Com. v. Peterson, D. ( 2016 )

J-A13004-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
DORIAN PETERSON,
Appellant No. 924 WDA 2015
Appeal from the Judgment of Sentence of May 14, 2015
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0001812-2008
BEFORE: OLSON, STABILE AND MUSMANNO, JJ.:
MEMORANDUM BY OLSON, J.: FILED SEPTEMBER 09, 2016
Appellant, Dorian Peterson, appeals from the judgment of sentence
entered on May 14, 2015. We vacate the judgment of sentence.
As our resolution is based upon the procedural posture of this case, we
focus on the relevant procedural history. On November 4, 2009, Appellant
was convicted of, inter alia, first-degree murder and attempted murder;
crimes he committed while he was a juvenile. On February 1, 2010,
Appellant was sentenced to a mandatory term of life imprisonment on the
first-degree murder charge and a consecutive 10 to 20 years’ imprisonment
on the attempted murder charge. After this Court affirmed Appellant’s
judgment of sentence, the Supreme Court of the United States declared that
mandatory life imprisonment for juveniles violates the Eighth Amendment.
Miller v. Alabama, 132 S.Ct. 2455 (2012). Our Supreme Court thereafter
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granted Appellant’s petition for allowance of appeal solely on the question
relating to the legality of Appellant’s first-degree murder sentence, vacated
the first-degree murder sentence, and remanded for re-sentencing.
Commonwealth v. Peterson, 67 A.3d 789 (Pa. 2013) (per curiam).
Upon remand, the trial court sentenced Appellant to 40 years to life
imprisonment on the first-degree murder charge and ordered that
Appellant’s attempted murder sentence run consecutively to his first-degree
murder sentence. This timely appeal followed.
Appellant, the Commonwealth, and the trial court now agree that the
trial court lacked jurisdiction to order Appellant’s attempted murder sentence
to run consecutively to his first-degree murder sentence. The trial court’s
jurisdiction is a question of law, therefore our standard of review is de novo
and our scope of review is plenary. Annechino v. Joire, 946 A.2d 121,
123 n.3 (Pa. Super. 2008) (citation omitted).
In this case, Appellant’s petition for allowance of appeal with respect
to his attempted murder conviction was denied. As such, the trial court
lacked jurisdiction to re-sentence Appellant on the attempted murder
conviction. See 42 Pa.C.S.A. § 5505; cf. Commonwealth v. Sepulveda,
2016 WL 4273590, *6-7 (Pa. Aug. 15, 2016) (citations omitted) (courts lack
authority to expand our Supreme Court’s remand order); Graziani v.
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Randolph, 887 A.2d 1244, 1248 (Pa. Super. 2005) (citations omitted)
(same).1
Pursuant to Pennsylvania Rule of Criminal Procedure 705(B),
when a sentence is imposed on a defendant who is sentenced for
another offense, the judge shall state whether the sentences
shall run concurrently or consecutively. If the sentence is to run
concurrently, the sentence shall commence from the date of
imposition unless otherwise ordered by the judge.
Pa.R.Crim.P. 705(B). Our Supreme Court interpreted the predecessor to
Rule 705 to prohibit a trial court from ordering a sentence previously
imposed to run consecutively to a sentence it is imposing. Commonwealth
v. Holz, 397 A.2d 407, 408 (Pa. 1979). That is exactly what occurred in
this case. The trial court ordered Appellant’s attempted murder sentence,
imposed in 2010, to run consecutively to his first-degree murder sentence,
1
As the Commonwealth notes, our Supreme Court could have determined
that vacating Appellant’s first-degree murder sentence upset the overall
sentencing scheme. Therefore, it could have also vacated Appellant’s
attempted murder sentence and remanded for re-sentencing on both
charges. Our Supreme Court, however, chose not to utilize that option.
Our learned colleague cites Commonwealth v. Bartrug, 732 A.2d 1287(Pa. Super. 1999), appeal denied, 747 A.2d 896 (Pa. 1999), for the
proposition that an appellate court must determine that vacatur of one
sentence in a multi-count case upsets the overall sentencing scheme. This
Court, however, has often held that vacatur does not ipso facto upset the
overall sentencing scheme. E.g., Commonwealth v. Lomax, 8 A.3d 1264,
1268 (Pa. Super. 2010); Commonwealth v. Thur, 906 A.2d 552, 569 (Pa.
Super. 2006), appeal denied, 946 A.2d 687 (Pa. 2008). When the appellate
court determines that it does not upset the overall sentencing scheme, as
was done in this case, the trial court lacks jurisdiction to re-sentence the
defendant on the remaining counts.
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imposed in 2015. Thus, the trial court effectively re-sentenced Appellant for
his attempted murder conviction, which it lacked jurisdiction to do.
As the trial court lacked jurisdiction to re-sentence Appellant on the
attempted murder conviction, we vacate the May 14, 2015 sentence for
attempted murder. This vacatur re-instates the February 1, 2010 sentence
for attempted murder. This vacatur also requires that Appellant’s sentence
for first-degree murder imposed on May 14, 2015 run concurrently with his
sentence for attempted murder.
Judgment of sentence vacated. Jurisdiction relinquished.
Musmanno, J., joins this memorandum.
Stabile, J., files a dissenting memorandum.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/9/2016
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