Com. v. Mead, M. ( 2017 )

J-S64041-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
MICHAEL G. MEAD :
:
Appellant : No. 2088 MDA 2016
Appeal from the Judgment of Sentence October 27, 2016
In the Court of Common Pleas of Susquehanna County Criminal Division at
No(s): CP-58-CR-0000152-2011
BEFORE: PANELLA, J., SHOGAN, J., and FITZGERALD, * J.
MEMORANDUM BY FITZGERALD, J.: FILED OCTOBER 17, 2017
Appellant, Michael G. Mead, appeals pro se from his judgment of
sentence of eight to eighteen years’ imprisonment for rape,1 involuntary
deviate sexual intercourse (“IDSI”)2 and aggravated indecent assault3
imposed after the trial court granted partial relief under the Post Conviction
Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-9546. Appellant argues that the
trial court erred in calculating his prior record score as two at the time of
sentencing. We affirm.
* Former Justice specially assigned to the Superior Court.
1 18 Pa.C.S. § 3121(a)(1).
2 18 Pa.C.S. § 3123(a)(1).
3 18 Pa.C.S. § 3125(a)(1).
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On April 4, 2012, a jury found Appellant guilty of the foregoing
offenses. On September 12, 2012, the trial court sentenced Appellant to an
aggregate term of fifteen to thirty years’ imprisonment. On June 24, 2014,
this Court affirmed on direct appeal. Commonwealth v. Mead, 600 MDA
2013 (Pa. Super. filed June 24, 2014) (unpublished memorandum).
Appellant filed a timely PCRA petition and a counseled amended PCRA
petition claiming, inter alia, that his sentences were illegal under Alleyne v.
United States, 133 S.Ct. 2151 (2013). At a hearing on October 21, 2016,
the PCRA court agreed that Appellant’s sentences were illegal and ordered
resentencing. Appellant’s attorney advised that Appellant was withdrawing
all other claims in his amended PCRA petition, including claims of actual
innocence and ineffective assistance of counsel. N.T., 10/21/16, at 6.
During resentencing on October 27, 2016, the Commonwealth argued
the following with regard to Appellant’s new sentence:
It’s the position of the Commonwealth that the original
sentence, while deemed illegal in light of Alleyne, that
original sentence of [fifteen] to [thirty] years is, and
continues to be, an appropriate sentence. There are three
counts that the [c]ourt is going to sentence on today, the
IDSI, which carries a standard range of [sixty] to
[seventy-eight] months; the aggravated sexual
assault, which carries a standard range of [thirty-
six] to [forty-eight] months; and the rape charge,
which also carries a standard range of [sixty] to
[seventy-eight] months.[4] I believe prior
discussions I’ve had with defense counsel we’re in
4These standard ranges apply to individuals with a prior record score of two.
See 204 Pa. Code § 303.16(a).
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agreement that those are the appropriate guideline
ranges based on the offense gravity score and the
prior record score involved in this matter. That gives
us an aggregate range, Your Honor, of 156 to 204 months,
meaning [thirteen] to [seventeen] years . . . as a standard
range . . . . So it’s the Commonwealth’s position that if it
maintains its sentence, with a consecutive sentence of
[fifteen] to [thirty] years, that fits in the middle of the
standard range and remains appropriate.
N.T., 10/27/16, at 9-10 (emphasis added). Appellant did not object to the
Commonwealth’s recitation of the standard range minimum sentences.
The trial court resentenced Appellant to an aggregate term of eight to
eighteen years’ imprisonment.5 Appellant did not file post-sentence
motions. On November 21, 2016, Appellant mailed a timely pro se notice of
appeal to the trial court. Without ordering Appellant to file a Pa.R.A.P.
1925(b) statement, the trial court issued a short statement in lieu of
opinion.
On February 14, 2017, Appellant filed a motion in this Court for leave
to proceed pro se in his direct appeal. On February 27, 2017, we ordered
the trial court to hold a hearing as to whether Appellant knowingly,
voluntarily and intelligently waived his right to counsel. On March 16, 2017,
the trial court held a hearing and determined that Appellant made a
5 The court imposed a sentence of eight to eighteen years’ imprisonment for
IDSI, a concurrent sentence of eight to eighteen years’ imprisonment for
rape and a concurrent sentence of five to ten years’ imprisonment for
aggravated indecent assault.
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knowing, intelligent and voluntary waiver of his right to counsel.
Subsequently, Appellant has represented himself in this appeal.
Appellant raises two issues in this appeal:
1. Whether the Court abused [its] discretion or erred as a
matter of law by accepting and utilizing a prior record
score of [two] at . . . resentencing when [Appellant’s] prior
record score was more properly a zero?
2. Whether the Court abused [its] discretion or erred as a
matter of law by granting sentencing relief without a
hearing on the remaining issues of PCRA merit?
Appellant’s Brief at 4.
Appellant first asserts that the trial court incorrectly computed his prior
record score as two instead of zero. Appellant has waived this argument.
A claim that the court applied an incorrect prior record score implicates
the discretionary aspects of sentencing. See Commonwealth v. Spenny,
128 A.3d 234, 241 (Pa. Super. 2015). “[S]uch challenges are not subject to
our review as a matter of right.” Id. Instead,
[a]n appellant must satisfy a four-part test to invoke this
Court’s jurisdiction when challenging the discretionary
aspects of a sentence, by (1) preserving the issue in the
court below, (2) filing a timely notice of appeal, (3)
including a statement pursuant to Pa.R.A.P. 2119(f) (“Rule
2119(f) statement”) in his brief on appeal, and (4) raising
a substantial question for our review.
Id. (citation and internal quotations omitted).
Here, Appellant failed to raise any objection to his prior record score in
the trial court. He did not object to the Commonwealth’s calculation of the
standard guideline ranges for each offense, which were based on a prior
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record score of two. Indeed, the Commonwealth stated, without objection,
that Appellant’s attorney was “in agreement that [these] are the appropriate
guideline ranges based on the offense gravity score and the prior record
score involved in this matter.” N.T., 10/27/16, at 10. Moreover, Appellant
failed to file post-sentence motions. Consequently, he waived this issue.
See Commonwealth v. Cartrette, 83 A.3d 1030, 1042 (Pa. Super. 2013)
(en banc) (absent timely post-sentence motion or claim raised during
sentencing, objection to discretionary aspect of sentence is waived).
In his second argument, Appellant contends that the trial court erred
by failing to hold a hearing at sentencing “on the remaining issues of PCRA
merit.” Appellant’s Brief at 14. Because Appellant’s brief fails to specify
what these issues are, this argument is waived. See Pa.R.A.P. 2119;
Commonwealth v. Rhoades, 54 A.3d 908, 915 (Pa. Super. 2012)
(appellant’s failure to develop argument in brief constitutes waiver).
Moreover, during the PCRA hearing in which the trial court ordered
resentencing, Appellant agreed to withdraw all other claims in his amended
PCRA petition. N.T., 10/21/16, at 6. Thus, once again, he has waived the
right to litigate any other issues in his amended PCRA petition.
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Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/17/2017
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