J-S24025-21
2021 PA Super 184
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
GERALD HOWARD DAVIS, JR. :
:
Appellant : No. 882 WDA 2020
Appeal from the PCRA Order Entered July 6, 2020
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0004834-2012
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
GERALD HOWARD DAVIS :
:
Appellant : No. 883 WDA 2020
Appeal from the PCRA Order Entered July 6, 2020
In the Court of Common Pleas of Allegheny Count
Criminal Division at No(s): CP-02-CR-0004831-2012
BEFORE: DUBOW, J., KING, J., and STEVENS, P.J.E.*
OPINION BY KING, J.: FILED: September 13, 2021
Appellant, Gerald Howard Davis, appeals pro se from the order entered
in the Allegheny County Court of Common Pleas, which denied his first petition
filed pursuant to the Post Conviction Relief Act (“PCRA”) at 42 Pa.C.S.A. §§
____________________________________________
* Former Justice specially assigned to the Superior Court.
J-S24025-21
9541-9546, following resentencing in this case. We affirm.
The relevant facts and procedural history of this case are as follows. On
August 29, 2012, Appellant entered guilty pleas at two separate docket
numbers, to numerous counts of robbery, theft, conspiracy, recklessly
endangering another person (“REAP”), receiving stolen property and related
offenses, in connection with Appellant’s string of robberies of restaurants and
convenience stores in Allegheny County.1 On January 18, 2013, the trial court
sentenced Appellant to an aggregate term across both dockets of 22 to 44
years’ imprisonment. Some of Appellant’s robbery convictions included
mandatory minimum sentences per 42 Pa.C.S.A. § 9712 (sentences for
offenses committed with firearms). This Court affirmed Appellant’s judgment
of sentence on June 25, 2014, and our Supreme Court denied allowance of
appeal on November 25, 2014. See Commonwealth v. G. Davis, 105 A.3d
46 (Pa.Super. 2014) (unpublished memorandum), appeal denied,
628 Pa.
627,
104 A.3d 2 (2014).
On April 28, 2015, Appellant timely filed a pro se PCRA petition alleging,
inter alia, the court had imposed mandatory minimum sentences for some of
his convictions which were rendered illegal by Alleyne v. United States, 570
U.S. 99,
133 S.Ct. 2151,
186 L.Ed.2d 314 (2013) (holding facts that increase
mandatory minimum sentences must be submitted to jury and found beyond
____________________________________________
1 Appellant committed the robberies with Keith Fields and another cohort. Mr.
Fields entered guilty pleas to similar offenses on the same date as Appellant.
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reasonable doubt). The court appointed PCRA counsel (Attorney Christy
Foreman), who filed an amended petition on August 3, 2015. The
Commonwealth subsequently filed an answer, agreeing that Appellant was
entitled to resentencing based on the illegal mandatory minimum sentences.
On February 19, 2016, the court held a hearing, during which the court
stated that it would be granting the PCRA petition and resentencing Appellant
in light of the illegal mandatory minimum sentences. At the hearing, the
Commonwealth reiterated that Appellant was entitled to resentencing relief.
The Commonwealth also acknowledged that undoing the mandatory minimum
sentences would disrupt the sentencing scheme, and asked the court to vacate
the entire sentence and impose a new sentence based on what the court
deemed appropriate. (See N.T. Hearing, 2/19/16, at 2-3). At the conclusion
of the hearing, the court resentenced Appellant to an aggregate term across
both dockets of 17 to 40 years’ imprisonment. The court also entered separate
orders that same date (1) granting Appellant’s amended PCRA petition; and
(2) resentencing Appellant. Each order expressly states that the original
sentence of January 18, 2013 was vacated.
Appellant timely filed a notice of appeal from his new judgment of
sentence. On March 21, 2016, the court permitted PCRA counsel (Attorney
Foreman) to withdraw and appointed new counsel (Attorney Thomas Farrell).
On appeal, Appellant challenged the court’s authority to resentence him on
two counts for which the court had originally imposed “no further penalty.”
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Appellant’s co-defendant Mr. Fields had also been resentenced and raised
similar claims in his appeal. Consequently, this Court consolidated Appellant’s
and Mr. Fields’ appeals. Following oral argument before a three-judge panel,
the panel requested the appeals be certified for en banc review, which this
Court granted.
In their en banc appeals, Appellant and Mr. Fields argued that under 42
Pa.C.S.A. § 9543(a)(1)(i) (stating that to be eligible for PCRA relief, petitioner
must be currently serving sentence of imprisonment, probation, or parole),
the PCRA court lacked jurisdiction to grant PCRA relief as to those counts on
which their original sentences had already been served, or on which they had
received no further penalty. Commonwealth v. Fields, 197 A.3d 1217, 1221
(Pa.Super. 2018) (en banc) (plurality). Appellant specifically took issue with
the PCRA court’s authority to vacate his sentences of “no further penalty” for
one count of REAP and one count of firearms not to be carried without a
license, and to resentence Appellant to terms of imprisonment for each of
those convictions.2 See
id.
In authoring the majority opinion in support of affirmance (“Majority
OISA”),3 President Judge Emeritus Bender rejected Appellant’s and Mr. Fields’
____________________________________________
2 Mr. Fields challenged the court’s authority to vacate and impose a new
sentence for crimes on which he had already finished serving the originally
imposed sentence.
3 Judges Panella, Lazarus, and Dubow joined the Majority OISA.
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contention that Section 9543(a)(1)(i) prohibited the court’s jurisdiction to
resentence the defendants. In so holding, the Majority OISA explained that
the plain language of Section 9543 did not mention jurisdiction of the PCRA
court, but rather set forth the eligibility requirements a petitioner must meet
to obtain PCRA relief. Id. at 1222 (holding that requirements set forth in
Section 9543 establish only petitioner’s eligibility for PCRA relief, and do not
implicate PCRA court’s jurisdiction to act on petition).
The Majority OISA went on to decide that Appellant and Mr. Fields had
waived their claims for review because they should have appealed from the
respective orders granting PCRA relief and vacating their sentences, instead
of from their new judgments of sentence. Id. at 1223. Because the essence
of their issue was that the PCRA court lacked the ability to disturb their
sentences on certain counts, which the court did in the PCRA orders vacating
those sentences, the Majority OISA held that Mr. Fields and Appellant waived
their challenge by not appealing from those orders.
Id. Even if Appellant and
Mr. Fields had properly raised their claims in the appeals from their new
judgments of sentence, the Majority OISA still deemed the issue waived where
Appellant and Mr. Fields raised their argument that the court lacked authority
to resentence them on certain counts for which they were not serving a
sentence, for the first time on appeal.
Id. at 1224. Further, the Majority
OISA held that the issue on appeal did not implicate the legality of the
sentence, such that this Court could review the issue sua sponte.
Id.
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Judge Olson authored an opinion in support of reversal (“OISR”).4
Initially, the OISR agreed that Section 9543 of the PCRA did not implicate the
PCRA court’s jurisdiction. Nevertheless, the OISR concluded that Appellant
and Mr. Fields had preserved their claims and were entitled to relief under
Section 9543. In doing so, the OISR opined that a “PCRA court lacks the
judicial power to alter sentences that have already been served.” Id. at 1225.
In the OISR’s view, “Appellants were not serving a judgment of sentence, or
waiting to serve a judgment of sentence, for offenses that the PCRA courts
‘granted relief on,’ i.e., vacated. Our General Assembly has not conferred on
courts the power to grant relief in such instances. Hence, the PCRA courts
lacked the judicial power to vacate those judgments of sentence.”
Id. at
1228.
Further, the OISR took the position that Appellant and Mr. Fields did not
waive their claims. Relying on a time stamp of the PCRA court’s order granting
the amended PCRA petition, and the timing of the resentencing hearing, the
OISR indicated that the resentencing preceded the order granting PCRA relief
and purporting to vacate the original sentence. Thus, the OISR decided that
Appellant and Mr. Fields could not have appealed the respective PCRA court
orders prior to resentencing or objected to the orders vacating their original
sentences prior to resentencing. Id. at 1228. The OISR suggested that
____________________________________________
4 Judges Shogan and Murray joined the OISR.
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Appellant and Mr. Fields properly preserved their issue for review. Id. at
1229.
In a separate Minority OISA, Judge Stabile5 agreed with the Majority
OISA that Section 9543 is an eligibility provision (and not jurisdictional) but
disagreed with the Majority OISA’s waiver analysis. The Minority OISA opined:
“Appellants could not appeal from the orders granting their PCRA relief
vacating their original judgments of sentence…, as they were not aggrieved
parties under those orders. I therefore disagree with the [Majority OISA] that
Appellants waived their claims by not appealing from the PCRA orders that
vacated their original sentences.” Id. at 1230. Regarding waiver, the Minority
OISA decided that Appellant and Mr. Fields’ claims implicated the legality of
their respective sentences, “as the claims challenge the sentencing court’s
ability to impose punishment a second time for crimes Appellants claim their
sentences already had been served.”
Id. at 1232. Thus, the Minority OISA
concluded that waiver was inappropriate.
On the merits, the Minority OISA stated:
The Appellants sought and received relief that disrupted
their original sentencing schemes. When the PCRA court
vacated Appellants’ original judgments of sentence, the
effect of those orders was to vacate the sentences in their
entireties and to render them null and void. The slate was
wiped clean and the sentencing court was free to resentence
without regard to the original sentence, so long as the new
sentences did not impose more severe penalties that ran
afoul of double jeopardy principles. [B]y filing a petition for
____________________________________________
5 Judge Kunselman joined the Minority OISA.
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collateral relief, [Appellants] assumed the risk that [their]
sentencing on the various counts would be adjusted insofar
as was necessary to preserve the integrity of the original
sentencing scheme. The trial court did precisely that and
resentenced Appellants to terms of incarceration less than
those imposed under their original sentences. The fact that
Appellants also were resentenced on several crimes for
which their original sentences already had been served or
for which they received no further penalty, is of no moment
as the original judgments of sentence became nullities once
they were vacated by the PCRA court.
(Id.) (internal citations, quotations and footnotes omitted). On April 16,
2019, our Supreme Court denied allowance of appeal. See Commonwealth
v. Fields, 651 Pa. 593,
206 A.3d 1025 (2019).
Appellant timely filed the current PCRA petition pro se on October 31,
2019. The court appointed PCRA counsel (Attorney Charles Pass) on
December 5, 2019. PCRA counsel subsequently filed a motion to withdraw
along with a Turner/Finley “no-merit” letter.6 On February 10, 2020, the
PCRA court granted counsel’s motion to withdraw and issued notice of its
intent to dismiss the petition without a hearing per Pa.R.Crim.P. 907. On April
3, 2020, privately-retained counsel (Attorney Herbert Terrell) entered an
appearance on Appellant’s behalf. The court initially denied PCRA relief on
April 22, 2020, but subsequently vacated that decision to give Appellant an
opportunity to respond to the Rule 907 notice. Appellant responded on April
30, 2020. On July 6, 2020, the court denied PCRA relief.
____________________________________________
6 Commonwealth v. Turner, 518 Pa. 491,
544 A.2d 927 (1988) and
Commonwealth v. Finley,
550 A.2d 213 (Pa.Super. 1988) (en banc).
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Appellant timely filed pro se notices of appeal on August 3, 2020 at each
underlying docket, which this Court subsequently consolidated sua sponte.7
On September 11, 2020, the court ordered Appellant to file a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
Appellant timely complied on November 16, 2020.
Appellant raises two issues for our review:
Whether the PCRA court erred by resentencing Appellant on
2/19/16, when the original sentencing order of 1/18/13 had
not been vacated and was intact, and that PCRA and
appellate counsel were ineffective in failing to raise or
preserve this issue for appeal?
Whether the PCRA court erred in granting relief on count 5
(REAP) and count 23 ([carrying a firearm without a license])
where Appellant was not eligible to such relief under
Pa.C.S.A. Section 9543(a)(1)(i), and where sentencing and
appellate counsel were ineffective for not objecting to and
raising this claim on appeal?
(Appellant’s Brief at 4).
Our standard of review of the denial of a PCRA petition is limited to
examining whether the record evidence supports the court’s determination
and whether the court’s decision is free of legal error. Commonwealth v.
____________________________________________
7 Following the denial of PCRA relief, the court permitted Attorney Terrell to
withdraw after he requested to do so based on Appellant’s failure to pay all
fees owed. We note that Appellant was not entitled to court-appointed counsel
for this appeal. See Commonwealth v. Rykard, 55 A.3d 1177 (Pa.Super.
2012), appeal denied,
619 Pa. 714,
64 A.3d 631 (2013) (explaining that when
counsel has been appointed to represent PCRA petitioner and that right has
been fully vindicated following grant of counsel’s petition to withdraw under
Turner/Finley, court shall not appoint new counsel and appellant must look
to his own resources for future proceedings).
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Ford, 947 A.2d 1251 (Pa.Super. 2008), appeal denied,
598 Pa. 779,
959 A.2d
319 (2008). This Court grants great deference to the findings of the PCRA
court if the record contains any support for those findings. Commonwealth
v. Boyd,
923 A.2d 513 (Pa.Super. 2007), appeal denied,
593 Pa. 754,
932
A.2d 74 (2007).
In his first issue, Appellant argues that his original sentence of January
18, 2013 was still intact at the time the court resentenced him on February
19, 2016. Appellant claims that he never received an “Order to Vacate” prior
to or after the resentencing hearing. Appellant acknowledges that the
resentencing order states: “Original sentence vacated and a new sentence
impose[d] pursuant to PCRA petition granted.” (Appellant’s Brief at 13).
Nevertheless, Appellant insists this provision does not constitute an order to
vacate. Notwithstanding the court’s intent to vacate Appellant’s original
sentence, Appellant submits that “the law demands more than a court’s good
intentions.” (Id.) Appellant emphasizes that the docket entries support his
position that the court resentenced him prior to vacating the original sentence.
Appellant further relies on the OISR in Fields which highlighted that
resentencing occurred prior to any order purporting to vacate Appellant’s
original sentence. Appellant contends that “[t]he filing and docketing of an
order granting PCRA relief and vacating Appellant’s original sentence imposed
on 1/18/13, has never been filed in this matter.” (Id. at 15). Appellant
maintains his February 19, 2016 sentence is “a void judgment requiring relief
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in the form of discharge or proper sentencing[.]” (Id. at 16).
Appellant asserts that original PCRA counsel (Attorney Foreman) was
ineffective for failing to object to imposition of the February 19, 2016 sentence
when the original January 18, 2013 sentence was still intact. Appellant avers
his claim has arguable merit where three judges of the Superior Court
(namely, those in support of the OISR in Fields) agreed that resentencing in
this case took place before any purported order vacating the original judgment
of sentence. Appellant submits PCRA counsel lacked a reasonable basis for
failing to object at the resentencing hearing, and counsel’s errors caused him
prejudice. Likewise, Appellant complains subsequent counsel (Attorney
Farrell) was ineffective for failing to preserve this issue for the direct appeal
following resentencing.8 Appellant concludes counsel were ineffective, and
this Court must grant appropriate relief. We disagree.
Pennsylvania law presumes counsel has rendered effective assistance.
Commonwealth v. Williams, 597 Pa. 109,
950 A.2d 294 (2008). Generally,
when asserting a claim of ineffective assistance of counsel, the petitioner is
required to demonstrate: (1) the underlying claim has arguable merit; (2)
counsel had no 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.
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8 Appellant also suggests counsel were per se ineffective. (Appellant’s Brief
at 18).
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Commonwealth v. Kimball, 555 Pa. 299,
724 A.2d 326 (1999). The failure
to satisfy any prong of the test for ineffectiveness will cause the claim to fail.
Williams, supra. “Actual or constructive denial of the assistance of counsel,
however, falls within a narrow category of circumstances in which prejudice is
legally presumed.” Commonwealth v. Lane,
81 A.3d 974, 978 (Pa.Super.
2013), appeal denied,
625 Pa. 658,
92 A.3d 811 (2014). See, e.g.,
Commonwealth v. Rosado,
637 Pa. 424,
150 A.3d 425 (2016) (holding that
filing of appellate brief that raises only unpreserved claims constitutes per se
ineffective assistance of counsel in which prejudice is presumed; errors which
completely foreclose appellate review amount to constructive denial of
counsel).
Under the traditional ineffectiveness test, “[t]he threshold inquiry in
ineffectiveness claims is whether the issue/argument/tactic which counsel has
foregone and which forms the basis for the assertion of ineffectiveness is of
arguable merit….” Commonwealth v. Pierce, 537 Pa. 514, 524,
645 A.2d
189, 194 (1994). “Counsel cannot be found ineffective for failing to pursue a
baseless or meritless claim.” Commonwealth v. Poplawski,
852 A.2d 323,
327 (Pa.Super. 2004).
Once this threshold is met we apply the ‘reasonable basis’
test to determine whether counsel’s chosen course was
designed to effectuate his client’s interests. If we conclude
that the particular course chosen by counsel had some
reasonable basis, our inquiry ceases and counsel’s
assistance is deemed effective.
Pierce, supra at 524,
645 A.2d at 194-95 (internal citations omitted).
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Prejudice is established when [an appellant] demonstrates
that counsel’s chosen course of action had an adverse effect
on the outcome of the proceedings. The [appellant] must
show that there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding
would have been different. A reasonable probability is a
probability sufficient to undermine confidence in the
outcome. …
Commonwealth v. Chambers, 570 Pa. 3, 21-22,
807 A.2d 872, 883 (2002)
(some internal citations and quotation marks omitted).
Instantly, the PCRA court addressed this claim as follows:
[Appellant’s] claim…is apparently based on the fact that the
docket indicates that the order imposing the new sentence
was docketed before the order granting PCRA relief,
although they were both docketed on February 19, 2016.
However, the order granting PCRA relief also states, in part,
“Petitioner’s original sentence is hereby vacated, and
a new sentence imposed on February 19, 2016.” In
addition, the sentencing order states, in part, “Original
sentence vacated, and new sentence imposed pursuant to
PCRA Petition granted.” Further, during the resentencing
hearing on February 19, 2016 it is clear, based on the
following discussion, that the [c]ourt and counsel were
aware of the procedural posture of the case:
THE COURT: These are the matters of
[Appellant], the CC numbers are of record. This is a—
what amounts in effect to a resentencing at
201204831, which is multiple robberies and related
offenses during the years of 2011 and [20]12. Also,
the second information, 201204834, on March 4,
2012, which is one in the last in a string of robberies
that [Appellant] was involved in with two codefendants. [Appellant] is present in [c]ourt today
with [Attorney] Foreman on his behalf. … When I
say amounts to a resentencing, the procedural
posture is granting the PCRA, is that correct?
[THE COMMONWEALTH]: That’s correct, Your
Honor.
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THE COURT: Do you want to add anything in
terms of the procedural posture?
[THE COMMONWEALTH]: Just that this case is
back due to subsequent case law striking down the
statutes, mandatory minimum statutes that
[Appellant] was sentenced under. Accordingly, the
Commonwealth conceded to relief. And what the
Commonwealth would suggest is, since that would
disrupt the entire sentencing scheme, would be to
just vacate the sentence and resentence what
the [c]ourt sees fit. ([N.T. Hearing, 2/19/16, at 2-
3]) (Emphasis added).
The [c]ourt then inquired of [Appellant’s] counsel’s position
and it was indicated that [Appellant] had served
approximately four years and that during that time he had
no behavior problem and was taking and completing various
classes and courses. Counsel further requested that the
[c]ourt reconsider its prior sentence and impose some
concurrent sentences and an aggregate sentence less than
the previous 22-to-44-year aggregate sentence. After
hearing from [Appellant], the [c]ourt proceeded with
resentencing [Appellant] to a 17-to-40-year aggregate
sentence.
Regarding [Appellant’s] claim that the [c]ourt erred in
resentencing him without having first vacated the previous
sentence, this claim is meritless as it is clear from the above
that his previous sentence was, in fact, vacated prior to
resentencing. Both orders, regardless of the order in which
they were docketed, clearly indicated that [Appellant’s]
previous sentence was vacated. In addition, the transcript
reflects that the [c]ourt and counsel were aware of the
procedural posture of the case which consisted of granting
the PCRA relief which vacated [the] previous sentence and
imposing a new sentence.1 Furthermore, the claims that
PCRA and appellate counsel were ineffective for failing to
preserve or raise a claim on this issue fail as counsel cannot
be found to be ineffective for failing to raise a meritless
claim.
1 Further, in the [Majority OISA] in this case, it was
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stated: “On February 19, 2016, the PCRA court issued
an order granting [Appellant’s] petition, vacating his
original judgment of sentence in its entirety, and
scheduling his resentencing hearing for that same
day. At the resentencing proceeding, the court
imposed an aggregate term of 17 to 40 years’
incarceration.” [Fields, supra at 1220].
(PCRA Court Opinion, filed January 7, 2021, at 7-9) (some internal citations
omitted). The record supports the court’s analysis.
Here, the record makes clear that the court verbally granted PCRA relief
at the February 19, 2016 hearing in the form of vacating the original sentence,
and then resentenced Appellant at the same proceeding. Following the
hearing, the court entered two separate orders on that date: (1) granting
PCRA relief; and (2) resentencing Appellant. Notably, both orders expressly
state that the original sentence was vacated. Thus, it is immaterial that the
resentencing order might have been docketed right before the order granting
PCRA relief. The record simply belies Appellant’s claim that the original
sentence was still intact at the time the court resentenced him.
Although Appellant relies on the OISR in Fields, that decision did not
garner the support of a majority of the judges, so we are not bound by it. See
Commonwealth v. D. Davis, 17 A.3d 390 (Pa.Super. 2011), appeal denied,
611 Pa. 678,
29 A.3d 371 (2011) (stating general rule that decision lacks
precedential value if it does not garner support of majority of sitting judges).
To the contrary, both the Majority OISA and the Minority OISA in Fields
agreed that the original sentence had been vacated in its entirety at the time
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of resentencing. See Fields, supra at 1220, 1232. As the PCRA court noted,
counsel is not ineffective for failing to raise a meritless claim. See Pierce,
supra. Consequently, Appellant’s first issue merits no relief.
In his second issue, Appellant argues that the court lacked authority to
resentence him on two of the counts that the court had originally sentenced
him to serve no further penalty. Appellant acknowledges that he raised this
claim on direct appeal from resentencing in the context of whether the court
had jurisdiction to resentence him on those counts. Appellant asserts that
he is now arguing “an eligibility issue.” (Appellant’s Brief at 20). Appellant
insists he was ineligible under Section 9543 the PCRA to receive any relief at
the two counts for which he was not serving a sentence when the court
granted PCRA relief, relying on Commonwealth v. Matin, 832 A.2d 1141
(Pa.Super. 2003), appeal denied,
577 Pa. 678,
843 A.2d 1237 (2004).
Appellant claims that “[t]o act outside of the plain language of [Section]
9543(a)(1) would be an abuse of judicial power.” (Appellant’s Brief at 21).
Because Appellant had “completed” his sentence of “no further penalty” at the
time the court granted PCRA relief, Appellant claims he was ineligible for relief
on those counts.
Appellant further argues that original PCRA counsel (Attorney Foreman)
was ineffective for filing an appeal from the February 19, 2016 judgment of
sentence, instead of from the February 19, 2016 order granting PCRA relief.
Appellant emphasizes the language in the Majority OISA in Fields stating that
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Appellant waived his claim on appeal by appealing from the wrong order.
Appellant maintains Attorney Farrell was ineffective for raising the sentencing
court’s authority to resentence him on those counts for the first time on
appeal. In light of the Majority OISA’s waiver analysis, Appellant contends his
ineffectiveness claim has arguable merit.9 Appellant further relies on the
OISR’s rationale that the PCRA court lacked judicial power to grant Appellant
relief in certain respects. Appellant insists counsel had no reasonable basis
for failing to object in a timely manner to the PCRA court’s authority to
resentence him on convictions for which he was not eligible to receive relief
because he was not serving a sentence. Appellant concludes counsels’ actions
prejudiced him, and this Court must grant him appropriate relief. We
disagree.
The relevant statutory eligibility requirements for relief under the PCRA
are as follows:
§ 9543. Eligibility for relief
(a) General rule.—To be eligible for relief under this
subchapter, the petitioner must plead and prove by a
preponderance of the evidence all of the following:
(1) That the petitioner has been convicted of a crime
under the laws of this Commonwealth and is at the time
relief is granted:
(i) currently serving a sentence of imprisonment,
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9 Relying on the Majority OISA’s waiver analysis, Appellant also suggests that
counsel were per se ineffective because their failures “wholly deprive[d]”
Appellant of the right to substantive review. (Appellant’s Brief at 24).
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probation or parole for the crime;
…
42 Pa.C.S.A. § 9543(a)(1)(i).
In Matin, supra, the appellant pled guilty to two counts of robbery, and
one count each of criminal conspiracy and possessing a firearm without a
license. The court sentenced him to an aggregate term of 6-20 years’
imprisonment, with all sentences imposed concurrently. The sentence for the
firearms violation was 2½ to 5 years’ imprisonment. The appellant did not
pursue direct review but filed a PCRA petition, which the court dismissed. On
appeal from the denial of PCRA relief, this Court reversed and remanded to
the PCRA court, deciding that one of the appellant’s issues had arguable merit,
namely whether trial counsel was ineffective for advising the appellant to
plead guilty to the firearms violation when he had not possessed any firearm
during the robbery. By the time the case had returned to the PCRA court for
consideration of this issue, however, the appellant’s sentence for the firearms
conviction had expired. Consequently, the PCRA court decided the appellant
was no longer eligible for relief on any issue challenging his conviction and
again dismissed his petition.
On appeal, this Court agreed, holding: “A petitioner is ineligible for relief
under the PCRA once the sentence for the challenged conviction is completed.”
Id. at 1143. Because the appellant had completed serving his sentence on
the firearms conviction, he was no longer eligible for relief. See
id.
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In Commonwealth v. Bartrug, 732 A.2d 1287 (Pa.Super. 1999),
appeal denied,
561 Pa. 651,
747 A.2d 896 (1999), the appellant pled guilty to
burglary, theft by unlawful taking, and receiving stolen property. The trial
court sentenced him to 7½ to 15 years’ imprisonment for theft by unlawful
taking and imposed no further sentence on the other counts. Appellant did
not pursue a direct appeal, but later filed a PCRA petition arguing the court
had imposed an illegal sentence on his theft conviction that exceeded the
statutory maximum. Thereafter, the PCRA court acknowledged that the
maximum sentence for theft is 7 years’ imprisonment. Consequently, the
court granted the PCRA petition, vacated the judgment of sentence, and
resentenced the appellant to 7½ to 15 years’ imprisonment for burglary. The
court imposed no further penalty on the remaining counts. Id. at 1288-89.
On appeal, the sole issue presented was “whether the PCRA court erred
in vacating the entire sentence rather than addressing only that part of [the
a]ppellant’s sentence that was illegal. [The a]ppellant question[ed] whether
the PCRA court had jurisdiction to vacate otherwise legal sentences…which
were not part of his PCRA petition.” Id. at 1289. This Court explained that
“if a trial court errs in its sentence on one count in a multi-count case, then
all sentences for all counts will be vacated so the court can restructure its
entire sentencing scheme.” Id. “This…is true even where [an a]ppellant
specifically limits his appeal to one particular illegal sentence based upon one
bill of information and does not appeal sentences based upon other bills of
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information, where those sentences are part of a common sentencing
scheme.” Id. This Court further stated that when a defendant appeals a
judgment of sentence, “he accepts the risk that the Commonwealth may seek
a remand for resentencing thereon if the disposition in the appellate court
upsets the original sentencing scheme of the trial court.” Id. at 1289-90
(internal citation omitted). Thus, this Court held that the PCRA court exercised
proper authority in vacating the entire original sentence prior to resentencing.
Instantly, in addressing this issue, the PCRA court reasoned:
As previously noted, at the resentencing hearing on
February 19, 2016, the Commonwealth recognized that the
effect of the Alleyne decision was to “disrupt the entire
sentencing scheme.” [N.T. Hearing, 2/19/16, at 3]. In
addition, [Appellant’s] counsel stated, “He’s just asking that
you reconsider the sentence and you would consider
imposing a sentence less than the 22 to 44 years…” [Id. at
4]. The [c]ourt in this case had constructed a sentencing
scheme on 53 counts involving robbery, aggravated assault,
terroristic threats, [REAP], firearms violations and
conspiracy. [T]here was no error by the [c]ourt in
restructuring the total aggregate sentence to a lesser
sentence, even though it involved sentences on two counts
for which no further penalty had been imposed in the
original sentence.
(PCRA Court Opinion at 11). We agree with the court’s analysis.
Here, the PCRA court had the authority to vacate the entire original
sentence, including those sentences for which the court had originally imposed
no further penalty, prior to resentencing Appellant. See Bartrug, supra.
Appellant’s reliance on Matin affords him no relief because that case is
distinguishable. There, the PCRA court lacked the ability to grant PCRA relief
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on the appellant’s firearms conviction because he had already completed
serving his sentence for that conviction upon which his claim for relief was
based. See Matin, supra. The facts of this case align more closely to
Bartrug. See
Bartrug, supra. Thus, Appellant cannot demonstrate
prejudice to succeed on his ineffectiveness claim.10 See
Chambers, supra.
Accordingly, we affirm the order denying PCRA relief.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/13/2021
____________________________________________
10 Although Appellant relies on the Majority OISA’s waiver analysis to support
his claim of per se ineffectiveness, because this decision did not garner the
support of a majority of the sitting judges, that waiver analysis is not
precedential. See D. Davis, supra. Similarly, we are not bound by the
OISR’s analysis that the PCRA court lacked authority to resentence Appellant
on the convictions for which the court had originally imposed no further
penalty. See
id.
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