Commonwealth v. Carter , 122 A.3d 388 ( 2015 )

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2015 PA Super 182COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
GENE DONTA CARTER
Appellant Nos. 489 WDA 2014
Appeal from the Judgment of Sentence February 26, 2014
In the Court of Common Pleas of Blair County
Criminal Division at No(s): CP-07-CR-0000245-2011
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
GENE DONTA CARTER
Appellant Nos. 918 WDA 2014
Appeal from the Order May 5, 2014
In the Court of Common Pleas of Blair County
Criminal Division at No(s): CP-07-CR-0000245-2011
BEFORE: LAZARUS, J., STABILE, J., and JENKINS, J.
OPINION BY JENKINS, J.: FILED September 1, 2015
A jury found Gene Donta Carter guilty of sixteen counts of delivery of a
controlled substance,1 two counts of possession with intent to deliver a
____________________________________________
1
35 P.S. § 780-113(a)(30).
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controlled substance,2 and one count each of criminal conspiracy,3 criminal
use of communication facility,4 and dealing in proceeds of unlawful activity.5
The trial court imposed an aggregate sentence of 104½ - 215 years’
imprisonment, including sixteen mandatory minimum sentences for sales of
cocaine and heroin under 18 Pa.C.S. § 7508.6 In this direct appeal, Carter
contends, inter alia, that (1) the trial court violated his Sixth Amendment
rights by denying his request to have an attorney from court-appointed
counsel’s office participate as co-counsel during trial; and (2) his sentence is
unconstitutional under Alleyne v. United States, -- U.S. --, 133 S.Ct. 2151(2013). We affirm Carter’s convictions, but we vacate his sentence and
remand for resentencing.
This case arose from an investigation by the Office of Attorney General
which revealed that co-defendant Michael Serrano, a Philadelphia source,
provided drugs to Carter, who sold them in Blair County between September
2009 and April 2010. Following a four-day trial, the jury convicted Carter of
____________________________________________
2
35 P.S. § 780-113(a)(30).
3
18 Pa.C.S. § 903.
4
18 Pa.C.S. § 7512(a).
5
18 Pa.C.S. § 5111(a)(1).
6
The specific subsections under which the court sentenced Carter were
section 7508 (a)(3)(i) and (ii) (cocaine) and section 7508 (7)(i) and (iii)
(heroin).
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the aforementioned offenses, and on January 12, 2013, the court imposed
sentence. The trial judge subsequently passed away.
Post-sentencing and appellate proceedings have been protracted. On
January 23, 2013, Carter filed timely post-sentence motions, but the court
did not hold a hearing until August 22, 2013. On November 22, 2013,
Carter filed a pro se motion seeking a copy of the audio recording of his trial.
On February 26, 2014, the court entered an order denying Carter’s
post-sentence motions. On March 25, 2014, Carter filed a notice of appeal
from this order at 489 WDA 2014.
On May 5, 2014, the court denied Carter’s motion for a copy of the
audio recording of trial. On the same date, the court ordered Carter to file a
Pa.R.A.P. 1925(b) statement relating to his appeal at 489 WDA 2014.
Through counsel, Carter filed a timely Pa.R.A.P. 1925(b) statement on May
23, 2014, but the court never issued a Pa.R.A.P. 1925(a) opinion.
On May 28, 2014, Carter appealed at 918 WDA 2014 from the May 5,
2014 order denying his motion for a copy of the audio recording at trial. The
court did not order Carter to file a Pa.R.A.P. 1925(b) statement in
connection with this appeal.
Before proceeding to Carter’s arguments on appeal, we must examine
whether both appeals are timely. Due to multiple errors by the Clerk of
Court below, and through no fault of Carter, Carter’s appeal periods
technically have never begun running. Nevertheless, we will treat both
appeals as timely filed.
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To explain, we begin by summarizing the relevant rules of post-
sentence procedure. With one exception not relevant here, trial courts must
decide post-sentence motions within 120 days after the filing of the motion.
Pa.R.Crim.P. 720(B)(3)(a). If the trial court fails to decide the motion within
120 days, the motion “shall be deemed denied by operation of law,” id., and
“the clerk of courts shall forthwith enter an order on behalf of the court, and,
as provided in [Pa.R.Crim.P. 114], forthwith shall serve a copy of the order
on the attorney for the Commonwealth, the defendant’s attorney, or the
defendant if unrepresented, that the post-sentence motion is deemed
denied.” Pa.R.Crim.P. 720(B)(3)(c). Rule 114 provides in turn that docket
entries shall contain: “(a) the date of receipt in the clerk’s office of the order
or court notice; (b) the date appearing on the order or court notice; and (c)
the date of service of the order or court notice.” Pa.R.Crim.P. 114(C)(2).
The date of entry of an order denying post-sentence motions, and the date
the appeal period begins to run, “shall be the day the clerk of the
court…mails or delivers copies of the order to the parties.” Pa.R.A.P.
108(a)(1), (d)(2).
We now apply these rules to Carter’s direct appeal at 489 WDA 2014.
Carter filed post-sentence motions on January 23, 2013, but the Clerk did
not enter an order denying his motions until February 26, 2014. Under
Pa.R.Crim.P. 720(B)(3)(a), Carter’s post-sentence motions should have been
denied by operation of law on May 23, 2013, and on that date, the Clerk
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should have served the order on Carter and noted the date of service on the
docket, thereby triggering Carter’s appeal period. The Clerk failed to carry
out these steps. Consequently, the appeal period did not begin running on
May 23, 2013.
Nor did the appeal period at 489 WDA 2014 begin running on February
26, 2014, the date the Clerk docketed the order denying post-sentence
motions. Although the Clerk certified on the back of the order that it served
the order on all parties, it failed to state the date of service on the docket.
See Pa.R.Crim.P. 114(C)(2)(c) (docket entries “shall contain” the “date of
service of the order”); Pa.R.A.P. 108(a)(1), (d)(1) (appeal period only
begins running on the date the Clerk “mails or delivers copies of the order to
the parties”).
Despite the Clerk’s failure to note service on the docket, Carter
obviously received the February 26, 2014 order, because he filed his appeal
on March 25, 2014, less than thirty days later. Accordingly, “[we] will
regard as done that which ought to have been done” and treat the appeal at
489 WDA 2014 as timely, i.e., treat this appeal as if the Clerk inscribed the
date of service on the docket on February 26, 2014. Commonwealth v.
Howard, 659 A.2d 1018, 1021 n. 12 (Pa.Super.1995) (Clerk of Court failed
to enter order denying post-sentence motions by operation of law on July
13, 1994, 120 days after defendant filed post-sentence motions, but
defendant filed notice of appeal within 30 days after July 13th; held that “we
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shall regard as done that which ought to have been done and proceed to
review the defendant’s claims”).
Similarly, the appeal period for Carter’s appeal at 918 WDA 2014 has
never begun running. Although the Clerk certified on the back of the May 5,
2014 order denying Carter’s motion for a copy of the audio recording of trial
that it served the order on all parties, the Clerk again failed to state the date
of service on the docket. Carter, however, obviously received the May 5,
2014 order, because he appealed it on May 28, 2014, less than thirty days
later. Therefore, once again, “we will regard as done that which should have
been done” and treat the appeal at 918 WDA 2014 as timely. Howard,
supra.
Having found both appeals timely, we consolidate them sua sponte
pursuant to Pa.R.A.P. 513.
Carter raises four issues in this appeal, which we have re-ordered for
the sake of convenience:
Whether the [trial] [c]ourt erred and abused its discretion by
refusing to allow [Carter’s] second-chair attorney to participate
in his trial?
Whether the trial court committed an error of law and abused its
discretion when it denied [Carter’s] request to obtain a copy of
the recording of his jury trial?
Whether the trial court imposed an illegal sentence in imposing
mandatory minimum sentences in violation of the holding in
[Alleyne]?
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Whether the trial court imposed a manifestly unreasonable,
excessive, and harsh sentence in imposing consecutive
sentences clearly calculated to be a de facto life sentence?
We first consider Carter’s argument that the trial court abused its
discretion by refusing to permit his second-chair attorney, Eric Rutkowski,
Esquire, to cross-examine several witnesses during trial. Carter’s first-chair
attorney, Scott Pletcher, Esquire, was court-appointed. Mr. Rutkowski was
another attorney at Mr. Pletcher’s office.
The right to counsel is guaranteed under both the Sixth Amendment
and Article I, § 9 of the Pennsylvania Constitution, and erroneous preclusion
of the defendant’s lone attorney is a constitutional violation that is not
subject to harmless error review. United States v. Gonzalez-Lopez, 548
U.S. 140, 150 (2006). Appointment of additional counsel, on the other
hand,
is not a matter of right; it is a request addressed to the
discretion of the trial court. A trial court possesses broad
discretionary powers, necessary to effectively dispose of the
multitude of issues that require its attention within the arena of
litigation … An appellate court will not reverse a discretionary
ruling of a trial court absent an abuse of that discretion.
Commonwealth v. Champney, 832 A.2d 413 (Pa.2003). “The mere fact
that the accused and/or his counsel would prefer multiple lawyers in no way
proves an abuse of discretion in denying multiple representation.” Id.(emphasis in original).
The trial court acted within its discretion by denying Carter’s request
for second-chair counsel. Carter failed to file any pre-trial motion seeking
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the appointment of second-chair counsel. N.T., 10/24/11, at 7-8.
Moreover, Carter was on trial with co-defendant Michael Serrano, and the
trial court explained that each party in the case, including the
Commonwealth, was limited to one attorney. Id. at 39-40. Finally, Carter
fails to identify any prejudice resulting from Mr. Rutkowski’s exclusion.
In his second argument, Carter asserts that the trial court abused its
discretion by denying his request for a copy of the audio recording of trial.
According to Carter, the trial transcript has been “intentionally altered,” and
“there are at least twenty instances of missing or altered testimony.” Brief
For Appellant, p. 18. Carter has waived this issue by failing to identify any
part of the transcript in which testimony is omitted or altered. See
Commonwealth v. Fransen, 42 A.3d 1100, 1116 n. 14 (Pa.Super.2012),
(claim of trial court error relative to jury instruction waived for failure to cite
place in certified record where instruction requested); Commonwealth v.
Eline, 940 A.2d 421, 434 (Pa.Super.2007) (claims of error relative to denial
of continuance and jury charge waived where defendant failed to indicate
where in record he requested continuance and preserved jury charge
objection).
In his third argument, Carter contends that his sentence is
unconstitutional under Alleyne. We agree. Alleyne held that “facts that
increase mandatory minimum sentences must be submitted to a jury” and
must be found “beyond a reasonable doubt.” Alleyne, 133 S.Ct. at 2163.
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Moreover, this Court has held that 18 Pa.C.S. § 7508, in its entirety, is
unconstitutional. Commonwealth v. Cardwell, 105 A.3d 748, 755
(Pa.Super.2014); Commonwealth v. Newman, 99 A.3d 86(Pa.Super.2014) (en banc); see also Commonwealth v. Hopkins, -- A.3d
--, 2015 WL 3949099 (Pa., June 15, 2015) (18 Pa.C.S. § 6317, which
requires imposition of mandatory minimum sentence if certain controlled
substance crimes occur within 1,000 feet of, inter alia, a school, held
unconstitutional; statute was inconsistent with Alleyne because it required
sentencing court to impose mandatory minimum sentence based on facts
which were not submitted to jury and not found beyond reasonable doubt).
The trial court imposed mandatory minimum sentences under section
7508 on sixteen of Carter’s twenty-one convictions. Brief For
Commonwealth, at 27-28. Because the court’s reliance on section 7508 was
error, and because vacatur of his mandatory minimum sentences may affect
the entire sentencing scheme, we must vacate Carter’s entire sentence and
remand for resentencing on all counts. See Commonwealth v. Ferguson,
107 A.3d 206, 213-14, 216 (Pa.Super.2015) (vacating entire sentence
pursuant to Alleyne and remanding for resentencing on all counts, where
sentence encompassed both counts subject to mandatory minimum
sentencing provisions and counts not subject to mandatory minimum
sentencing provisions).
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In Carter’s fourth argument, he contends that his sentence was
manifestly unreasonable and excessive. Because we are vacating his entire
sentence and remanding for resentencing, this argument is moot.
Appeals at 489 WDA 2014 and 918 WDA 2014 consolidated.
Convictions affirmed. Case remanded for resentencing on all convictions.
Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/1/2015
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