Com. v. Neidig, N. ( 2023 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
NEIL ANDREW NEIDIG :
:
Appellant : No. 1455 MDA 2021
Appeal from the Judgment of Sentence Entered October 27, 2021
In the Court of Common Pleas of Northumberland County Criminal
Division at No(s): CP-49-CR-0000295-2012,
CP-49-CR-0000756-2011
BEFORE: PANELLA, P.J., McLAUGHLIN, J., and PELLEGRINI, J.*
MEMORANDUM BY McLAUGHLIN, J.: FILED: APRIL 4, 2023
Neil Andrew Neidig appeals from the judgment of sentence entered
following resentencing on his convictions for multiple counts of possession
with intent to deliver, criminal use of a communication facility, and corrupt
organizations.1 The court resentenced Neidig as part of its partial grant of his
Post Conviction Relief Act (“PCRA”) petition. 42 Pa.C.S.A. §§ 9541-9546. He
challenges the court’s denial in part of his PCRA petition and his sentence. We
do not address his challenges to the denial of his PCRA petition, as they are
waived, and we affirm in part and reverse in part the judgment of sentence.
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* Retired Senior Judge assigned to the Superior Court.
1 35 P.S. § 780-113(a)(30), 18 Pa.C.S.A. §§ 7512(a), and 911(b)(3),
respectively.
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Neidig’s original sentence included mandatory minimums for his drug
convictions. Neidig appealed and we vacated the judgment of sentence and
remanded for resentencing pursuant to Alleyne v. United States, 133 S.Ct.
2151 (2013). The court resentenced Neidig to an aggregate term of 14½ to
29 years’ imprisonment. As part of the imposed sentence, the court ordered
Neidig to pay fines and costs of prosecution. See N.T., Resentencing Hearing,
2/26/16, at 73, 76; Sentencing Orders, filed 3/4/16.2 The court also imposed
a school zone enhancement for four of Neidig’s convictions. See N.T.,
Resentencing Hearing at 73. Neidig appealed, and we affirmed the judgment
of sentence. Commonwealth v. Neidig, No. 1067 MDA 2016, 2017 WL
4930371, at *1 (Pa.Super. filed Oct. 31, 2017) (unpublished memorandum).
Our Supreme Court denied Neidig’s petition for allowance of appeal on April
10, 2018. Commonwealth v. Neidig, 183 A.3d 979 (Table) (Pa. 2018).
Neidig filed a timely PCRA petition on December 11, 2018. The court
appointed counsel who filed an amended petition. Following evidentiary
hearings, the court granted Neidig’s petition on the sole issue that school zone
enhancements should not have been applied to his sentence. See Order, filed
3/4/21. The court denied the remaining claims of the PCRA petition. See id.The court then scheduled the case for resentencing. Neidig did not file an
appeal from the court’s PCRA order.
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2 The court filed separate sentencing orders for each of Neidig’s convictions.
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On October 27, 2021, the lower court held a resentencing hearing. The
court noted that it had an updated Pre Sentence Investigation (“PSI”) report
dated July 14, 2021.3 N.T., Resentencing Hearing, 10/27/21, at 3. It stated
that “I will note that it’s really not much different than the original – I’m not
sure it’s different at all from the original PSI because Mr. Neidig was
incarcerated that whole time[.]” Id. at 3-4. The court imposed a sentence of
9½ to 29 years’ incarceration. It stated that “[a]ll the fines, costs, fees,
conditions of the previous orders on all counts remain the same.” N.T.,
Resentencing Hearing, 10/27/21, at 48 (emphasis added). Counsel did not
object. While explaining Neidig’s appellate rights, the court stated, “[Y]ou can
file an appeal with the Superior Court within 30 days of today . . . .” Id. at 49
(emphasis added).
Neidig filed a post-sentence motion raising the following claims:
9. Defendant avers the court should reconsider his
sentence as the defendant had to spend additional time
incarcerated when he would have been eligible for
parole under his new sentence.
10. In the period of time defendant’s case has been
pending, the treatment of marijuana has changed in the
Commonwealth to a point where the Attorney’s [sic]
General’s office did not have an articulated position at
sentencing.
11. The court should weigh other factors in reconsidering
Defendant’s sentence, including the wrongful
application Pa.R.Crim.P. 600 by the Superior Court of
Pennsylvania on Defendant’s direct appeal.
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3 The updated PSI is not included with the certified record.
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12. Additionally, the defendant requests this court to
reconsider its decision denying his petition for post
conviction relief under 42 Pa.C.S.A. § 9543(a)(2)(i), 42
Pa.C.S.A. § 9542(a)(2)(ii), and 42 Pa.C.S.A. §
9542(a)(2)(vi).
***
17. Despite vacating the defendant’s sentence, the court
imposed the same fines, cost, and restitution as
imposed in Defendant’s previous sentence.
18. The defendant requests this court reconsider his
sentence, reconsider the denial of his other PCRA
claims, modify his fines, costs, restitution, and grant
any other relief this court deems necessary.
Post Sentence Motion, filed 11/2/21, at ¶¶ 9-18.
Before the court had ruled on the post-sentence motion, Neidig filed the
instant appeal, submitting a single notice of appeal listing both Common Pleas
docket numbers. See Notice of Appeal, filed 11/5/21. The lower court then,
on November 9, denied Neidig’s post-sentence motion.4
On appeal, this Court initially issued a rule to show cause why the appeal
should not be quashed pursuant to Commonwealth v. Walker, 185 A.3d
969 (Pa. 2018), overruled in part by Commonwealth v. Young, 265 A.3d
462, 477 n.19 (Pa. 2021). In Walker, our Supreme Court held that an appeal
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4Neidig filed his notice of appeal before the court addressed his post-sentence
motion. Therefore, we treat this appeal as filed after the denial of his post-
sentence motion. See Pa.R.A.P. 905(a)(5) (“A notice of appeal filed after the
announcement of a determination but before the entry of an appealable order
shall be treated as filed after such entry and on the day thereof”); Pa.R.Crim.P.
720(a)(2)(a) (stating that when a defendant files a timely post-sentence
motion, a notice of appeal should be filed “within 30 days of the entry of the
order deciding the motion”).
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should be quashed where the appellant fails to file separate notices of appeal
at each docket number, where the order appealed from resolves issues at
more than one docket. 185 A.3d at 977. Neidig responded that the PCRA court
had told him that he could file “a” notice of appeal. The rule was discharged
and deferred to this panel for consideration of the Walker issue.
We decline to quash pursuant to Walker. If the Court of Common Pleas
has misinformed the appellant that a single notice of appeal listing more than
one docket number is proper, the technical non-compliance with Walker is
excused. See Commonwealth v. Stansbury, 219 A.3d 157, 159-60
(Pa.Super. 2019). Here, the PCRA court advised Neidig that he could file “an”
appeal with this Court, even though its order disposed of issues at multiple
dockets. The court’s misstatement misled Neidig regarding the proper manner
to take this appeal. See id. We will not quash.
On appeal, Neidig raises the following issues:
1. Whether the trial court erred/abused its discretion in
denying [Neidig’s] petition for post-conviction relief
under § 9543(a)(2)(i)?
2. Whether the trial court erred/abused its discretion in
denying [Neidig] a new trial for ineffective assistance
of counsel claims raised under 42 Pa.C.S.A. §
9543(a)(2)(ii)?
3. Whether the trial court erred/abused its discretion in
denying [Neidig’s] petition for post-conviction relief
under 42 Pa.C.S.A. § 9543(a)(2)(iv) and 42 Pa.C.S.A.
§ 9543(a)(2)(vi)?
4. Whether the trial court erred/abused its discretion by
imposing the same/fines, cost [sic], and restitution,
despite vacating [Neidig’s] sentence?
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5. Whether the trial court erred/abused its discretion
when it resentenced [Neidig] to a sentence of 9 ½ to
29 years [sic] incarceration?
a. [Neidig] avers [his] sentence was grossly
excessive considering [Neidig’s] convictions were
for delivering marijuana, his prior record, his
behavior while incarcerated, the vindictiveness of
his resentencing, and the violations of his rights
that occurred during this case[.]
Neidig’s Br. at 11.
We do not address Neidig’s first three claims because they are waived
due to his failure to appeal from the order disposing of his PCRA Petition. Rule
341(f)(2) of the Pennsylvania Rules of Appellate Procedure provides that in
the context of PCRA petitions, “[a]n order granting sentencing relief, but
denying, dismissing, or otherwise disposing of all other claims within a petition
for post-conviction collateral relief, shall constitute a final order for purposes
of appeal.” Pa.R.A.P. 341(f)(2) (emphasis added). In such a case, a PCRA
petitioner may immediately appeal the order, even if resentencing has not yet
occurred. See Commonwealth v. Watley, 153 A.3d 1034, 1039 n.3 (Pa.
Super. 2016) (holding an order granting in part and denying in part all issues
raised in a PCRA petition is a final order for purposes of appeal);
Commonwealth v. Grove, 170 A.3d 1127, 1138 (Pa.Super. 2017) (“the
PCRA court's order granting relief with regard to sentencing and denying all
other claims [is] a final appealable order”). As the comment to Rule 341
warns, a PCRA petitioner who fails to timely appeal an order granting
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sentencing relief but denying other claims waives appellate review of the PCRA
court’s order. See Pa.R.A.P. 341(f)(2), & cmt.
That is what has happened here. Neidig did not appeal within 30 days
after the PCRA court’s order granting Neidig’s sentencing claim but denying
all other claims. Therefore, he has waived review of any issues stemming from
the PCRA order. See id.In his last two issues, Neidig challenges his new sentence. He first
maintains that the trial court erred when it resentenced him to the same fines,
costs, and restitution as it had imposed at his original sentencing. See Neidig’s
Br. at 24. He states that despite the passage of nine years since his original
sentencing, the court reimposed the same fines and costs “without any record
of whether [he] had the ability to pay those fines and costs.” Id. He maintains
that at the time of his original sentence, he was “in a much different financial
position than he is now after being incarcerated for over nine years.” Id..
Rule 706(C) of the Pennsylvania Rules of Criminal Procedure provides
that for mandatory costs, the court “shall, insofar as is just and practicable,
consider the burden upon the defendant by reason of the defendant’s financial
means, including the defendant’s ability to make restitution or reparations.”
Pa.R.Crim.P. 706(C). Sections 9728(g) and 9721(c.1) of the Sentencing
statute makes certain costs, such as the cost of prosecution, mandatory upon
the defendant. See 42 Pa.C.S.A. § 9728(g) (“other costs associated with the
prosecution, shall be borne by the defendant”) (emphasis added); 42
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Pa.C.S.A. § 9721(c.1) (“[n]otwithstanding the provisions of section 9728 . . .
the court shall order the defendant to pay costs”) (emphasis added).
Section 9721(c.1) does “not require the court to consider the
defendant’s ability to pay prior to the imposition of costs.” Commonwealth
v. Lopez, 280 A.3d 887, 900 (Pa. 2022). Furthermore, “interpreting Rule
706(C) to require a presentence ability-to-pay inquiry would place the rule
directly at odds with Section[] 9721(c.1)[.]” Id. However, the sentencing
court may not “impose a fine absent record evidence of the defendant's ability
to pay.” Commonwealth v. Ford, 217 A.3d 824, 829 (Pa. 2019).
We will vacate for an ability-to-pay hearing as to fines only. To the
extent Neidig challenges restitution, the record does not show that the court
imposed restitution. His original sentence did not include restitution, and at
resentencing, the court stated that “[a]ll the fines, costs, fees, conditions of
the previous orders on all counts remain the same.” The court made no
mention of restitution, and the sentencing orders do not impose it. See N.T.,
Sentencing, 10/16/12, at 50-51; N.T., Resentencing Hearing, 10/27/21, at
48.
Regarding fines and costs, it is undisputed that the court did not inquire
as to Neidig’s ability to pay them. The court was not required to determine
Neidig’s ability to pay the mandatory costs. See Lopez, 280 A.3d at 900; 42
Pa.C.S.A. § 9721(c.1); 42 Pa.C.S.A. § 9728(g). However, it was required to
determine Neidig’s ability to pay the fines. See 42 Pa.C.S.A. § 9726(c); Ford,
217 A.3d at 829. As such, we vacate the judgment of sentence to the extent
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that it imposed fines and remand for the court to determine Neidig’s ability to
pay.
Neidig also claims that the court imposed an excessive sentence. He
maintains that the sentence is excessive “considering [his] convictions were
for delivering marijuana, his prior record, his behavior while incarcerated, the
vindictiveness of his resentencing, and the violations of his rights that
occurred during this case.” Neidig’s Br. at 26. Additionally, he argues that the
view of marijuana has changed since his original sentencing. Neidig claims
that he “has been on the receiving end of vindictive sentences stemming from
the multiple remands case [sic] of his case from the Superior Court.” Id. at
15.
To the extent Neidig challenges his sentence as excessive, that
argument goes to discretionary aspects of sentencing. We review such a
challenge for abuse of discretion. “Sentencing is a matter vested in the sound
discretion of the sentencing judge, and a sentence will not be disturbed on
appeal absent a manifest abuse of discretion.” Commonwealth v. Watson,
228 A.3d 928, 936–37 (Pa.Super. 2020) (citation omitted). An abuse of
discretion exists where “the sentencing court ignored or misapplied the law,
exercised its judgment for reasons of partiality, prejudice, bias or ill will, or
arrived at a manifestly unreasonable decision.” Id. at 937 (citation omitted).
An appellant does not have an absolute right to appeal a discretionary
aspect of his sentence. Commonwealth v. Radecki, 180 A.3d 441, 467
(Pa.Super. 2018). Rather, we will consider the issue where the appellant (1)
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filed a timely notice of appeal, (2) properly preserved the issue in the court
below, (3) included a Pa.R.A.P. 2119(f) statement in his brief, and (4) raised
a substantial question that the sentence is “inconsistent with a specific
provision of the Sentencing Code” or “contrary to the fundamental norms
which underlie the sentencing process.” Id. at 467, 468 (citation omitted).
Neidig clears the first three hurdles but stumbles on the fourth. His Rule
2119(f) statement does not set forth a substantial question. He asserts that
the sentencing judge failed to give sufficient weight to particular factors. Such
a claim, without more, does not state a substantial question. See
Commonwealth v. Swope, 123 A.3d 333, 339 (Pa.Super. 2015). We
therefore will not review this argument.
To the extent Neidig asserts a vindictive sentencing claim, such a claim
goes to the legality of the sentence and is not subject to waiver.
Commonwealth v. Prinkey, 277 A.3d 554, 564 (Pa. 2022) (stating a claim
that sentencing was vindictive goes to the legality of sentence);
Commonwealth v. Lomax, 8 A.3d 1264, 1267 n.3 (Pa.Super. 2010) (stating
that a challenge to legality of sentence is nonwaivable).
We reject this claim as meritless. Following remand from his original
sentence, the court imposed the same sentence of 14½ to 29 years. On
subsequent resentencing, the court lowered the sentence to 9½ to 29 years
and kept the fines, costs, and conditions the same. This pattern undermines
Neidig’s claim, and he has not offered anything to show that the court was
motivated by vindictiveness in fashioning the latest sentence. See
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Commonwealth v. Barnes, 167 A.3d 110, 124 (Pa.Super. 2017) (concluding
no presumption of vindictiveness by the court where it imposed the same
aggregate sentence following remand for resentencing). We therefore affirm
in part and vacate in part, and remand for an ability-to-pay hearing as to fines
only.
Judgment of sentence affirmed in part and vacated in part. Case
remanded. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/4/2023
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