Com. v. Carter, S. ( 2023 )

J-A03027-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
SOLOMON CARTER :
:
Appellant : No. 489 EDA 2022
Appeal from the Judgment of Sentence Entered January 3, 2022
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0000228-2009
BEFORE: KING, J., SULLIVAN, J., and STEVENS, P.J.E.*
MEMORANDUM BY SULLIVAN, J.: FILED JUNE 12, 2023
Solomon Carter (“Carter”) appeals from the judgment of sentence
imposed after this Court remanded for resentencing. Carter’s counsel
(“present Counsel”) has filed a petition to withdraw and an Anders brief,1 and
Carter has filed a pro se response. We affirm the judgment of sentence and
grant present Counsel’s petition to withdraw.2
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* Former Justice specially assigned to the Superior Court.
1 Anders v. California, 386 U.S. 738 (1967).
2 We note that this Court previously remanded this matter for resentencing
after affirming in part and reversing in part the dismissal of Carter’s timely
first petition filed pursuant to the Post Conviction Relief Act (“PCRA”), 42
Pa.C.S.A. §§ 9541-9546. See Commonwealth v. Carter, 249 A.3d 1188,
2021 WL 754342 (Pa. Super. 2021) (unpublished memorandum at *10-12).
While awaiting resentencing pursuant to this Court’s order, present Counsel
filed a second PCRA petition on Carter’s behalf, which the trial court purported
to deny before resentencing Carter. These unusual procedures have resulted
(Footnote Continued Next Page)
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The facts underlying Appellant’s convictions are well known to the
parties and this Court, and we briefly reiterate that Carter stabbed and killed
his girlfriend, Karima Ballard, and injured Ballard’s friend. Police arrested
Carter, and the Commonwealth charged him with murder, aggravated assault,
and possessing an instrument of crime (“PIC”). At the conclusion of a non-
jury trial, the trial court found Carter guilty of first-degree murder, aggravated
assault, and PIC. The trial court sentenced Carter to life imprisonment for
murder, as well as a combined, concurrent sentence of five to ten years for
aggravated assault and PIC. This Court affirmed the judgment of sentence,
and our Supreme Court denied Carter’s petition for allowance of appeal
(“PAA”) on September 9, 2013. See Commonwealth v. Carter, 75 A.3d 554(Pa. Super. 2013) (unpublished memorandum) (hereinafter “Carter I”),
appeal denied, 74 A.3d 1029 (Pa. 2013).
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in a confusing array of issues addressed by present Counsel, Carter, and the
trial court in the present appeal.
To clarify, the instant appeal lies from the judgment of sentence imposed
following resentencing. However, in addition to discussing a single sentencing
issue, present Counsel expounds on an issue related to the denial of Carter’s
second PCRA petition. Carter’s pro se response to present Counsel’s Anders
brief also raises issues concerning his guilt, the partial affirmance of his claims
in his first PCRA appeal, and the alleged deprivation of his right to counsel to
file a petition for allowance of appeal from the order partially affirming the
dismissal of his first PCRA petition. For the reasons discussed herein, we
conclude that any issues related to the purported dismissal of Carter’s second
PCRA petition, Carter’s underlying convictions, or the claims addressed in
Carter’s first PCRA petition are not properly before this Court.
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On September 3, 2014, Carter timely filed his first PCRA petition and
alleged numerous claims of ineffective assistance of trial counsel and
prosecutorial misconduct. The PCRA court appointed counsel (“prior PCRA
counsel”), who filed a petition to withdraw and a no-merit letter pursuant to
Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and Commonwealth
v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc). On January 17, 2019,
the court granted prior PCRA counsel leave to withdraw and dismissed Carter’s
first PCRA petition. Carter took a pro se appeal, and this Court affirmed the
dismissal of Carter’s first PCRA petition in part, but concluded that trial counsel
was ineffective for failing to object to improper victim impact testimony at the
sentencing hearing. Thus, we reversed only that portion of the PCRA court’s
order dismissing the victim-impact testimony claim and remanded for
resentencing. See Carter, 2021 WL 754342 (unpublished memorandum at
*10-12) (hereinafter “Carter II”).
Following remand, the trial court appointed present Counsel to represent
Carter. On December 28, 2021, before the trial court resentenced Carter,
present Counsel filed a second PCRA petition requesting leave to file a nunc
pro tunc PAA from Carter II. On January 3, 2022, the trial court orally
denied Carter’s second PCRA petition and then resentenced Carter to life
imprisonment for murder, a concurrent thirty-three to sixty-six months of
imprisonment for aggravated assault, and no further penalty for PIC. Carter
timely filed boilerplate post-sentence motions requesting reconsideration of
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his sentence.3 The trial court denied the post-sentence motion, and Carter
timely appealed the judgment of sentence on February 2, 2022. The court
did not enter a separate order denying Carter’s second PCRA petition. Present
Counsel filed a Pa.R.A.P. 1925(c)(4) statement; the trial court filed an opinion
addressing its sentence. In this Court, present Counsel has filed a petition to
withdraw from representation and an Anders brief. Carter has filed a pro se
response.
We must initially consider present Counsel’s request to withdraw. See
Commonwealth v. Cartrette, 83 A.3d 1030, 1032 (Pa. Super. 2013) (en
banc); see also Commonwealth v. Bennett, 124 A.3d 327, 333 (Pa. Super.
2015) (holding that when counsel files an Anders brief and the appellant files
a pro se response, this Court will first determine whether counsel has complied
with the procedural requirements to withdraw). Counsel who wishes to
withdraw on appeal must:
1) petition the court for leave to withdraw stating that, after
making a conscientious examination of the record, counsel has
determined that the appeal would be frivolous; 2) furnish a copy
of the brief to the defendant; and 3) advise the defendant that he
or she has the right to retain private counsel or raise additional
arguments that the defendant deems worthy of the court’s
attention.
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3 As to the sentence imposed following resentencing, Carter’s post-sentence
motion states, in part: “There was an abuse of discretion at sentencing and
the Court should re-consider its sentence. . . . WHEREFORE, [Carter]
respectfully prays th[e trial court] will reconsider his sentence . . ..” Post-
Sentence Motion, 1/3/22, at 1-2. Carter also alleged that the trial court should
have granted his second PCRA petition seeking leave to file a nunc pro tunc
PAA. See id.-4-
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Commonwealth v. Cartrette, 83 A.3d at 1032 (citation omitted).
In accordance with Commonwealth v. Santiago, 978 A.2d 349, 361
(Pa. 2009), the brief accompanying counsel’s petition to withdraw must also
(1) provide a summary of the procedural history and facts, with
citations to the record; (2) refer to anything in the record that
counsel believes arguably supports the appeal; (3) set forth
counsel’s conclusion that the appeal is frivolous; and (4) state
counsel’s reasons for concluding that the appeal is frivolous.
Counsel should articulate the relevant facts of record, controlling
case law, and/or statutes on point that have led to the conclusion
that the appeal is frivolous.
Santiago, 978 A.2d at 361. Once counsel has complied with these procedural
requirements, we will review the record and render an independent judgment
as to whether the appeal is wholly frivolous. See Commonwealth v.
Yorgey, 188 A.3d 1190, 1197 (Pa. Super. 2018) (en banc).
In the appeal sub judice, present Counsel, whom the trial court
appointed following our remand for resentencing, has filed a petition to
withdraw stating that after an extensive review of the record and applicable
law, he has concluded that this appeal is wholly frivolous. Present Counsel
asserts that he provided Carter with a copy of his Anders brief and attaches
to his petition a copy of a letter he sent to Carter advising him of his right to
proceed pro se or with new counsel. Further, present Counsel’s Anders brief
summarizes the procedural history of this direct appeal following resentencing
and explains his reasons for concluding that the appeal is wholly frivolous. We
conclude that present Counsel has substantially complied with the
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requirements of Anders and Santiago and will proceed to an independent
review of whether this appeal is frivolous. See Yorgey, 188 A.3d at 1197.
Present Counsel identifies the following issues in this appeal: (1) “Did
the sentencing court commit an abuse of discretion when [Carter] was
resentenced[;]” and (2) “Did the lower court err when it denied [Carter’s]
petition for leave to file petition for allowance of appeal nunc pro tunc pursuant
to the [PCRA?]” See Anders Brief at 9, 15 (some capitalization omitted).
First, present Counsel discusses a possible discretionary aspects of
sentencing claim. It is well-settled that “[c]hallenges to the discretionary
aspects of sentencing do not entitle an appellant to review as of right.”
Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010). Prior to
reaching the merits of a discretionary sentencing issue,
[this Court conducts] a four[-]part analysis to determine: (1)
whether appellant has filed a timely notice of appeal, see
Pa.R.A.P. 902 and 903; (2) whether the issue was properly
preserved at sentencing or in a motion to reconsider and modify
sentence, see Pa.R.Crim.P. [720]; (3) whether appellant's brief
has a fatal defect, [see] Pa.R.A.P. 2119(f); and (4) whether there
is a substantial question that the sentence appealed from is not
appropriate under the Sentencing Code, [see] 42 Pa.C.S.A. §
9781(b).
Id. (citation omitted). When an appellant challenges the discretionary aspects
of his sentence, we must consider his brief on this issue as a petition for
permission to appeal. See Commonwealth v. Yanoff, 690 A.2d 260, 267
(Pa. Super. 1997); see also Commonwealth v. Tuladziecki, 522 A.2d 17,
18 (Pa. 1987); 42 Pa.C.S.A. § 9781(b).
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Our review of the record shows that Carter did not object to his sentence
at the resentencing hearing. Although Carter timely filed a post-sentence
motion, his boilerplate assertion that “[t]here was an abuse of discretion at
sentencing and the Court should re-consider its sentence,” Post-Sentence
Motion, 1/3/22, at 1-2, does not preserve a sentencing claim. This Court will
not review an unpreserved claim. See Commonwealth v. Cox, 231 A.3d
1011, 1016, 1018 (Pa. Super. 2020) (concluding that “the mere filing of an
Anders brief and petition to withdraw will not serve to resuscitate claims that
were already waived upon the filing of the notice of appeal”) (citation omitted).
Therefore, because there is no basis in either the facts or law to challenge the
discretionary aspects of the trial court’s sentence, the first issue identified by
present Counsel is, in fact, frivolous.
As noted above, present Counsel also identifies issues concerning the
trial court’s denial of Carter’s second PCRA petition seeking leave to file a nunc
pro tunc PAA from Carter II. We must initially consider whether these issues
are properly before this Court. Cf. Commonwealth v. Tchirkow, 160 A.3d
798, 803 (Pa. Super. 2017) (noting that this Court may raise the issue of our
jurisdiction sua sponte).
Generally, when this Court remands a matter, the trial court must
proceed in accordance with this Court’s order. See Pa.R.A.P. 2591(a);
Commonwealth v. Sepulveda, 144 A.3d 1270, 1279-80 (Pa. 2016).
Additionally, when a remand requires the trial court to resolve a limited issue,
an appellant may subsequently appeal only those matters related to the issue
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on remand. See Commonwealth v. Lawson, 789 A.2d 252, 253 (Pa. Super.
2001).
Here, when the Carter II panel affirmed the PCRA court’s order in part
but remanded for resentencing, it created separate tracks for Carter’s guilt-
phase and the sentencing-phase claims. See Commonwealth v. Dehart,
730 A.2d 991, 992-94 & n.2 (Pa. Super. 1999); accord Commonwealth v.
Abrams, 240 A.3d 911, 2020 WL 5362186 (Pa. Super. 2020) (unpublished
memorandum at *2-3) (citable pursuant to Pa.R.A.P. 126(b)(1)). As to
Carter’s sentencing-phase claims, our remand required further proceedings
for resentencing. As to Carter’s guilt-phase claims, however, the Carter II
panel’s partial affirmance became final when Carter did not file a timely PAA.
See Pa.R.A.P. 1112(b), 1113(a).
Following the remand ordered in Carter II, and while awaiting
resentencing, present Counsel elected to file another PCRA petition seeking
reinstatement of Carter’s right to file a PAA from the partial affirmance of the
denial of PCRA relief in Carter II. To the extent Carter’s petition was properly
before the trial court charged with resentencing Carter, Carter’s petition
constituted a second PCRA petition, which should have opened a second,
separate PCRA track parallel to the resentencing proceeding ordered by this
Court.4 See Abrams, 2020 WL 5362186 (unpublished memorandum at *2-
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4 We note that Carter did not have a rule-based right to counsel for the
purpose of a second PCRA petition. See Pa.R.Crim.P. 904(D)-(E) (discussing
the appointment of counsel for a second or subsequent PCRA petition).
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3); see also Commonwealth v. Hall, 771 A.2d 1232, 1236 (Pa. 2001)
(holding that a petitioner should seek nunc pro tunc relief through the PCRA
when the PCRA affords an ability to seek a remedy).
However, neither present Counsel nor the trial court treated the second
PCRA petition as such, and the court did not follow any of the procedures
required for deciding Carter’s second PCRA petition. See Pa.R.Crim.P. 907(1),
(4) & 908(C)-(E) (discussing the disposition of PCRA petition with and without
a hearing, requiring entry of an order disposing of the PCRA petition, and
requiring the PCRA court to advise the petitioner of his appellate rights).
Notably, because the court has yet to enter and docket an order formally
disposing of Carter’s second PCRA petition, an appeal from the denial of
Carter’s second PCRA petition is premature. See Commonwealth v. Sneed,
45 A.3d 1096, 1104 (Pa. 2012);5 cf. Commonwealth v. Volz, 227 A.3d 378,
2020 WL 534701 (Pa. Super. 2020) (unpublished memorandum at *2) (citable
pursuant to Pa.R.A.P. 126(b)(1)). Furthermore, although Carter properly
appealed the judgment of sentence imposed upon resentencing, we conclude
he cannot shoehorn appellate issues concerning the purported denial of his
second PCRA petition into this direct appeal. See Pa.R.A.P. 2591(a);
Sepulveda, 144 A.3d at 1279; see also Lawson, 789 A.2d at 253. Thus,
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5 We note that the Sneed Court expressed a preference for deciding guilt-
phase issues before resentencing; however, it did so only after quashing a
prior appeal for the lack of an appealable order. See Sneed, 45 A.3d at 1104-
05.
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we conclude that issues related to the denial of Carter’s second PCRA petition
are not properly before this Court, and we will not address them in this appeal.
Lastly, we consider Carter’s pro se response to present Counsel’s
petition to withdraw and Anders brief. Our review reveals that Carter intends
to argue that present Counsel was ineffective for failing to raise a series of
guilt-phase claims, which, as he discusses in detail, include allegations of
police tampering, concealment of governmental misconduct, and assertions of
self-defense. See Carter’s Pro Se Brief in Reply to Anders Brief at 5-6, 7-16,
18-21. Carter asserts that present Counsel could have raised these issues in
a post-sentence motion or a motion for extraordinary relief. See id. at 7.
Additionally, Carter claims that he was deprived of the right to counsel for the
purpose of filing a PAA from Carter II. See id. at 16-18.
Carter’s pro se guilt-phase claims are not cognizable in this direct appeal
from the judgment of sentence imposed following resentencing, and in any
event, have been waived because they were not presented in the trial court.
See Lawson, 789 A.2d at 253; see also Pa.R.A.P. 302(a).6 To the extent
Carter asserts present Counsel could have raised guilt-phase issues in a post-
sentence motion following resentencing or a motion for extraordinary relief,
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6 The majority of Carter’s pro se claims concern guilt-phase issues that have
either been previously litigated or are variants of previously litigated claims
discussed by the Carter II panel when partially affirming the denial of his first
PCRA petition. See Carter II, 2021 WL 754342 (unpublished memorandum
at *2-8) (discussing, inter alia, Carter’s ineffective assistance of trial counsel
claims as to the surviving victim’s testimony concerning her injuries and the
Commonwealth’s closing argument); see also 42 Pa.C.S.A. § 9544(a).
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his argument misconstrues the limited scope of the resentencing proceedings
ordered by this Court and the issues properly cognizable in this direct appeal
from the judgment of sentence following resentencing. See Pa.R.A.P.
2591(a); Sepulveda, 144 A.3d at 1279; Lawson, 789 A.2d at 253. Similarly,
Carter’s argument that he was deprived of a right to counsel to file a PAA from
Carter II is, as we discussed above, an issue to be raised in an appeal
following the proper disposition of his second PCRA petition rather than the
present appeal from the judgment of sentence imposed following
resentencing. Thus, we discern no merit to the issues raised in Carter’s pro
se response.
Judgment of sentence affirmed. Petition to withdraw granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/12/2023
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