Com. v. Carrington, A. ( 2015 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
AKZAVIER ALI CARRINGTON
Appellant No. 225 MDA 2015
Appeal from the Judgment of Sentence January 9, 2015
In the Court of Common Pleas of Mifflin County
Criminal Division at No(s): CP-44-CR-0000168-2013
BEFORE: ALLEN, J., LAZARUS, J., and PLATT, J.*
MEMORANDUM BY LAZARUS, J.: FILED JULY 24, 2015
Akzavier Ali Carrington appeals from the judgment of sentence entered
in the Court of Common Pleas of Mifflin County. After our review, we affirm
the judgment of sentence and grant counsel’s petition to withdraw.
On November 20, 2013, a jury found Carrington guilty of two counts
each of robbery1 and conspiracy,2 and one count each of each of terroristic
threats3 and theft by unlawful taking.4 The court sentenced Carrington on
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*
Retired Senior Judge assigned to the Superior Court.
1
18 Pa.C.S.A. § 3701(a)(1)(ii) and (a)(1)(v).
2
18 Pa.C.S.A. § 903; 18 Pa.C.S.A. § 3701(a)(1)(ii); 18 Pa.C.S.A. § 3921(a).
3
18 Pa.C.S.A. § 2706(a)(1).
4
18 Pa.C.S.A. § 3921(a).
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January 31, 2014 to an aggregate term of five to ten years’ imprisonment.
Carrington did not file post-sentence motions. He appealed to this Court on
February 24, 2014. Counsel filed a petition to withdraw pursuant to
Anders, McClendon and Santiago.5
In an unpublished decision, this Court found Carrington’s sentence was
illegal, and we vacated and remanded for resentencing. Commonwealth v.
Carrington, 397 MDA 2014 (filed November 18, 2014). There, we noted
that at trial, in an attempt to comply with Alleyne v. United States, 133
S.Ct. 2151 (2013), the court had the jury decide, beyond a reasonable
doubt, whether Carrington possessed a firearm and whether that fact placed
the victim in reasonable fear of death or serious bodily injury. The jury
found in the affirmative, and the court sentenced Carrington accordingly.
We further noted that, like in Commonwealth v. Valentine, 101 A.3d 801(Pa. Super. 2014), by presenting the deadly weapon enhancement question
to the jury, the sentencing court “performed an impermissible legislative
function by creating a new procedure in an effort to impose the mandatory
minimum sentence [] in compliance with Alleyne.” Carrington, supra at
12, quoting Valentine, 101 A.3d at 811. We directed that, in re-imposing
sentence, “the court shall not apply the mandatory minimum sentencing
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5
Anders v. California, 386 U.S. 738 (1967); Commonwealth v.
McClendon, 434 A.2d 1185 (Pa. 1981); and Commonwealth v. Santiago,
978 A.2d 349 (Pa. 2009).
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provisions of section 9712.” Carrington, supra at 13. See Valentine,
supra (“[I]t is manifestly the province of the General Assembly to determine
what new procedures must be created in order to impose mandatory
minimum sentences in Pennsylvania following Alleyne. See also
Commonwealth v. Newman, 99 A.3d 86 (Pa. Super. 2014). We therefore
vacated the judgment of sentence, remanded for resentencing and denied
counsel’s petition to withdraw. Commonwealth v. Carrington, 397 MDA
2014 (filed November 18, 2014).
On January 9, 2015, the court resentenced Carrington to a term of
imprisonment of 28 to 60 months on count 1 (robbery), and to a consecutive
term of 28 to 60 months on count 3 (criminal conspiracy), those sentences
to run concurrently to the sentences imposed on the remaining counts.
Carrington filed a timely appeal and the court ordered him to file a Pa.R.A.P.
1925(b) statement of errors complained of on appeal. Carrington filed his
Rule 1925(b) statement on March 3, 2015, claiming the court erred in
imposing consecutive sentences on counts 1 and 3, when the original
sentences of January 31, 2014 on counts 1 and 3 were imposed
concurrently. Carrington claims this results in a greater sentence as a direct
result of having taken an appeal and violates his right to due process.
Counsel has petitioned this Court to withdraw pursuant to Anders,
McClendon and Santiago, supra.
In order to withdraw pursuant to Anders and McClendon, counsel
must: 1) petition the Court for leave to withdraw, certifying that after a
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thorough review of the record, counsel has concluded the issues to be raised
are wholly frivolous; 2) file a brief referring to anything in the record that
might arguably support an appeal; and 3) furnish a copy of the brief to the
appellant and advise him of his right to obtain new counsel or file a pro se
brief to raise any additional points that the appellant deems worthy of
review. Commonwealth v. Hernandez, 783 A.2d 784, 786 (Pa. Super.
2001). In Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009), the
Pennsylvania Supreme Court held that, in order to withdraw under Anders,
counsel must also state his reasons for concluding his client’s appeal is
frivolous.
Here, counsel’s petition states that he has examined the record and
concluded the appeal is wholly frivolous. Counsel states that he has provided
Carrington with a copy of the brief and a letter explaining Carrington’s right
to proceed pro se, or with newly retained counsel, and to raise any other
issues he believes might have merit. See Petition to Withdraw, 4/17/15, at
1. Counsel also has filed a brief in which he repeats his assertion that there
are no non-frivolous issues to be raised. Accordingly, we find that counsel
has substantially complied with the procedural requirements for withdrawal. 6
We now review the issues raised in the Anders brief.
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6
We do note that counsel has neglected to provide citations to the record,
and, other than the case law citations regarding this Court’s standard of
review, counsel has not indicated any case law pertaining to the issues
raised.
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The court’s original sentence imposed an aggregate term of five to ten
years’ imprisonment, though counts 1 and 3 were imposed as concurrent
sentences. At resentencing, the court stated:
[A]s you’ll recall, this matter went up on appeal and at that time
the Newman case was not decided yet. There’s been an
upheaval regarding the constitutionality of mandatory sentences.
And in light of that we’re now back for re-sentencing. And the
re-sentence will not obviously be included in regards to any
mandatory sentences. There are obviously guidelines and so
forth. So, I believe we’re back to square one in regard to
sentencing.
N.T. Sentencing, 1/9/15, at 1.
The court then sentenced Carrington to consecutive terms of
imprisonment of 28 to 60 months on count 1 and count 3; on the remaining
counts, the court imposed sentences concurrent with count 1. Carrington’s
aggregate sentence was reduced from 5 to 10 years to 4 years and 8
months to 10 years.
It is clear from our review of both sentencing transcripts that the court
intended to maintain the original sentencing scheme. Because Carrington’s
aggregate term of imprisonment did not increase, no constitutional violation,
whether of double jeopardy or judicial vindictiveness, is implicated. See
Commonwealth v. Kratzer, 660 A.2d 102 (Pa. Super. 1995) (where
defendant's illegal sentence is corrected at resentencing and neither
minimum nor maximum aggregate term of imprisonment is increased by
virtue of new sentence, there is no constitutional violation); see also
Commonwealth v. Taylor, 357 A.2d 562 (Pa. Super. 1976)(en banc) (no
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double jeopardy violation is implicated where aggregate sentence upon
resentencing does not exceed original aggregate sentence);
Commonwealth v. Sutton, 583 A.2d 500 (Pa. Super. 1990) (same). Cf.
Commonwealth v. Robinson, 931 A.2d 15 (Pa. Super. 2007) (if court
imposes harsher sentence after retrial, presumption of vindictiveness
applies).
Based upon the foregoing, we find Carrington’s claims meritless. We,
therefore, affirm the judgment of sentence and grant counsel’s petition to
withdraw.
Judgment of sentence affirmed. Petition to withdraw granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/24/2015
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