Com. v. Fields, K. ( 2018 )

J-E01002-18 & J-E01003-18
2018 Pa. Super. 283
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT
OF PENNSYLVANIA
Appellee
v.
KEITH FIELDS
Appellant No. 1069 WDA 2016
Appeal from the Judgment of Sentence Entered April 5, 2016
In the Court of Common Pleas of Allegheny County
Criminal Division at Nos: CP-02-CR-0004803-2012,
CP-02-CR-0004806-2012
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT
OF PENNSYLVANIA
Appellee
v.
GERALD HOWARD DAVIS, JR.
Appellant No. 445 WDA 2016
Appeal from the Judgment of Sentence Entered February 19, 2016
In the Court of Common Pleas of Allegheny County
Criminal Division at Nos: CP-02-CR-0004831-2012,
CP-02-CR-0004834-2012
BEFORE: BENDER, P.J.E., PANELLA, SHOGAN, LAZARUS, OLSON, STABILE,
DUBOW, KUNSELMAN, and MURRAY, JJ.
OPINION IN SUPPORT OF AFFIRMANCE BY STABILE, J.:
FILED OCTOBER 17, 2018
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I concur fully with the Majority’s conclusions that a) section 9543 of the
PCRA1 is not a jurisdictional provision, but rather an eligibility for relief
provision2, b) section 9545 is the jurisdictional provision under the PCRA, and
c) this Court’s statement in Commonwealth v. Ahlborn, 683 A.2d 632 (Pa.
Super. 1996)(en banc), aff’d by Commonwealth v. Ahlborn, 699 A.2d 718
(Pa. 1997), that the “currently serving” requirement under section 9543 to
hear a PCRA petition is jurisdictional, was in error. I respectfully dissent
however, from the Majority’s view that Appellants Fields and Davis waived
their claims for review because they appealed only from their resentencing
orders and not from the orders vacating their original judgments of sentence,
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1 Post Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-9546.
2 It long has been settled that the ability of a court to hear or adjudicate a
controversy and the power to grant relief are separate and distinct questions.
Beltrami Ent. v. Dept. of Environmental Resources, 632 A.2d 989 (Pa.
Cmwlth. 1993). A court may have jurisdiction to hear a claim
[E]ven though a plaintiff have no standing to
bring his action, even though his complaint be
demurrable, even though he failed to establish
its allegations, even though the court should
finally conclude that the relief he seeks should
not be granted, nor any or all of the
circumstances would enter into, much less
determine, the question whether the court had
jurisdiction of the litigation.
Id. at 993, citing Sperry & Hutchinson Co. v. O’Connor, 412 A.2d 539, 541
(Pa. 1980)(quoting Studio Theatres, Inc. v. City of Washington, 209 A.2d
802, 804 (Pa. 1965).
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and that they otherwise waived their claims by presenting them for the first
time on appeal. Consequently, I would reach the merits of Appellants’ claims,
and in doing so, would affirm the resentencing orders of the trial court.
Both Appellants filed Amended PCRA petitions contending they were
entitled to be resentenced as a result of the ineffectiveness of their trial
counsel who failed to challenge certain mandatory minimum sentences. These
mandatory minimums were imposed by the trial court for several robbery
convictions among a multitude of other crimes to which they pled.3 The PCRA
court, by orders dated February 19, 2016 and April 5, 2016, for Davis and
Fields respectively, granted the PCRA relief requested to vacate the judgments
of sentence in their entireties and imposed new judgments of sentence,
implicitly if not expressly acknowledging that the sentencing errors upset the
original sentencing schemes. Upon resentencing, the trial court imposed
lesser aggregate terms of 17 to 40 years’ incarceration upon Davis and 17 to
50 years’ incarceration upon Fields. In Davis’ case, his resentence included 1
to 2 years of incarceration each for carrying a firearm without a license4 and
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3 Davis was charged with 25 and 29 counts under criminal information No.’s
CP-02-CR-00004831-1212 and CP-02-CR-00004834-1212, respectively.
Fields was charged with 48 and 29 counts under criminal information No.’s
CP-02-CR-00004803-1212 and CP-02-CR-00004806-1212, respectively.
418 Pa.C.S.A. § 6106(a)(1). The Majority incorrectly states this conviction as
being from one count of possession of a firearm, a different crime codified at
18 Pa.C.S.A. § 6105(a)(1).
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for one count of REAP. Davis’ original sentence imposed a determination of
guilty without further penalty for these crimes. In Fields’ case, his resentence
included incarceration for multiple counts for which he already served his time
under his original judgments of sentence or for which he received a
determination of guilty without further penalty.5 Appellants each filed timely
appeals from their new judgments of sentence. Neither appealed from the
orders granting PCRA relief to vacate their original sentences.
In my opinion, Appellants properly appealed from the resentencing
orders to challenge whether the trial court could again sentence them on
counts for which they already served their time or for which they received a
determination of guilt without further penalty. In my opinion, Appellants could
not appeal from the orders granting their PCRA relief vacating their original
judgments of sentence as held by the Majority, as they were not aggrieved
parties under those orders. I therefore disagree with the Majority that
Appellants waived their claims by not appealing from the PCRA orders that
vacated their original sentences.
Rule 501 of the Rules of Appellate Procedure provides that “any party
who is aggrieved by an appealable order […] may appeal therefrom.”
Pa.R.A.P. 501. “An aggrieved party is one who has been adversely affected
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5For instance, Fields points out that he was resentenced at count 29 of CP-
02-CR-00004806-1212, for robbery-threatens serious bodily injury, 18
Pa.C.S.A. § 3701, to 1 to 2 years’ incarceration for which his sentence already
had been served at time of resentencing. Fields Brief at p. 33.
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by the decision from which the appeal is taken.” Commonwealth v.
Dellisanti, 831 A.2d 1159, 1163 n.7 (Pa. Super. 2003) (en banc), reversed
on other grounds, 876 A.2d 376 (Pa. 2005). A prevailing party, by
definition, is not an aggrieved party. See Basile v. H & R Block, Inc., 973
A.2d 417, 421 (Pa. 2009) (“Pennsylvania case law also recognizes that a party
adversely affected by earlier rulings in a case is not required to file a protective
cross-appeal if that same party ultimately wins a judgment in its favor; the
winner is not an aggrieved party.”) (emphasis added). A party who is not
aggrieved in any way by the matter he seeks to challenge has no standing to
obtain judicial resolution of his challenge. See, 20 Pennsylvania Appellate
Practice, 2017-2018 Ed. (G. Ronald Darlington, Kevin J. McKeon, Daniel R.
Schuckers, Kristen W. Brown, Patrick Cawley) § 501:2. Appellants were the
prevailing parties under their amended PCRA petitions because the PCRA court
granted the relief they requested and vacated their judgments of sentence.
As a result, Appellants were not adversely affected by those orders and
consequently, were not aggrieved to confer standing upon them to appeal
those orders. On the other hand, had the Commonwealth felt aggrieved by
the PCRA orders vacating the Appellants’ judgments of sentence, it would have
had standing to appeal as it would have been aggrieved by the orders.6
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6 I, respectfully disagree with my learned colleague in her concurring and
dissenting opinion wherein she views resolution of this waiver issue as one
concerning the finality of orders from which a party may appeal. Concurring
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Accordingly, it is my opinion Appellants properly appealed from the trial court’s
resentencing orders as aggrieved parties. It is from those orders that
Appellants claim the trial court erred by resentencing them for crimes for
which they already completed their time or for which no further penalty had
been imposed under their original judgments of sentence.
I further disagree with the Majority’s alternative waiver analysis that
Appellants waived their claims because neither raised them during their
resentencing hearings or asserted them in a post-sentence motion. In the
Majority’s view, both men waived their claims because they waited until the
present appeal to contend for the first time that the PCRA court lacked
authority to disturb their original sentences on certain convictions. Although
not explicitly stated by the Majority, the basis for this alternative waiver
conclusion implies that Appellants are seeking review of the discretionary
aspects of their resentences. See Commonwealth v. Allen, 24 A.3d 1058,
1064 (Pa. Super. 2011)(an appellant who challenges the discretionary aspects
of his sentence must 1) file a timely notice of appeal, 2) preserve the issue at
sentencing or in a motion to reconsider and modify sentence, 3) comply with
Pa.R.A.P. 2119(f) and 4) demonstrate that the challenge raises a substantial
question that the sentence appealed from is not appropriate under the
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and Dissenting Opinion at p. 9-10. Both the PCRA orders and trial court
resentencing orders were final orders from which an aggrieved party could
appeal. The issue here is one of standing not finality.
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Sentencing Code). To the contrary, Appellants maintain that the issue each
raises concerns the legality of their resentences and therefore, the issue may
be raised at any time, even for the first time on appeal.
The Majority examines whether Appellants have raised an illegal
sentencing claim against the three narrow categories recognized as non-
waivable for illegal sentencing claims, those being: (1) claims that the
sentence fell outside of the legal parameters prescribed by the applicable
statute, (2) claims involving merger/double jeopardy, and (3) claims
implicating the rule in Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct.
2348, 147 L. Ed. 2d 435 (2000). Concluding that Appellants claims clearly do
not fall within the first or third categories, the Majority examines whether the
Appellants’ claims concern sentencing illegality under principles of double
jeopardy. The Majority concludes that because it perceives no double
jeopardy violation (a conclusion with which I agree) there is no need for this
Court to sua sponte raise such a claim and vacate either of Fields’ or Davis’
at-issue sentences. Majority Opinion at p. 12-13.
Since the Majority introduced this double jeopardy analysis as a segue
to its alternate waiver conclusion, it is not clear to me whether the Majority
believes the issues raised by Appellants do not raise legality claims or if they
do, no relief is available under principles of double jeopardy. I certainly view
Appellants’ claims as invoking illegality, as the claims challenge the sentencing
court’s ability to impose punishment a second time for crimes Appellants claim
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their sentences already had been served. See Commonwealth v.
Kuykendall, 2 A.3d 559 (Pa. Super. 2010)(whether revocation of SIP
sentence and resentencing violated double jeopardy where original sentence
of incarceration already had been served at time of revocation). If the
Majority’s view is that the claims are illegality claims, but no relief is due under
principles of double jeopardy, then I find the Majority’s analysis does not fully
address the issue raised by Appellants. The Majority does not reach the issue
raised as to whether the court, after relief is granted under the PCRA, could
resentence Appellants as part of an overall resentencing scheme on counts for
which they already completed their sentences or for which they received no
further penalty.
As I do not believe Appellants waived their claims and that the claims
raise issues of sentencing illegality, it is my opinion this Court is obligated to
address those claims on the merits. In doing so, I would conclude that the
trial court did not err in resentencing Appellants. 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. Commonwealth v. Colding, 393 A.2d 404, 408 (Pa.
1978). 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
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jeopardy principles.7 Id. As the Majority correctly notes, “by filing a petition
for 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.” Commonwealth v. Walker,
568 A.2d 201, 208 (Pa. Super. 1989), disapproved of on other grounds by
Commonwealth v. Robinson, 931 A.2d 15, 20-22 (Pa. Super. 2007) (en
banc). Majority Opinion at p. 12. The trial court did precisely that and
resentenced Appellants to terms of incarceration less than those imposed
under their original sentences.8 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.
The respective positions of Appellants and the Commonwealth call into
question whether this Court’s prior decisions in Commonwealth v. Bartrug,
732 A.2d 1287 (Pa. Super. 1999), appeal denied, 747 A.2d 896 (Pa. 1999),
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7 In this regard, I am in full accord with the Majority's view that double
jeopardy is not triggered here, since Fields and Davis were both resentenced
to lower aggregate terms of incarceration, the aggregate sentences imposed
upon resentencing did not exceed the original aggregate sentences, and both
were given credit for time served in their written sentencing orders. Neither
therefore, will suffer multiple punishments for the same offense. See Majority
Opinion at p. 12-13.
8 Appellants of course are entitled to credit for time already served.
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and Commonwealth v. Matin, 832 A.2d 1141 (Pa. Super. 2003), appeal
denied, 843 A.2d 1247 (Pa. 2004), are in conflict with each other. I do not
find these cases to be in conflict or in conflict with the decision I would reach
in this case.
Both Bartrug and Matin were appeals from orders of a PCRA court. In
Bartrug, the sole issue presented was whether the PCRA court erred in
vacating an entire sentence rather than addressing only that part of the
appellant’s sentence that was found to be illegal. The appellant questioned
whether the PCRA court had jurisdiction9 to vacate otherwise legal sentences
which were not part of his PCRA petition. The appellant had pled guilty to
burglary, theft by unlawful taking or disposition, and receiving stolen property.
The trial court sentenced him to 7 ½ to 15 years imprisonment for theft by
unlawful taking. No further sentence was imposed on the other counts.
Subsequently, the PCRA court found that the sentence for theft by unlawful
taking was illegal, as the maximum term appellant could be sentenced for that
conviction was 7 years. The appellant was subsequently resentenced to 7½ to
15 years’ incarceration again, but this time incarceration was imposed for the
burglary charge, which would have permitted a maximum sentence of 20
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9 The different jurisdictional question presented in Bartrug was whether the
PCRA court had jurisdiction to vacate otherwise legal sentences after the time
for direct appeal had passed and which were not part of the PCRA petition.
We concluded that we did not see the PCRA as being an obstacle to
resentencing as the power or jurisdiction of the court to act is broadly defined
under section 9546 of the PCRA. Id. 732 A.2d at 1289.
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years. No further sentence was imposed on the remaining counts, including
the count for theft by unlawful taking.
On appeal, this Court held that the trial court did not commit error in its
resentencing because our case law held that when a trial court errs in it
sentence on one count in a multi-count case, that all sentences for all counts
will be vacated so the court can restructure its entire sentencing scheme. This
is true even where an appellant limits his appeal to one particular illegal
sentence based upon one bill of information and does not appeal sentences
based upon other bills of information, where those sentences are part of a
common sentencing scheme. We further stated that when a defendant appeals
a judgment of sentence, he accepts the risk the Commonwealth may seek a
remand for resentencing thereon if disposition in the appellate court upsets
the original sentencing scheme of the trial court. In Bartrug, there was no
suggestion that the appellant completed serving any part of his sentence at
the time relief was granted.
Matin presents a completely different scenario from Bartrug. In
Matin, the appellant pled guilty to two counts of robbery, and one count each
of criminal conspiracy and possessing a firearm without a license. He was
sentenced to an aggregate term of imprisonment of 6 to 20 years, with all
sentences running concurrently. The sentence imposed for the firearms
violation was 2½ to 5 years imprisonment. On initial appeal to this Court, we
reversed and remanded the case to the PCRA court finding that one of the
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appellant’s issues held arguable merit; that being whether trial counsel was
ineffective for advising appellant to plead guilty to the firearms violation when
appellant had not possessed any firearm during the robbery. Unfortunately,
when the case returned to the PCRA court for consideration of this issue,
appellant’s sentence for the firearms conviction had expired. Consequently,
the PCRA court found appellant no longer was eligible for relief on any issue
challenging his conviction and again dismissed his petition. On appeal again
to this Court, we were constrained to agree with the PCRA court’s analysis.
Citing Commonwealth v. Ahlborn, 699 A.2d 718 (Pa. 1997), we held that a
petitioner is ineligible for relief under the PCRA once the sentence for the
challenged conviction is completed. Since appellant completed serving his
sentence on the firearms conviction that was the basis for his sentencing
challenge when he appeared for the second time before the PCRA court, he
no longer was eligible for relief. See 42 Pa.C.S.A. § 9543(a)(1) (eligibility for
relief is determined at the time relief is granted).
The result in Bartrug was driven by the fact that the court was entitled
to resentence completely, since the sentencing challenge found to have merit
upset the sentencing scheme. There was no suggestion the term of
incarceration for the conviction upon which the sentence was challenged had
expired when relief was granted. In contrast, the PCRA court in Matin did not
possess the ability to grant relief because the appellant already completed
serving his sentence for the conviction upon which his claim for relief was
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based. Simply stated, Bartrug and Matin are distinguishable as Bartrug
concerned the court’s power to fashion relief, whereas Matin concerned
whether the court was capable of granting relief. Bartrug and not Matin
controls the instant appeals. Here, there is no suggestion that either Fields
or Davis completed their sentences for the convictions upon which the trial
court illegally imposed mandatory minimum sentences that formed the basis
for collateral relief when relief was granted. The PCRA court therefore,
possessed the ability to resentence consistent with principles already stated
herein governing that process.
Appellants’ argument that the PCRA court lacked jurisdiction to
resentence them for counts where sentencing time already was completed or
for which no further penalty was imposed under their original sentences
likewise does not render Bartrug and Matin in conflict. As explained by the
Majority, § 9543 of the PCRA that requires a petitioner to be currently serving
a sentence to be eligible for relief, is not a jurisdictional provision. Rather,
the conditions for establishing jurisdiction are set forth in section 9545 that
require timely filed petitions. Since the convictions already completed or for
which no further penalty was imposed, did not form the basis for PCRA
jurisdiction, and those claims were not the basis upon which relief was
granted, the trial court did not err by including those convictions in the new
judgments of sentence.
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For the foregoing reasons, I respectfully concur and dissent from the
Majority, would reach the merits of Appellants’ issues, deny relief, and affirm
the PCRA court orders.
Judge Kunselman joins this opinion in support of affirmance.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/17/2018
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