Com. v. Knipple, L.

J-S32010-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
LARRY SCOTT KNIPPLE
Appellant No. 787 WDA 2013
Appeal from the Judgment of Sentence April 15, 2013
In the Court of Common Pleas of Cambria County
Criminal Division at No(s): CP-11-CR-0001796-2007
BEFORE: PANELLA, J., DONOHUE, J., and ALLEN, J.
MEMORANDUM BY PANELLA, J. FILED AUGUST 22, 2014
Appellant, Larry Scott Knipple, appeals from the order entered on April
15, 2013, by the Honorable Timothy P. Creany, Court of Common Pleas of
Cambria County, which denied his petition filed pursuant to the Post-
1
After careful review, we affirm.
As we write exclusively for the parties, who are familiar with the
factual context and legal history of this case, we set forth only so much of
the facts and procedural history as is necessary to our analysis.
A jury convicted Knipple of three counts of rape of a child, 2 three
counts of involuntary deviate sexual intercourse with a child, 3 and two
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1
42 Pa.C.S.A. §§ 9541-9546.
2
18 Pa.C.S.A. § 3121(c).
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counts of indecent assault of a person less than 13 years of age.4 The trial
court sentenced Knipple to 120 to 240 months of incarceration for each
count of rape; 12 to 60 months for each count of indecent assault; and
imposed no further penalty for the three counts of involuntary deviate sexual
intercourse. Knipple received an aggregate sentence of 32 to 70 years of
incarceration.
Knipple filed a direct appeal from his judgment of sentence. This court
affirmed the judgment of sentence on July 19, 2010. Thereafter, Knipple
appealed to our Supreme Court, which denied his petition for allocator on
May 27, 2011.
On May 23, 2012, Knipple filed a timely PCRA petition. The PCRA court
conducted an evidentiary hearing on September 5, 2012, and thereafter, on
failure
to file requested post-sentence motions challenging the discretionary aspects
of the imposed sentence.5 See PCRA Opinion, 12/6/12, at 8. The court
denied all other grounds for PCRA relief pertaining to ineffective assistance
of counsel. See id., at 1-8.
_______________________
(Footnote Continued)
3
18 Pa.C.S. § 3123(b).
4
18 Pa.C.S. § 3126(a)(7).
5
On direct appeal, a panel of this Court found the discretionary aspects of
sentencing claim waived for failure to preserve it in the trial court. See
Commonwealth v. Knipple, 899 WDA 2009, at 19 (Pa. Super., filed July
19, 2010) (unpublished memorandum).
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-sentence motion
to modify sentence, nunc pro tunc, on February 6, 2013. After hearing
and reduced it to 19½ to 39 years of incarceration. See Order, 3/25/13, at
4/15/13. Knipple then appealed the denial of the PCRA petition. On appeal,
Knipple seeks to raise ineffective assistance of counsel claims and a
discretionary aspect of sentencing claim, a claim that is not cognizable on
collateral review.
Preliminarily, we must determine if the appeal properly lies from the
denial of the PCRA petition. For the reasons set forth below, we find that the
appeal actually lies from the newly imposed judgment of sentence.6
judgment of sentence. An appeal taken following the imposition of a new
sentence, even after the filing of a PCRA petition, is a direct appeal. See,
e.g., Commonwealth v. Lesko, 719 A.2d 217, 219 (Pa. 1998).
We must next determine what effect this has on the claims raised in
this direct appeal. With respect to his challenge to the discretionary aspects
of sentencing, see
claim in the court below. As such, we find this claim waived. See
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6
We have corrected the appeals statement in the caption accordingly.
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Commonwealth v. Shugars, 895 A.2d 1270, 1273-1274 (Pa. Super. 2006)
(
in a post-sentence motion or by presenting the claim to the trial court during
the sentencing proceedings. Absent such efforts, an objection to a
discretionary aspect of a sente
has stated the following:
where the defendant seeks to litigate multiple or prolix claims of
counsel ineffectiveness, including non-record-based claims, on
post-verdict motions and direct appeal, we repose discretion in
the trial courts to entertain such claims, but only if (1) there is
good cause shown, and (2) the unitary review so indulged is
entitlement to seek PCRA review from his conviction and
sentence, including an express recognition that the waiver
subjects further collateral review to the time and serial petition
restrictions of the PCRA.
Commonwealth v. Holmes, 79 A.3d 562, 564 (Pa. 2013) (footnotes
omitted). Here, the court found the ineffective assistance claims meritless
and the record is devoid of any indication that Knipple waived his right to
further PCRA review. Therefore, these claims must await collateral review.7
Judgment of sentence affirmed. Jurisdiction relinquished.
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7
Knipple is free to litigate these claims and any additional cognizable PCRA
claims he may have in a timely filed PCRA petition.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/22/2014
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