Com. v. Laboy, J.

J-S29037-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JOSE LABOY :
:
Appellant : No. 1056 EDA 2019
Appeal from the PCRA Order Entered March 28, 2019
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0000407-2015
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JOSE LABOY :
:
Appellant : No. 1057 EDA 2019
Appeal from the PCRA Order Entered March 28, 2019
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0000410-2015
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JOSE LABOY :
:
Appellant : No. 1058 EDA 2019
Appeal from the PCRA Order Entered March 28, 2019
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0000411-2015
J-S29037-20
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JOSE LABOY :
:
Appellant : No. 1059 EDA 2019
Appeal from the PCRA Order Entered March 28, 2019
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0000412-2015
BEFORE: PANELLA, P.J., NICHOLS, J., and PELLEGRINI, J.*
MEMORANDUM BY PELLEGRINI, J.: FILED JULY 29, 2020
Jose Laboy (Laboy) appeals from the order entered in the Court of
Common Pleas of Philadelphia County (PCRA court) dismissing his timely first
petition filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§
9541-9546. We affirm.
I.
This case arises from Laboy’s conviction at the above-listed docket
numbers of two counts of robbery, three counts of burglary, one count of
aggravated assault, two counts of unlawful restraint, one count of firearms
not to be carried without a license, one count of carrying firearms in public,
three counts of criminal conspiracy, one count of possession of an instrument
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
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of a crime and one count of resisting arrest1 stemming from his burglary of
multiple residences and the gunpoint robbery of an elderly couple on the night
of November 22, 2014. At about 10:00 p.m., the first complainant, Joan
Paslowski (Paslowski), heard a knock at her front door and observed Laboy,
along with another man who was never identified, peer into her mail slot. The
two men attempted to open her front door and remove her window screen.
Paslowski called 911 to report the break in. While waiting for police to arrive,
she observed Laboy and his co-conspirator leave her property and walk next
door to the home of Marie Regis (Regis) and her husband Antoine Linder
(Linder).
Eighty-five year old Regis and ninety-two year old Linder heard a knock
on their front door and Regis opened it, expecting to see their grandson.
Laboy, armed with a hammer along with his accomplice, brandishing a
firearm, forced their way into the home. The men restrained both victims at
gunpoint by sitting them in chairs and tying them up with bedsheets, wrapping
the sheets around their heads to gag and blindfold them. Laboy ripped the
telephone from the wall and ransacked the residence, taking jewelry, a
television, $225.00 in cash and several bottles of prescription medication. The
men fled the property and broke into the back door of a third neighboring
____________________________________________
118 Pa.C.S. §§ 3701(a), 3502(a)(1), 2702(a), 2902, 6106, 6108, 903, 907
and 5104, respectively.
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residence but did not take anything because the items inside were primarily
heavy power tools.
Philadelphia Police Officers Patrick Biles and David Mockus arrived at
Paslowski’s home to investigate the burglaries and Laboy and his accomplice
fled to a nearby wooded area. The officers spotted the men hiding in the tall
grass and moved to arrest them. As Officer Biles approached, Laboy lunged
at the officer, striking him headfirst in the knees and causing him to fall down
a steep hill. Officer Biles held onto Laboy, who fell down the hill with him and
attempted to flee upon regaining his footing. Officer Biles punched Laboy to
subdue and arrest him. Laboy provided a written confession to police while in
custody.
On June 17, 2015, Laboy entered an open guilty plea to the above-
stated charges. The trial court deferred sentencing for preparation of mental
health and pre-sentence investigation (PSI) reports. The court sentenced
Laboy on January 27, 2016, to an aggregate term of not less than eleven nor
more than twenty-two years’ incarceration, followed by ten years of
probation.2 Laboy initially filed a direct appeal but later withdrew it.
On July 7, 2016, Laboy, acting pro se, filed the instant timely PCRA
petition. Appointed counsel filed an amended petition on March 7, 2018,
____________________________________________
2Laboy filed an untimely pro se post-sentence motion on February 18, 2016,
seeking modification of his sentence.
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claiming that plea counsel was ineffective for failing to file a motion to
reconsider sentence. After issuing notice of its intent to do so, on March 28,
2019, the PCRA court entered its order dismissing the petition as frivolous.
See Pa.R.Crim.P. 907(1). This timely appeal followed. Laboy and the PCRA
court complied with Rule 1925. See Pa.R.A.P. 1925(a)-(b).
On appeal, Laboy raises two interrelated issues in which he challenges
the effectiveness of plea counsel and the PCRA court’s decision not to hold an
evidentiary hearing on the matter. Specifically, Laboy claims that counsel
should have filed a motion to modify his lengthy sentence because the
sentencing court did not give sufficient consideration to various mitigating
factors in his background, including his young age, lack of prior criminal
record, mental health issues, his remorsefulness for the crime and his family
support. We will address these issues together for ease of disposition.3
A.
Laboy’s core argument challenges the effectiveness of plea counsel.
See 42 Pa.C.S. § 9543(a)(2)(ii) (listing ineffective assistance of counsel as
basis for PCRA relief). “The law presumes counsel has rendered effective
assistance.” Commonwealth v Postie, 200 A.3d 1015, 1022 (Pa. Super.
2018) (citation omitted). “In general, to prevail on a claim of ineffective
____________________________________________
3We review a denial of PCRA relief to determine whether the findings of the
PCRA court are supported by the record and free of legal error. See
Commonwealth v. Treiber, 121 A.3d 435, 444 (Pa. 2015).
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assistance of counsel, a petitioner must show, by a preponderance of the
evidence, ineffective assistance of counsel which, in the circumstances of the
particular case, so undermined the truth-determining process that no reliable
adjudication of guilt or innocence could have taken place.” Id. (citation
omitted). “The petitioner must demonstrate: (1) the underlying claim has
arguable merit; (2) counsel lacked a reasonable strategic basis for his action
or inaction; and (3) but for the errors and omissions of counsel, there is a
reasonable probability that the outcome of the proceedings would have been
different.” Id. (citation omitted). “The petitioner bears the burden of proving
all three prongs of the test.” Id. (citation omitted). Additionally, “counsel
cannot be found ineffective for failing to pursue a baseless or meritless claim.”
Commonwealth v. Adams-Smith, 209 A.3d 1011, 1019 (Pa. Super. 2019)
(citation omitted).
“A petitioner is not entitled to a PCRA hearing as a matter of right; the
PCRA court can decline to hold a hearing if there is no genuine issue
concerning any material fact, the petitioner is not entitled to PCRA relief, and
no purpose would be served by any further proceedings.” Id. (citation
omitted). A PCRA court’s decision to deny a request for an evidentiary hearing
will not be overturned absent an abuse of discretion. See Commonwealth
v. Mason, 130 A.3d 601, 617 (Pa. 2015).
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B.
As noted above, Laboy claims that plea counsel was ineffective for failing
to file a post-sentence motion asserting the sentencing court failed to consider
various mitigating factors in imposing a term of eleven to twenty-two years’
incarceration followed by ten years of probation. Laboy contends that the
court neglected to consider that he was twenty years old at the time of the
burglaries; had no prior convictions; had mental health and drug abuse issues;
took responsibility for the offenses by pleading guilty; demonstrated remorse
during the proceedings; and had a family support system including a
daughter.4
The record reflects that during Laboy’s plea colloquy, the trial court
made clear to him that his maximum exposure at sentencing was 177 years
of incarceration. (See N.T. Guilty Plea, 6/17/15, at 5). The Commonwealth
argued for imposition of a term of twenty to forty years’ imprisonment. It
cited to the unnecessarily traumatic attack on the elderly couple, in which
Laboy and his cohort held them at gunpoint, tied them up so they could not
move and wrapped bed linins around their entire faces to obstruct their vision
____________________________________________
4 Laboy’s underlying claim challenges the discretionary aspects of his
sentence. “Sentencing is a matter vested in the sound discretion of the
sentencing judge, whose judgment will not be disturbed absent an abuse of
discretion.” Commonwealth v. Ritchey, 779 A.2d 1183, 1185 (Pa. Super.
2001) (citation omitted). An appellant does not have an automatic right to
appeal the discretionary aspects of his sentence on direct appeal and must
petition this Court for permission to appeal. See 42 Pa.C.S. § 9781(b).
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and breathing. (See N.T. Sentencing, 1/27/16, at 8-10). It also pointed out
that although Laboy’s prior record score was zero, he had been arrested
numerous times for crimes of escalating violence, including for beating a man
with bricks. (See id. at 11, 15-16).
Defense counsel argued for a five to ten-year sentence and emphasized
Laboy’s young age, lack of prior convictions and that he has ADHD hyperactive
and bipolar disorders along with substance abuse issues. (See id. at 5-6).
Laboy expressed that he felt sorry for everyone involved in this case, including
his family, and that although he was “involved” in the instant offenses, he
“didn’t do it, though.” (Id. at 19).
The sentencing court, after considering these arguments along with the
information in the PSI and mental health reports, ran the counts for some of
the offenses concurrent to one another and imposed an aggregate sentence
within the sentencing guidelines. The sentence was considerably lower than
the maximum possible sentence and the term requested by the
Commonwealth. The court explained its rationale for the sentence, stating:
I have reviewed everything sir. Quite frankly, it’s
disturbing, to say the least.
True remorse is not a fear of consequences; it’s a regret
over motives. I think you are afraid of the consequences of your
actions, not the actions that precipitated this.
I mean, the burglary was bad enough. Robbery, elderly
people, tying them down, rip their phone out so they can’t even
call for help. To cover them up after they have just seen you, that
has to be just plain torture. They already saw who you were.
What’s the whole point of this?
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* * *
When we get to the aggravated assault . . . the officer you tried
to kneecap, that was nothing more than a sheer attempt to injure
the officer so he could not go anywhere near you. It was bad
enough you did all these things, but not withstanding the fact that
you were caught, you decided to go the extra step and try to knock
out his knees, which you did manage to do. . . .
(Id. at 20, 22-23).
As can be seen, the sentencing court carefully weighed all of the
mitigating and aggravating factors in this case in crafting its sentence.
Additionally, because the sentencing court considered both a PSI and mental
health report in determining an appropriate sentence, we presume that it was
aware of all relevant information regarding Laboy’s character and weighed
those considerations along with mitigating factors. See Commonwealth v.
Conte, 198 A.3d 1169, 1177 (Pa. Super. 2018), appeal denied, 206 A.3d 1029(Pa. 2019). We, therefore, agree with the PCRA court’s conclusion that
Laboy’s underlying claim challenging the discretionary aspects of his sentence
lacks merit and plea counsel was not ineffective for failing to pursue this
baseless claim. In addition, because there were no material facts at issue,
the PCRA court properly dismissed Laboy’s PCRA petition without a hearing.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/29/2020
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