Com. v. Murillo, A. ( 2018 )

J-S15025-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF : IN THE SUPERIOR COURT OF
PENNSYLVANIA : PENNSYLVANIA
:
:
v. :
:
:
ALEXANDER MURILLO, :
: No. 1585 EDA 2016
Appellant :
Appeal from the PCRA Order April 29, 2016
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0008406-2009,
CP-51-CR-0008407-2009
BEFORE: STABILE, J., DUBOW, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY DUBOW, J.: FILED NOVEMBER 02, 2018
Appellant, Alexander Murillo, appeals from the April 29, 2016 Order,
entered in the Philadelphia County Court of Common Pleas, dismissing his first
Petition filed pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.
§§ 9541-9546. After careful review, we affirm.
On January 1, 2009, following a bar fight, Appellant opened fire on a
crowd of people with an assault rifle and wounded two victims. On May 24,
2012, Appellant pleaded guilty to three counts of Attempted Murder, in
addition to Conspiracy, firearms offenses, and related crimes. On August 17,
2012, the court sentenced Appellant to an aggregate term of twelve and one-
half to twenty-five years’ incarceration. Appellant timely appealed, and on
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July 23, 2014, this Court affirmed the Judgment of Sentence.1 Appellant did
not seek review by the Pennsylvania Supreme Court.
On February 12, 2015, Appellant filed a timely pro se PCRA Petition. On
September 17, 2015, after the PCRA court appointed counsel, Appellant filed
an amended PCRA Petition alleging ineffective assistance of counsel. On
March 29, 2016, the PCRA court issued a Notice pursuant to Pa.R.Crim.P. 907
of its intent to dismiss Appellant’s Petition without a hearing. Appellant did
not respond. On April 29, 2016, the PCRA court dismissed Appellant’s Petition.
Appellant timely appealed. The PCRA court did not order Appellant to
file a Pa.R.A.P. 1925(b) Statement. On October 17, 2017, the PCRA court
issued a Pa.R.A.P. 1925(a) Opinion.
Appellant raises a sole issue on appeal: “Was counsel ineffective for
failing to raise the issue of the Appellant’s being subject to an illegal
mandatory minimum sentence?” Appellant’s Brief at 9.
We review the denial of a PCRA Petition to determine whether the record
supports the PCRA court’s findings and whether its order is otherwise free of
legal error. Commonwealth v. Fears, 86 A.3d 795, 803 (Pa. 2014). This
Court grants great deference to the findings of the PCRA court if the record
supports them. Commonwealth v. Boyd, 923 A.2d 513, 515 (Pa. Super.
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1 See Commonwealth v. Murillo, 105 A.3d 798 (Pa. Super. 2014)
(unpublished memorandum).
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2007). We give no such deference, however, to the court’s legal conclusions.
Commonwealth v. Ford, 44 A.3d 1190, 1194 (Pa. Super. 2012).
Instantly, Appellant claims that his plea counsel was ineffective for
failing to challenge the legality of his sentence based on Alleyne2 and its
progeny, and, thus, he is entitled to relief under the PCRA. Appellant’s Brief
at 11.
It is well settled that counsel is presumed to be effective and the burden
of demonstrating any ineffectiveness rests on an appellant. Commonwealth
v. Rivera, 10 A.3d 1276, 1279 (Pa. Super. 2010). To satisfy this burden,
Appellant must plead and prove by a preponderance of the evidence that: “(1)
his underlying claim is of arguable merit; (2) the particular course of conduct
pursued by counsel did not have some reasonable basis designed to effectuate
his interests; and, (3) but for counsel’s ineffectiveness, there is a reasonable
probability that the outcome of the challenged proceeding would have been
different.” Commonwealth v. Fulton, 830 A.2d 567, 572 (Pa. 2003).
Failure to satisfy any prong of the test will result in rejection of the appellant’s
ineffective assistance of counsel claim. Commonwealth v. Jones, 811 A.2d
994, 1002 (Pa. 2002). Notably, our Supreme Court has made it clear that an
appellant cannot establish that he is entitled to relief with “undeveloped
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2 Alleyne v. United States, 570 U.S. 99, 112-13 (2013) (holding that, other
than the fact of a prior conviction, any fact that increases the penalty for a
crime beyond the prescribed statutory minimum must be submitted to a jury
and proved beyond a reasonable doubt).
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claim[s]” and “boilerplate assertion[s]” of ineffective assistance of counsel.
Commonwealth v. Jones, 876 A.2d 380, 386 (Pa. 2005); see also
Commonwealth v. Bracey, 795 A.2d 935, 940 n.4 (Pa. 2001) (holding that
“an undeveloped argument, which fails to meaningfully discuss and apply the
standard governing the review of ineffectiveness claims, simply does not
satisfy Appellant's burden of establishing that he is entitled to any relief.”).
In its Opinion, after cogently and thoroughly reviewing the applicable
case law, the PCRA court concluded:
A review of the record reveals that Appellant’s instant petition has
failed to satisfy all three (3) prongs of the test. Appellant has
failed to develop any argument demonstrating that his claim had
any merit. Further, Appellant’s petition neither discusses nor
applies the standard governing the claim for ineffective counsel.
Appellant’s general averments either that a “mandatory sentence
was imposed without the appropriate factors having been
determined,” or that the “mandatory sentence was an illegal
sentence,” are both undeveloped and have no arguable merit.
Appellant has failed to specifically aver how the standard has not
been met in this case, or even how it should be applied in this
case. [] Appellant’s general averments, without any reference as
to applicability and relevance, do not entitle Appellant to relief.
Therefore, Appellant’s claim must be dismissed.
PCRA Court Opinion, filed 10/17/17, at unpaginated 3-4 (citations omitted).
We agree.
Our review of the record reveals that Appellant made boilerplate
assertions about Alleyne, supra, and how mandatory minimum sentencing
statutes are unconstitutional, but failed to argue how Alleyne should apply to
his case. In fact, Appellant failed to show that the sentencing court actually
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imposed a mandatory minimum sentence in his case.3 Accordingly, Appellant
did not demonstrate that his underlying claim had arguable merit, and, thus,
failed to establish that plea counsel was ineffective for not raising it.
Because Appellant failed to meet his burden of establishing that plea
counsel was ineffective, he is not entitled to relief under the PCRA.
Accordingly, the PCRA court did not err when it dismissed Appellant’s PCRA
Petition.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/2/18
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3 His Brief to this Court is likewise deficient in details.
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