Com. v. Oliver, A. ( 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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
ANTWAIN OLIVER :
:
Appellant : No. 1646 WDA 2017
Appeal from the Judgment of Sentence September 28, 2017
In the Court of Common Pleas of Fayette County
Criminal Division at No(s): CP-26-CR-0000666-2013
BEFORE: GANTMAN, P.J., PANELLA, J., and OTT, J.
MEMORANDUM BY OTT, J.: FILED SEPTEMBER 7, 2018
Antwain Oliver appeals from the judgment of sentence imposed on
September 28, 2017, in the Court of Common Pleas of Fayette County. In
this timely appeal, Oliver claims the trial court abused its discretion in re-
imposing his original sentence without first considering several mitigating
factors. Oliver has not included a Pa.R.A.P. 2119(f) statement explaining why
his appeal presents a significant question sufficient for appellate review. The
Commonwealth has objected to this failure. Accordingly, we are required to
deny Oliver relief and affirm the judgment of sentence.
Briefly, in March, 2014, Oliver was convicted by jury of aggravated
assault (two counts), possession of a firearm prohibited, possession of a
firearm with manufacturer’s number altered, firearms not to be carried without
a license, simple assault (two counts), recklessly endangering another person
(two counts), public drunkenness, possession of a controlled substance with
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intent to deliver, and possession of a controlled substance.1 He received an
aggregate sentence of 100 to 200 months’ incarceration. His direct appeal
afforded him no relief. On April 8, 2016, Oliver filed a pro se petition pursuant
to the Post Conviction Relief Act (PCRA), 42 Pa.C.S. § 9541 et seq. Counsel
was appointed and filed an amended petition claiming Oliver’s trial counsel
was ineffective for failing to argue the sentence imposed was illegal under
Alleyne v. United States, 133 S. Ct. 2151 (2013) (any fact which, by law,
increases the mandatory minimum sentence for a crime must be: (1) treated
as an element of the offense, as opposed to a sentencing factor; (2) submitted
to the jury; and (3) found beyond a reasonable doubt). Based upon the
allegations raised, the PCRA court vacated the sentence and granted Oliver a
hearing on his petition. However, the hearing demonstrated that Oliver had
not been subjected to any mandatory minimum sentences.2 Nonetheless,
Oliver argued his actions while incarcerated, completing various rehabilitation
programs, helping other inmates with their art, and his family support,
provided sufficient grounds to impose a mitigated range sentence. The PCRA
court disagreed and re-imposed the original sentence, which represents a
standard range sentence. This timely appeal followed.
____________________________________________
118 Pa.C.S. §§ 2702(a)(4), 6105(a)(1), 6110.2(a), 6106(a)(1), 2701(a)(1),
2705, 5505, 35 P.S. §§ 780-113(a)(30) and 780-113(a)(16), respectively.
2Counsel could not be ineffective for failing to object to non-existent
mandatory minimum sentences.
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By claiming the PCRA court failed to consider certain mitigating factors,
Oliver is challenging the discretionary aspect of his sentence. The rules for
such a challenge are well settled.
The procedure for filing the “petition for allowance of appeal” at
the briefing stage is set forth in Pa.R.A.P. 2119(f) as follows:
[a]n appellant who challenges the discretionary aspects of
a sentence in a criminal matter shall set forth in his brief a
concise statement of the reasons relied upon for allowance
of appeal with respect to the discretionary aspects of a
sentence. The statement shall immediately precede the
argument on the merits with respect to the discretionary
aspects of sentence.
Rule 2119(f) requires only a concise statement of the reasons
Appellant believes entitle him to allowance of appeal.
Commonwealth v. Goggins, 748 A.2d 721, 727 (Pa. Super.
2000). The concise statement must specify “where the sentence
falls in relation to the sentencing guidelines and what particular
provision of the code it violates.” Id. Additionally, the statement
must specify “what fundamental norm the sentence violates and
the manner in which it violates that norm.” Id. If the statement
meets these requirements, we can decide whether a substantial
question exists. Id.
Commonwealth v. Kiesel, 854 A.2d 530, 532 (Pa. Super. 2004).
when the appellant has not included a Rule 2119(f) statement and
the appellee has not objected, this Court may ignore the omission
and determine if there is a substantial question that the sentence
imposed was not appropriate, or enforce the requirements of
Pa.R.A.P. 2119(f) sua sponte, i.e., deny allowance of appeal.
However, this option is lost if the appellee objects to a 2119(f)
omission. In such circumstances, this Court is precluded from
reviewing the merits of the claim and the appeal must be denied.
Id. at 533 (citations omitted).
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As noted above, Oliver did not file the required Pa.R.A.P. 2119(f)
statement and the Commonwealth has objected. Accordingly, Oliver must be
denied relief.
Judgment of sentence affirmed.
Judge Panella joins this memorandum.
President Judge Gantman concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/7/2018
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