Com. v. Sargent, R. ( 2021 )

J-A27027-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
RASHON SARGENT :
:
Appellant : No. 816 EDA 2020
Appeal from the PCRA Order Entered August 9, 2019
In the Court of Common Pleas of Delaware County Criminal Division at
No(s): CP-23-CR-0004565-2015
BEFORE: STABILE, J., NICHOLS, J., and COLINS, J.*
MEMORANDUM BY NICHOLS, J.: FILED: APRIL 12, 2021
Appellant Rashon Sargent appeals nunc pro tunc from the order
dismissing his first petition filed under the Post Conviction Relief Act (PCRA).
On appeal, the parties and the trial court proceed as if the PCRA court
reinstated Appellant’s direct appeal rights. Because of the confusion over the
scope of relief granted by the PCRA court, we remand this matter for
clarification, and if determined necessary by the trial court, a correction of the
record.
The trial court summarized the factual background to this appeal as
follows:
[O]n May 8, 2015[, Appellant, who was seventeen years old at the
time,] waited outside the home of . . . Dolan Alsop. At the time
of his death Alsop was sixty years old, had the use of only his right
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
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arm and he walked with the assistance of a cane. Mr. Alsop
entered the hallway to his residence from the front porch. Carrying
a shotgun[, Appellant] approached and followed Mr. Alsop into the
[i]nterior hall. In the hallway[, Appellant] shot Mr. Alsop from an
estimated distance of two to eight feet. [Appellant] took Mr.
Alsop’s cell phone and fled, leaving the dying man. During his
flight[, Appellant] disposed of a box of ammunition in a sewer
opening. Mr. Alsop was pronounced dead at the scene.
Trial Ct. Op. 5/21/20, at 1-2.
On November 19, 2015, the jury found Appellant guilty of first-degree
murder and possessing an instrument of crime.1 On January 5, 2016, the trial
court sentenced Appellant to an aggregate term of thirty-six-and-one-half
years to life imprisonment. Appellant did not file post-sentence motions or a
direct appeal.
On February 4, 2019, Appellant filed a counseled PCRA petition
requesting the reinstatement of his post-sentence and direct appeal rights.
On August 9, 2019, the PCRA court dismissed Appellant’s first petition as
untimely. See Order, 8/9/19; Notice of Intent to Dismiss Without a H’rg,
4/11/19, at 2.
Appellant, through new counsel, filed a second PCRA petition on
November 6, 2019, alleging that his first PCRA counsel abandoned him.
Appellant’s second PCRA petition requested a reinstatement of Appellant’s
right to appeal the order dismissing his first PCRA petition.
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1 The jury found Appellant not guilty of robbery.
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Following a hearing in which there may have been an agreement
between Appellant and the Commonwealth, the PCRA court entered an order
granting Appellant nunc pro tunc relief, which read:
AND NOW, this 6th day of February, 2020, as to the Petition for
Post Conviction Relief filed by Rashon Sargent and the agreement
entered into by and between [the Commonwealth] and
[Appellant] that was placed on th[e] record before [PCRA court]
on February 5, 2020, it is hereby ORDERED and DECREED that
the Petition for Post Conviction Relief as to the allegations of
ineffectiveness concerning the Order entered by th[e PCRA c]ourt
dismissing [Appellant’s] initial Post Conviction Relief Act Petition
is GRANTED. [Appellant] is permitted to file an Appeal to the
Superior Court Nunc Pro Tunc from the Order dismissing his
Petition for Post Conviction Relief dated August 9, 2019.
Order, 2/6/20 (emphasis added).2
Appellant filed a counseled notice of appeal on March 2, 2020, in which
counsel indicated that he appealed from the PCRA court’s order dated August
9, 2019. However, the parties and the court thereafter proceeded as if the
PCRA court had reinstated Appellant’s direct appeal rights.
____________________________________________
2 Although the PCRA court dated its order on February 6, 2020, it was not
entered on the docket until February 7, 2020. Because the parties and the
court refer to the February 6, 2020 order, we also do so to avoid confusion.
The court twice referred to an agreement between Appellant and the
Commonwealth regarding Appellant’s second PCRA petition. See Order,
2/6/20; Trial Ct. Op. at 2 (indicating that the parties stipulated that first PCRA
counsel was ineffective). However, the record transmitted to this Court does
not include a transcript from the hearing on Appellant’s second PCRA petition
or any further information regarding the nature of the agreement between the
parties.
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Specifically, on March 27, 2020, Appellant filed a docketing statement
in this Court indicating that the PCRA court reinstated his direct appeal rights.
On May 6, 2020, Appellant filed a Pa.R.A.P. 1925(b) statement raising
numerous direct appeal issues. The trial court then filed a responsive opinion
stating that it reinstated Appellant’s right to a direct appeal and addressing
Appellant’s issues. Trial Ct. Op. at 2. Both Appellant’s and the
Commonwealth’s briefs in this Court state that the February 6, 2020 order
reinstated Appellant’s direct appeal rights. Appellant’s Brief at 5;
Commonwealth’s Brief at 3.
Before addressing Appellant’s issues, we must resolve the discrepancy
between the February 6, 2020 order and the conduct and statements of the
parties and the trial court in this appeal. The language of the February 6,
2020 order is clear. The PCRA court granted Appellant an appeal nunc pro
tunc from its August 9, 2019 order, not the judgment of sentence. See Order,
2/6/20. Because the August 9, 2019 order dismissed Appellant’s first PCRA
petition, the standard and scope of the issues on appeal is whether the record
supported the PCRA court’s findings and its legal conclusions were free of
error. See Commonwealth v. Small, 238 A.3d 1267, 1280 (Pa. 2020).
However, because Appellant proceeds as if his direct appeal rights were
reinstated, he advances no appellate claims regarding the August 9, 2019
order dismissing of his first PCRA petition. This lack of meaningful argument
warrants dismissal of this appeal or the summary affirmance of the August 9,
2019 order. See Commonwealth v. Kane, 10 A.3d 327, 331 (Pa. Super.
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2010) (noting that “it is an appellant’s duty to present arguments that are
sufficiently developed for our review” (citation omitted))
While this Court cannot overlook the fact that the February 6, 2020
order only authorized an appeal from the dismissal of Appellant’s first PCRA
petition and not the judgment of sentence, we also cannot ignore the apparent
shared belief by the trial court and the parties that the February 6, 2020 order
reinstated Appellant’s direct appeal rights. See Trial Ct. Op. at 2;
Commonwealth’s Brief at 3. Although the written order generally controls,
instantly, to facilitate judicial economy and to avoid dissipating the efforts and
expense of the parties by dismissing or affirming based on a possible clerical
misstep, patent or obvious mistake, or possible omission from the record, we
remand the record to the trial court for clarification. See generally
Commonwealth v. Borrin, 80 A.3d 1219, 1227-28 (Pa. 2013) (discussing
patent and obvious mistakes and clerical errors).
For these reasons, we remand the record in this case for a period not to
exceed sixty days for clarification as to whether the PCRA court reinstated
Appellant’s right to a direct appeal. If further time is required due to the
pandemic or other circumstances, the trial court should advise the Superior
Court Prothonotary. The PCRA court shall supplement the record to include
the transcript of the hearing on Appellant’s second PCRA petition and may
include any other materials concerning the agreement between parties
regarding the scope of relief due on Appellant’s second PCRA petition. The
PCRA court may determine to hold a hearing for the parties to supplement or
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correct the record on this issue. The court shall file a supplemental opinion
containing its findings of fact and conclusions of law concerning its February
6, 2020 order.
Case remanded with instructions. Panel jurisdiction retained.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/12/21
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