Com. v. Taylor, R. ( 2018 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
RAYNARD TAYLOR :
:
Appellant : No. 565 EDA 2017
Appeal from the Judgment of Sentence January 24, 2017
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0706561-2006
BEFORE: SHOGAN, J., NICHOLS, J., and PLATT, J.*
MEMORANDUM BY NICHOLS, J.: FILED MAY 21, 2018
Appellant Raynard Taylor appeals from the judgment of sentence
imposed following his successful merger claim under the Post Conviction Relief
Act (PCRA).1 Because the PCRA court did not enter a final order dismissing
the PCRA claims upon which this appeal is based, we quash.
The facts underlying Appellant’s convictions are not pertinent to our
disposition. On September 11, 2008, following a bench trial, Appellant was
sentenced to fifteen to thirty years’ incarceration for attempted murder and
ten years’ probation for aggravated assault. See Trial Ct. Op., 7/18/17, at 1.
Appellant filed a direct appeal, and on January 31, 2011, this Court affirmed
the trial court’s judgment of sentence. Commonwealth v. Taylor, 2821 EDA
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* Retired Senior Judge assigned to the Superior Court.
1 42 Pa.C.S. §§ 9541-9546.
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2008 (Pa. Super. Jan. 31, 2011) (unpublished mem.). On July 31, 2012, our
Supreme Court denied Appellant’s petition for allowance of appeal.
On December 14, 2012, the PCRA court docketed Appellant’s pro se
PCRA petition challenging the legality of his sentence and the effectiveness of
his trial counsel. Thereafter, the court appointed PCRA counsel, who filed an
amended PCRA petition on March 2, 2015. The Commonwealth filed a motion
to dismiss Appellant’s PCRA petition on March 17, 2016.
On September 13, 2016, the PCRA court filed a Pa.R.Crim.P. 907 notice
of intent to dismiss the petition without a hearing. Appellant filed a response
on September 20, 2016. The Commonwealth filed its response on October
19, 2016. On October 20, 2016, Appellant submitted a supplemental response
to the Rule 907 notice that focused on Appellant’s sentencing claim and the
merger doctrine.
On November 2, 2016, the PCRA court convened a conference with
counsel at which it found that Appellant’s sentence for aggravated assault
should have merged with the sentence for attempted murder. N.T., 11/2/16,
at 13. That same day, the PCRA court entered an order, stating in relevant
part: “after consideration of the [m]otion to [g]rant PCRA by the [a]ttorney
for the [d]efendant it is ORDERED that the [m]otion to [g]rant PCRA is
GRANTED. Commonwealth motion to dismiss is denied.” Order, 11/2/16.
Thereafter, on January 24, 2017, the court held a resentencing hearing
and vacated Appellant’s ten-year probation sentence for aggravated assault.
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See Trial Ct. Order, 1/24/17. The sentence remained unchanged in all other
respects. Id.
On February 10, 2017, Appellant filed a notice of appeal and
subsequently complied with the PCRA court’s order to file a concise statement
pursuant to Pa.R.A.P. 1925(b), in which he claimed that the PCRA court
erroneously dismissed his claim of ineffective assistance of counsel.2 On July
18, 2017, the PCRA court issued a Rule 1925(a) opinion stating that it denied
Appellant’s ineffective assistance of counsel claims on November 2, 2016, and
thoroughly addressed the merits of those claims.
Appellant raises one issue for our review:
Whether the PCRA Court erred by denying [Appellant] post-
conviction relief because trial counsel was ineffective for failing to
file a post-sentence and preserve the claim that the verdict was
against the weight of the evidence.
Appellant’s Brief at 2.3
As a prefatory matter, we must address whether this appeal is properly
before us. We may raise issues concerning our jurisdiction sua sponte.
Commonwealth v. Baio, 898 A.2d 1095, 1098 (Pa. Super. 2006).
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2Appellant’s notice of appeal specifically refers to “the order of the Honorable
Glynnis Hill, dated January 24, 2017, resentencing [Appellant].” Notice of
Appeal, 2/10/17.
3 We also note that on April 3, 2017, Appellant sought relief from this Court
for the PCRA court’s entry of a final order denying Appellant’s PCRA claims,
which he claimed were denied on January 24, 2017. This Court denied
Appellant’s motion.
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In general, appeals are properly taken from final orders.
Commonwealth v. Scarborough, 64 A.3d 602, 608 (Pa. 2013) (citation
omitted). “An order granting, denying, dismissing, or otherwise finally
disposing of a petition for post-conviction collateral relief shall constitute a
final order for purposes of appeal.” See Pa.R.Crim.P. 910.
Here, Appellant purports to appeal from the PCRA court’s January 24,
2017 judgment of sentence. However, he focuses solely on the PCRA court’s
denial of his ineffective assistance claim. Recognizing this fact, the
Commonwealth argues that Appellant’s appeal is not properly before us, as
Appellant is ultimately appealing the disposition of his PCRA petition, not the
new sentence imposed on resentencing.
An order granting a new sentencing hearing and denying all other claims
in a PCRA petition is a final order. Commonwealth v. Watley, 153 A.3d
1034, 1039 n.3 (Pa. Super. 2016) (citing Commonwealth v. Gaines, 127
A.3d 15 (Pa. Super. 2015) (en banc) (plurality)). Accordingly, where an
appellant appeals the denial of his PCRA claims, the appealable order is not
the resentencing order, but the order that fully disposes of the PCRA claims.
See Gaines, 127 A.3d at 16-19.
The present case is distinguishable from both Gaines and Watley, as
our review of the record reveals that the PCRA court did not issue any order
dismissing Appellant’s ineffectiveness claims. In fact, the only order
pertaining to the disposition of Appellant’s PCRA petition is the November 2,
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2016 order,4 which grants Appellant’s “motion for PCRA” and denies the
Commonwealth’s motion to dismiss. See Trial Ct. Order, 11/2/16. While the
PCRA court may have intended to dismiss Appellant’s ineffectiveness claims,
that is not what the order reflects.5 Moreover, we have thoroughly reviewed
the record and have found no subsequent orders dismissing Appellant’s
remaining PCRA claims.6
Accordingly, we conclude that the PCRA court has yet to enter a final
order disposing of all claims raised in the underlying PCRA petition. Therefore,
we must quash this appeal.7
Appeal quashed.
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4 Notably, the PCRA court, Appellant, and the Commonwealth each assert that
Appellant’s PCRA claims were denied on November 2, 2016. However, the
resulting order does not reflect that disposition.
5 Pa.R.Crim.P. 908(D)(2) provides, in pertinent part, that if a PCRA petition is
granted, the court “promptly shall issue an order granting a specific form
of relief, and issue any supplementary orders appropriate to the proper
disposition of the case.” See Pa.R.Crim.P. 908(D)(2) (emphasis added).
6 Additionally, our review of the transcript of the November 2, 2016 conference
indicates that although the PCRA court did not address Appellant’s ineffective
assistance of counsel claims, it did not expressly dismiss them before granting
resentencing.
7We note that Appellant may file a notice of appeal within thirty days of the
date on which the PCRA court enters its final order disposing of Appellant’s
PCRA petition.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/21/18
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