.E. [*]
MEMORANDUM
McLAUGHLIN, J.
Aaron Walter Robinson appeals from the order denying his Post Conviction Relief Act ("PCRA") petition. See 42 Pa.C.S.A. §§ 9541-9546. He presents a layered ineffectiveness claim, alleging the ineffectiveness of PCRA and resentencing counsel. We affirm.
In 2013, a jury convicted Robinson of three counts of robbery, two counts of kidnapping, and one count each of criminal conspiracy, theft by extortion, and unlawful restraint. The trial court sentenced Robinson to 36 to 72 years' incarceration. We affirmed the judgment of sentence and our Supreme Court denied allowance of appeal. Commonwealth v. Robinson, 104 A.3d 60, 1281 MDA 2013 (Pa.Super. filed May 27, 2014) (unpublished memorandum), appeal denied, 104 A.3d 525, 446 MAL 2014 (Pa. filed December 10, 2014). Following the appeal from a timely PCRA petition, this Court vacated Robinson's judgment of sentence and remanded for resentencing pursuant to Alleyne v. United States, 570 U.S. 99 (2013).
18 Pa.C.S.A. §§ 3701(a)(1)(ii), 2901(a)(2), 903(a)(1), 3923(a)(1), and 2902(a)(1), respectively.
The trial court held a resentencing hearing on April 18, 2019. The court stated that "the Superior Court remanded this case for resentencing, according to their opinion, because of a belief that I had somehow imposed a mandatory sentence with regard to the possession of a gun." N.T., Resentencing Hearing, 4/18/19, at 2. It noted "that there is a mandatory ten to 20 years on each of six of the offenses," specifically for Robinson's robbery, conspiracy, and kidnapping convictions. Id. at 3. It also stated that the hearing was "not a time to re-evaluate or assess how [Robinson] is doing now versus then versus the charges versus the sentences." Id. at 10. Defense counsel, Attorney Christopher Lyden, stated that under Commonwealth v. Motley, 177 A.3d 960, 963 n.2 (Pa.Super. 2018), the trial court had "discretion to impose an aggregate sentence that is essentially the same or even less[,]" and "that may be the fairest thing to do under the circumstances[.]" Id. at 5. Robinson expressed that he understood the 10-year mandatory minimum and asked that the court impose concurrent sentences. Id. at 8.
The court incorporated by reference all its comments from the original sentencing hearing and reviewed the Pre-Sentence Investigation ("PSI") report. Id. at 3, 10. It noted that "the PSI and the prior record confirms that essentially [Robinson] was, at the time, a career criminal." Id. at 10. It further stated that "[t]hese were very clearly crimes of violence which placed people's lives in danger and created a risk of bodily injury, serious bodily injury, or death." Id. at 11. Before imposing sentence, the court stated the following:
I have considered, again, the pre-sentence investigation report that I have received and all of the documents in detail. I have considered the guidelines of the Sentencing Code. I've considered Title 42, Section 9714 and relevant case law. I have considered the arguments of counsel, the statements of [Robinson], the penalties authorized by the legislature.
Because of prior contacts with the [c]ourt, the [c]ourt believes that society needs to be protected and there needs to be a deterrence.
I have heard [Robinson's] comments here today and I take them to heart. Regrettably, Mr. Robinson, the decision you made at that time impact[s] the sentence that's being imposed here today. There is no doubt that this sentence and your incarceration adversely affects your children, and that is truly unfortunate and tragic. I want you to understand that I hear what you say and I hear what you've said, but the nature of these charges are such that I simply cannot ignore the sentences that must be imposed pursuant to the statute.
Because of prior contact with the [c]ourt, as indicated, incarceration is warranted because a lesser sentence would depreciate the seriousness of the crimes.
The discretion that I have with regard to consecutive versus concurrent, obviously, significantly impacts the sentence that is imposed here today.Id. at 11-12. The court imposed an aggregate sentence of 34 to 68 years' incarceration. The sentences imposed for each conviction are as follows:
• Count 1 - Robbery: 10 to 20 years' incarceration (consecutive)
• Count 2 - Robbery: 10 to 20 years' incarceration (consecutive)
• Count 3 - Robbery: 10 to 20 years' incarceration (concurrent)
• Count 4 - Criminal Conspiracy: 10 to 20 years' incarceration (concurrent)
• Count 5 - Kidnapping: 10 to 20 years' incarceration (consecutive)
• Count 6 - Theft by Extortion: two to four years' incarceration (consecutive)
• Count 7 - Kidnapping: 10 to 20 years' incarceration (concurrent)
• Count 8 - Unlawful Restraint: two to four years' incarceration (consecutive)See id. at 12-13.
Robinson filed a direct appeal that we dismissed because counsel failed to file a brief. See Commonwealth v. Robinson, 684 MDA 2019 (per curiam order). Following a timely PCRA petition raising an ineffective assistance claim for counsel's failure to file an appellate brief, the PCRA court granted the petition and reinstated Robinson's appellate rights. On appeal, represented by Attorney Randall Miller, Robinson claimed that his sentence was illegal due to the Commonwealth's alleged failure to give notice that it was seeking the second strike mandatory minimum sentence. See Commonwealth v. Robinson, 240 A.3d 947 (Table), 2 MDA 2020 (Pa.Super. filed September 24, 2020) (unpublished memorandum). We affirmed the judgment of sentence, and our Supreme Court denied allowance of appeal. See Commonwealth v. Robinson, 252 A.3d 590 (Table) (Pa. filed April 12, 2021).
Robinson filed the instant timely PCRA petition in May 2021 alleging that Attorney Lyden was ineffective. The court appointed counsel who filed an amended PCRA petition claiming that Attorney Lyden was ineffective for failing to make any argument to the court to impose a lesser sentence. Amended PCRA Petition, filed 9/9/21, at ¶ 26. He claimed that counsel could have referenced mitigating factors such as Robinson's behavior in prison and his participation in programs while incarcerated. See id. at ¶ 27. He also claimed that counsel was ineffective for failing to raise the court's alleged error in departing from the Sentencing Guidelines for his theft and unlawful restraint convictions. See id. at ¶ 30.
The PCRA court issued notice of its intent to dismiss the petition without a hearing pursuant to Rule 907 but gave Robinson time to file an amended petition. See Pa.R.Crim.P. 907(1); Pa.R.Crim.P. 907 Notice and Opinion, filed 12/19/22. In a second amended petition, Robinson claimed that PCRA counsel, Attorney Miller, was ineffective for failing to raise Attorney Lyden's ineffectiveness. See Amended Petition for Post-Conviction Collateral Relief, filed 1/23/23, at ¶ 41. The PCRA court dismissed the petition and this timely appeal followed. See Opinion, 4/4/23.
Robinson raises one issue: "Should this Court find re-sentencing counsel ineffective where he failed to make argument on behalf of his client for a lesser sentence and where he failed to make argument that a deviation from the Sentencing Guidelines lacked proper basis?" Robinson's Br. at 4 (answer of trial court omitted).
Our standard of review of an order denying PCRA relief is limited to determining "whether the PCRA court's determination is supported by evidence of record and whether it is free of legal error." Commonwealth v. Hart, 199 A.3d 475, 481 (Pa.Super. 2018) (citation omitted).
We presume counsel's effectiveness. Commonwealth v. Ousley, 21 A.3d 1238, 1244 (Pa.Super. 2011). To overcome this presumption, a petitioner must establish: "(1) his underlying claim is of arguable merit; (2) counsel had no reasonable basis for his action or inaction; and (3) the petitioner suffered actual prejudice as a result." Commonwealth v. Spotz, 84 A.3d 294, 311 (Pa. 2014). Prejudice may be shown where the petitioner establishes "that there is a reasonable probability that the outcome of the proceedings would have been different but for counsel's ineffectiveness." Commonwealth v. Chmiel, 30 A.3d 1111, 1127-28 (Pa. 2011). "The failure to prove any one of the three [ineffectiveness] prongs results in the failure of petitioner's claim." Ousley, 21 A.3d at 1244 (citation omitted). A petitioner raising a layered ineffectiveness claim must plead and prove the prior counsel's ineffectiveness. See Commonwealth v. Montalvo, 205 A.3d 274, 286 (Pa. 2019). "[I]f the petitioner cannot prove the underlying claim of trial counsel ineffectiveness, then petitioner's derivative claim of appellate counsel ineffectiveness of necessity must fail[.]" Chmiel, 30 A.3d at 1128.
Robinson claims that Attorney Lyden was ineffective for failing to argue for a lesser sentence, which he likens to "the functional equivalent of having no representation[.]" Robinson's Br. at 12. He maintains that there were mitigating factors that Attorney Lyden could have raised, including his behavior in prison. He claims that Attorney Lyden also failed to argue that the sentencing court's departure from the Sentencing Guidelines for his theft and unlawful restraint convictions was "without proper justification." Id. Robinson claims that these errors were not rational or tactical and prejudiced him from being able to "have an advocate advance arguments on his behalf and . . . to challenge the discretionary aspects of his sentence . . ." on appeal. Id. at 13. Robinson further argues that Attorney Miller was ineffective in turn, for failing to raise Attorney Lyden's ineffectiveness.
Robinson fails to show any prejudice from counsel's failure to argue for a lesser sentence and to bring alleged mitigating factors to the court's attention. Any failure to bring up Robinson's performance in prison since his original sentencing occasioned him no prejudice. Moreover, the court reviewed the PSI and therefore was aware of Robinson's mitigating factors. See Commonwealth v. Watson, 228 A.3d 928, 936 (Pa.Super. 2020) ("Where [PSI] reports exist, we . . . presume that the sentencing judge was aware of relevant information regarding the defendant's character and weighed those considerations along with mitigating statutory factors") (citation omitted). The court incorporated its reasoning from the original sentencing hearing and explained that for six of the eight counts, a mandatory minimum sentence of ten years attached. Furthermore, the court explained that its discretion to impose concurrent versus consecutive terms impacted the sentence it would impose. Thus, Robinson fails to show that but for Attorney Lyden's alleged error, there is a reasonable probability of a different outcome.
As for Robinson's claim that Attorney Lyden was ineffective for failing to challenge the trial court's departure from the Sentencing Guidelines, the underlying challenge lacks arguable merit. The trial court concluded that "the record establishes that adequate reasons for deviating from the [S]entencing [G]uidelines were provided by the court and there was no abuse of its discretion in imposing a sentence which was two to four years less than the original sentence that was affirmed by the Superior Court." Pa.R.Crim.P. 907 Notice and Opinion, filed 12/19/22, at 20 (unpaginated). We agree.
The PCRA court relied on its opinions from December 19, 2022 (Rule 907 Opinion) and April 4, 2023 (opinion denying PCRA Petition) in lieu of a Rule 1925(a) Opinion. See Pa.R.A.P. 1925(a) Memorandum of Opinion, filed 4/21/23.
At the re-sentencing hearing, the court stated that Robinson's crimes were violent and "created a risk of bodily injury, serious bodily injury, or death." N.T., Re-Sentencing, at 11. Moreover, at the original sentencing hearing, the court commented on the deliberate nature of Robinson's crimes.
Mr. Robinson, by your actions, you have demonstrated that you are a predator on the community. Whether you choose to accept that moniker or not, that is exactly what your actions have demonstrated.
You didn't just do this one time. We are not talking about a poor decision, robbing somebody and then taking off. You chose to go back on three occasions. You not only chose to do that, you chose to put the victim in handcuffs, you chose
to take the victim to the ATM, you chose to extort money from him, and you chose to do this repeatedly.
This is not the type of case where a volume discount is warranted. You chose deliberately and intentionally to commit numerous and repeated criminal actions, for which you will be held responsible.N.T., Sentencing, 4/2/13, at 19-20; Re-Sentencing at 3 (court incorporating all its comments made at original sentencing). Thus, the court's deviation from the Guidelines was supported by the record. Robinson's claim that Attorney Lyden was ineffective for not challenging the deviation therefore fails.
Since Robinson's claims against Attorney Lyden fail, his ineffectiveness claim against Attorney Miller also fails. See Chmiel, 30 A.3d at 1128. We affirm the order denying his PCRA petition.
Order affirmed.
[*] Former Justice specially assigned to the Superior Court.