Com. v. Barney, J.

J-S47002-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JEREMY HEATH BARNEY :
:
Appellant : No. 640 MDA 2018
Appeal from the Judgment of Sentence March 6, 2018
In the Court of Common Pleas of Lancaster County Criminal Division at
No(s): CP-36-CR-0005676-2012
BEFORE: DUBOW, J., NICHOLS, J., and MUSMANNO, J.
MEMORANDUM BY DUBOW, J.: FILED OCTOBER 15, 2020
Appellant, Jeremy Heath Barney, appeals from the Judgment of
Sentence imposed on March 6, 2018, following his jury conviction of one count
of Rape of a Child, one count of Involuntary Deviate Sexual Intercourse
(“IDSI”) with a Child, and several related crimes.1 After careful review, we
affirm in part, vacate in part, and remand for proceedings consistent with this
Memorandum.
Between January and December 2008, on more than one occasion,
Appellant raped and otherwise sexually abused the victim, his paramour’s five-
year-old son. Police arrested Appellant after the victim revealed the abuse to
his daycare providers.
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1 A jury convicted Appellant of Rape of a Child, IDSI with a Child, two counts
of Indecent Assault, Criminal Solicitation, Unlawful Contact with a Minor, and
Corruption of Minors. 18 Pa. C.S. §§ 3121(c), 3123(b), 3126(a)(7), 902(a),
6318(a)(1), and 6301(a)(1), respectively.
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Following trial in April 2014, a jury convicted Appellant of the charges
set forth above. On August 1, 2014, the trial court sentenced Appellant to an
aggregate term of twenty to forty years of incarceration. The sentence
included a mandatory minimum sentence for Appellant’s IDSI with a Child
conviction. Following Appellant’s timely appeal, this Court affirmed his
Judgment of Sentence. Commonwealth v. Barney, 120 A.3d 1064 (Pa.
Super. 2015) (unpublished memorandum), appeal denied, 124 A.3d 308 (Pa.
2015).
In June 2016, our Supreme Court determined that the application of a
mandatory minimum sentence for IDSI with a Child was unconstitutional.
Commonwealth v. Wolfe, 140 A.3d 651, 660-63 (Pa. 2016). In September
2016, Appellant pro se filed a Petition pursuant to the Post Conviction Relief
Act (PCRA), 42 Pa.C.S. §§ 9541-9546.2 The trial court thereafter vacated
Appellant’s original sentence and resentenced Appellant to an aggregate term
of twenty to forty years of incarceration. Regarding Appellant’s conviction for
IDSI with a Child, the court relied upon the sentencing guidelines and imposed
a standard range sentence of ten to twenty years of incarceration.
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2Appellant’s Petition does not appear in the certified record, but the Lancaster
County Docket confirms its filing. On October 20, 2016, the court appointed
counsel and granted leave to file an amended Petition. The record does not
disclose whether counsel filed an amended Petition, nor is there an Order
disposing of Appellant’s pro se Petition. Nevertheless, on August 8, 2017, the
court issued an Order, scheduling a resentencing hearing for Appellant
pursuant to Wolfe, supra.
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Appellant timely filed a Post-Sentence Motion, which the trial court
denied on April 4, 2018. Appellant timely appealed and filed a court-ordered
Pa.R.A.P. 1925(b) Statement. The court issued a responsive Opinion.
On November 30, 2018, appointed counsel filed an Application for
Remand, requesting a Grazier Hearing.3 According to counsel, Appellant
wished to proceed pro se in order to raise issues “previously litigated in the
original direct appeal, waived by not inclusion in the original direct appeal, as
well as issues which are only cognizable in a timely filed PCRA [and] which
can be filed subsequent to the disposition of this [current] appeal.” Application
for Remand, 11/30/18, at ¶3.
On December 21, 2018, we granted counsel’s Application for Remand.
Upon remand, the trial court conducted a Grazier hearing and determined
that Appellant had waived the right to counsel. Thus, Appellant proceeded
pro se with his appeal.
On January 29, 2019, Appellant pro se filed an Application for Relief,
requesting remand so he could file an amended Pa.R.A.P. 1925(b) Statement
in order to preserve an argument that Magwood v. Patterson, 561 U.S. 320(2010), authorized “a challenge to his unaffected conviction after being
resentenced.” Application for Relief, 1/29/19, at 2 (unpaginated).
On February 11, 2019, we granted Appellant’s Application for Relief and
remanded to the trial court. Upon remand, Appellant filed an Amended
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3 Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1988).
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Pa.R.A.P. 1925(b) Statement, citing Magwood, supra, and raising four
substantive issues, three challenging his underlying conviction and one
challenging the imposition of costs following his resentencing. The trial court
issued a Supplemental Opinion in response.
Appellant raises the following issues on appeal, restated for clarity:
1. Whether Appellant’s resentencing created a new Judgment
subject to direct appeal pursuant to Magwood v. Patterson, 561
U.S. 320 (2010);
2. Whether the Commonwealth violated Appellant’s due process
rights by suppressing and destroying mandatory discovery
pursuant to Brady v. Maryland, 373 U.S. 83 (1963);
3. Whether the Commonwealth violated Appellant’s due process
rights by failing to allege and prove a date for his crimes with
reasonable certainty pursuant to Commonwealth v. Devlin, 333
A.2d 888 (Pa. 1975);
4. Whether the evidence was sufficient to support the verdict of
the jury pursuant to Commonwealth v. Robinson, 817 A.2d
1153 (Pa. [Super.] 2003); and
5. Whether the resentencing court erred when it directed
Appellant to pay court costs related to his resentencing hearing
pursuant to Commonwealth v. Lehman, 201 A.3d 1279 (Pa.
Super. 2019).
See Appellant’s Br., 5/21/19, at 8-9.4
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4 As noted, supra, after this Court granted Appellant’s request for a second
remand, Appellant filed an amended Pa.R.A.P. 1925(b) Statement, raising four
entirely new issues for appellate review. Compare Amended Pa.R.A.P.
1925(b) Statement, 2/25/19, with Pa.R.A.P. 1925(b) Statement, 5/18/18.
Appellant did not reference, incorporate, or otherwise preserve the issues
raised by his prior, appointed appellate counsel. Accordingly, Appellant
abandoned those claims, and we deem them waived. See Pa.R.A.P.
1925(b)(4); see generally Commonwealth v. Jette, 23 A.3d 1032 (Pa.
2011) (holding an appellant is not entitled to hybrid representation);
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In his first issue, Appellant asserts that a Judgment of Sentence consists
of both a conviction and a sentence. Id. at 16. According to Appellant, when
the trial court resentenced him on March 6, 2018, the scope of his appeal
encompassed both the new sentence imposed as well as the merits of his
underlying conviction. See id. at 16-24. Appellant is incorrect.
When a trial court resentences a defendant in order to correct an illegal
sentence, the defendant may not file a direct appeal attacking his underlying
conviction. Commonwealth v. Cook, 175 A.3d 345, 350 (Pa. Super. 2017).
The scope of an appeal is limited to issues pertaining to the resentencing
procedure. Commonwealth v. Anderson, 801 A.2d 1264, 1266 (Pa. Super.
2002).
In support of his claim, Appellant relies on Magwood, supra.5 In that
case, the Supreme Court considered procedural limitations on a petitioner’s
right to allege constitutional defects in a new sentence. Magwood, 561 U.S.
at 323-24. The Court did not recognize the right of a criminal defendant to
challenge his underlying conviction following re-sentencing proceedings.
Indeed, the Court clarified that “Magwood has not attempted to challenge his
underlying conviction.” Id. at 342. Magwood is factually and legally
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Commonwealth v. Ray, 134 A.3d 1109, 1114-15 (Pa. Super. 2016) (citation
omitted) (reiterating that a pro se litigant must comply with the Pennsylvania
Rules of Appellate Procedure and observing that one who chooses to represent
himself “assumes the risk that his lack of legal training will place him at a
disadvantage.”).
5The trial court declined to address this argument. See Trial Ct. Supplemental
Opinion, 3/26/19, at 3-4.
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distinguishable from the instant case. Thus, Appellant’s reliance upon it is
misplaced.
Because Appellant may not challenge his underlying conviction, the
scope of his appeal is limited to issues related to his March 6, 2018
resentencing. Accordingly, Appellant’s first issue is without merit.
In his second, third, and fourth issues, Appellant raises issues relevant
to his underlying conviction. Specifically, he challenges the sufficiency of the
evidence introduced at trial and asserts that the Commonwealth withheld
exculpatory evidence. See Appellant’s Br. at 25, 34, 44. For the reasons
noted above, these issues are beyond the permissible scope of this appeal.
Thus, we decline to address them.
In his fifth issue, Appellant contends that the trial court erred when it
imposed court costs related to his resentencing. Id. at 54. We agree.
Appellant’s claim implicates the legality of his sentence.
Commonwealth v. Lehman, 201 A.3d 1279, 1283 (Pa. Super. 2019), appeal
granted, 215 A.3d 967 (Pa. June 25, 2019). We review an illegal sentencing
claim de novo, and our scope of review is plenary. Commonwealth v.
White, 193 A.3d 977, 985 (Pa. Super. 2018).
“A defendant does not . . . reasonably expect to be financially
responsible for the costs associated with resentencing necessitated by
changes in law many years later.” Lehman, 201 A.3d at 1287. Thus, the
trial court lacks authority to impose costs associated with resentencing a
defendant where the prior sentence was illegal. Id.
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The trial court concedes that it erred when it sentenced Appellant to pay
costs associated with his resentencing because his resentencing resulted from
our Supreme Court’s determination that the mandatory minimum sentence
authorized by statute and imposed for IDSI convictions was illegal. See Trial
Ct. Supplemental Op. at 4.
We agree with the trial court’s analysis. Appellant is not responsible for
the costs associated with his resentencing because the Supreme Court
deemed the law authorizing his initial sentence illegal. Accordingly, we vacate
that portion of his Judgment of Sentence and remand for further proceedings
consistent with this Memorandum. We affirm in all other respects.
Judgment of Sentence affirmed in part and vacated in part. Case
remanded. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/15/2020
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