Com. v. Outterbridge, E. ( 2016 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
ELANTE OUTTERBRIDGE,
Appellant No. 3187 EDA 2015
Appeal from the PCRA Order September 22, 2015
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0001809-2011, CP-51-CR-0012306-
2012
BEFORE: SHOGAN, OTT, and STRASSBURGER,* JJ.
MEMORANDUM BY SHOGAN, J.: FILED DECEMBER 06, 2016
Elante Outterbridge (“Appellant”) appeals, pro se, from the order
denying his petition for relief filed under the Post Conviction Relief Act
(“PCRA”), 42 Pa.C.S. §§ 9541–9546. We vacate the PCRA order and remand
for further proceedings.
Appellant was arrested on January 12, 2011, in connection with the
shooting of Ronnie Brown (“the victim”) during an altercation on November
13, 2010. Criminal Complaint, 11/15/10, at 1. Appellant was charged with,
inter alia, aggravated assault and possession of an instrument of crime with
intent to employ it criminally. Id. at 2. Appellant was arrested again on
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
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August 30, 2012, in connection with his possession of a black Browning
Arms .22 caliber handgun in his waistband. Criminal Complaint, 8/30/12, at
1. Appellant was charged with, inter alia, possessing a firearm without a
license. Id. at 2.
Appellant entered a negotiated plea on both criminal dockets, whereby
he pled guilty to aggravated assault, PIC, and possessing a firearm without a
license, and the Commonwealth nol prossed the remaining charges. N.T.,
10/15/13; Written Guilty Plea Colloquy, 10/15/13. The trial court sentenced
Appellant the same day to incarceration for an aggregate term of five to
fifteen years. Appellant filed an untimely pro se motion for reconsideration
on March 19, 2014, which the trial court denied. Order, 5/1/14. Appellant
did not file a direct appeal.
Appellant filed a timely pro se PCRA petition, averring he did not
receive credit for time served. PCRA Petition, 9/29/14, at 4. The PCRA
court appointed counsel on April 23, 2015. Three days later, counsel filed a
“no merit” letter pursuant to Commonwealth v. Finley, 550 A.2d 213 (Pa.
Super. 1988), and a motion to withdraw representation. In response,
Appellant filed a pro se application for leave to amend his PCRA petition,
raising a legality-of-sentence issue premised on U.S. v. Alleyne, ___ U.S.
___, 133 S.Ct. 2151 (2013). Application for Leave to Amend, 5/5/15.
Without addressing Appellant’s request for permission to amend his
petition, the PCRA court sent a notice of its intent to dismiss Appellant’s
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petition pursuant to Pa.R.Crim.P. 907 on July 7, 2015. In response,
Appellant filed a pro se objection to the Rule 907 notice. Objection to Notice
of Intention to Dismiss, 7/21/15. The PCRA court dismissed Appellant’s
petition and permitted counsel to withdraw, with no mention of Appellant’s
legality-of-sentence claim. Order, 9/22/15. This appeal followed. Appellant
and the PCRA court have complied with Pa.R.A.P. 1925.
Appellant presents the following issues for our consideration:
Is the appellant freely allowed to file an/or amended PCRA-
petition, while the initial PCRA-petition was still pending so that
appellant can achieve substantial justice?
Is the appellant serving a mandatory minimum sentence
that’s unconstitutional and illegal?
Appellant’s Brief at 7 (verbatim).
When reviewing the propriety of an order denying PCRA relief, we
consider the record “in the light most favorable to the prevailing party at the
PCRA level.” Commonwealth v. Stultz, 114 A.3d 865, 872 (Pa. Super.
2015) (quoting Commonwealth v. Henkel, 90 A.3d 16, 20 (Pa. Super.
2014) (en banc)). This Court is limited to determining whether the evidence
of record supports the conclusions of the PCRA court and whether the ruling
is free of legal error. Commonwealth v. Rykard, 55 A.3d 1177, 1183 (Pa.
Super. 2012). We grant great deference to the PCRA court’s findings that
are supported in the record and will not disturb them unless they have no
support in the certified record. Commonwealth v. Rigg, 84 A.3d 1080,
1084 (Pa. Super. 2014).
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Regarding Appellant’s first issue, amendment of a PCRA petition, the
Pennsylvania Supreme Court has stated:
Our criminal procedural rules reflect that the PCRA judge
“may grant leave to amend ... a petition for post-conviction
collateral relief at any time,” and that amendment “shall be
freely allowed to achieve substantial justice.” Pa.R.Crim.P.
905(A); see Commonwealth v. Williams, 573 Pa. 613, 633,
828 A.2d 981, 993 (2003) (noting that the criminal procedural
rules contemplate a “liberal amendment” policy for PCRA
petitions). Nevertheless, it is clear from the rule’s text that leave
to amend must be sought and obtained, and hence,
amendments are not “self-authorizing.” Commonwealth v.
Porter, 613 Pa. 510, 523, 35 A.3d 4, 12 (2012). Thus, for
example, a petitioner may not “simply ‘amend’ a pending
petition with a supplemental pleading.” Id. Rather, Rule 905
“explicitly states that amendment is permitted only by direction
or leave of the PCRA Court.” Id. at 523–24, 35 A.3d at 12; see
also Williams, 573 Pa. at 625, 828 A.2d at 988 (indicating that
the PCRA court retains discretion whether or not to grant a
motion to amend a post-conviction petition). It follows that
petitioners may not automatically “amend” their PCRA petitions
via responsive pleadings.
Commonwealth v. Baumhammers, 92 A.3d 708, 730–731 (Pa. 2014). In
sum, claims raised outside of a court-authorized PCRA petition are subject to
waiver. Commonwealth v. Reid, 99 A.3d 470, 484 (Pa. 2014). See also
Commonwealth v. Mason, 130 A.3d 601, 627 (Pa. 2015) (finding claim
waived for failure to raise it in an authorized amended PCRA petition).
Here, despite being represented, Appellant sought, pro se, the PCRA
court’s permission to amend his petition with an Alleyne sentencing claim.
Application for Leave to Amend, 5/5/15. Without granting Appellant leave to
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amend, the PCRA court dismissed Appellant’s petition on the merits. 1 In its
Pa.R.A.P. 1925(a) opinion, however, the PCRA court expressly recognized
Appellant’s sentencing issue: “Since [Appellant’s] motion to amend
challenges the legality of his sentence, the [c]ourt is treating his pro se
PCRA petition as having been properly amended.” PCRA Court Opinion,
2/19/16, at 2 n.1.
Pennsylvania jurisprudence recognizes that a legality-of-sentence issue
is not subject to the traditional waiver doctrine. See Commonwealth v.
Wolfe, 140 A.3d 651, 660 (Pa. 2016) (“[T]his Court has previously found
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1
As stated above, Appellant filed a pro se objection to the Rule 907 notice
on July 21, 2015, again challenging his sentence under Alleyne. Objection
to Notice of Intention to Dismiss, 7/21/15, at ¶ 2. Inexplicably, the record
suggests that two months later neither the PCRA court nor counsel were
aware of Appellant’s objection or the sentencing issue therein:
THE COURT: What’s this here for?
[DEFENSE COUNSEL]: Dismissal. The 907 notice went out.
THE COURT: Okay. It’s a PCRA. At the last listing in July
we were going to send out a 907 notice, which it looks like we
did, on July 7th. Anybody hear back from the defendant?
[PROSECUTOR]: No, Your Honor.
[DEFENSE COUNSEL]: No, Your Honor.
[THE COURT]: So, then, today we can just enter a formal
dismissal?
[PROSECUTOR]: That’s correct.
N.T., 9/22/15, at 4–5.
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that an asserted [Alleyne] violation implicated the legality of a sentence . . .
and that legality-of-sentence claims are not subject to the traditional waiver
doctrine.” (internal citations omitted)); Commonwealth v. Hopkins, 67
A.3d 817, 821 (Pa. Super. 2013) (“As a general rule, a challenge to the
application of a mandatory minimum sentence is a non-waivable challenge
to the legality of sentence.” (internal quotations omitted)). Therefore,
despite the PCRA court’s failure to formally grant Appellant leave to amend
his petition to include a legality-of-sentence issue, we discern no abuse of
the PCRA court’s discretion in treating Appellant’s PCRA petition as properly
amended.
Appellant’s second issue implicates the legality of his sentence.
According to Appellant, his sentence was imposed under the illegal
mandatory minimum sentencing scheme of 42 Pa.C.S. § 9712(a).
Appellant’s Brief at 11 (citing Commonwealth v. Hopkins, 117 A.3d 247(Pa. 2015)). Contrarily, the Commonwealth asserts that “[Appellant]
negotiated the sentence the court imposed as part of his guilty plea, and the
sentence was not a mandatory minimum sentence. Alleyne does not apply.”
Commonwealth’s Brief at 6. In support of its position, the Commonwealth
asserts:
[Appellant] made no proffer to the PCRA court – and offers
none now on appeal – that a mandatory sentence under Section
9712 was imposed. In fact, on the court’s October 15, 2013,
Sentencing Order, the “No” box is checked under the heading
“Mandatory Sentence”. At the plea proceeding, the court
explicitly stated on the record, “It’s my intention to impose the
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sentence that was recommended by the DA and agreed to by the
defense as part of the negotiated plea” (N.T. 10/15/13, 16),
which [Appellant] confirmed when he “waived the ordering of a
presentence investigation report in light of the negotiated
agreement.” (N.T. 10/15/13, 17).
Id. at 7–8 (some internal citations omitted).
In retrospect, the PCRA court found Appellant’s sentencing challenge
meritorious, opining, in relevant part, as follows:
This matter falls into a very narrow category of cases
wherein defendants entered into negotiated plea agreements
shorty after Alleyne was decided which were premised on the
application of Pennsylvania’s statutory mandatory minimum
sentence scheme. As part of these plea agreements, as in the
instant matter, the defendants admitted to the predicate act
leading to the imposition of a mandatory minimum sentence.
Alleyne held that any predicate fact that triggers an
increase in the mandatory minimum sentence for a crime is
necessarily an element of the offense and that such fact must be
found “beyond a reasonable doubt” by a jury. ...
* * *
Alleyne, was decided on June 17, 2013, and, as noted
above, [Appellant] was sentenced on October 15, 2013, some
four months later. . . . Subsequently, our Supreme Court, in
Commonwealth v. Newman, 99 A.3d 86 (Pa. 2014), held that
in Pennsylvania, Alleyne was to be applied retroactively to any
proceeding pending at the time Alleyne was decided.
Therefore, [Appellant’s] sentence is subject to review under
Alleyne. ...
Before accepting [Appellant’s] plea the [PCRA court] engaged
him in an extensive colloquy to ascertain whether or not his plea
was in fact voluntary. During this colloquy, [Appellant], on the
Bill of Information relating to the charge of Aggravated Assault
and PIC, admitted to getting into an altercation with the [victim]
who was known to him. [Appellant] also admitted that during
the altercation he drew a silver hand gun from his waist and shot
the [victim] once in the leg. (N.T. 10/15/[13], pgs. 11, 14)
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[Appellant], on the Bill of Information relating to the charge of
Carrying a Firearm Without a License, admitted to carrying a
loaded gun without a license. (N.T. 10/15/[13], pgs. 13, 14) In
light of [Appellant’s] admissions, the [c]ourt accepted
[Appellant’s] plea.
Prior to imposing [Appellant’s] negotiated aggregate
sentence of 5 to 15 years incarceration, the [c]ourt reviewed the
sentencing guidelines to determine if his negotiated sentence fell
within the guidelines. ... [Appellant’s] sentence was clearly
within the guidelines.
* * *
In considering [Appellant’s] negotiated plea, it is unclear
what role the consideration of the imposition of the mandatory
minimum sentence, pursuant to the provisions of 42 Pa.C.S.A.
9712, played in negotiating [Appellant’s] plea. No reference was
made to the imposition of a mandatory minimum sentence
during the [c]ourt’s colloquy prior to accepting his plea. The
only references on the record to §9712 appear in the Bill of
Information wherein the Commonwealth put [Appellant] on
notice that it would proceed pursuant to § 9712 and, at
sentencing as an aside during the [c]ourt’s discussion of the
sentencing guidelines with counsel. (N.T. 10/15/[13], pgs. 16,
14).
* * *
The [c]ourt finds that, . . . at the very least, this matter should
be remanded for resentencing without reference to § 9712, the
mandatory minimum provision.
PCRA Court Opinion, 2/19/16, at 4–8.
In suggesting the need for resentencing, the PCRA court relied heavily
on our decision in Commonwealth v. Melendez-Negron, 123 A.3d 1087,
1094 (Pa. Super. 2015), which, the PCRA court asserts, “addressed for the
first time the legality of a negotiated plea agreement in light of Alleyne.”
PCRA Court Opinion, 2/19/16, at 6. According to the PCRA court:
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The defendant in Melendez-Negron, as part of his plea
agreement, admitted to the possession of a firearm during a
drug transaction. His negotiated sentence, premised on the
application of § 9712.1, resulted in the imposition of a sentence
which substantially exceeded the sentencing guidelines
recommendations. [The] Melendez-Negron [Court], in
declaring the defendant’s sentence illegal, in light of Alleyne,
held that the shared misapprehension that the mandatory
minimum sentence required by § 9712.1 applied to Melendez-
Negron tainted the parties’ negotiations at the outset.
Melendez-Negron makes it clear that any negotiated sentence
premised on the consideration of the now discredited mandatory
minimum sentence statutes is per se illegal.
PCRA Court Opinion, 2/19/16, at 6–7 (internal citation, quotation marks, and
footnote omitted).
Upon review, we agree with the PCRA court that a remand is
necessary. We reach this conclusion based on several facts of record. First,
as part of his plea agreement, Appellant admitted to the predicate act for
imposition of a mandatory minimum sentence: possessing an instrument of
crime. (N.T. 10/15/13, pgs. 11). Appellant’s admission is “the functional
equivalent of a stipulation,” and therefore, it would not remedy an Alleyne
violation inherent to section 9712. Melendez-Negron, 123 A.3d at 1091
(citing Commonwealth v. Cardwell, 105 A.3d 748, 754–755 (Pa. Super.
2014)).
Second, as observed by the PCRA court, the record is unclear “what
role the consideration of the imposition of the mandatory minimum
sentence, pursuant to the provisions of 42 Pa.C.S.A. 9712, played in
negotiating [Appellant’s] plea.” PCRA Court Opinion, 2/19/16, at 7. On one
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hand, the Commonwealth gave notice of its intention to seek a mandatory
minimum sentence pursuant to 42 Pa.C.S. § 9712(a) (Sentences for
offenses committed with firearms). Bills of Information, 3/1/11 and
11/26/12, at Count 1. Then, at sentencing, the trial court inquired, “The
aggravated assault would be a mandatory minimum, right?” N.T., 10/15/13,
at 16. On the other hand, Alleyne was decided four months before
Appellant entered the negotiated plea. Moreover, there was no reference to
section 9712 during the plea hearing, and as the Commonwealth submits,
the sentencing order indicates that the sentence imposed was not a
mandatory sentence. N.T., 10/15/13, 3–15; Commonwealth’s Brief at 7.
Third, Appellant’s affirmation that the sentence was a negotiated one
does not reveal to what extent, if any, his plea was informed by section
9712. Unlike the record in Melendez–Negron, the record at hand is
unclear as to whether Appellant and the Commonwealth entered into a
negotiated plea under the misapprehension that a mandatory minimum
sentencing statute applied. It is well settled that in plea negotiations, “both
parties to a negotiated plea agreement are entitled to receive the benefit of
their bargain.” Melendez-Negron, 123 A.3d at 1093 (citations omitted).
Accordingly, if a shared misapprehension that the mandatory minimum
sentence required by section 9712 applied to Appellant tainted the parties’
negotiations at the outset, then “the parties’ negotiations began from an
erroneous premise and therefore were fundamentally skewed from the
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beginning.” Id. For these reasons, we are compelled to vacate the order
denying PCRA relief and remand for a hearing to determine whether section
9712(a) was a factor in the guilty plea negotiations.
Order vacated. Case remanded. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/6/2016
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