Com. v. Woodard, C. ( 2017 )

J-S34007-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
CRAIG WOODARD
Appellant No. 722 EDA 2016
Appeal from the PCRA Order February 26, 2016
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0009209-2009
BEFORE: BOWES, SOLANO, AND PLATT,* JJ.
MEMORANDUM BY BOWES, J.: FILED JUNE 13, 2017
Craig Woodard appeals from the February 26, 2016 order denying
PCRA relief. We affirm.
Appellant was convicted of attempted murder, aggravated assault,
robbery, conspiracy to commit murder, possession of instruments of crime,
and three violations of the Uniform Firearms Act (“VUFA”), and was
sentenced to an aggregate term of thirty to sixty years imprisonment. The
charges stemmed from the October 16, 2008 attack by Appellant, Eligah
Hayes, and a third unidentified man, upon Vernon Kulb, III, as the victim
was riding his bicycle away from a grocery store in Philadelphia. Appellant
and Hayes approached Mr. Kulb on foot with guns drawn, and the third man
was on a bicycle. Appellant struck Mr. Kulb in the head with his gun, threw
* Retired Senior Judge specially assigned to the Superior Court.
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him to the ground, and sat on his back as he rummaged through his pockets
while Hayes pointed a gun in the victim’s face. Appellant then shot Mr. Kulb
in the back, and the three men fled.
Police officers recovered firearms near the site of the shooting. Mr.
Kulb identified Appellant and Hayes from separate photographic arrays.
Appellant and co-defendant Hayes were tried together and convicted by a
jury of all offenses except one VUFA. At a subsequent waiver trial, he was
convicted of possession of a firearm by a prohibited person. Appellant was
sentenced on July 30, 2010, to an aggregate sentence of thirty to sixty
years imprisonment.
Appellant filed a timely post-sentence motion, which was denied on
December 6, 2010. On appeal, judgment of sentence was affirmed.
Commonwealth v. Woodard, 38 A.3d 921 (Pa.Super. 2011) (unpublished
memorandum). His petition for allowance of appeal to the Pennsylvania
Supreme Court was denied on May 23, 2012. Commonwealth v.
Woodard, 46 A.3d 717 (Pa. May 23, 2012).
Appellant timely filed this, his first PCRA petition, on March 8, 2013.
Counsel was appointed, an amended petition was filed, and relief was denied
on February 26, 2016, without a hearing. On appeal from the denial of
PCRA relief, Appellant presents one issue for our review:
1. Was trial and appellate counsel ineffective for failing to raise
the issue of the sentence being illegal due to the Appellant’s
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being subject to a mandatory minimum sentence which was
unconstitutional?
Appellant’s brief at 8.
In reviewing the denial of PCRA relief, we are “limited to examining
whether the PCRA court's determination is supported by the evidence of
record and whether it is free of legal error.” Commonwealth v. Watley,
153 A.3d 1034, 1039 (Pa.Super. 2016). We “will not disturb findings that
are supported by the record.” Id. at 1040. Where, as here, the allegation is
one of trial counsel’s ineffectiveness, the following principles inform our
review. Counsel is presumed to be effective and in order to overcome that
presumption, the petitioner must establish all of the following:
(1) the underlying substantive claim has arguable merit;
(2) counsel whose effectiveness is being challenged did not
have a reasonable basis for his or her actions or failure to
act; and
(3) the petitioner suffered prejudice as a result of counsel’s
deficient performance.
Commonwealth v. Ligons, 971 A.2d 1125, 1137 (Pa. 2009).
Appellant alleges that trial and appellate counsel were ineffective in
failing to argue that his sentence was illegal under the U.S. Supreme Court’s
decision in Alleyne v. United States, 570 U.S. 1 (2013), as applied to
mandatory minimum sentences in Pennsylvania in Commonwealth v.
Hopkins, 117 A.3d 247 (Pa. 2015). Alleyne mandates that any fact that
results in imposition of a mandatory minimum sentence is an element that
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must be submitted to the jury and found beyond a reasonable doubt. In
Hopkins, the drug-free school zone statute, which provided for mandatory
minimum sentences based on facts that were not found by a jury, was held
to be unconstitutional under Alleyne.
In essence, Appellant faults counsel for failing to anticipate the
Supreme Court’s decision in Alleyne and challenge his sentence on that
ground. Although Appellant maintains that the statute under which he was
sentenced was held to be unconstitutional, he characterizes his issue as a
challenge to “counsel’s ineffectiveness rather than the illegal sentence
itself.”1 Appellant’s brief at 15. He asks us to vacate his sentence and
remand for a new sentencing.
The Commonwealth counters first that, at the July 30, 2010
sentencing, no mandatory minimum sentencing provisions were invoked. In
fact, the sentence imposed actually exceeded any potentially applicable
mandatory minimum. The Commonwealth relies upon our decision in
Commonwealth v. Zeigler, 112 A.3d 656, 662 (Pa.Super. 2015), for the
proposition that where a “sentencing court exceeded the mandatory
minimum sentence . . . the court did not sentence the defendant based on
the mandatory statute, and his sentence was not illegal on that ground.”).
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1
Moreover, although Appellant denies that he is challenging the legality of
his sentence herein, he suggests that Alleyne might be made retroactive to
timely first PCRA petitions.
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Furthermore, the Commonwealth points out that, when Appellant was
sentenced in 2010, mandatory minimum sentences associated with certain
firearm-related offenses were upheld as constitutional. See McMillan v.
Pennsylvania, 477 U.S. 79 (1986) (upholding constitutionality of 42 P.C.S.
§ 9712’s five-year mandatory minimum for certain firearms offenses).
Finally, the Commonwealth argues that counsel cannot be deemed
ineffective for failing to anticipate a change in the law three years hence.
Commonwealth v. Bennett, 57 A.3d 1185, 1201 (Pa. 2012) (“[C]ounsel
will not be faulted for failing to predict change in the law.”). Finally, the
Commonwealth points out that Alleyne is not retroactive to cases such as
this one where direct review was concluded prior to announcement of
Alleyne, which overruled prior case law on the subject. Commonwealth v.
Washington, 142 A.3d 810, 818 (Pa. 2016).
The PCRA court concluded that Appellant’s claim lacked merit as he
failed to identify the mandatory sentencing statute that was allegedly
applied. Furthermore, the court stated that it did not consider or impose a
mandatory minimum sentence. We agree. Thus, Alleyne is inapplicable in
this PCRA proceeding.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/13/2017
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