Com. v. Willis, S.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
SHAHEEM WILLIS :
:
Appellant : No. 1621 EDA 2021
Appeal from the Judgment of Sentence Entered April 9, 2018
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0005238-2009
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
SHAHEEM WILLIS :
:
Appellant : No. 2034 EDA 2021
Appeal from the PCRA Order Entered August 26, 2021
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0005238-2009
BEFORE: BOWES, J., McCAFFERY, J., and SULLIVAN, J.
MEMORANDUM BY McCAFFERY, J.: FILED JANUARY 9, 2023
Following a jury trial in the Philadelphia County Court of Common Pleas
in July of 2010, Shaheem Willis (Appellant) was convicted of attempted
murder1 and related charges for his role in the March 2009, shooting of
thirteen-year-old J.S., and sentenced to an aggregate term of 20 to 40 years’
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1 18 Pa.C.S. §§ 901, 2502(a).
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imprisonment. He was later granted partial post-conviction collateral relief as
to his sentence and resentenced to the same term on April 9, 2018. The pro
se appeal at Docket No. 1621 EDA 2021 is from the judgement of sentence
imposed upon resentencing. Appellant contends: (1) the trial court lacked
authority to sentence him pursuant to 18 Pa.C.S. § 1102(c) (attempted
murder causing serious bodily injury) and lacked subject matter jurisdiction
over that offense; and (2) his sentence is illegal because the court did not
consider his juvenile status in imposing a statutory maximum sentence and
failed to comply with 18 Pa.C.S. § 1106 when ordering restitution.
The pro se appeal at Docket No. 2034 EDA 2021 is from the August 26,
2021, order entered in the Philadelphia County Court of Common Pleas
dismissing Appellant’s second petition filed pursuant to the Post Conviction
Relief Act2 (PCRA) as untimely. Appellant argues the petition was not
untimely, but rather, prematurely filed before his April 2018 judgment of
sentence was final. He nevertheless asserts the ineffective assistance of trial
counsel for failing to protect him from an aggravated sentence.
For ease of disposition, we address these related appeals in a single
memorandum. At Docket No. 1621 EDA 2021, for the reasons discussed
below, we vacate, in part, the judgment of sentence imposed at Appellant’s
April 2018 resentencing, and remand for resentencing limited to the issue of
restitution; in all other respects, we affirm. At Docket No. 2034 EDA 2021,
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2 42 Pa.C.S. §§ 9541-9546.
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we conclude the trial court had no jurisdiction to consider Appellant’s
premature PCRA petition, and, consequently, we quash the appeal.
I. FACTS & PROCEDURAL HISTORY
The relevant facts underlying Appellant’s conviction were summarized
by this Court in a prior appeal as follows:
At 3:30 p.m. on February 25, 2009, [then 17-year-old]
Appellant, Christian Williams, and Deshaoun Williams were
standing near 6100 Spruce Street in Philadelphia.1 The victim in
this case, thirteen-year-old J.S., arrived in a car driven by his
mother, Tamika Anderson. As they circled the block looking for a
parking place, J.S. noticed that either Appellant or one of the
Williams brothers was pointing at the car. Once the car was
parked, J.S. waited in the front passenger seat while his mother
entered the school to pick up her daughter.
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1 Appellant was tried with co-defendant Christian Williams
(Williams).
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Soon after his mother exited, J.S. observed Appellant and
the Williams brothers approaching in the rearview mirror. A shot
was fired, causing the passenger window to shatter, and striking
J.S. in the chest. Appellant then ran up to the car, firing a second
shot at J.S. from only two feet away. The second shot struck J.S.
in the hand.2 Appellant and Williams fled.
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2 Crime scene investigators ultimately recovered five 9-mm bullet
casings at the scene of the shooting. They determined that all five
casings had been ejected from the same gun.
__________
J.S. spent two and a half weeks in the hospital, after
sustaining what the sentencing court described as “grave, life
threatening injuries that required extensive surgery to all of his
vital organs, including removal of part of his lung.” He had
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multiple scars from the surgeries and bullet wounds. After being
discharged from the hospital, J.S. then spent several months
recovering from his injuries before he could resume some of his
normal activities.
When given a photo array on March 3, 2009, J.S. identified
Appellant as the shooter and Williams as one of his companions.
Tamika Anderson also observed Appellant placing a gun in his
pocket as he fled. She gave chase but lost Appellant in a crowd.
A nearby bus driver, Jonathan McGill, heard the gunshots and then
observed Appellant running from the scene of the crime. McGill
called police and gave them a physical description of Appellant.
Acting pursuant to a warrant, police arrested Deshaoun
Williams at his home, recovering from Deshaoun a cell phone that
contained a photo of him brandishing two firearms. One of those
firearms was the same type used to shoot J.S. The cell phone also
had Appellant listed as one of Deshaoun’s contacts, under
Appellant’s nickname in the neighborhood, “Shy”. In a room
shared by the Williams brothers, shown to police by Williams’
mother, a live bullet was found that matched the bullet casings
found at the crime scene.
Commonwealth v. Willis, 470 EDA 2011 (unpub. memo. at 1-3) (Pa. Super.
Jun. 12, 2012), appeal denied, 331 EAL 2012 (Pa. Mar. 12, 2013), cert.
denied, 571 U.S. 866 (Oct. 7, 2013).
Appellant was subsequently arrested and charged with attempted
murder, aggravated assault, criminal conspiracy, firearms not to be carried
without a license, carrying a firearm on a public street in Philadelphia, and
possession of an instrument of crime (PIC).3 His criminal information did not
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3 18 Pa.C.S. §§ 2702(a), 903(a)(1), 6106(a)(1), 6108, and 907, respectively.
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specify that the victim of Appellant’s attempted murder suffered serious bodily
injury.4
As noted above, Appellant proceeded to a joint jury trial with Christian
Williams and was convicted of the above-stated charges. Furthermore, on the
verdict sheet, the jury responded, “Yes” to the question of whether the victim
suffered “serious bodily injury.” See Verdict Report, 7/20/10.
On October 8, 2010, the trial court sentenced Appellant to an aggregate
term of 20 to 40 years’ imprisonment for attempted murder, followed by an
aggregate 12 years’ probation for the firearms offenses.5 He was also ordered
to pay $34,637.79 in restitution. Appellant’s aggravated assault and
conspiracy convictions merged for sentencing purposes, and the court
imposed no further penalty for PIC.
Appellant filed a direct appeal challenging the discretionary aspects of
his sentence, specifically, asserting the trial court did not “adequately consider
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4 See 18 Pa.C.S. § 1102(c) (permitting a court to impose a sentence of up to
40 years; imprisonment when serious bodily injury results from an attempted
murder; otherwise the maximum sentence permissible is 20 years’
imprisonment).
5The trial court noted that it had ordered a presentence investigation report,
mental health evaluation, and a drug and alcohol evaluation, which were
completed prior to sentencing and provided to the parties. See N.T., 10/8/10,
at 5.
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that Appellant was only 17 years old at the time of the offense.”6 Willis, 470
EDA 2011 (unpub. memo. at 8). This Court affirmed the judgment of
sentence, and both the Pennsylvania Supreme Court and United States
Supreme Court denied review.7
Appellant filed a timely PCRA petition, pro se, on March 10, 2014, in
which he asserted numerous trial court errors, as well as the ineffective
assistance of preliminary hearing, trial, and direct appeal counsel. See
Appellant’s Petition for Post-Conviction Collateral Relief, 3/10/14, at 6(A)-
6(D). Although counsel was appointed, Appellant, acting pro se, filed both a
supplemental and amended petition. On September 15, 2014, Appellant filed
a motion to remove counsel and proceed pro se. Following a Grazier8 hearing
on February 9, 2016, the court granted Appellant’s request.
Appellant filed an amended pro se PCRA petition on April 28, 2016,
followed by a supplemental petition on May 6. In the supplemental petition,
Appellant asserted for the first time that he was improperly sentenced to
mandatory minimum terms pursuant to 42 Pa.C.S. §§ 9712 (offenses
committed with firearms) and 9718 (offenses against infant persons), which
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6 At the April 2018 resentencing hearing, the court noted that Appellant was
“in fact, 17 years and ten months” at the time of the shooting. N.T., 4/9/18,
at 30.
7For purposes of PCRA review, Appellant’s judgment of sentence was final on
October 7, 2013, the date the United States Supreme Court denied Appellant’s
petition for writ of certiorari. See 42 Pa.C.S. § 9545(b)(3).
8 Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).
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have been deemed unconstitutional pursuant to Alleyne v. United States,
570 U.S. 99, 116 (2013) (any fact that increases mandatory minimum
sentence must be submitted to jury and found beyond reasonable doubt).
At some point thereafter, the trial court granted Appellant relief on his
sentencing claim.9 On April 9, 2018, the court conducted a hearing to
“resentence [Appellant] pursuant to” Alleyne. See N.T., 4/9/18, at 11.
Appellant continued to represent himself. At the resentencing hearing, the
trial court stated that it “wanted to make sure that it was absolutely clear [it]
was not sentencing [Appellant] to a mandatory minimum sentence[.]” Id.After hearing argument from both the Commonwealth and Appellant, the court
imposed the same sentence as it did at the original hearing — a standard
range sentence of 20 to 40 years’ imprisonment for attempted murder causing
serious bodily injury, followed by an aggregate term of 12 years’ probation for
the firearms offenses. See N.T., 4/9/18, at 29-30. The court also reimposed
the restitution order in the amount of $34,637.79. Id. at 31.
Relevant to the claims before us, the trial court made the following
comments regarding the sentence it imposed:
[This] is a guideline range sentence. It is appropriate under the
circumstances given the Commonwealth incorporating by
reference the testimony from the [October 8, 2010,] sentencing
which included the testimony of the mother and impact on the
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9There is no order in the certified record or notation on the docket indicating
when the court granted this relief.
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victim, and the original determination by the jury that they found
serious bodily injury caused on the verdict sheet.
The Commonwealth’s memo underlying the fact that the
victim was shot in the chest injuring his heart, lung, kidneys and
liver and was shot a second time on the left hand. His injuries
were severe, numerous, and life altering. The sentence of 20 to
40 years accurately reflects the seriousness of the offense. It will
promote respect for the law and provide just punishment for the
offense.
[Appellant] argues that he should be treated like the
juveniles who have been sentenced to life imprisonment and who
are now having their sentences reviewed. [Appellant] was not
sentenced on a homicide case, this was not a life sentence where
[his] juvenile status would be taken into consideration. I have
read [Appellant’s] document called motion for court to take
judicial notice of mitigating sentencing factors. [Appellant] was,
in fact, 17 years and ten months. He was very close to being 18
years old and . . . this was a crime that [Appellant] deliberately
participated in and was the person who shot the victim numerous
times.
So I’m reimposing the same sentence of 20 to 40 years on
the charge of attempted murder. . . .
N.T., 4/9/18, at 29-30.
On April 17, 2018, Appellant filed a timely pro se post-sentence motion,
requesting reconsideration of his sentence on the following bases: (1) recent
United States Supreme Court decisions regarding juvenile brain development
confirm his sentence was manifestly excessive; (2) the court failed to properly
consider mitigating factors and paid “lip service” to the “illegality of the
mandatory minimums that were initially” imposed, as well as the fact that his
co-defendant received a lenient sentence; (3) the court failed to provide
adequate reasons on the record for the sentence imposed; (4) the court failed
to consider his testimony that he was “extremely remorseful” and “had
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matured and rehabilitated[;]” and (5) the court failed to order an updated
presentence investigation report. See Appellant’s Post Sentence Motion for
Reconsideration of Sentence, 4/17/18, at 2-3 (unpaginated). The trial court
did not promptly rule upon Appellant’s post-sentence motion. Although the
motion should have been denied by operation of law on August 15, 2018,
there was no order entered on the docket or served on the parties. See
Pa.R.Crim.P. 720(B)(3)(a), (c).
Meanwhile, on April 10, 2018, the trial court issued Appellant
Pa.R.Crim.P. 907 notice of its intent to dismiss the remaining claims in his
PCRA petition without conducting an evidentiary hearing. Appellant promptly
filed an objection; however, on May 4, 2018, the court entered an order
dismissing Appellant's petition as meritless. See Order, 5/4/18. Appellant
timely appealed.
On November 15, 2019, a panel of this Court affirmed the order denying
PCRA relief.10 See Commonwealth v. Willis, 1555 EDA 2018 (unpub.
memo. at 1) (Pa. Super. Nov. 15, 2019), appeal denied, 103 EAL 2020 (Pa.
Aug. 18, 2020). The Pennsylvania Supreme Court denied Appellant’s petition
for allowance of appeal on August 18, 2020.
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10 We note that Appellant’s first claim challenged the discretionary aspects of
his April 2018 resentencing. See Willis, 1555 EDA 2018 (unpub. memo. at
6). However, the panel concluded that issue was not before it because
Appellant did not appeal from the new judgment of sentence; rather, the
appeal was from the May 4, 2018 order denying his prior PCRA petition. See
id. (unpub. memo. at 6-7).
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On August 25, 2020, Appellant filed the present PCRA petition, pro se.
He sought relief from his April 9, 2018, resentencing, and asserted the petition
was timely filed. See Appellant’s Petition for Post-Conviction Relief Pursuant
to 42 Pa.C.S. § 9541, et. seq., 8/25/20 (2020 PCRA Petition), at 2. Appellant
raised the following two claims: (1) his sentence was illegal because the
Commonwealth failed to provide notice that it intended to prove the victim of
his attempted murder suffered serious bodily, thus permitting the court to
impose a lengthier sentence; and, relatedly, (2) trial counsel was ineffective
for failing to object to a special interrogatory verdict sheet, which asked the
jury to determine if the victim suffered serious bodily injury. See id. at 3.
The Commonwealth filed a motion to dismiss on May 12, 2021,
asserting: (1) Appellant’s claims regarding his April 2018 resentencing were
premature because the clerk of courts never entered an order denying
Appellant’s post-sentence motion by operation of law; and (2) Appellant’s
challenge to trial counsel’s ineffective assistance was time-barred. See
Commonwealth’s Motion to Dismiss Appellant’s PCRA Petition, 5/12/21, at 7-
8. In his pro se response, Appellant “agree[d] with the Commonwealth that
his sentencing claim [was] prematurely filed because his post-sentence
motion from his resentencing [had] yet to be formally disposed.” Appellant’s
Response to Commonwealth’s Motion to Dismiss, 5/24/21, at 2 (capitalization
omitted). However, relying on the unpublished decision of this Court in
Commonwealth v. Fantauzzi, 19 EDA 2018 (Pa. Super. May 22, 2019),
appeal denied, 480 MAL 2019 (Pa. Feb. 3, 2020), Appellant insisted he could
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raise counsel’s ineffectiveness for failing to “protect [him] from the imposition
of an illegal sentence.” Appellant’s Response to Commonwealth’s Motion to
Dismiss at 3-4.
On July 27, 2021, the trial court entered an order denying Appellant’s
April 17, 2018, post-sentence motion by operation of law. See Order,
7/27/21. Appellant filed a timely notice of appeal on August 3, 2021, 11 and
complied with the trial court’s order directing him to file a Pa.R.A.P. 1925(b)
statement of errors complained of on appeal. The appeal from the April 9,
2018, judgment of sentence is docketed at 1621 EDA 2021.
Meanwhile, also on July 27, 2021, the court notified Appellant of its
intent to dismiss his 2020 PCRA Petition without conducting an evidentiary
hearing pursuant to Pa.R.Crim.P. 907. See Notice Pursuant to Pennsylvania
Rule of Criminal Procedure 907, 7/27/21. Appellant did not file a reply, and
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11 “If post-sentencing motions are timely filed, . . . the judgment of sentence
does not become final for purposes of appeal until the trial court disposes of
the motion, or the motion is denied by operation of law.” Commonwealth
v. Borrero, 692 A.2d 158, 159 (Pa. Super. 1997). Pursuant to Pa.R.Crim.P.
720, a trial court “shall decide [a timely filed] post-sentence motion . . . within
120 days of the filing of the motion[,]” otherwise the clerk of courts “shall
forthwith enter an order” denying the motion by operation of law.
Pa.R.Crim.P. 720(B)(3)(a), (c). However, “where the clerk of courts does not
enter an order indicating that the post-sentence motion is denied by operation
of law and notify the defendant of same, a breakdown in the court system has
occurred and we will not find an appeal untimely under these circumstances.”
Commonwealth v. Perry, 820 A.2d 734, 735 (Pa. Super. 2003). Thus,
Appellant’s notice of appeal, filed within 30 days of the date the trial court
belatedly entered an order denying his post-sentence motion by operation of
law, was timely filed.
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on August 26, 2021, the court dismissed Appellant’s 2020 PCRA Petition as
untimely. Order, 8/26/21. Appellant filed a timely appeal,12 which is docketed
at 2034 EDA 2021.
II. RESENTENCING APPEAL (DOCKET NO. 1621 EDA 2021)
At Docket No. 1621 EDA 2021, Appellant raises the following claims
concerning his April 9, 2018, resentencing:
A. Did not the sentencing court lack statutory authorization to
impose a 40 year sentence on Appellant for an attempted
murder charge where the element of serious bodily injury in
relation to attempted murder was not included in the
information as required by 42 Pa.C.S. § 8931(e), and
Pa.R.Crim.P. 560(B)(5) and 560(D), in violation of 1 Pa.C.S. §
1504?
B. Is not Appellant’s sentence illegal because he was ambushed
with the verdict sheet’s special interrogatory about serious
bodily injury in connection with attempted murder and
Appellant had no de jure nor de facto notice to defend against
attempted murder with serious bodily injury, and this surprise
interrogatory was not enough to put Appellant on notice?
C. Did not the trial court lack jurisdiction over the subject matter
of attempted murder with serious bodily injury, under the
current law and the law at the time of trial where the
Commonwealth failed to make the necessary formal accusation
in Appellant’s criminal information?
D. Did not the sentencing court illegally impose restitution when
it failed to order the “method of restitution”; where the order
for restitution is to those who do not statutorily qualify as a
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12Although the notice of appeal was docketed on September 27, 2021, the
30th day after the entry of the court’s order — September 25th — fell on a
Saturday. Therefore, Appellant had until the following Monday, September
27th, to file a timely appeal. See 1 Pa.C.S. § 1908.
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victim; and where the Commonwealth’s recommendation was
not based upon information received from the victim and
committed a fraud upon the court?
E. Is not Appellant’s sentence illegal where the sentencing court
stated, on the record, that Appellant’s juvenile status should
not come into consideration because he was not facing a life
sentence before imposing the harshest possible penalty for an
attempted murder [charge], in violation of the United States’
and Pennsylvania’s cruel and unusual punishment clauses?
F. Is not Appellant’s sentence illegal because the sentencing court
failed to give credit for time served in “custody” and the
applicable statute did not exclude, by any statutory definition,
strict confinement to a home with electronic monitoring and
probationary officers virtually present at all times, with law
enforcement officers on standby from the statutory term
“custody”?
Appellant’s Brief (1621 EDA 2021) (Appellant’s Resentencing Brief) at 4-6
(some capitalization omitted).13
(A)(1) REVIEW FOLLOWING RESENTENCING
Preliminarily, we note that Appellant has filed this appeal from the
judgment of sentence imposed following his resentencing, which was the
result of a successful PCRA claim challenging the possible unconstitutionality
of his original sentence. Because he has already had the benefit of a direct
appeal following his conviction, his claims in this appeal are limited to those
challenging the sentence imposed following remand. See Commonwealth
v. Williams, 151 A.3d 621, 625 (Pa. Super. 2016); Commonwealth v.
Anderson, 801 A.2d 1264, 1266 (Pa. Super. 2002) (“Having succeeded on
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13 We have reordered Appellant’s claims for purposes of disposition.
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[challenges to his sentence] and having been re-sentenced following remand,
appellant could not file another direct appeal attacking his conviction: the only
issues reviewable in a direct appeal would be challenges to the sentence
imposed following remand.”).
(A)(2) ATTEMPTED MURDER WITH SERIOUS BODILY INJURY
Appellant’s first three claims, which we address together, challenge the
trial court’s authority to impose a maximum 40-year term of imprisonment for
his conviction of attempted murder.
By way of background, Section 1102 of the Crimes Code governs
sentencing for a conviction of, inter alia, murder and attempted murder. See
18 Pa.C.S. § 1102. Subsection (c) provides, in relevant part:
(c) . . . Notwithstanding section 1103(1) (relating to sentence of
imprisonment for felony), a person who has been convicted of
attempt . . . to commit murder . . . where serious bodily injury
results may be sentenced to a term of imprisonment which shall
be fixed by the court at not more than 40 years. Where serious
bodily injury does not result, the person may be sentenced to a
term of imprisonment which shall be fixed by the court at not more
than 20 years.
18 Pa.C.S. § 1102(c)(emphases added). Therefore, as an en banc panel of
this Court explained:
Section 1102(c) imposes a condition precedent to the imposition
of a maximum term of imprisonment of up to 40 years,
specifically, that serious bodily injury must have resulted from the
attempted murder. Otherwise, the sentence shall be not more
than 20 years. Serious bodily injury is a fact that must be proven
before a maximum sentence of [40] years may be imposed for
attempted homicide. Moreover, a defendant must be put on
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notice when the Commonwealth is seeking a 40–year maximum
sentence for attempted murder.
Commonwealth v. Barnes, 167 A.3d 110, 117 (Pa. Super. 2017) (en banc)
(citations & quotation marks omitted).
Furthermore, pursuant to the dictates of Apprendi v. New Jersey, 530
U.S. 466 (2000), “[o]ther than the fact of a prior conviction, any fact that
increases the penalty for a crime beyond the prescribed statutory maximum
must be submitted to a jury, and proved beyond a reasonable doubt.” Id. at
490. Thus, we have held that in order to comport with Apprendi and its
progeny, a trial court may not impose an aggravated sentence of more than
20 years’ imprisonment for attempted murder unless the jury finds, beyond a
reasonable doubt, that the victim suffered serious bodily injury as a result of
the attempted murder. See Commonwealth v. Johnson, 910 A.2d 60, 67
(Pa. Super. 2006); see also Barnes, 167 A.3d at 118-19. With this
background in mind, we consider Appellant’s arguments on appeal.
Appellant first argues the trial court “lacked statutory authorization” to
impose a 40-year maximum sentence when he was “not charged, via
information” with the offense of attempted murder with serious bodily
injury.14 See Appellant’s Resentencing Brief at 12-14. He emphasizes that
under Pennsylvania Rules of Criminal Procedure 561(B), “any charge not listed
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14 Appellant’s criminal information charged only that he committed “Criminal
Attempt” by “attempting to cause the death of another human being.”
Information, 5/11/09, at 1.
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on the information shall be deemed withdrawn by . . . the Commonwealth.”
Id. at 12-13, citing Pa.R.Crim.P. 561(B) (emphasis omitted).
Appellant further maintains that he was “ambushed” by the special
interrogatory on the jury’s verdict sheet which, he claims, “for the first time,
[raised] a question about [serious bodily injury] in connection with attempted
murder[.]” Appellant’s Resentencing Brief at 19. He insists the facts of this
case are “completely identical” to those in Commonwealth v. Bickerstaff,
204 A.3d 988, 997-98 (Pa. Super. 2019) (vacating 40-year maximum
sentence for attempted murder and remanding for resentencing; finding trial
counsel was ineffective for failing to object to special interrogatory asking jury
to determine if victim sustained serious bodily injury when there was no notice
of serious bodily injury claim prior to jury deliberations). Appellant’s
Resentencing Brief at 19-20. In a related claim, Appellant argues that because
of the Commonwealth’s failure to include the charge of attempted murder with
serious bodily injury in his information, the trial court lacked subject matter
jurisdiction, and he must be discharged. Id. at 30.
Preliminarily, we emphasize that, contrary to Appellant’s argument, the
trial court had the “statutory authority” to impose a sentence of up to 40 years’
imprisonment pursuant to Section 1102(c) after the jury found the victim
suffered serious bodily injury as a result of the attempted murder. See 18
Pa.C.S. § 1102(c). Nevertheless, Appellant’s claims implicate the legality of
his sentence — he, inarticulately, invokes a due process challenge by arguing
he had no notice that the Commonwealth intended to prove the victim suffered
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serious bodily injury as a result of the attempted murder. Thus, our “standard
of review is de novo and the scope of review is plenary.” Commonwealth v.
King, 234 A.3d 549, 559-60 (Pa. 2020).
The Supreme Court’s recent decision in King, supra, is instructive. In
that case, as here, the defendant was charged with attempted murder, but
the criminal information “made no reference” to the fact that the
Commonwealth intended to prosecute him for attempted murder causing
serious bodily injury pursuant to Section 1106(c). King, 234 A.3d at 552-53.
However, the jury verdict sheet included an interrogatory question, which
asked the jury to determine if the victim suffered serious bodily injury, in the
event it found the defendant guilty of attempted murder. Id. at 553. The
jury responded that the victim did suffer serious bodily injury, and the trial
court later sentenced the defendant to an aggravated term of 20 to 40 years’
imprisonment for his conviction of attempted murder. Id.
Both the trial court and a panel of this Court rejected the defendant’s
claim that his attempted murder sentence was illegal because he was not
properly charged with attempted murder causing serious bodily injury. See
King, 234 A.3d at 553-54. The Supreme Court granted allowance of appeal
to consider, inter alia, whether a defendant’s due process and Sixth
Amendment rights are denied when the Commonwealth is not required to
“provide formal notice to a defendant when seeking to prosecute him for an
aggravated offense, specifically the 40-year maximum sentence authorized
under 18 Pa.C.S.A. § 1102(c)?” Id. at 556.
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The Supreme Court concluded that formal notice was required:
[W]hen the Commonwealth intends to seek an enhanced sentence
for attempted murder resulting in serious bodily injury under
Section 1102(c), the Commonwealth must include a citation to the
statutory provision as well as its language in the charging
documents.
King, 234 A.3d at 562. However, while the Court concluded that formal notice
was lacking in that case, it, nevertheless, declined to find the defendant’s
sentence illegal because it concluded the error was harmless. See id. at 563,
566.
The King Court noted that the defendant relied on caselaw striking down
mandatory minimum sentencing statutes in the wake of Alleyne, supra,15
which rejected a harmless error analysis. See King, 234 A.3d at 565.
However, the Supreme Court held those cases were inapplicable to the present
facts. Id. Indeed, in the Alleyne cases, the mandatory minimum statutes
were determined to be “facially unconstitutional” and incapable of severance,
so that the Commonwealth could not cure the unconstitutionality of the statute
absent legislative authority. Id. at 565-66. However, the King Court
explained that, in the case before it, “a proper notice would permit the
sentence” imposed by the trial court; thus, it concluded the “error [was]
amenable to harmless error review.” Id. at 566. The Court further found:
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15 In Alleyne, the United States Supreme Court expanded Apprendi to apply
to mandatory minimum sentences, and held that “any fact that increases the
mandatory minimum is an ‘element’ that must be submitted to the jury.”
Alleyne, 570 U.S. at 103.
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[T]he Commonwealth has met its burden of establishing that the
error was harmless beyond a reasonable doubt. [T]he evidence
of serious bodily injury in this case was overwhelming and
uncontroverted. Moreover, this is not a case where the judge
made the requisite finding, . . . but rather it was stipulated to and
found by the jury beyond a reasonable doubt. [The defendant]
never contested the severity of [the victim’s] injuries, but rather
stipulated that, as a result of two gunshot wounds, [the victim]
suffered a shattered hipbone and anklebone, requiring multiple
surgeries and high intensity inpatient occupational and physical
therapy. While [the defendant] did not receive formal notice of
the Commonwealth’s intent to seek the enhancement, [he]
received de facto notice, at various points before trial, that the
Commonwealth was seeking the enhancement. For example, the
factual summaries in the charging documents made clear that [the
victim] suffered serious bodily injury. Moreover, the
Commonwealth advised [the defendant] that the minimum
penalty for attempted murder if convicted was seventeen and one-
half years, signaling that the Commonwealth intended to seek the
enhancement. Finally, the Commonwealth and [the defendant’s]
attorney reviewed and agreed to the content and form of the
verdict sheet prior to jury deliberations, which included a special
interrogatory regarding whether [the victim] suffered serious
bodily injury as a result of the attempted murder.
We also find persuasive the Commonwealth’s point that its
failure to provide formal notice of its intent to seek the enhanced
sentence did not affect [the defendant’s] choice of defense or
execution of that defense, considering [he] stipulated to [the
victim’s] injuries and instead sought to demonstrate that another
unknown individual committed the crime. Therefore, the harmless
nature of the error precludes a finding that the sentence was
illegally imposed.
Id. (citations omitted).
We conclude the same is true here. It is undisputed the Commonwealth
failed to provide Appellant with formal notice in the charging documents of its
intent to prove the victim suffered serious bodily injury as a result of the
attempted murder. See Information at 1. Nevertheless, Appellant’s claim
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that he was “ambushed” by the jury interrogatory at the time of deliberations
is specious.
First, the affidavit of probable cause averred that the victim was shot in
the “chest and hand,” transported to the hospital “where he underwent
surgery[,]” and was in “critical condition.” Affidavit of Probable Cause 3/4/09
at 2. Moreover, on the first day of trial, before testimony began, the court
asked the Commonwealth’s attorney if the aggravated assault charge involved
serious bodily injury. See N.T. 7/13/10 at 34. The Commonwealth’s attorney
responded, “Yes,” and further stated: “I would just request at the end of trial
that there be a separate interrogatory on the serious bodily injury in
regards to the attempted murder . . . because it does change the
maximum penalty.” Id. at 35 (emphasis added). Appellant did not object.
Thus, before he even presented his defense, Appellant was well aware the
Commonwealth intended to prove the victim suffered serious bodily injury as
a result of the attempted murder.
Additionally, Appellant did not question the victim concerning the extent
of his injuries, nor did he object when the Commonwealth moved to admit the
victim’s medical records into evidence. See N.T., 7/14/10, at 191-205
(Appellant’s cross-examination of the victim); N.T., 7/16/10 at 86-87
(Commonwealth moved medical records into evidence). Although Appellant’s
trial counsel — Geoffrey Kilroy, Esquire — did object when the jury requested
a copy of the victim’s medical records during deliberations, he did so only to
the extent that the records “contain numerous amounts of hearsay about who
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said what about what[.]” N.T., 7/19/10 at 85. However, Attorney Kilroy
agreed that there was “really [no] doubt that” the victim suffered serious
bodily injury. Id. at 86. Thus, counsel for all parties agreed to provide the
jury with a summary of the medical records. See id. at 89.
Lastly, the trial court instructed the jury there would “be one question
that [it would] have to answer in connection with the charge of attempted
murder” — that is, “Do you find that serious bodily injury was caused to [the
victim]?” N.T., 7/19/10, at 81-82. Attorney Kilroy did not object to either the
instruction or the verdict sheet. As noted supra, the jury responded, “Yes,”
to that special interrogatory question.
Accordingly, we conclude the facts of this case are nearly identical to
those presented in King. Although the Commonwealth should have notified
Appellant in the charging documents that it intended to prove he committed
attempted murder with serious bodily injury, we conclude the failure to do so
was harmless error. Significantly, the jury, itself, specifically found the victim
suffered serious bodily injury. Moreover, the Commonwealth stated on the
record before trial that it intended to request a special interrogatory on that
exact issue, and Appellant did not challenge the victim’s injuries or medical
records. Thus, under King, Appellant is entitled to no relief on this claim.
Nor do we find that this Court’s decision in Bickerstaff, supra, compels
a different result. Appellant maintains that the facts of his case are
“completely identical” to those in Bickerstaff, such that he is “entitled to the
same relief[,]” namely, remand for resentencing. See Appellant’s
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Resentencing Brief at 19. What Appellant fails to acknowledge, however, is
the procedural posture of Bickerstaff — an appeal from an order denying
PCRA relief on a claim on ineffective assistance of counsel. This Court
opined:
[T]he Commonwealth charged [the defendant] with only
attempted murder generally and did not include the element of
serious bodily injury in the criminal complaint or information. The
Commonwealth also failed to put [the defendant] on notice that
the Commonwealth intended to prove attempted murder/serious
bodily injury at trial. The Commonwealth did not prosecute [the
defendant] for attempted murder/serious bodily injury.
Furthermore, the court did not instruct the jury on serious bodily
injury related to the attempted murder offense. Instead, the court
gave a jury instruction only on serious bodily injury related to
aggravated assault. Here, [the defendant] was essentially
ambushed with the verdict sheet’s special interrogatory that
raised for the first time a question about serious bodily injury in
connection with attempted murder. Prior to the interrogatory,
[he] had no warning that there was even an issue of serious bodily
injury associated with attempted murder. The charges,
complaint, information, and jury instructions for attempted
murder made no mention of associated serious bodily injury.
Absent more, this surprise interrogatory was not enough to put
[the defendant] on notice to defend against attempted
murder/serious bodily injury.
Due to this lack of notice and [the defendant’s] resultant
inability to defend, counsel should have objected to the
interrogatory before the jury deliberated. Counsel had no
rational basis for failing to object to the interrogatory, given the
lack of notice, and counsel’s failure to object prejudiced [the
defendant], because it caused [him] to endure a conviction for
attempted murder with serious bodily injury and set [him] up to
face a maximum sentence of 40 years for that offense, rather than
20 years for attempted murder generally. Moreover, when the
court imposed the enhanced sentence for attempted
murder/serious bodily injury, based solely on the jury’s
response to the interrogatory, counsel again failed to
object. Thus, we agree with [the defendant’s] contention
that trial counsel was ineffective for failing to protect [him]
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from the sentence enhancement for attempted
murder/serious bodily injury.
Id. at 997–98 (emphases & paragraph break added; citations omitted).
Here, Appellant raises his claim on direct appeal following his
resentencing hearing — not as an allegation of trial counsel’s ineffectiveness
on PCRA review. Thus, at this juncture, trial counsel’s failure to object to the
interrogatory waives the claim for our review. See Pa.R.A.P. 302(a) (“Issues
not raised in the trial court are waived and cannot be raised for the first time
on appeal.”). Moreover, as explained above, the de facto notice Appellant
received in the present case is similar to the notice the defendant received in
King, and more than that provided to the defendant in Bickerstaff. Thus,
we find King controlling.
With regard to Appellant’s assertion that he should be discharged
because the trial court lacked subject matter jurisdiction when the
Commonwealth did not include the charge of attempted murder causing
serious bodily injury in his information,16 the King Court rejected that same
argument. See King, 234 A.3d at 557 n.9. The Supreme Court explained:
[T]he Apprendi violation herein would, at most, deprive the court
of the ability to sentence [the defendant] to an enhanced
sentence. It would not divest the trial court of the jurisdiction to
sentence [the defendant] for the unenhanced attempted murder
charge of which he plainly had formal notice. . . .
Id.
____________________________________________
16 Appellant’s Resentencing Brief at 30.
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Thus, Appellant’s challenges to the trial court’s authority to sentence
him pursuant to Section 1102(c) fail.
(A)(3) RESTITUTION
In his next issue, Appellant insists the trial court illegally imposed
restitution. See Appellant’s Resentencing Brief at 15. He contends the trial
court failed to “order the ‘Method’ of payment” as required by 18 Pa.C.S. §
1106(c)(2)(ii), and “ordered payment to entities who are not ‘victims[.]’” Id.
at 15-16. Appellant also maintains the Assistant District Attorney “personally
increased the victim’s medical costs” without supporting documentation. Id.
at 16-17.
Restitution is governed by Section 1106 of the Crimes Code. Section
1106(c) requires the trial court to order “full restitution” to “the victim” or
victims, “[r]egardless of the current financial recourses of the defendant,” so
that they are provided with “the fullest compensation for the loss.” 18 Pa.C.S.
§ 1106(c)(1)(i). A “victim” is defined as, inter alia, “[a] direct victim[, and a]
parent . . . of a child who is a direct victim[.]” See 18 Pa.C.S. §§ 11.103,
1106(h). A “direct victim” is defined as “[a]n individual against whom a crime
has been committed or attempted and who as a direct result of the criminal
act or attempt suffers physical or mental injury . . . .” 18 P.S. § 11.103. In
addition, the statute mandates that “[a]t the time of sentencing, the court
shall specify the amount and method of restitution.” 18 Pa.C.S. § 1106(c)(2)
(emphasis added). The court may order restitution to be paid “in a lump sum,
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by monthly installments or according to such other schedule as it deems just.”
18 Pa.C.S. § 1106(c)(2)(ii).
We note that a challenge to an order of restitution may raise either a
legality or discretionary sentencing claim:
[A] challenge to the legality of sentence is presented when the
defendant claims that the trial court lacked statutory authority to
impose restitution because the Commonwealth failed to establish
one or more of the requirements of section 1106(a). Conversely,
where the Commonwealth has established each element of §
1106(a), i.e., the victim suffered loss to person or property
directly caused by the specific crime committed by the defendant,
a claim that the restitution order is excessive implicates the
discretionary aspects of sentencing.
Commonwealth v. Muhammed, 219 A.3d 1207, 1212 (Pa. Super. 2019)
(citations & quotation marks omitted).
Here, Appellant’s argument consists of both a legality and discretionary
challenge. His assertion that the court awarded restitution to entities that
were not proper “victims” and failed to order the “method” of payment raise
legality of sentencing issues pertaining to the court’s statutory authority to
impose restitution. See Muhammed, 219 A.3d at 1212. Although he raises
these illegal sentencing claims for the first time in this appeal, they are not
waived. See id. at 1211 (challenge to legality of sentence can never be
waived).
However, his assertion that the costs of the victim’s medical expenses
presented by the Commonwealth were excessive implicates the discretionary
aspects of his restitution sentence. Because Appellant failed to challenge the
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restitution amount at his resentencing hearing or in in his post-sentence
motion, that claim is waived for our review. See Pa.R.Crim.P. 720.
Nevertheless, we are constrained to conclude that the order of
restitution imposed by the trial court at Appellant’s 2018 resentencing hearing
was illegal. First, as Appellant maintains, the restitution amount requested
by the Commonwealth included payment to the “Firearms Identification Unit”
for “a laboratory fee” ($135) and the cost for “the T-Mobile custodian of
records” for their testimony regarding “phone records in this case” ($15.45).
See N.T., 10/8/10, at 39. Neither of these entities constitute a “victim” as
defined in the Crimes Code. Thus, the order awarding “restitution” to these
entities was illegal.17
Moreover, we are also constrained to agree with Appellant that the trial
court’s failure to specify the “method of restitution” at the resentencing
hearing, renders his restitution sentence illegal. The text of the statute is
clear: “At the time of sentencing the court shall specify the amount and
method of restitution.” 18 Pa.C.S. § 1106(2) (emphasis added). This
“method” may include a lump sum payment or monthly installments. See 18
Pa.C.S. § 1106(2)(ii). Although we recognize Appellant’s lengthy term of
____________________________________________
17 We note the trial court did not provide any further discussion of the
restitution sentence at the 2018 resentencing hearing. It simply “reorder[ed]
restitution” in the same amount as the original sentence. See N.T., 4/9/18,
at 31.
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imprisonment renders the restitution order superfluous at the present time,
the trial court is required by statute to specify how restitution is to be paid.
Therefore, we vacate Appellant’s April 2018 judgment of sentence with
respect to the restitution order, and remand to permit the trial court to impose
a new restitution order which complies with Section 1106. See
Commonwealth v. Gentry, 101 A.3d 813, 819 (Pa. Super. 2014) (holding
proper remedy following determination that restitution award was not to
discharge defendant from restitution, but to provide trial court with
opportunity “to impose a new restitution order”).
(A)(4) CONSIDERATION OF JUVENILE STATUS
In his penultimate issue concerning his resentencing, Appellant argues
his sentence is illegal because the trial court stated that it need not consider
his “juvenile status” because he was not facing a life sentence. Appellant’s
Resentencing Brief at 22. He insists the court ignored the holdings of Miller
v. Alabama, 567 U.S. 460 (2012),18 and Jones v. Mississippi, 141 S.Ct.
1307 (U.S. 2021),19 that “youth matters” and “must be considered as a
mitigating sentencing factor.” Appellant’s Resentencing Brief at 22-23
____________________________________________
18See Miller, 567 U.S. at 465 (holding “mandatory life without parole for
those under the age of 18 at the time of their crimes violates the Eighth
Amendment's prohibition on ‘cruel and unusual punishments.’”) (emphasis
added).
19 See Jones, 141 S.Ct. at 1318-19 (holding “a separate factual finding of
permanent incorrigibility is not required before a sentencer imposes a life-
without-parole sentence on a murderer under 18”) (emphasis added).
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(citations omitted). He insists the court’s statement at his resentencing
hearing that his “juvenile status did not come into it’s [sic] consideration
makes [his] sentence . . . illegal[.]” Id. at 25.
Although Appellant frames his issue as a challenge to the legality of his
sentence, he is, in fact, challenging the discretionary aspects of his sentence
— namely, the trial court’s purported failure to consider the mitigating factor
of his youth. See Jones, 141 S.Ct. at 1315, 1316 (explaining Miller, supra,“repeatedly described youth as a sentencing factor akin to a mitigating
circumstance” and “did not require the sentencer to make a separate finding
of permanent incorrigibility before imposing” a sentence of life-without-parole
on a juvenile defendant). It is well-settled that before we may consider a
discretionary aspects of sentencing claim,
we must first determine whether [the defendant] has done four
things: (1) filed a timely notice of appeal, see Pa.R.A.P. 902 and
903; (2) preserved the issue at sentencing or in a motion to
reconsider and modify sentence, see Pa.R.Crim.P. 720; (3)
included a Pa.R.A.P. 2119(f) statement in his brief; and (4) set
forth a substantial question that his sentence is not appropriate
under the Sentencing Code.
Commonwealth v. Lynch, 242 A.3d 339, 346 (Pa. Super. 2020), appeal
denied, 252 A.3d 1072 (Pa. 2021).
In the present case, Appellant properly filed both a timely post-sentence
motion and a timely notice of appeal. See id. Although his brief does not
include the requisite Pa.R.A.P. 2119(f) concise statement of reasons relied
upon for allowance of appeal, the Commonwealth did not object to the
omission; accordingly, we decline to find the claim waived. See
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Commonwealth v. Cramer, 195 A.3d 594, 610 n.7 (Pa. Super. 2018).
Therefore, we must determine whether Appellant has raised a substantial
question for our review.
An appellant “presents a substantial question when he sets forth a
plausible argument that the sentence violates a provision of the sentencing
code or is contrary to the fundamental norms of the sentencing process.”
Commonwealth v. Conte, 198 A.3d 1169, 1174 (Pa. Super. 2018) (citation
omitted). However, “this Court repeatedly has held that a claim of inadequate
consideration of mitigating factors does not raise a substantial question for
our review.” Commonwealth v. Crawford, 257 A.3d 75, 79 (Pa. Super.
2021) (citation omitted). See also Commonwealth v. Cruz-Centeno, 668
A.2d 536, 545 (Pa. Super. 1995) (“[A]n allegation that a sentencing court
failed to consider or did not adequately consider certain factors does not raise
a substantial question that the sentence was inappropriate.”) (citation &
quotation marks omitted). Therefore, Appellant’s claim that the trial court
failed to properly consider his youth as a mitigating factor does not present a
substantial question for our review.
Nevertheless, we note that Appellant’s claim is premised upon a
misapprehension of the trial court’s comments at the resentencing hearing.20
____________________________________________
20 “Sentencing is a matter vested in the sound discretion of the sentencing
judge” which an appellate court will not disturb “absent an abuse of
discretion.” Commonwealth v. Caldwell, 117 A.3d 763, 770 (Pa. Super.
2015) (en banc) (citation omitted).
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Representing himself pro se at the hearing, Appellant argued that the trial
court should take into consideration the fact that he was a juvenile when he
committed the shooting and cited United States Supreme Court decisions
involving challenges to sentences for juvenile offenders convicted of first-
degree murder. See N.T., 4/9/18, at 21-24. He emphasized that those
decisions discussed how juvenile offenders are “highly vulnerable to peer
pressure and negative influence” but have “greater prospects for reform
making them less deserving of the most severe punishments.” Id. at 23.
In re-imposing the standard range sentence21 of 20 to 40 years’
imprisonment, the trial court “incorporate[ed] by reference the testimony
from the [October 2010] sentencing hearing which included the testimony of
the mother and impact on the victim[.]” N.T., 4/9/18, at 29. The court also
noted the victim’s injuries were “severe, numerous, and life-altering[,]”
emphasizing the sentence imposed “reflects the seriousness of the offense[,]
will promote respect for the law and provide just punishment for the offense.”
Id. Regarding Appellant’s juvenile status, the trial court commented:
[Appellant] argues that he should be treated like the
juveniles who have been sentenced to life imprisonment and who
are now having their sentences reviewed. [Appellant] was not
sentenced on a homicide case, this was not a life sentence where
[his] juvenile status would be taken into consideration. I have
read [Appellant’s] document called motion for court to take
judicial notice of mitigating sentencing factors. [Appellant] was,
in fact, 17 years and ten months [old at the time of the crime].
He was very close to being 18 years old and . . . this was a crime
____________________________________________
21 See N.T., 10/8/10, at 46; N.T. 4/9/18, at 29.
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that [he] deliberately participated in and was the person who shot
[V]ictim numerous times.
So I’m reimposing the same sentence of 20 to 40 years on
the charge of attempted murder. . . .
Id. at 29-30.
Therefore, the trial court did not refuse to consider Appellant’s juvenile
status as Appellant now claims on appeal. Rather, the court rejected
Appellant’s argument that he should be treated like those juvenile offenders
who were convicted of first-degree murder and sentenced to either death or
life imprisonment without the possibility of parole. Appellant raised a similar
claim in the direct appeal from his October 2010 sentencing, which a panel of
this Court rejected. Indeed, we explained that the United States Supreme
Court decisions concerning the sentencing of juvenile offenders did not
“suggest[ ] that a . . . sentence of 20 – 40 years’ incarceration is an
inappropriate penalty for a 17 year old who formed the intent to kill, acted on
that intent, and then only fell short of committing first degree murder by the
miracle of modern medicine[.]” Willis, 470 EDA 2011 (unpub. memo. at 9).
Accordingly, Appellant’s challenge to the discretionary aspects of his sentence
fails.
(A)(5) CREDIT FOR TIME SERVED
In his final claim on direct appeal from resentencing, Appellant insists
he should receive credit for time served on house arrest pursuant to 42 Pa.C.S.
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§ 9760 (“Credit for Time Served”).22 See Appellant’s Resentencing Brief at
26. Although he acknowledges that the Pennsylvania Supreme Court, in
Commonwealth v. Kyle, 874 A.2d 12 (Pa. 2005), “excluded all forms of
house arrest from the statutory definition of custody” for purposes of time
credit, Appellant insists that “holding violates the law.” Appellant’s
Resentencing Brief at 26.
In Kyle, our Supreme Court explicitly held: “Today, we make clear that
time spent on bail release, subject to electronic monitoring, does not qualify
as custody for purposes of Section 9760 credit against a sentence of
incarceration.” Kyle, 874 A.2d at 20 (emphasis added). The Court further
explained: “Incarceration in an institutional setting is different in kind, not
in mere degree, from ‘confinement’ to the comforts of one’s home. Id. at 22.
While Appellant would have us determine that Kyle was wrongly
decided, we emphasize:
As an intermediate appellate court, we generally lack[ ] the
authority to determine that [the Supreme] Court’s decisions are
no longer controlling. Instead, we are duty-bound to effectuate
[the Supreme] Court’s decisional law. . . .
Commonwealth v. Brensinger, 218 A.3d 440, 457 (Pa. Super. 2019) (en
banc) (citations & quotation marks omitted). See also Bell v. Willis, 80 A.3d
476, 479 (Pa. Super. 2013) (“As an intermediate appellate court, this Court is
____________________________________________
22 An “issue regarding credit for time served involves the legality of
sentence[;]” therefore, “our standard of review is de novo, and our scope of
review is plenary.” Commonwealth v. Nobles, 198 A.3d 1101, 1106 (Pa.
Super. 2018).
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obligated to follow the precedent set down by our Supreme Court.”) (citation
omitted). Therefore, even if we agreed with Appellant’s contention — which
we do not — we would be precluded from granting relief.
(A)(6) CONCLUSION ─ RESENTENCING APPEAL
Accordingly, at Docket No. 1621 EDA 2021, we vacate the April 9, 2018,
judgment of sentence with respect to the order of restitution, and remand for
further proceedings. In all other respects, we affirm.23
III. PCRA APPEAL (DOCKET NO. 2034 EDA 2021)
At Docket No. 2034 EDA 2021, Appellant raises the following claims
concerning the trial court’s denial of his 2020 PCRA Petition:
A. Did not the [trial] court violate statutory law when it deemed
Appellant’s PCRA petition untimely instead of premature,
although Appellant’s judgment of sentence was not yet final,
and one year had not expired as required by 42 Pa.C.S. §
9545(b)(1), (3)?
B. Did not the [trial] court err when it held that Appellant’s
ineffective assistance of counsel claim, after resentencing, did
not amount to a challenge to an illegal sentence where
Appellant’s counsel failed to protect Appellant from an illegal
sentence?
Appellant’s Brief (2034 EDA 2021) (Appellant’s PCRA Brief) at 4.24
____________________________________________
23We decline Appellant’s request to publish the disposition of the appeal at
Docket No. 1621 EDA 2021. See Appellant’s Resentencing Brief at iii-iv.
24 We have reordered Appellant’s claims for ease of disposition.
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(B)(1) PCRA REVIEW
Our review of an order denying PCRA relief is well-settled. “[W]e
examine whether the PCRA court’s determination is supported by the
record and free of legal error.” Commonwealth v. Mitchell, 141 A.3d 1277,
1283–84 (Pa. 2016) (citation and quotation marks omitted). Moreover, we
note that the statutory requirement that a PCRA petition be filed within one
year of the date the judgment of sentence becomes final is a “jurisdictional
deadline” and a PCRA court may not ignore the untimeliness of a petition to
address the merits of the issues raised therein. Commonwealth v.
Whiteman, 204 A.3d 448, 450 (Pa. Super. 2019), appeal denied, 216 A.3d
1028 (Pa. 2019). See also 42 Pa.C.S. § 9545(b)(1).
(B)(2) TIMELINESS OF PETITION
Appellant argues the PCRA court erred in dismissing his 2020 PCRA
Petition as untimely filed, rather than dismissing it as premature. Appellant’s
PCRA Brief at 13. He acknowledges that he was “statutorily barred” from filing
a timely PCRA petition following his April 2018 resentencing until that
judgment of sentence was final. See id. at 13-14. We agree.
Appellant’s original judgment of sentence was final on October 7, 2013,
the date the United States Supreme Court denied Appellant’s petition for writ
of certiorari following his direct appeal. As noted supra, he filed a timely
PCRA petition, and was granted relief in part — that is, a new sentencing
hearing. However, the court denied relief on Appellant’s remaining collateral
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claims, and this Court affirmed that ruling on appeal. See Willis, 155 EDA
2018. Therefore, for purposes of PCRA review, any trial-based claims
Appellant seeks to pursue are now untimely. See 42 Pa.C.S. § 9545(b)(1)
(any PCRA petition “shall be filed within one year of the date the judgment
becomes final”). The fact that Appellant received relief limited to resentencing
does not provide him with the opportunity to collaterally challenge his
underlying convictions for a second time. As this Court explained in
Commonwealth v. McKeever, 947 A.2d 782 (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. We reached
this conclusion because the purpose of the PCRA is to prevent an
unfair conviction.
Id. at 785.
However, to the extent Appellant challenges his 2018 resentencing,
he is statutorily ineligible for PCRA relief until that judgment of sentence is
final. See Commonwealth v. Smith, 244 A.3d 13 (Pa. Super. 2020) (“[A]
PCRA petition may only be filed after an appellant has waived or exhausted
his direct appeal rights.”) (citation omitted). Although we address Appellant’s
direct appeal from resentencing in this memorandum, his judgment of
sentence will not be final until “the conclusion of direct review, including
discretionary review in the Supreme Court of the United States and the
Supreme Court of Pennsylvania, or at the expiration of time for seeking the
review.” See 42 Pa.C.S. § 9545(b)(3). Thus, because this petition was filed
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while his direct appeal from resentencing is still pending, we quash this appeal
without prejudice to Appellant to file a timely PCRA petition when his direct
appeal is final, limited solely to claims related to his 2018 resentencing. See
Commonwealth v. Lesko, 15 A.3d 345, 366 (Pa. 2011) (petitioner who
received federal habeas relief on sentencing was not permitted to “revive the
claims that expired once the . . . verdict of guilt became final[;]” petitioner’s
“‘right’ to first petition PCRA review [was] necessarily confined to that part of
the final Pennsylvania judgment that was disturbed by the federal habeas
proceedings.”).
(B)(3) INEFFECTIVE ASSISTANCE OF COUNSEL CLAIM
Although Appellant concedes his PCRA petition is premature, he
nonetheless argues that the trial court erred in determining his ineffective
assistance of counsel claim — related to the failure of counsel to object to the
imposition of a 20 to 40 year sentence for attempted murder causing serious
bodily injury when he was not charged with that crime — is a “trial error,”
rather than a sentencing error. See Appellant’s PCRA Brief at 11. He
maintains that this Court’s unpublished decision in Fantauzzi25 is controlling.
Id. at 10-11. We disagree.
____________________________________________
25 Non-precedential decisions of this Court filed after May 1, 2019, “may be
cite for their persuasive value.” Pa.R.A.P. 126(1)-(2). Fantauzzi was filed
on May 22, 2019.
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In Fantauzzi, the defendant was charged with, inter alia, attempted
murder following a shooting. See Fantauzzi, 19 EDA 2018 (unpub. memo.
at 1-2). Neither the criminal complaint nor the information notified the
defendant that the Commonwealth intended to prove that the victim suffered
serious bodily injury. Id. at 2. Although trial counsel entered into a stipulation
that the victim suffered serious bodily injury, the court did not instruct the
jury to render a finding on that issue, or include a relevant interrogatory on
the verdict sheet. See id. at 2-3. Following his conviction, the defendant was
sentenced to a term of 15 to 30 years’ for attempted murder causing serious
bodily injury. Id. at 3. He also received mandatory minimum sentences for
several of his other convictions. Id.
Following the United States Supreme Court’s decision in Alleyne, the
defendant sought, and was granted collateral relief in the form of a new
sentencing hearing. Fantauzzi, 19 EDA 2018 (unpub. memo. at 4). Relevant
herein, the trial court reimposed the same term of 15 to 30 years’
imprisonment for attempted murder causing serious bodily injury. Id. The
defendant subsequently filed a timely PCRA petition following the
resentencing, alleging, inter alia, that resentencing counsel was ineffective
for failing to object to the imposition of his illegal sentence for attempted
murder causing serious bodily injury. Id. at 9. The PCRA court denied relief.
On appeal, a panel of this Court concluded that the Commonwealth
failed to properly notify the defendant of its intent to prosecute him for
attempted murder with serious bodily injury, and trial counsel’s stipulation
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was insufficient to “put [the defendant] on notice . . . that he would be exposed
to an enhanced sentence[.]” See Fantauzzi, 19 EDA 2018 (unpub. memo.
at 16-17). Accordingly, the panel found:
[The defendant’s] lack of notice and resultant inability to defend
is apparent on the face of the record, and resentencing counsel
should have brought this illegal sentence to the attention of the
resentencing court and/or objected when the resentencing court
re-imposed the enhanced sentence of 15 to 30 years’
incarceration for attempted murder. Resentencing counsel had
no rational basis for failing to raise a challenge to the illegal
sentence, given the lack of notice. Further, resentencing
counsel’s failure to object at resentencing prejudiced [the
defendant], because it left [him] exposed to an enhanced
maximum sentence for that offense, which he received in violation
of Apprendi, supra, instead of the 20-year maximum for
attempted murder generally. Thus, we conclude resentencing
counsel was ineffective for failing to protect [the defendant]
from the illegal sentence enhancement he received for attempted
murder/serious bodily injury.
Id. at 17 (citation omitted & emphases added). Thus, this Court reversed the
order denying PCRA relief, vacated the judgment of sentence, and remanded
for resentencing without the attempted murder enhancement. See id. at 20.
Appellant fails to acknowledge that the Fantauzzi Court granted the
defendant relief based upon resentencing counsel’s ineffectiveness for
failing to object to the enhanced sentence. In the present case, Appellant
represented himself, pro se, at the April 2018 resentencing hearing. Although
he had a constitutional right to do so, when he so chooses, he cannot “revive
defaulted trial claims by alleging his own ineffectiveness[.]” See
Commonwealth v. Blakeney, 108 A.3d 739, 749 (Pa. 2014). Accordingly,
while Appellant still has the right to file a PCRA petition after his judgment of
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sentence following resentencing is final, he cannot assert his own
ineffectiveness for failing to object to the imposition of an enhanced
sentence for attempted murder causing serious bodily injury.26
(B)(4) CONCLUSION ─ PCRA APPEAL
Accordingly, we conclude the trial court had no jurisdiction to entertain
Appellant’s 2020 PCRA Petition filed while his judgment of sentence following
resentencing was not final. Thus, we quash the appeal at Docket No. 2034
EDA 2021.
At Docket No. 1621 EDA 2021, judgment of sentence vacated, in part,
and remanded for resentencing limited to restitution. Jurisdiction
relinquished.
At Docket No. 2034 EDA 2021, appeal quashed. Jurisdiction
relinquished.
____________________________________________
26 Moreover, as noted above, any challenges to trial counsel’s ineffective
assistance are now untimely. See Williams, 151 A.3d at 625.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/9/2023
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