Com. v. Beatty, M., III

J-A10004-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
MILLARD SHUBERT BEATTY, III
Appellant No. 1186 MDA 2014
Appeal from the Order Entered July 1, 2014
In the Court of Common Pleas of Lycoming County
Criminal Division at No(s): CP-41-CR-0000284-2006
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
MILLARD SHUBERT BEATTY, III
Appellant No. 1187 MDA 2014
Appeal from the Order July 1, 2014
In the Court of Common Pleas of Lycoming County
Criminal Division at No(s): CP-41-CR-0000270-2006
BEFORE: GANTMAN, P.J., MUNDY, J., and JENKINS, J.
MEMORANDUM BY GANTMAN, P.J.: FILED APRIL 08, 2015
Appellant, Millard Shubert Beatty, III, appeals from the orders entered
in the Lycoming County Court of Common Pleas, denying his pro se motion
to modify sentence nunc pro tunc. We vacate and remand for further
proceedings.
J-A10004-15
The relevant facts and procedural history of this appeal are as follows.
In case [No. 270 of 2006], [Appellant] was charged with
burglary, a felony of the first degree; conspiracy to commit
burglary, a felony of the first degree; two counts of
forgery, both graded as felonies of the second degree;
criminal trespass, a felony of the third degree; access
device fraud, a misdemeanor of the first degree;
possessing an instrument of crime, a misdemeanor of the
first degree; theft by unlawful taking, a misdemeanor of
the first degree; and receiving stolen property, a
misdemeanor of the first degree. These charges arose out
of an incident on January 17, 2006 where [Appellant]
entered an individual’s residence, stole checks and a debit
card and then used the debit card to make purchases and
cashed the checks.
In case [No. 284 of 2006], [Appellant] was charged with
receiving stolen property, a felony of the third degree;
recklessly endangering another person [(“REAP”)], a
misdemeanor of the second degree; resisting arrest, a
misdemeanor of the second degree; possession of drug
paraphernalia, an ungraded misdemeanor; fleeing or
attempting to elude a police officer, a misdemeanor of the
second degree; driving under the influence (“DUI”), an
ungraded misdemeanor, and numerous summary offenses.
These offenses arose out of an incident on January 22,
2006, where police discovered [Appellant] in possession of
a stolen vehicle and he led them on a high-speed chase
before crashing the vehicle and being taken into custody.
The police discovered a crack pipe on [Appellant’s] person
during a search incident to his arrest.
On June 7, 2006, [Appellant] pled guilty to burglary,
conspiracy and forgery in case [No. 270 of 2006] and
receiving stolen property, [REAP], possession of drug
paraphernalia, fleeing and eluding, DUI and several
summary offenses in case [No. 284 of 2006]. The court
sentenced [Appellant] to twelve months of supervision
under the Intermediate Punishment Program for each
conviction in case [No. 270 of 2006], for an aggregate
period of 36 months of Intermediate Punishment
supervision.
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In case [No. 284 of 2006], the court sentenced [Appellant]
to 6 months on the Intermediate Punishment Program with
the first 72 hours at the Lycoming County Pre-Release
Center for DUI and 12 months of supervision on the
Intermediate Punishment Program on each conviction for
receiving stolen property, [REAP], and fleeing or
attempting to elude the police. Shortly thereafter,
[Appellant] violated his Intermediate Punishment
supervision. On July 19, 2006, those sentences were
revoked and [Appellant] was resentenced. Under case
[No. 270 of 2006], the court imposed two years of
probation under the supervision of the Pennsylvania Board
of Probation and Parole on each count. These sentences
were to be served consecutive to the sentence imposed in
case [No. 581 of 2005].1 The sentence[s] imposed for
Count 2, conspiracy, and Count 3, forgery, were
concurrent to each other but consecutive to the sentence
imposed for Count 1, burglary.
1
In case [No. 581 of 2005], [Appellant] was
resentenced to 13 months to 5 years of incarceration
in a state correctional institution.
In case [No. 284 of 2006], [Appellant] was resentenced to
one year of probation on Count 1, receiving stolen
property; two years of probation on Count 2, [REAP]; and
1 year of probation on Count 4, possession of drug
paraphernalia. These sentences were to be served
concurrently to each other and concurrently to the
sentences imposed under Count 1 of case [No. 270 of
2006], but consecutively to the period of state
incarceration imposed in case [No. 581 of 2005].
On June 5, 2013, [Appellant] was arrested and charged
with multiple crimes including aggravated assault, fleeing
or attempting to elude a police officer, [REAP], and false
identification to law enforcement. [Appellant] was
incarcerated from the time of his arrest to the time of his
final special probation violation hearing on January 13,
2014. After the hearing, the [trial court] determined that
[Appellant] had violated the conditions of his probation.
The [c]ourt revoked [Appellant’s] special probation
sentences in cases [Nos. 270 and 284 of 2006]. On Count
1 of case [No. 270 of 2006], the [c]ourt resentenced
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[Appellant] to one to two years of incarceration to run
concurrently with a sentence imposed in case [No. 253 of
2013] of Columbia County. On Count 2 of case [No. 270
of 2006], the [c]ourt resentenced [Appellant] to one to two
years of incarceration to run concurrently with the Count 1
sentence and the sentence imposed in case [No. 253 of
2013] of Columbia County. On Count 3 of case [No. 270
of 2006], the [c]ourt resentenced [Appellant] to three to
nine months of incarceration to run concurrently to the
sentence imposed in case [No. 253 of 2013] of Columbia
County and the sentences imposed in Count 1 and Count
2. On Count 2 of [No. 284 of 2006], the [c]ourt sentenced
[Appellant] to three to nine months of incarceration to run
concurrently with the sentences imposed in case [No. 270
of 2006.1] [Appellant] received credit for time served from
January 9, 2013 to February 21, 2013. He also received
credit for time served on March 5, 2013. He also received
credit for time served from June 6, 2013 to January 12,
2014.
On March 25, 2014, [Appellant] pled guilty to the charges
of attempting to elude a police officer and [REAP], which
arose from his arrest on June 5, 2013. On March 25,
2014, the [trial court] imposed a sentence of 18 to 36
months of incarceration to run consecutively to the other
sentences being served. [Appellant] did not file a post-
sentence motion and did not appeal the sentence of March
25, 2014.
On June 25, 2014, [Appellant] pro se filed a “Motion to
Modify Sentence Nunc Pro Tunc” [at Nos. 270 and 284 of
2006]. In the motion, [Appellant] asked the [c]ourt “to
sever part of the credit for time served.” Specifically,
[Appellant] wanted the time from June 6, 2013 to January
12, 2014 “severed.” The [c]ourt determined that
[Appellant] wanted the time served from June 6, 2013 to
January 12, 2014 applied to his sentence imposed on
March 25, 2014. On July 1, 2014, the [c]ourt denied
[Appellant’s] motion.
____________________________________________
1
The court determined Appellant had completed serving his sentences for
the remaining convictions. (Order, dated 1/13/14, at 2).
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(Trial Court Opinion, filed September 11, 2014, at 1-3) (internal citations to
the record omitted).
Appellant timely filed a pro se notice of appeal on July 16, 2014. On
July 21, 2014, this Court ordered the trial court to conduct an on-the-record
inquiry to determine whether Appellant desired counsel on appeal, pursuant
to Commonwealth v. Grazier, 552 Pa. 9, 713 A.2d 81 (1998).2 The trial
court conducted the Grazier hearing on August 19, 2014, and it determined
Appellant’s waiver of appellate counsel was knowing, voluntary, and
intelligent.
Appellant raises five issues for our review:
WHETHER [THE COURT] HAD THE JURISDICTION TO HEAR
AND ANSWER THE MOTION (MOTION TO MODIFY NUNC
PRO TUNC)…?
WHETHER [THE COURT] ERRED IN DENYING THE
MOTION?
WHETHER THE TIME THAT WAS CREDITED TO
[APPELLANT’S] SENTENCE WAS PROPERLY APPLIED IN
APPLICATION OF CURRENT LAW AND PRACTICE?
WHETHER THE TIME SHOULD HAVE BEEN SEVERED FROM
THE SENTENCE AND ALLOWED TO ACCUMULATE TOWARD
[APPELLANT’S] NEW CRIMINAL CHARGES?
WHETHER THE TIME CREDITED WAS ERRONEOUSLY
APPLIED TO [APPELLANT’S] SENTENCE?
____________________________________________
2
Prior to the Grazier hearing, on July 23, 2014, the court ordered Appellant
to file a concise statement of errors complained of on appeal, pursuant to
Pa.R.A.P. 1925(b). Appellant subsequently complied with the court’s order.
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(Appellant’s Brief at 3).
As a prefatory matter, “[T]he [Post Conviction Relief Act (“PCRA”)3]
provides the sole means for obtaining collateral review, and…any petition
filed after the judgment of sentence becomes final will be treated as a PCRA
petition.” Commonwealth v. Fowler, 930 A.2d 586, 591 (Pa.Super.
2007), appeal denied, 596 Pa. 715, 944 A.2d 756 (2008) (quoting
Commonwealth v. Johnson, 803 A.2d 1291, 1293 (Pa.Super. 2002)).
See also Commonwealth v. Weimer, 756 A.2d 684, 685-86 (Pa.Super.
2000), appeal denied, 564 Pa. 695, 764 A.2d 50 (2000) (explaining pro se
post-conviction petitions couched in terms of habeas corpus and legality of
sentence actually seek relief available under PCRA). “[A] court may
entertain a challenge to the legality of the sentence so long as the court has
jurisdiction to hear the claim. In the PCRA context, jurisdiction is tied to the
filing of a timely PCRA petition.” Fowler, supra at 592 (quoting
Commonwealth v. Berry, 877 A.2d 479, 482 (Pa.Super. 2005 (en banc),
appeal denied, 591 Pa. 688, 917 A.2d 844 (2007)). Challenges to a court’s
allocation of credit for time served implicate the legality of sentence.
Commonwealth v. Pettus, 860 A.2d 162 (Pa.Super. 2004), appeal denied,
584 Pa. 706, 885 A.2d 41 (2005).
Further, an indigent petitioner is entitled to representation by counsel
____________________________________________
3
42 Pa.C.S.A. §§ 9541-9546.
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for a first PCRA petition. Commonwealth v. White, 871 A.2d 1291(Pa.Super. 2005). This right to representation exists throughout the post-
conviction proceedings, including any appeal from disposition of the PCRA
petition. Id. “This right to counsel, although not constitutionally mandated,
derives from the Pennsylvania Rules of Criminal Procedure, see Pa.R.Crim.P.
904(B)….” Commonwealth v. Stout, 978 A.2d 984, 988 (Pa.Super. 2009).
The right is unaffected even if the petition is untimely on its face. Id. See
also Commonwealth v. Evans, 866 A.2d 442, 445 (Pa.Super. 2005)
(stating, “The issue of whether the petitioner is entitled to relief is another
matter entirely, which is to be determined after the appointment of counsel
and the opportunity to file an amended petition”). Where a petitioner’s right
to representation has been effectively denied by the action of court or
counsel, the petitioner is entitled to have his case remanded to the PCRA
court for appointment of counsel to assist with the PCRA petition.
Commonwealth v. Perez, 799 A.2d 848 (Pa.Super. 2002).
Instantly, Appellant claims his revocation sentences are illegal,
because the sentencing court should not have applied certain credit for time
served to the sentences imposed following the revocation of probation at
Nos. 270 and 284 of 2006. Instead, Appellant insists the court should have
waited and applied the credit for time served to the sentences subsequently
imposed at an unrelated docket number on March 25, 2014. As expressed,
Appellant challenges the legality of his sentences. See Pettus, supra.-7-
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Such claims are generally cognizable under the PCRA. See Fowler, supra.The trial court, however, failed to apply the PCRA to Appellant’s filing.
Instead, the court evaluated the pro se motion to modify sentence nunc pro
tunc independent of the PCRA and denied relief without appointing counsel
to assist Appellant with the presentation of his claims.
Significantly, the current petition represents Appellant’s first collateral
attack upon the judgment of sentence. Because Appellant’s pro se motion to
modify sentence nunc pro tunc is the functional equivalent of a PCRA
petition, the court should have confirmed Appellant’s in forma pauperis
status and determined whether Appellant was entitled to and desired
appointed counsel to assist with the filing of Appellant’s first PCRA petition. 4
See White, supra. Here, the court effectively denied Appellant the right to
counsel on his first PCRA petition.5 See Perez, supra.Therefore, we conclude the best resolution of this case is to vacate the
order denying Appellant’s pro se motion and remand the case for further
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4
On October 8, 2013, the court appointed a member of the public
defender’s office to represent Appellant. Appellant appeared with appointed
counsel at the January 13, 2014 violation hearing. Thereafter, Appellant
acted pro se.
5
We come to this conclusion, notwithstanding the Grazier proceeding
previously conducted because that proceeding was linked solely to
Appellant’s waiver of counsel on appeal. Nevertheless, an indigent
petitioner’s right to counsel for a first PCRA petition is an altogether separate
matter, and we are unwilling to construe Appellant’s prior decision to
proceed pro se on this appeal as a blanket rejection of counsel for PCRA
purposes.
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proceedings. Procedurally, Appellant will be placed in the same position he
occupied when he initially filed his pro se motion to modify sentence nunc
pro tunc. Upon remand, the court must determine whether Appellant wants
counsel to assist with the filing of an amended PCRA petition and any other
cognizable claim Appellant wishes to raise. Counsel must consult with
Appellant and either file an amended first PCRA petition or a proper “no-
merit” letter addressing Appellant’s claims. If, after another Grazier
hearing, Appellant still wants to proceed pro se, the court must issue proper
notice and an order deciding the PCRA petition. Appellant can then file a pro
se notice of appeal.6
Orders vacated; case remanded for further proceedings. Jurisdiction is
relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/8/2015
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6
Appellant has also filed a separate pro se “petition for appeal of order,”
asking this Court to review issues that are identical to those set forth in his
appellate brief. Due to our disposition, we deny Appellant’s open motion as
moot.
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