Com. v. Piner, K.

J-S42026-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
KENNETH JON PINER :
:
Appellant : No. 1457 WDA 2021
Appeal from the Judgment of Sentence Entered June 1, 2021
In the Court of Common Pleas of Blair County Criminal Division at No(s):
CP-07-CR-0000675-2012
BEFORE: BOWES, J., OLSON, J., and COLINS, J.*
MEMORANDUM BY OLSON, J.: FILED: JANUARY 17, 2023
Appellant, Kenneth Jon Piner, appeals from the judgment of sentence
entered on June 1, 2021, as made final by the denial of Appellant’s
post-sentence motion on October 9, 2021. We affirm.
On April 10, 2013, a jury found Appellant guilty of a number of crimes,
including: possession of a controlled substance with the intent to deliver
(“PWID”), dealing in proceeds of unlawful activities, corrupt organizations,
criminal use of a communication facility, and conspiracy.1 On June 14, 2013,
the trial court sentenced Appellant to serve an aggregate term of 36 to 72
years in prison for his convictions. We affirmed Appellant’s judgment of
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* Retired Senior Judge assigned to the Superior Court.
1 35 P.S. § 780-113(a)(30) and 18 Pa.C.S.A. §§ 5111(a)(1), 911(b)(3),
7512(a), and 903, respectively.
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sentence on February 9, 2015 and the Pennsylvania Supreme Court denied
Appellant’s petition for allowance of appeal on September 23, 2015. See
Commonwealth v. Piner, 120 A.3d 374 (Pa. Super. 2015) (unpublished
memorandum), appeal denied, 124 A.3d 309 (Pa. 2015).
On February 22, 2016, Appellant filed a timely petition under the Post
Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. The PCRA court
appointed counsel to represent Appellant during the proceedings and counsel
filed an amended petition on Appellant’s behalf. The amended petition raised
numerous claims for relief, including claims that: 1) “trial counsel was
ineffective in that he failed to properly present, argue, and preserve for
[appellate] review the argument that the Blair County District Attorney’s Office
should not have been involved in [Appellant’s] prosecution, in that it had a
conflict of interest in prosecuting [Appellant]” and 2) Appellant’s sentence was
illegal, as he was sentenced under certain mandatory minimum sentencing
statutes that the United States Supreme Court had declared unconstitutional
in Alleyne v. United States, 570 U.S. 99 (2013). See Amended PCRA
Petition, 5/1/19, at 1-4.
On May 20, 2020, the PCRA court granted, in part, and denied, in part,
Appellant’s PCRA petition. Specifically, the PCRA court granted Appellant relief
on his illegal sentencing claim and, thus, vacated Appellant’s sentence and
scheduled the matter for resentencing. See PCRA Court Order, 5/20/20, at
1. The PCRA court did so because: Appellant was sentenced under certain
mandatory minimum sentencing statutes that the United States Supreme
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Court had declared unconstitutional in Alleyne; Appellant’s judgment of
sentence was not final at the time Alleyne was decided; and, Appellant filed
a timely PCRA petition where he challenged the legality of his sentence. See
PCRA Court Order, 5/20/20, at 1; see also Commonwealth v. DiMatteo,
177 A.3d 182, 192 (Pa. 2018) (holding: where a petitioner’s “sentence was
rendered illegal before his judgment of sentence became final and he
presented his claim in a timely petition for post conviction relief, he is entitled
to have his illegal sentence remedied”). However, the PCRA court denied
Appellant relief on his remaining claims, including Appellant’s claim that his
trial counsel was ineffective for failing to argue that “the Blair County District
Attorney’s Office should not have been involved in [Appellant’s] prosecution,
in that it had a conflict of interest in prosecuting [Appellant].” See PCRA Court
Order, 5/20/20, at 1. Appellant did not file a notice of appeal from the PCRA
court’s order. 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”).
On June 1, 2021, the trial court resentenced Appellant to serve an
aggregate term of 18 to 36 years in prison for his convictions. After
Appellant’s timely post-sentence motion was denied by operation of law,
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Appellant filed a timely notice of appeal from his judgment of sentence.
Appellant raises one claim on appeal:
Whether the trial court erred in denying Appellant’s [PCRA
petition,] averring that his trial counsel was ineffective in
failing to object to the Blair County District Attorney’s Office
assisting in his prosecution when it had a conflict of interest
in prosecuting [Appellant]?
Appellant’s Brief at 4.
The action at bar is Appellant’s direct appeal from his judgment of
sentence, following resentencing. Notwithstanding this fact, Appellant’s claim
of error on appeal relates solely to the partial denial of his earlier PCRA
petition. However, the PCRA court’s May 20, 2020 order – which granted, in
part, and denied, in part, Appellant’s PCRA petition (and, specifically, denied
Appellant relief on his claim that his trial counsel was ineffective for “failing to
object to the Blair County District Attorney’s Office assisting in his prosecution
when it had a conflict of interest in prosecuting [Appellant]”) – was final when
entered. See Grove, 170 A.3d at 1138 (“the PCRA court's order granting
relief with regard to sentencing and denying all other claims [is] a final
appealable order”). Thus, Appellant had until June 19, 2020 to file a notice of
appeal pertaining to the PCRA court’s May 20, 2020 order, where he could
have raised the issue he currently brings before this Court. See id. Appellant
did not do so – and, on this direct appeal from his judgment of sentence,
Appellant cannot now challenge the denial of an ineffective assistance of
counsel claim that was only contained in Appellant’s earlier PCRA petition.
See Commonwealth v. Fantauzzi, 275 A.3d 986, 991 n.12 (Pa. Super.
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2022) (“[a] PCRA court's order granting a new sentencing proceeding ends
the collateral proceedings, and the new sentencing proceeding is a trial court
function not a function of the collateral proceedings”); cf. Commonwealth
v. McKeever, 947 A.2d 782, 785 (Pa. Super. 2008) (“a successful first PCRA
petition does not ‘reset the clock’ for the calculation of the finality of the
judgment of sentence for purposes of the PCRA where the relief granted in the
first petition neither restored a petitioner's direct appeal rights nor disturbed
his conviction, but, rather, affected his sentence only”); Commonwealth v.
Williams, 151 A.3d 621, 625 (Pa. Super. 2016) (holding: where a
defendant’s first direct appeal resulted in a remand for the limited purpose of
resentencing, the defendant “is barred from raising any issues other than a
challenge to the sentence imposed on remand” in the direct appeal from the
resentencing); Commonwealth v. Anderson, 801 A.2d 1264 (Pa. Super.
2002) (where the defendant succeeded on his illegal sentencing claim in an
earlier direct appeal, the defendant was not permitted to challenge his
convictions in the direct appeal following resentencing; at that time, “the only
issues reviewable in a direct appeal would be challenges to the sentence
imposed following remand”).2
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2 We also note that, after Appellant filed his notice of appeal in this case,
Pennsylvania Rule of Appellate Procedure 341 was amended to add a new
subsection dealing expressly with the finality of PCRA orders. Rule 341(f) now
declares:
(f) Post Conviction Relief Act orders.
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Judgment of sentence affirmed. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/17/2023
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(1) An order granting, denying, dismissing, or otherwise finally
disposing of a petition for post-conviction collateral relief shall
constitute a final order for purposes of appeal.
(2) An 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) (effective July 1, 2021).
New Rule 341(f) codified the holdings of Watley and Grove and, thus,
provides further support for affirming the PCRA court’s order in this case.
Watley, 153 A.3d at 1039 n.3 (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); Grove, 170 A.3d at 1138 (“the PCRA court's order granting relief
with regard to sentencing and denying all other claims [is] a final appealable
order”); see also Pa.R.A.P. 341 Note (“Paragraph (f)--Post Conviction Relief
Act Orders--A failure to timely file an appeal pursuant to paragraph (f)(2) shall
constitute a waiver of all objections to such an order”).
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