Com. v. Cisne, J.

J-S01023-16
NON -PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA 1 IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JASON CISNE
Appellant No. 2078 EDA 2014
Appeal from the Judgment of Sentence March 1, 2010
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP- 51 -CR- 0006829 -2008
BEFORE: GANTMAN, P.J., MUNDY, J., and MUSMANNO, J.
MEMORANDUM BY GANTMAN, P.J.: FILED NOVEMBER 08, 2016
Appellant, Jason Cisne, appeals nunc pro tunc from the judgment of
sentence imposed by the Philadelphia County Court of Common Pleas,
following his negotiated guilty plea to third degree murder, possession of an
instrument of crime ( "PIC "), and possession of a firearm by a prohibited
person ( "VUFA ").1 For the following reasons, we conclude that Appellant is
not entitled to immediate release as he has requested, but he is entitled to
some relief. Therefore, we vacate the sentence for third degree murder and
remand for resentencing on that count only, without the application of any
mandatory minimum sentence. Because resentencing on that count will not
upset the overall sentencing parameters contemplated by both the guilty
1 18 Pa.C.S.A. §§ 2502(c), 907(a), and 6105(a)(1), respectively.
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plea agreement and the court, we decline to vacate the entire judgment of
sentence; instead, we affirm it in all other respects and deny counsel's
petition to withdraw.
The relevant facts and procedural history of this case are as follows.
The Commonwealth charged Appellant with numerous offenses arising from
his involvement in the shooting death of Phillip Underwood ( "Victim ") on
October 17, 2003, in Philadelphia. Specifically, a witness saw Appellant
shoot and kill Victim while he was lying face up on the sidewalk. Victim
sustained single gunshot wounds to his shoulder, abdomen, and left thigh,
and two gunshot wounds to his chest. At the time of the shooting, Appellant
was ineligible to possess a firearm, due to a prior felony drug conviction.
The Commonwealth initially charged Appellant with murder, VUFA- former
convict, VUFA -no license, VUFA -on streets, PIC and REAP.
On March 1, 2010, Appellant completed and signed a written guilty
plea colloquy, and tendered an oral guilty plea before the court, to third
degree murder, VUFA-former convict (graded as a second degree felony),
and PIC (graded as a first degree misdemeanor). In exchange, the
Commonwealth agreed to recommend an aggregate sentence of twenty -five
(25) to fifty (50) years' incarceration. Both the written and oral plea
colloquies also made clear Appellant would serve the recommended sentence
of 25 to 50 years, concurrent with the other sentences he was already
serving in unrelated matters. Neither colloquy contains any reference to a
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mandatory minimum sentence. The court accepted Appellant's plea and
imposed 20 -40 years for third degree murder, 5 -10 years for VUFA, and 2h/2-
5 years for PIC, yielding the aggregate sentence of 25 -50 years'
incarceration, as recommended, running concurrently with the sentence(s)
Appellant was already serving. Appellant did not pursue a direct appeal.
Appellant timely filed a pro se petition pursuant to the Post Conviction
Relief Act at 42 Pa.C.S.A. §§ 9541 -9546. The court appointed counsel who
filed a motion to withdraw and a "no- merit" letter pursuant to
Commonwealth v. Turner, 518 Pa. 491, 544 A.2d 927 (1988) and
Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc). The
court issued notice, on February 22, 2013, of its intent to dismiss the
petition without a hearing, under Pa.R.Crim.P. 907. Appellant responded,
challenging counsel's petition to withdraw and adding new claims for relief,
including plea counsel's ineffectiveness for failure to file a requested direct
appeal. Nevertheless, the court dismissed the petition on March 22, 2013,
but it did so without granting counsel's petition to withdraw. On appeal, this
Court observed Appellant's pro se status as well as counsel's continued
representation on record. Accordingly, this Court remanded the case with
directions to counsel to file an advocate's brief on Appellant's behalf or
another no -merit letter brief and proper petition to withdraw per
Turner/Finley.
Counsel then filed with this Court the same no -merit letter he had filed
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with the PCRA court. This Court's independent review of the record on
appeal, however, revealed one issue of arguable merit that was not
addressed by either PCRA counsel in his no -merit letter, or the PCRA court in
its opinion, i.e., Appellant had asked plea counsel to file a direct appeal, and
plea counsel failed to do so. Given that the claim had arguable merit, this
Court denied counsel's petition to withdraw on March 28, 2014, vacated the
order denying PCRA relief, and remanded the case for an evidentiary hearing
on this particular assertion. By order issued on June 27, 2014, the PCRA
court reinstated Appellant's right to file a direct appeal nunc pro tunc from
the judgment of sentence. Appellant timely filed the current appeal on July
22, 2014.
Regardless of the fact that the appeal was a direct appeal nunc pro
tunc from the judgment of sentence, counsel filed a brief designated as a
Turner/Finley no -merit letter and a petition to withdraw as counsel on May
14, 2015. Appellant filed a pro se response confirming the current appeal
was a direct appeal and listing the issues he wanted argued. This Court
issued a per curiam order on September 15, 2015, observing the correct
procedural posture of the case was a direct appeal nunc pro tunc from the
judgment of sentence and directing counsel to file a proper advocate's brief
or a brief in compliance with Anders v. California, 386 U.S. 738, 87 S. Ct.
1396, 18 L. Ed. 2d 493 (1967) and Commonwealth v. Santiago, 602, Pa.
159, 978 A.2d 349 (2009).
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On October 22, 2015, counsel filed a motion to withdraw and a
purported Anders brief. On February 12, 2016, we rejected the filing,
because counsel had not complied with Anders /Santiago and paid only lip -
service to their technical requirements. Again, the case was remanded with
instructions to counsel to file a compliant motion to withdraw and proper
Anders brief, or an advocate's brief on behalf of Appellant, within 30 days.
Counsel filed a new brief on May 10, 2016, continuing to assert the appeal
was from the denial of PCRA relief. By order of May 24, 2016, we struck the
new brief and again ordered counsel to comply with our February 12, 2016
directives. Counsel's revised brief was due on or before June 23, 2016.
On July 7, 2016, we filed a per curiam order, noting counsel's failure to
comply with our May 24, 2016 order. The July 7, 2016 order remanded the
case to the trial court for the appointment of new counsel within 15 days and
remanded the certified record to afford new appellate counsel the
opportunity to review the record. Despite some effort by Appellant's then
counsel to have the July 7th order vacated, we declined and recognized the
continued problems with counsel's filings and his failure to consider any of
the issues Appellant wanted to raise on direct appeal. Upon remand, the
trial court appointed new counsel on July 15, 2016. On August 15, 2016,
newly- appointed counsel filed an Anders brief and a separate petition to
withdraw as counsel.
As a prefatory matter, Anders and Santiago require counsel to: 1)
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petition the Court for leave to withdraw, certifying that after a thorough
review of the record, counsel has concluded the issues to be raised are
wholly frivolous; 2) file a brief referring to anything in the record that might
arguably support the appeal; and 3) furnish a copy of the brief to the
appellant and advise him of his right to obtain new counsel or file a pro se
brief to raise any additional points the appellant deems worthy of review.
Santiago, supra at 173 -79, 978 A.2d at 358 -61. Substantial compliance
with these requirements is sufficient. Commonwealth v. Wrecks, 934
A.2d 1287, 1290 (Pa.Super. 2007). "After establishing that the antecedent
requirements have been met, this Court must then make an independent
evaluation of the record to determine whether the appeal is, in fact, wholly
frivolous." Commonwealth v. Palm, 903 A.2d 1244, 1246 (Pa.Super.
2006) (quoting Commonwealth v. Townsend, 693 A.2d 980, 982
(Pa.Super. 1997)).
In Santiago, supra, our Supreme Court addressed the briefing
requirements where court -appointed appellate counsel seeks to withdraw
representation:
Neither Anders nor [Commonwealth v. McClendon, 495
Pa. 467, 434 A.2d 1185 (1981)] requires that counsel's
brief provide an argument of any sort, let alone the type of
argument that counsel develops in a merits brief. To
repeat, what the brief must provide under Anders are
references to anything in the record that might arguably
support the appeal.
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Under Anders, the right to counsel is vindicated by
counsel's examination and assessment of the record and
counsel's references to anything in the record that
arguably supports the appeal.
Santiago, supra at 176, 177, 978 A.2d at 359, 360. Thus, the Court held:
[I]n the Anders brief that accompanies court -appointed
counsel's petition to withdraw, counsel must: (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.
Id. at 178 -79, 978 A.2d at 361.
Instantly, new appellate counsel has filed an Anders brief and a
petition for leave to withdraw representation. The petition states counsel
performed an extensive review of the record, as well as the applicable law,
and concluded the appeal is wholly frivolous. Counsel also supplied
Appellant with a copy of the brief, the withdrawal petition, and a letter
explaining Appellant's right to proceed pro se or with new privately- retained
counsel to raise any additional points Appellant deems worthy of this Court's
attention. In his Anders brief, counsel provides a candid summary of the
relevant facts and procedural history of the case. Counsel refers to facts in
the record which might arguably support the issues raised on appeal and
offers citations to relevant law. Respecting this Court's directives, counsel
further explores the issues, which Appellant previously raised in his pro se
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responses to prior counsel's multiple petitions to withdraw, and translates
them into possible appellate claims. The brief also provides counsel's
reasons for concluding that the appeal is ultimately frivolous. Thus, counsel
has technically complied with the requirements of Anders and Santiago.
Counsel raises the following issue in the Anders brief:
WHETHER THERE ARE ANY ISSUES OF ARGUABLE MERIT
THAT COULD BE RAISED ON DIRECT APPEAL PRESENTLY
BEFORE THIS COURT AND WHETHER THE APPEAL IS
WHOLLY FRIVOLOUS?
(Anders Brief at 3).
In the Anders brief, Appellant argues his sentence is illegal, because
the court imposed his new sentence concurrently with the sentence he was
already serving. Likewise, Appellant suggests his sentence is illegal because
it includes a mandatory minimum sentence that violates Alleyne v. U.S.,
U.S. , 133 S. Ct. 2151, 186 L. Ed. 2d 314 (2013), and its Pennsylvania
progeny. Next, Appellant claims his guilty plea was flawed because it was
induced by counsel's promise that Appellant would get an aggregate
sentence of only twenty (20) to forty (40) years.2
Appellant filed a pro se response to counsel's Anders brief and
petition, restating his principal concern with an alleged mandatory minimum
2 The conclusion paragraph in current counsel's Anders brief at page 21 is
somewhat misstated, as Appellant's claims center primarily on his sentence
and guilty plea. No suppression motion /ruling was ever
suggested /challenged in any relevant filing. Therefore, we will treat this
isolated reference to a suppression motion as inadvertent and disregard it.
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sentence he thinks he received under an infirm sentencing statute. To
support his claim Appellant attached, for the first time in all of his filings to
date, as an Exhibit to his most recent response, a purported notice from the
Commonwealth of its intent to seek a mandatory minimum sentence
pursuant to 42 Pa.C.S.A. § 9712 (sentences for offenses committed with
firearms). Appellant fails to identify which of the three sentences he
received carried the infirm mandatory minimum sentence. Likewise, the
proffered notice is undated, unfiled, and not included in the certified record.
Nevertheless, Appellant presents it to explain why he thinks he somehow
received a mandatory minimum sentence. Based on these assumptions,
Appellant concludes he is entitled to immediate release. For the following
reasons, we resolve that Appellant is not entitled to immediate release but
he is entitled to a remand for potential resentencing.
This case involves a number of legal principles, the first of which is:
"Issues relating to the legality of a sentence are questions of law...."
Commonwealth v. Diamond, 945 A.2d 252, 256 (Pa.Super. 2008), appeal
denied, 598 Pa. 755, 955 A.2d 356 (2008). "The defendant or the
Commonwealth may appeal as of right the legality of the sentence." 42
Pa.C.S.A. § 9781(a). See also Commonwealth v. Edrington, 780 A.2d
721 (Pa.Super. 2001) (maintaining legality of sentence claims cannot be
waived, where reviewing court has proper jurisdiction). When the legality of
a sentence is at issue on appeal, our "standard of review over such
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questions is de novo and our scope of review is plenary." Diamond, supra
at 256. "A claim that implicates the fundamental legal authority of the court
to impose a particular sentence constitutes a challenge to the legality of the
sentence." Commonwealth v. Catt, 994 A.2d 1158, 1160 (Pa.Super.
2010) (en banc). "If no statutory authorization exists for a particular
sentence, that sentence is illegal and subject to correction. An illegal
sentence must be vacated." Id. (quoting Commonwealth v. Watson, 945
A.2d 174, 178 -79 (Pa.Super. 2008)).
Related law makes clear, third degree murder is graded as a felony of
the first degree. 18 Pa.C.S.A. § 2502(c). Notwithstanding 18 Pa.C.S.A. §
1103, which fixes the maximum sentence for a first -degree felony at 20
years, "[A] person who has been convicted of murder of the third
degree...shall be sentenced to a term which shall be fixed by the court at
not more than 40 years." 18 Pa.C.S.A. § 1102(d) (emphasis added). The
third degree murder statute carries no mandatory minimum sentence. 18
Pa.C.S.A. § 2502.
A person who violates Section 6105(a.1)(1) of the Crimes Code
(persons not to possess, use, manufacture, control, sell or transfer firearms)
commits a second -degree felony. 18 Pa.C.S.A. § 6105(a.1)(1). Section
6105 carries no mandatory minimum sentence. Id. The maximum term a
court can impose for a second degree felony is ten years. 18 Pa.C.S.A. §
1103(2).
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A violation of 18 Pa.C.S.A. § 907(a) of the Crimes Code (possessing
instruments of crime) constitutes a first degree misdemeanor. 18 Pa.C.S.A.
§ 907(a). Section 907 carries no mandatory minimum sentence. Id. A first
degree misdemeanor is subject to a maximum term of five years. 18
Pa.C.S.A. § 1104.
When Appellant was sentenced on March 1, 2010, 42 Pa.C.S.A. §
9712(a) governed sentences for offenses committed with firearms and called
for a mandatory minimum sentence of five years See 42 Pa.C.S.A. §
9712(a). On June 17, 2013, the U.S. Supreme Court expressly held, in
Alleyne v. United States, U.S. , 133 S. Ct. 2151, 186 L. Ed. 2d 314
(2013), any fact that increases the mandatory minimum sentence for a
crime is considered an element of the crime to be submitted to the fact -
finder and found beyond a reasonable doubt. Id. Subsequent to Alleyne,
this Court declared 42 Pa.C.S.A. § 9712.1 unconstitutional.
Commonwealth v. Newman, 99 A.3d 86 (Pa.Super. 2014) (en banc)
(applying Alleyne to Section 9712.1 and holding section is unconstitutional
insofar as it permits automatic increase of minimum sentence based on
preponderance of evidence standard; statute is inseverable and
unconstitutional in its entirety). In a later decision filed on October 3, 2014,
this Court extended the logic of Alleyne and Newman to Sections 9712 and
9713. See Commonwealth v. Valentine, 101 A.3d 801 (Pa.Super. 2014),
appeal denied, Pa. , 124 A.3d 309 (2015) (holding Sections 9712
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and 9713 are likewise unconstitutional insofar as they permit increase of
defendant's minimum sentence based on preponderance of evidence
standard).
An Alleyne challenge can be raised on direct appeal. Newman,
supra. Alleyne challenges are available on direct appeal from sentences
imposed pursuant to sentencing statutes rendered constitutionally infirm,
regardless of how the triggering facts were determined in the case at hand,
because the sentencing statutes are unlawful; so the sentences flowing from
those statutes are likewise illegal. Commonwealth v. Wolfe, Pa.
, 140 A.3d 651, 654 (2016) (stating: "The effect of Alleyne's new rule
was to invalidate a range of Pennsylvania sentencing statutes predicating
mandatory minimum penalties upon non -elemental facts and requiring such
facts to be determined by a preponderance of the evidence at sentencing ")
(citing Commonwealth v. Hopkins, Pa. , 117 A.3d 247 (2015)
(stating that language providing "applicability of this section shall be
determined at sentencing" is now void, given Alleyne's new description of
aggravated offense)). See Valentine, supra at 811 (reasoning that asking
jury to determine factual prerequisite for mandatory minimum sentence
does not satisfy Alleyne; unconstitutional provisions of sentencing statutes
at issue are not directly or indirectly severable). See also Commonwealth
v. Fennell, 105 A.3d 13, 20 (Pa.Super. 2014), appeal denied, Pa.
121 A.3d 494 (2015) (reasoning that stipulation to facts needed for
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mandatory minimum sentence does not satisfy Alleyne; no functional
difference exists between submission of fact to jury or accepting stipulation).
As a general rule, the entry of a guilty plea constitutes a waiver of all
defects and defenses except lack of jurisdiction, invalidity of the plea, and
legality of the sentence. Commonwealth v. Main, 6 A.3d 1026 (Pa.Super.
2010). "We have recognized the importance of the plea bargaining process
as a significant part of the criminal justice system." Commonwealth v.
Byrne, 833 A.2d 729, 735 (Pa.Super. 2003). Further,
A defendant wishing to challenge the voluntariness of a
guilty plea on direct appeal must either object during the
plea colloquy or file a motion to withdraw the plea within
ten days of sentencing. Pa.R.Crim.P. 720(A)(1),
(B)(1)(a)(i). Failure to employ either measure results in
waiver. Commonwealth v. Tareila, 895 A.2d 1266,
1270 n.3 (Pa.Super. 2006). Historically, Pennsylvania
courts adhere to this waiver principle because "[i]t is for
the court which accepted the plea to consider and correct,
in the first instance, any error which may have been
committed." Commonwealth v. Roberts, [352 A.2d
140, 141 (Pa.Super. 1975)] (holding that common and
previously condoned mistake of attacking guilty plea on
direct appeal without first filing petition to withdraw plea
with trial court is procedural error resulting in waiver;
stating, "(t)he swift and orderly administration of criminal
justice requires that lower courts be given the opportunity
to rectify their errors before they are considered on
appeal "; "Strict adherence to this procedure could, indeed,
preclude an otherwise costly, time consuming, and
unnecessary appeal to this court ").
Commonwealth v. Lincoln, 72 A.3d 606, 609 -10 (Pa.Super. 2013), appeal
denied, 624 Pa. 688, 87 A.3d 319 (2014) (holding defendant failed to
preserve challenge to validity of guilty plea where he did not object during
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plea colloquy or file post- sentence motion to withdraw plea).
"[A] defendant who attempts to withdraw a guilty plea after
sentencing must demonstrate prejudice on the order of manifest injustice
before withdrawal is justified." Commonwealth v. Pantalion, 957 A.2d
1267, 1271 (Pa.Super. 2008). "A plea rises to the level of manifest injustice
when it was entered into involuntarily, unknowingly, or unintelligently." Id.
(quoting Commonwealth v. Muhammad, 794 A.2d 378, 383 (Pa.Super.
2002)). The Pennsylvania Rules of Criminal Procedure mandate that pleas
are taken in open court and the court must conduct an on- the -record
colloquy to ascertain whether a defendant is aware of his rights and the
consequences of his plea. Commonwealth v. Hodges, 789 A.2d 764
(Pa.Super. 2002). Specifically, the court must affirmatively demonstrate a
defendant understands: (1) the nature of the charges to which he is
pleading guilty; (2) the factual basis for the plea; (3) his right to trial by
jury; (4) the presumption of innocence; (5) the permissible ranges of
sentences and fines possible; and (6) that the judge is not bound by the
terms of the agreement unless he accepts the agreement. Commonwealth
v. Watson, 835 A.2d 786 (Pa.Super. 2003). This Court will evaluate the
adequacy of the plea colloquy and the voluntariness of the resulting plea by
examining the totality of the circumstances surrounding the entry of that
plea. Muhammad, supra. Even when there is an omission or defect in the
oral guilty plea colloquy, a guilty plea will remains valid if an examination of
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the totality of the circumstances surrounding the plea shows that the
defendant had a full understanding of the nature and consequences of his
plea such that he knowingly and intelligently entered the plea of his own
accord. Commonwealth v. Fluharty, 632 A.2d 312, 315 (Pa.Super.
1993). See also Commonwealth v. Rush, 909 A.2d 805 (Pa.Super.
2006).
Pennsylvania law presumes a defendant who entered a guilty plea was
aware of what he was doing and bears the burden of proving otherwise.
Commonwealth v. Pollard, 832 A.2d 517 (Pa.Super. 2003). A defendant
who decides to plead guilty is bound by the statements he makes while
under oath, "and he may not later assert grounds for withdrawing the plea
which contradict the statements he made at his plea colloquy." Id. at 523.
"Our law does not require that a defendant be totally pleased with the
outcome of his decision to plead guilty, only that his decision be voluntary,
knowing and intelligent." Id. at 524.
Instantly, with respect to Appellant's complaints about the
voluntariness of his guilty plea and his expectation of a lesser sentence,
these claims were previously raised in a PCRA petition under the rubric of
ineffective assistance of plea counsel. In response, the PCRA court
reasoned:
Petitioner further argues that trial counsel was ineffective
for allegedly failing to reveal that he would be subjected to
a twenty -five (25) to fifty (50) year sentence. Petitioner
claims that he unknowingly and unintentionally entered his
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guilty plea as a result of trial counsel's alleged
ineffectiveness. ...
In this case, petitioner's guilty plea was entered knowingly,
voluntarily, and intelligently. Before accepting petitioner's
guilty plea, [the court] conducted a thorough colloquy to
ensure that petitioner had actual knowledge of the
implications and rights associated with a guilty plea. The
record clearly shows that, before the entry of his guilty
plea, petitioner was aware that his attorney recommended
a twenty -five (25) to fifty (50) year sentence instead of
the twenty -seven and one -half (271/2) to fifty -five (55)
year statutory maximum that could have been imposed.
Petitioner was further informed of his rights and the
consequences of entering a guilty plea to the charges
against him. In a response to a series of inquiries,
petitioner responded that he understood his rights and the
consequences of his decision to plead guilty. Furthermore,
petitioner told the court that he consulted with defense
counsel before the entry of his guilty plea. He also told the
court that he was satisfied with his attorney's services.
There was no point during the colloquy where petitioner
informed this court that his guilty plea was unlawfully
induced by his attorney.
Based on the totality of the circumstances, the court
accepted the guilty plea after being satisfied that it was
entered voluntarily, knowingly, and intelligently and that
trial counsel's representation was competent.
(PCRA Court Opinion, filed June 25, 2013, at 3 -5) (internal citations
omitted). The record supports the court's analysis. Initially, we observe
that Appellant did not object during plea colloquy or file a post- sentence
motion to withdraw his guilty plea, so any direct challenge to the guilty plea
process at this juncture is arguably waived. See Lincoln, supra.
Moreover, the written guilty plea colloquy expressly states Appellant was
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facing 271/2 to 55 years' incarceration, and the Commonwealth agreed to
recommend a sentence of 25 to 50 years to run concurrently with other
sentences already being served. (See Written Plea Colloquy, 3/1/10, at 1.)
The sentence recommendation was repeated during the oral plea colloquy.
Appellant knew the sentence he faced as well as the recommended
sentence, he affirmed no threats or promises had been made to induce his
plea, and he was entering the plea voluntarily because he was guilty. (See
N.T. Guilty Plea Hearing, 3/1/10, at 2 -11.) Regardless of the reasons
Appellant entered his plea, he is now bound by the statements he made
when entering the plea and cannot contradict them to question the
lawfulness of his plea proceedings. See Pollard, supra. Therefore, current
counsel is correct that a challenge to the guilty plea process as flawed would
be wholly frivolous.
The PCRA court also addressed Appellant's challenge to the manner of
sentencing as follows:
In total, petitioner could have, been sentenced to a
maximum imprisonment term of fifty -five (55) years.
Instead, petitioner was sentenced to an aggregate
imprisonment term of twenty -five (25) to fifty (50) years.
There was no error in fashioning these sentences to run
consecutive or concurrent to each other. Consequently,
the court did not abuse its discretion in imposing sentence.
Because there was no error in fashioning petitioner's
sentences...this claim has no merit.
(PCRA Court Opinion at 7). We agree with the court's decision on this point
as well. The guilty plea agreement included a sentence recommendation for
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25 to 50 years' incarceration to run concurrently with whatever sentence
Appellant was already serving. The plea agreement did not govern the
court's internal structure of the new sentence, so how the court apportioned
the new sentence was left to its discretion. To the extent Appellant baldly
complains his sentence is somehow "illegal" because it was imposed to run
concurrently with the sentences he was already serving, we see no merit to
that argument. Thus, these sentencing challenges are wholly frivolous as
well.
With respect to Appellant's Alleyne complaint, the Commonwealth
submits the court did not exceed the relevant statutory maximums or apply
any mandatory minimum sentences, which would render Appellant's
sentence unconstitutional. Specifically, the Commonwealth questions the
undated notice of intent from the Commonwealth, that Appellant attached to
his pro se response to counsel's Anders brief, which references 42 Pa.C.S.A.
§ 9712. The Commonwealth claims the mere existence of the notice fails to
establish that the trial court actually imposed a mandatory minimum
sentence, particularly where neither the court nor the parties mentioned a
mandatory minimum at sentencing. The Commonwealth concludes nothing
in the record supports Appellant's suggestion that he received a mandatory
minimum sentence. We cannot agree.
Instantly, upon our own independent review we have discovered that
the written sentencing order of March 1, 2010, contained in the certified
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record, indicates the court imposed a mandatory minimum sentence for third
degree murder. Specifically, the "mandatory sentence" box on the third
degree murder written sentencing sheet is checked "Yes." No other mention
of a mandatory minimum sentence, however, appears in the certified record.
Nevertheless, we think this indicator on the written sentencing sheet is
enough to create a discrepancy between the sentence as agreed to and
orally pronounced and the sentence as written. Without more, that written
sentencing order would control any sentencing dispute. See
Commonwealth v. Willis, 68 A.3d 997, 1010 (Pa.Super. 2013) (reiterating
rule that written sentence generally controls where discrepancy exists
between sentence as written and sentence as orally pronounced).
Therefore, we conclude Appellant would not be entitled to withdraw his
guilty plea on the grounds alleged, because the negotiated plea involved no
mandatory minimum sentence term. Appellant is entitled to some relief,
however, because he raised his Alleyne issue on direct appeal; and the
certified record seems to support his position.
Based upon the foregoing, we vacate the sentence imposed for third
degree murder and remand for resentencing on that count only, confirming
it is without application of any mandatory minimum sentence. Because we
have not upset the overall sentencing parameters contemplated by both the
guilty plea agreement and the sentencing court, we decline to vacate the
entire judgment of sentence; instead, we affirm it in all other respects and
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deny counsel's petition to withdraw.
Judgment of sentence vacated in part and affirmed in part; case is
remanded for resentencing on the third degree murder conviction only;
counsel's petition to withdraw is denied. Jurisdiction is relinquished.
Judge Mundy did not participate in the consideration or decision of this
case.
Judgment Entered.
J:seph Seletyn,
D.
Prothonotary
Date: 11/8/2016
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