Com. v. Jackson, S. ( 2023 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
SHAWN JACKSON :
:
Appellant : No. 2411 EDA 2022
Appeal from the PCRA Order Entered September 8, 2022
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0004748-2017
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
SHAWN JACKSON :
:
Appellant : No. 2412 EDA 2022
Appeal from the PCRA Order Entered September 8, 2022
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0008647-2017
BEFORE: BENDER, P.J.E., LAZARUS, J., and SULLIVAN, J.
MEMORANDUM BY LAZARUS, J.: FILED SEPTEMBER 8, 2023
Shawn Jackson appeals from the orders,1 entered in the Court of
Common Pleas of Philadelphia County, dismissing his petition filed pursuant
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1 Jackson has complied with the dictates of Commonwealth v. Walker, 185
A.3d 969 (Pa. 2018), by filing separate notices of appeal for each trial court
docket number. See id. (holding “where a single order resolves issues arising
on more than one docket, separate notices of appeal must be filed for each of
those cases”).
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to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. Upon
review, we affirm.
On September 25, 2018, Jackson pled guilty at CP-51-CR-0004748-
2017 to rape,2 involuntary deviate sexual intercourse (IDSI),3 unlawful
contact with a minor,4 sexual exploitation of children,5 involuntary servitude,6
trafficking in minors,7 and conspiracy to commit trafficking in minors.8 That
same day, Jackson pled guilty at CP-51-CR-0008647-2017 to two counts of
intimidation of a witness,9 and one count each of conspiracy to commit
intimidation of a witness10 and terroristic threats.11, 12 The trial court deferred
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2 18 Pa.C.S.A. § 3121(a)(1).
3 Id. at § 3123(a)(1).
4 Id. at § 6318(a)(1).
5 Id. at § 6320(a).
6 Id. at § 3012(a).
7 Id. at § 3011(b).
8 Id. at § 903.
9 Id. at §§ 4952(a)(2), (3).
10 Id. at § 903.
11 Id. at § 2706(a)(1).
12 We previously summarized the facts of these cases in Jackson’s direct
appeal. See Commonwealth v. Jackson, 239 A.3d 56 (Pa. Super. 2020)
(Table). Briefly, the victim had run away from her home, whereupon Jackson
(Footnote Continued Next Page)
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sentencing and ordered the preparation of a pre-sentence investigation report
(PSI).
On November 19, 2018, the trial court sentenced Jackson to 10 to 20
years’ incarceration for rape, 5 to 10 years’ incarceration for IDSI, 5 to 10
years’ incarceration for unlawful contact with a minor, 2½ to 5 years’
incarceration for sexual exploitation of children, 2½ to 5 years’ incarceration
for conspiracy to commit trafficking in minors, 2½ to 5 years’ incarceration
plus 10 years’ probation for involuntary servitude, 2½ to 5 years’ incarceration
plus ten years’ probation for trafficking in minors, 2½ to 5 years’ incarceration
for intimidating a witness, and 10 years’ probation for conspiracy to intimidate
a witness. Jackson’s sentences for sexual exploitation of children, sexual
exploitation, and trafficking in minors were imposed concurrently. The
remaining offenses were all imposed consecutively, resulting in an aggregate
sentence of 27½ to 55 years’ incarceration, followed by 30 years’ probation.
Jackson filed a timely post-sentence motion challenging the
discretionary aspects of his sentence. The trial court denied Jackson’s motion,
and Jackson timely appealed. On July 8, 2020, this Court determined that
Jackson had waived three of his challenges to the discretionary aspects of his
sentence, but nevertheless affirmed his judgment of sentence and determined
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and his co-defendants repeatedly raped and prostituted the victim through a
website called Backpage in exchange for money. Eventually, the police
arrested and charged Jackson. While Jackson was in pre-trial incarceration,
he, through his sister, threatened the victim that he would “get [her] touched”
if she testified and that he knew “what school you go to and I know where
your mom live[s].” See id.-3-
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that the trial court had properly balanced the statutory factors set forth in 42
Pa.C.S.A. § 9721(b).13 See Jackson, supra.
On March 20, 2021, Jackson filed a pro se PCRA petition, his first. The
PCRA court appointed counsel, who filed an amended PCRA petition on March
10, 2022. On July 21, 2022, the PCRA court issued notice of its intent to
dismiss Jackson’s PCRA petition pursuant to Pa.R.Crim.P. 907. Jackson did
not file a response, and, on September 8, 2022, the PCRA court dismissed
Jackson’s petition.14
Jackson filed two timely notices of appeal, one at each docket, and filed
a court-ordered Pa.R.A.P. 1925(b) concise statement of errors complained of
on appeal. Jackson now raises the following claims for our review:
1. Whether the PCRA court [] err[ed] in not granting relief on the
issue that [prior] counsel was ineffective?
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13 In particular, this Court determined that Jackson had waived his challenges
that the trial court failed to: consider the sentencing guideline
recommendations, provide reasons for deviating from the sentencing
guideline recommendations, and provide reasons for imposing consecutive
sentences. See Jackson, supra.
14 It appears that there are three entries for an “Order Dismissing PCRA
Petition,” at docket number 4748. Two of these orders were dated September
8, 2022, and the third was dated September 12, 2022. At docket 8647, there
are four entries for an “Order Dismissing PCRA Petition.” Two of the entries
were dated September 8, 2022, and two were dated September 12, 2022.
Nevertheless, these duplicative orders do not implicate the timeliness of
Jackson’s appeals. Jackson filed both notices of appeal on September 12,
2022, well within the 30-day time limit set forth in Pa.R.A.P. 903(a).
Accordingly, we proceed with our review.
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2. Whether appellate counsel was ineffective for failing to preserve
the first three discretionary [] aspects [] of [] sentencing claims
in the post-sentence motion?
Brief for Appellant, at 7.15
When reviewing the [dismissal] of a PCRA petition, our scope of
review is limited by the parameters of the [PCRA]. Our standard
of review permits us to consider only whether the PCRA court’s
determination is supported by the evidence of record and whether
it is free from legal error. Moreover, in general we may affirm the
decision of the [PCRA] court if there is any basis on the record to
support the trial court’s action; this is so even if we rely on a
different basis in our decision to affirm.
Commonwealth v. Heilman, 867 A.2d 542, 544 (Pa. Super. 2005)
(quotations and citations omitted).
Generally, counsel is presumed to be effective, and “the burden of
demonstrating ineffectiveness rests on [the] appellant.” Commonwealth v.
Rivera, 10 A.3d 1276, 1279 (Pa. Super. 2010).
To satisfy this burden, an 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 [client’s] interests; and, (3) but for counsel’s ineffectiveness[,]
there is a reasonable probability that the outcome of the
challenged proceeding would have been different. Failure to
satisfy any prong of the test will result in rejection of the
appellant’s ineffective assistance of counsel claim.
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15 Despite phrasing his issues as two issues, Jackson actually raises the same
claim, and sub-issues, in both. Indeed, in his brief, Jackson’s first claim is
barely a page in length, contains only boilerplate citations regarding this
Court’s standard of review for ineffectiveness of counsel claims, and
references appellate counsel’s failure to preserve his discretionary aspect of
sentencing claims. See id. at 13. Accordingly, we discern Jackson’s issues
to be identical and address them together.
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Commonwealth v. Holt, 175 A.3d 1014, 1018 (Pa. Super. 2017) (internal
citations omitted).
To prevail upon a claim that counsel was ineffective for failing to file a
post-sentence motion, the appellant must satisfy the traditional requirements,
described above. See Commonwealth v. Liston, 977 A.2d 1089, 1092 (Pa.
2009); see also Commonwealth v. Reaves, 923 A.2d 1119, 1132 (Pa.
2007) (“[T]he failure to file post-sentence motions does not fall within the
limited ambit of situations where a defendant alleging ineffective of counsel
need not prove prejudice to obtain relief.”).
In his brief, Jackson contends that his appellate counsel failed to
preserve the three challenges to the discretionary aspects of his sentence that
this Court found waived on direct appeal. See Brief for Appellant, at 13-16.
Jackson effectively raises three sub-issues, one for each challenge that
appellate counsel purportedly failed to preserve in the post-sentence motion.
Jackson argues that his trial counsel rendered ineffective assistance by failing
to preserve the challenges that the trial court: (1) failed to consider the
sentencing guidelines; (2) failed to state reasons on the record for deviating
from the guidelines; and (3) considered improper sentencing factors.16
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16 We note that Jackson’s brief falls short of the appellate briefing
requirements. Jackson’s entire argument section is four pages in length, and
he addresses none of the prongs of the ineffective assistance of counsel test
for any of his three sub-issues. See Brief for Appellant, 13-16; see also
Pa.R.A.P. 2119(a) (requiring “discussion and citation of authorities as are
deemed pertinent”); Commonwealth v. Johnson, 985 A.2d 915, 924 (Pa.
(Footnote Continued Next Page)
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The PCRA court addressed Jackson’s claims as follows:
[Jackson] claims that [appellate] counsel provided ineffective
assistance when he failed to file a post-sentence motion claiming
that this court did not consider the sentencing guidelines for each
respective offense. [Jackson] contends that because this court
only inquired into the sentencing guidelines for the lead charges
for each docket[,] this court failed to take into consideration the
guidelines for the remaining charges.
***
Here, the record belies [Jackson]’s claim that this court did not
[consider] the guidelines [as] to all the charges. Although this
court only requested counsel to provide guidelines on the lead
charges of rape and witness intimidation, there is no indication
that this court failed to take into consideration the guidelines on
the remaining charges. In fact, this court was well aware of the
sentencing guidelines for each charge and took into consideration
said guidelines. This court had the benefit of [the PSI] and
explicitly noted that it considered the [PSI]. See N.T. [Sentencing
Hearing], 11/19/18, at 45.
Moreover, [Jackson]’s sentence itself supports the conclusion that
this court properly applied the applicable ranges. The sentencing
guidelines recommended a combined minimum sentence of 52 to
61 years of incarceration. This court imposed an aggregate
sentence of 27½ to 55 years of incarceration. Despite [Jackson]’s
egregious behavior, this court sentenced [Jackson] well below
sentencing guideline[] recommendations for each of the charges
with the exception of the lead charge of rape. The Superior Court
concurred[,] finding that this court did not abuse its discretion in
fashioning its sentence.
***
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2009) (“[W]here an appellate brief fails to provide any discussion of a claim
with citation to relevant authority[,] or fails to develop the issue in any other
meaningful fashion capable of review, that claim is waived.”); id. at 925 (“It
is not the role of this Court to formulate [an a]ppellant’s arguments for him.”).
Accordingly, we could again find these claims waived. Nevertheless, the PCRA
court has aptly addressed these claims and they were preserved in the
underlying PCRA petition.
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[Next, Jackson] purports that this court failed to state sufficient
reasons on the record for deviating from the sentencing
guidelines. [Jackson] notes that his prior record score was 4 and
the offense gravity score of rape was 12. Thus, the sentencing
guidelines provided a standard range of 72 to 90 months’
incarceration, plus or minus 12 months. This court sentenced
[Jackson] to 10 to 20 years’ incarceration on the charge of rape.
In supporting its sentence, this court noted on the record the
heinous criminal acts [Jackson] committed, the impact of the
offenses on the victim, and the need to protect the public from
such egregious behavior. The record clearly reflects this court’s
reasoning for deviating from the sentencing guidelines for the lead
charge of rape.
***
Contrary to [Jackson]’s assertions, this court sufficiently stated
the reasons for its sentence, and found [Jackson] to be an
extreme danger to the victim and the community. Along with the
need to protect the public from [Jackson], this court’s sentence
reflects the heinous nature of the criminal acts of repeatedly
raping a fourteen-year-old girl, prostituting her to fifteen men,
and then threatening her and her mother if she appeared in court.
Additionally, this court heard from the victim and took into []
account the impact [Jackson]’s acts had on her.
During [the] sentencing hearing, this court explained[]:
I reviewed all the reports that were generated for this
hearing. I have heard all the evidence presented, as well as
the testimony. . . . And I do recognize the fact that you did
enter into an open guilty plea because you wanted to spare
her from testifying, and my sentence does reflect that.
However, I am very troubled by the whole situation,
unfortunately, that has brought us here. I think you’re an
absolute danger. And I think that what you did was
horrendous. But I do appreciate the fact that you did accept
responsibility. When I heard the facts of this case and I
listened to her testify, I couldn’t even imagine somebody
putting cereal in a dog bowl and telling me to crawl so I can
eat because I hadn’t eaten in days after I had sex with
multiple people against my will. . . . You are going to be in
custody for a long time. I really hope that you keep
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reflecting on your [part in] this and what you did and the
pain its caused her now that she has to live with this trauma.
And you see the effect that your actions caused. There’s
nothing funny about this. . . . I know you’re not laughing
now. But at one point you thought it was funny. And you
need to make sure that [it] is never even in your realm of
thought to ever do something like this again to anyone.
N.T. [Sentencing Hearing], 11/19/18, at 45-50.
Additionally, the sentence reflected [Jackson]’s criminal history
and his lack of any remorse. [Jackson]’s criminal record includes
four arrests as a juvenile, seven arrests as an adult, and six
convictions as an adult (including the [instant cases]).
***
[Next, Jackson] argues that the victim impact statement provided
by Erin Coltrera, the child advocate social worker, . . . at the
[sentencing] hearing was prejudicial to [Jackson]. . . . [In
particular, Jackson challenges the following exchange from the
sentencing hearing]:
Coltrera: Even behind bars, [Jackson’s] impact on [M.D.]
was such that she couldn’t feel safe. And [Jackson] made
no effort to spare her any of that. He waited until the
last minute to take a plea just to avoid the jury
hearing from her about what he did to her.
[Counsel]: Objection.
[Trial] Court: Overruled.
[Id.] at 36 (emphasis added). Upon [] noting counsel’s objection,
this court reassured counsel that when it imposed its sentence,
[Jackson] would “get the benefit of the plea.” Id. at 40.
[Counsel]: Judge, one thing for the record. I did place an
objection, and I just want to place on the record the nature
of my objection. And that is while I appreciate the advocacy
. . . I don’t think the [c]ourt can take into consideration, and
I’m sure you won’t . . . the fact that as she stated that
[Jackson] waited until the last possible moment to enter a
plea. I did not receive a plea bargain to take to him until
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within a week before trial. . . . [H]e was not playing games,
waiting until the very last minute to traumatize the
complaining witness[,] as they made it out to be.
[Trial] Court: Okay. Thank you. He will get the benefit of
the plea. Don’t worry.
Id. at 39-40. When this court sentenced [Jackson], it again []
stat[ed]: “I do recognize the fact that you did enter into an open
guilty plea because you wanted to spare her from testifying,
and my sentence does reflect that. Id. at 46 [(emphasis added)].
PCRA Court Opinion, 11/18/22, at 8-13 (footnotes omitted) (emphasis
added).
Our review of the record confirms the PCRA court’s determinations.
Jackson’s claims regarding the trial court’s purported failures to consider the
guidelines and place sufficient reasons on the record for deviating from those
guidelines, are, in fact, belied by the record. See id. Indeed, the trial court
expressly stated that it had the benefit of, and considered, Jackson’s PSI. See
N.T. Sentencing Hearing, 11/19/18, at 45; id. at 43, 45 (trial court referencing
and quoting PSI); see also Commonwealth v. Ventura, 975 A.2d 1128,
1133 (Pa. Super. 2009) (citation omitted) (“[W]here the trial court is informed
by a [PSI], it is presumed that the court is aware of all appropriate sentencing
factors and considerations, and that where the court has been so informed,
its discretion should not be disturbed.”). Moreover, the majority of Jackson’s
sentences were either in the mitigated range or below the mitigated range,17
and we discern no abuse of discretion on the part of the trial court for the
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17 See PCRA Court Opinion, 11/18/22, at 9 n.8 (PCRA court listing out
Jackson’s sentencing guidelines in comparison to sentence imposed).
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alleged failure to recite every guideline recommendation on the record. See
Commonwealth v. Griffin, 804 A.2d 1, 8-9 (Pa. Super. 2002) (noting this
Court’s preference that trial courts articulate applicable ranges, but where trial
court provides extensive explanation for sentencing rationale there is “no basis
to disturb [the sentence] solely on the grounds that the sentencing transcript
lacks a recitation of the guideline ranges that apply”). Despite Jackson’s
assertions to the contrary, it is quite clear that Jackson was sentenced, in the
aggregate, well below the sentencing guidelines recommendation. See PCRA
Court Opinion, 11/18/22, at 8-13; id. at 9 n.8.
Furthermore, the record belies Jackson’s claim that the trial court
considered Coltrera’s inappropriate comment. Despite Jackson’s assertion, it
is quite clear that the trial court repeatedly stated that it was considering
Jackson’s decision to accept the plea deal to spare the victim from
testifying, and Jackson’s decision to take responsibility by pleading guilty.
See PCRA Court Opinion, 11/18/22, at 8-13; N.T. Sentencing Hearing,
11/19/18, at 36, 40, 45-50. These factors, coupled with the trial court’s
imposition of sentences below the sentencing recommendation guidelines,
demonstrate that the trial court did not consider the alleged improper factor
and did not abuse its discretion.
Based upon the foregoing, we discern no abuse of discretion on the part
of the trial court in fashioning Jackson’s sentences, and, therefore, Jackson
has failed to prove that the underlying claims had arguable merit.
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Accordingly, his ineffective assistance of counsel claim fails, and we affirm the
PCRA court’s order dismissing his PCRA petition. Holt, supra.
Orders affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/8/2023
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