Com. v. Colbert, L.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
LACY LAMAR COLBERT :
:
Appellant : No. 1796 WDA 2018
Appeal from the PCRA Order Entered November 27, 2018
In the Court of Common Pleas of Allegheny County Criminal Division at
No(s): CP-02-CR-0009509-2014
BEFORE: BOWES, J., LAZARUS, J., and PELLEGRINI, J.*
MEMORANDUM BY BOWES, J.: FILED JANUARY 10, 2020
Lacy Lamar Colbert appeals from the order that denied his petition filed
pursuant to the Post Conviction Relief Act (“PCRA”). We correct Appellant’s
judgment of sentence and affirm the PCRA order.
In 2014, Appellant committed the armed robbery of a coffee shop in
McKeesport, Pennsylvania. Specifically, Appellant entered the store, pointed
a firearm at the cashier, walked behind the counter and removed cash from
the counter drawer, and fled. The victim recognized Appellant from his regular
patronage of the store, despite his efforts to conceal his head with a scarf.
Further, after police apprehended him, Appellant gave a statement describing
his commission of the robbery and apologizing.
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* Retired Senior Judge assigned to the Superior Court.
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Appellant was charged with robbery, theft by unlawful taking, and
possession of a firearm prohibited, terroristic threats, and simple assault.
Count one of the information, entitled “Robbery - serious bodily injury,”
specifically alleged that Appellant violated either subsection (a)(1)(i) or
(a)(1)(ii) of the robbery statute by either inflicting serious bodily injury, or by
threatening or putting a person in fear of serious bodily injury.
At a non-jury stipulated trial, the evidence established that Appellant
had a prior conviction for felony robbery that made him ineligible to possess
a firearm. N.T. Stipulated Non-Jury Trial, 2/16/16, at 11. The trial court also
received photographs of a firearm and clothing recovered from Appellant’s
apartment, Appellant’s signed statement, video of the robbery and stills taken
from it, and the police and incident reports. See id. at 12-13. There was no
evidence or suggestion by the Commonwealth that Appellant inflicted actual
bodily injury on anyone during the robbery. Rather, the Commonwealth
advocated that Appellant’s pointing the firearm at the victim was sufficient to
prove the robbery charge as well as a simple assault by physical menace. See
id. at 25.
At the conclusion of closing arguments, the trial court reported its
verdict on the record as follows:
[Appellant], . . . the terroristic threats I have dismissed. They
haven’t proved that. I don’t believe they have proved the simple
assault, count four, so I will find you not guilty on that. Count
one, the robbery, two, person not to possess, and count five, I
believe they have proved those elements beyond a reasonable
doubt and I find you guilty on those.
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N.T. Stipulated Non-Jury Trial, 2/16/16, at 25-26. The court immediately
proceeded to sentence Appellant to an aggregate term of ten to twenty years
of imprisonment, which included a mandatory minimum sentence as a result
of his prior conviction. See id. at 26-29. The written sentencing order
indicated that Appellant’s sentence for robbery was imposed under “Count 1 -
18 § 3701 §§ A1I - Robbery-Inflict Serious Bodily Injury (F1).”
On direct appeal, Appellant challenged the trial court’s denial of his
pretrial suppression motion, as well as the sufficiency of the evidence to prove
Appellant’s identity as the perpetrator of the crimes and possession of a
firearm. Commonwealth v. Colbert, 160 A.3d 268 (Pa.Super. 2017)
(unpublished memorandum). This Court found no merit in Appellant’s
arguments and affirmed the judgment of sentence. See id.
Appellant filed a timely pro se PCRA petition, counsel was appointed,
and an amended petition filed. The PCRA court held a hearing on the petition
at which trial counsel testified that he was focused upon challenging
Appellant’s identity as the perpetrator, and it did not occur to him to question
whether the conviction was entered at the wrong subsection of the robbery
statute. N.T. PCRA Hearing, 9/18/18, at 5. The Commonwealth argued that
Appellant could not establish that he suffered any prejudice because both
subsections of the robbery statute are enumerated as first-degree felonies
carrying “the same weight and period of incarceration,” and that the erroneous
designation in the written sentencing order is an obvious clerical mistake that
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can be corrected by amending the sentencing order. Id. at 9-10. The PCRA
court took the matter under advisement and ultimately entered an order
denying Appellant’s PCRA petition.
Appellant filed a timely notice of appeal, and both he and the PCRA court
complied with Pa.R.A.P. 1925. Appellant presents one question for this Court’s
consideration:
Did the PCRA court abuse its discretion in finding that counsel was
not ineffective for failing to argue at trial, in a post sentence
motion, or on direct appeal, that the evidence was insufficient to
prove the crime of robbery - infliction of serious bodily injury, 18
PA.C.S. §3701(a)(1)(i), as charged by the criminal information,
for which [Appellant] was adjudged guilty and sentenced?
Appellant’s brief at 4 (unnecessary capitalization omitted).
We begin with a review of the applicable law. “This Court’s standard of
review regarding an order denying a petition under the PCRA is whether the
determination of the PCRA court is supported by the evidence of record and is
free of legal error.” Commonwealth v. Rizvi, 166 A.3d 344, 347 (Pa.Super.
2017). Further, “[i]t is an appellant’s burden to persuade us that the PCRA
court erred and that relief is due.” Commonwealth v. Miner, 44 A.3d 684,
688 (Pa.Super. 2012).
Counsel is presumed to be effective, and a PCRA petitioner bears the
burden of proving otherwise. Commonwealth v. Becker, 192 A.3d 106, 112
(Pa.Super. 2018). To do so, the petitioner must plead and prove (1) the legal
claim underlying his ineffectiveness claim has arguable merit; (2) counsel’s
decision to act (or not) lacked a reasonable basis designed to effectuate the
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petitioner’s interests; and (3) prejudice resulted. Id. The failure to establish
any prong is fatal to the claim. Id. at 113.
In arguing that the PCRA court erred in denying his petition, Appellant
solely focuses upon the fact that the sentencing order reflects a conviction
under subsection (a)(1)(i) of the robbery statute, which is applicable when
serious bodily injury is actually inflicted. Appellant completely ignores that
count one of the information, under the same heading of “robbery - serious
bodily injury,” alleged violation of that subsection or subsection (a)(1)(ii),
which pertains to threatening a person with bodily injury. Likewise, while
contending that the evidence was insufficient to sustain a subsection (a)(1)(i),
Appellant does not dispute that “the evidence was clearly sufficient to establish
that [Appellant] was guilty of robbery by threatening serious bodily injury
when he brandished the gun and pointed it at the victim during the robbery,
a felony of the first degree[,]” and that his sentence was proper for the
subsection (a)(1)(ii) conviction. PCRA Court Opinion, 4/8/19, at 8.
Appellant also fails to address the PCRA court’s explanation for why it
denied him PCRA relief on the issue:
The sentencing order in this case contained a clerical error
in that it stated an incorrect subsection of the robbery statute
under which [Appellant] was convicted but that clerical error had
no impact on the actual verdict and sentence, which were based
on a proper criminal [information] and were supported by the
evidence. Counsel was not ineffective as [Appellant] has failed to
establish any prejudice. Had counsel raised the clerical error in
the sentencing order it would have simply been corrected and
[Appellant] would have received the same sentence. Therefore,
the PCRA petition . . . was appropriately [denied]. To the extent
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any relief is appropriate a corrected sentencing order may be
entered as it is well-settled that a trial court has the inherent,
common-law authority to correct “clear clerical errors” in its
orders.
PCRA Court Opinion, 4/8/19, at 9-10.
Accordingly, Appellant has not met his burden of convincing this Court
that the PCRA court erred in declining to vacate his sentence and reverse his
conviction, which is the relief that Appellant requested. See Amended PCRA
Petition, 7/13/18, at unnumbered 7. Instead, we agree with the PCRA court
and the Commonwealth that correction of the error in the written sentencing
order is the appropriate resolution of the issue. See Commonwealth’s brief at
16 (citing Commonwealth v. Young, 695 A.2d 414 (Pa.Super. 1997)).
In Young, the defendant was charged with two counts of indecent
assault: one under 18 Pa.C.S. § 3126(a)(1) (count two), and another pursuant
to 18 Pa.C.S. § 3126(a)(4) (count three). “The facts elicited throughout the
proceedings below were consistent with a prosecution for indecent assault as
defined by Count 2 of the indictment, and appellee knowingly and voluntarily
admitted to acts which violated Count 2 of the indictment.” Young, supra at
419. However, “the lower court, the prosecution and defense counsel
committed, in essence, a clerical error by permitting appellee to plead guilty
to the wrong sub-section of the indecent assault statute.” Id. The defendant
ultimately filed a PCRA petition resulting in the PCRA court’s allowing him to
withdraw his guilty plea. The Commonwealth appealed, and this Court
reversed the award of PCRA relief. Rather, this Court ruled as follows:
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the PCRA court should have corrected the clerical error of counsel
and the trial court which permitted the judgment of sentence to
indicate that appellee had been sentenced on indecent assault as
defined by Count 3, rather than by Count 2. The power to modify
a judgment of sentence to amend records, to correct mistakes of
court officers or counsel’s inadvertencies is inherent in our court
system, even after the thirty-day time limit set forth in 42
Pa.C.S.A. § 5505, has expired. Thus, we will herein correct the
clerical error which appears on the face of the judgment of
sentence by setting forth the correct sub-section of the indecent
assault statute, i.e., substituting Count 2 of the indictment for
Count 3
Id. at 420 (internal citations and footnote omitted). Accord Commonwealth
v. Berry, 167 A.3d 100, 105 (Pa.Super. 2017) (“Although the docket and
judgment of sentence state [a]ppellant was convicted under section
3926(a)(1), these were patent and obvious clerical errors. . . . As we
ultimately vacate [a]ppellant’s judgment of sentence and remand for
resentencing, we decline to modify the trial court’s sentencing order.”).
We conclude that the erroneous reference to subsection (a)(1)(i) as
opposed to (a)(1)(ii) is unambiguous and clear from the face of the
trial/sentencing transcript.1 The facts and the trial court’s verdicts were
consistent with a prosecution for the threat, rather than the actual infliction,
of bodily injury. See PCRA Court Opinion, 4/8/19, at 6 (discussing that it is
well-established that brandishing a firearm constitutes infliction of fear of
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1 Cf. Commonwealth v. Borrin, 80 A.3d 1219 (Pa. 2013) (concluding court
lacked authority to change written sentencing order to increase the
defendant’s sentence because the ambiguous nature of the statements in the
sentencing transcript did not give rise to finding a patent and obvious clerical
error).
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deadly injury). Further, the term of incarceration originally imposed is
consistent with the (a)(1)(ii) conviction. Accordingly, we follow the Young
Court’s direction and hereby correct Appellant’s February 16, 2016 judgment
of sentence to reflect that his sentence at court one is for his conviction under
18 Pa.C.S. § 3701(a)(1)(ii), rather than (a)(1)(i). The judgment of sentence
remains the same in all other respects.
PCRA order affirmed. Judgment of sentence corrected.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/10/2020
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