Com. v. Rambert, E. ( 2022 )

J-S29038-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ERIC RAMBERT :
:
Appellant : No. 160 WDA 2022
Appeal from the PCRA Order Entered January 18, 2022
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0002765-1987
BEFORE: PANELLA, P.J., MURRAY, J., and COLINS, J.
MEMORANDUM BY COLINS, J.: FILED: DECEMBER 5, 2022
Eric Rambert, pro se, appeals from the order dismissing, as untimely,
his serial Post Conviction Relief Act (PCRA) petition. See 42 Pa.C.S.A. §§
9541-9546. We affirm.
The facts underpinning Rambert’s convictions are not relevant to the
present appeal. However, briefly, Rambert was originally sentenced, in a
matter factually unrelated to the present docket number, to an aggregate
imprisonment term of ten to twenty-five years stemming from a 1983 guilty
plea wherein Rambert, inter alia, pleaded guilty to rape in Philadelphia County.
Several years later, in 1987, Rambert, while imprisoned in Allegheny County,
was found guilty by a jury of committing an assault as a prisoner, rioting, and
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 Retired Senior Judge assigned to the Superior Court.
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engaging in a criminal conspiracy.1
For these latter offenses, Rambert was sentenced to: at Count I, two to
ten years of incarceration “to begin and take effect at the expiration of
sentence imposed at any other information(s)”; at Count II, two to five years
of incarceration “to begin and take effect at the expiration of sentence imposed
at Count I”; and at Count III, two to ten years of incarceration “to begin and
take effect at the expiration of sentence imposed at Count [II]”. Judgment of
Sentence, dated 11/10/87 (consolidated onto one page). After sentencing,
this Court affirmed Rambert’s judgment of sentence in 1988.
According to Rambert, some ten years later, in 1998, the Pennsylvania
Department of Corrections furnished him with a sentence status summary,
which reflected that his 1983 sentence had been aggregated with his 1987
sentence, leading to a June 2, 2033 maximum term of incarceration. In other
words, Rambert’s sentence, in its entirety, was thereafter identified as sixteen
to fifty years of incarceration, reflective of his original ten to twenty-five year
term in addition to the newer tripartite sentencing arrangement.
In 2021, Rambert filed what appears to be his twelfth post-conviction
petition, which was titled “Motion for PCRA Nunc Pro Tunc Writ of Habeas
Corpus”. Although it is difficult to parse given that the petition has been hand-
written, Rambert asserts that the Pennsylvania Department of
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1 See 18 Pa.C.S.A. § 2703; 18 Pa.C.S.A. § 5501(1); and 18 Pa.C.S.A. §
903(a)(1), respectively.
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Corrections/Board of Probation and Parole acted in violation of the sentencing
court’s 1987 order by unlawfully aggregating his 1987 sentence with his 1983
sentence. See Motion for PCRA Nunc Pro Tunc Writ of Habeas Corpus, filed
11/15/21, at ¶ 2. Rambert’s petition continues by contending that these
entities have “misinterpreted and misapplied 42 Pa.C.S.[A.] § 9757[.]” Id., at
¶ 4. Ultimately, the lower court dismissed Rambert’s petition on the basis that,
under the PCRA, it was time-barred, without exception. See 42 Pa.C.S.A. §
9545(b)(1) (giving petitioners one year after their judgment becomes final to
file a petition unless they have availed themselves of one of the PCRA’s three
exceptions).
Rambert timely appealed from this dismissal and now, on appeal,
presents three issues:
1. Did the lower court err in dismissing his petition where he
invoked the court’s non-traditional jurisdiction/inherent powers
pursuant to 42 Pa.C.S.A. § 5505?
2. Did the lower court err in failing to correct the 1987 sentencing
order, as it was unlawfully encroached on by the Pennsylvania
Department of Corrections?
3. Did the lower court err in failing to correct the 1987 sentencing
order where there has been an unlawful aggregation of his
sentence?
See Appellant’s Brief, at 3.
Preliminarily, we note that despite raising three at least somewhat
discrete questions, Rambert’s argument section, which contains no internal
headings and fluctuates wildly between upper- and lower-case text, is in
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violation of, among other rules, Pennsylvania Rule of Appellate Procedure
2119(a). See Pa.R.A.P. 2119(a) (“The argument shall be divided into as many
parts as there are questions to be argued[.]”). To that point, having one
omnibus section has, to a certain degree, hampered review.
Distilled down, Rambert appears to contest the Pennsylvania
Department of Correction’s ability to have aggregated his sentences in 1998,
as it “usurped the [j]udicial [b]ranch[‘s] powers in sentencing[.]” Appellant’s
Brief, at 7. Instead, Rambert avers that, by their explicit wordings, his
individual 1987 sentences were firstly not consecutive to one another and
secondly not aggregated with his 1983 sentence. See id., at 7-8; see also
id., at 9 (“[The 1987 sentencing order] doesn’t say a term of incarceration of
not less than six … years nor more than twenty-five … years[.]”). Rambert
further suggests that “he would have had to stipulate that they were
consecutive and aggregated[.]” Id., at 8.
Rambert also believes that proper jurisdiction to challenge his present
contention lies in the sentencing court, as it was the sentencing court who
determined whether his 1987 sentence was consecutive and/or aggregated.
See id., at 10. Finally, Rambert argues, somewhat contradictorily based on
other portions in his brief, that his present petition is not time-barred by the
PCRA because a sentencing court has the inherent jurisdiction to correct
patent errors in the record. See 42 Pa.C.S.A. § 5505; but see Appellant’s
Brief, at 19 (“Just because [the 1987 sentencing judge’s] written judgment
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doesn’t specify [consecutively,] doesn’t mean there was a patent mistake
because he had the discretion to impose his sentences the way that he did[.]”)
(unnecessary capitalization omitted).
The Commonwealth submits that because Rambert is principally
contesting the Pennsylvania Department of Correction’s aggregation action,
review of Rambert’s claims do not fall under the ambit of the PCRA and are,
therefore, beyond our jurisdiction. See 42 Pa.C.S.A. § 9543(2)(i-viii)
(requiring a petitioner to demonstrate that his or her conviction or sentence
stemmed from one of seven enumerated factors). To that point, our sister
court has emphasized that “the proper method by which a prisoner [can]
challenge the aggregation of his sentences [is] through a mandamus action
[in Commonwealth Court].” Gillespie v. Department of Corrections, 527
A.2d 1061, 1065 (Pa. Commw. 1988) (citation omitted); see also 42
Pa.C.S.A. § 761(c) (“The Commonwealth Court shall have original jurisdiction
in cases of mandamus[.]”). In addition, even though the lower court dismissed
the petition on timeliness grounds, the Commonwealth highlights that as long
as the court’s ultimate decision is correct, we may affirm on any basis. See
Commonwealth v. Reese, 31 A.3d 708, 727 (Pa. Super. 2011) (en banc).
With these considerations in mind, to the extent Rambert is challenging the
Department of Correction’s ability to proceed in the way that it did, Rambert
has not shown that his claim is cognizable under the PCRA. As such, we have
no ability to grant him relief and therefore affirm the dismissal of his petition.
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In the alternative, continuing with his argument, Rambert states that
the first of his three 1987 sentences began in 1993, which was after he had
served the ten-year minimum of his 1983 sentence. Then, two years later, in
1995, after his Count I two-year minimum had elapsed, he started to serve
his Count II two-year minimum, with Count III following the same pattern.
After that, Rambert writes that “[w]hile serving the minimums of each
sentence[,] all maximums were running simultaneously[,] which would have
[e]xpired on June 2, 2007.” Appellant’s Brief, at 15.
We agree with Rambert that his 1987 sentencing orders do not expressly
indicate that they are consecutive to one another. However, when those
orders state that they were to individually take effect either after: (1) any
sentence imposed at any other criminal information; or (2) a previous count
in the same 1987 case, their plain language demonstrates a consecutive
sentencing scheme. Stated differently, the three sentences imposed in 1987
are clear insofar as they do not overlap one another, and Rambert has
presented no compelling basis to conclude that the court was obligated to use
a specific word or phrasing to construct a legally sufficient consecutive
sentence.
Despite the fact that the record shows no indication that the court, in
imposing a consecutive sentence, “indicate[d] the minimum sentence to be
served for the total of all offenses with respect to which sentence is
imposed[,]” 42 Pa.C.S.A. § 9757, in utilizing more language from our sister
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court, such an omission is “not a fatal flaw,” Gillespie, 527 A.2d at 1065. The
“failure [to inform a defendant of his or her total minimum] does not require
resentencing,” Commonwealth v. Bell, 476 A.2d 439, 452 (Pa. Super.
1984), because “necessary implication,” id., at 453, demonstrates that
Rambert’s aggregate sentence for the 1987 offenses amounted to six to
twenty-five years. See Commonwealth v. Harris, 620 A.2d 1175, 1179 (Pa.
Super. 1993) (establishing that Section 9757 “has been interpreted as
requiring the aggregation of maximum as well as minimum sentences[]”)
(citation omitted). We have also noted that the Commonwealth Court has
understood Section 9757 to “mandate automatic aggregation of sentences
once the trial court imposes a consecutive sentence.” Id.Simply put, regardless of whether his sentence automatically
aggregated pursuant to Section 9757 in 1987 or via a Department of
Corrections action transpiring approximately ten years later, Rambert has
presented no cogent basis to deviate from the plainly evident intent of the
sentencing court. The 1987 orders irrefutably demonstrate that there is to be
an aggregation of his initial ten to twenty-five year term of incarceration from
1983, clearly fitting the “any other information” parameter expressly
contemplated therein, with his consecutively constructed six to twenty-five
year sentence imposed in 1987. In total, then, Rambert’s entire sentence
amounts to sixteen to fifty years of incarceration, the aggregate term of which
he will serve until, at most, 2033. In addition to dismissal predicated on
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mandamus, without any patently incorrect infirmities associated with
Rambert’s sentence and in tandem with Rambert failing to plead or prove any
exception to the PCRA’s time-bar, we affirm the lower court’s order dismissing
his PCRA petition.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/05/2022
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