Com. v. Richardson, A.

J-S04029-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ANDREW RICHARDSON :
:
Appellant : No. 1819 EDA 2020
Appeal from the Judgment of Sentence Entered March 5, 2020
In the Court of Common Pleas of Philadelphia County
Criminal Division at CP-51-CR-0005490-2014
BEFORE: BENDER, P.J.E., MURRAY, J., and STEVENS, P.J.E.*
MEMORANDUM BY MURRAY, J.: FILED MARCH 14, 2022
Andrew Richardson (Appellant) appeals from the judgment of sentence
imposed following a second remand from this Court. Commonwealth v.
Richardson, 2707 EDA 2017 (Pa. Super. Dec. 6, 2019) (unpublished
memorandum) (Richardson II) (remanding for resentencing). Additionally,
Appellant’s counsel (Counsel) has filed a petition to withdraw from
representation and an accompanying brief pursuant to Anders v. California,
386 U.S. 738, 744 (1967), and Commonwealth v. Santiago, 978 A.2d 349,
361 (Pa. 2009). After careful review, we are constrained to deny Counsel’s
petition to withdraw, vacate Appellant’s March 5, 2020 sentence, and remand
for further proceedings.
____________________________________________
* Former Justice specially assigned to the Superior Court.
J-S04029-22
Appellant is incarcerated because he sexually assaulted his girlfriend’s
11-year-old sister. He was arrested on April 1, 2014, and charged with ten
crimes related to the assault.
Appellant appeared for trial and jury selection was completed on July
11, 2016. See Docket Entry 71. The next day, Appellant was “formally
arraigned … on the charges of Involuntary Deviate Sexual Intercourse with a
Child, Unlawful Contact with a Minor, and Corruption of Minors and entered a
plea of not guilty. Remaining charges [were] Nolle Prossed by the
Commonwealth.” Docket Entry 72.
Pertinently, Appellant was arraigned on the following three counts:
COUNT 1 18 Pa.C.S.A. § 3123(b) Involuntary Deviate
Sexual Intercourse with
a Child (IDSIC)
COUNT 2 18 Pa.C.S.A. § 6318(a)(1) Unlawful Contact with a
Minor – Sexual Offense
(UCM)
COUNT 10 18 Pa.C.S.A. § 6301(a)(1) Corruption of Minors
(COM)
See Trial Disposition and Dismissal Form, 7/19/16, at 1-2.
The following seven counts were nolle prossed:
COUNT 3 18 Pa.C.S.A. § 3124.1 Sexual Assault
COUNT 4 18 Pa.C.S.A. § 3123(a)(7) IDSI Person Less Than
16 Years of Age
COUNT 5 18 Pa.C.S.A. § 3127(a) Indecent Exposure
COUNT 6 18 Pa.C.S.A. § 3126(a)(7) Indecent Assault Person
Less Than 16 Years of Age
-2-
J-S04029-22
COUNT 7 18 Pa.C.S.A. § 2701(b)(2) Simple Assault
COUNT 8 18 Pa.C.S.A. § 2705 Recklessly Endangering
Another Person
COUNT 9 18 Pa.C.S.A. § 3126(a)(8) Indecent Assault Person
Less than 16 Years of Age
Id.
Trial began July 12th and concluded on July 15, 2016, with the jury
finding Appellant “guilty on all [three] charges.” Docket Entry 91. The jury
convicted Appellant of involuntary deviate sexual intercourse with a child
(IDSIC), unlawful contact with a minor (UCM), and corruption of minors
(COM).1 The trial court deferred sentencing for the preparation of a
presentence investigation report and assessment by the Sexual Offenders
Assessment Board. See Order, 7/18/16.
On July 24, 2017, the trial court sentenced Appellant to “an aggregate
12½ to 25 years of incarceration to be followed by 10 years of probation” to
“commence July 24, 2017.” Order of Sentence, 7/24/17. The order specified
that the aggregate sentence consisted of the following individual sentences:
COUNT 2 18 Pa.C.S.A. § 6318(a)(1) UCM 10 – 20
years in prison
COUNT 4 18 Pa.C.S.A. § 3123(a)(7) IDSIC 10 years of
probation “consecutive to the confinement sentences”
____________________________________________
1 18 Pa.C.S.A. §§ 3123(b), 6318, and 6301.
-3-
J-S04029-22
COUNT 10 18 Pa.C.S.A. § 6301(a)(1) COM 2½ - 5
years in prison “consecutive to the confinement sentence on
Count 2.”
Id., see also N.T., 7/24/17, at 31-32.
At the hearing, parties and the trial court noted that Appellant had been
sentenced and was serving 11½ to 23 months of incarceration on an unrelated
robbery conviction. N.T., 7/24/17, at 30-31. With respect to the underlying
convictions, the trial court stated Appellant would receive “[c]redit for time
served.” Id. at 32. However, the sentencing order did not mention credit for
time served. See Order of Sentence, 7/24/17.
Appellant filed a direct appeal. As with this appeal, Appellant’s counsel
sought to withdraw from representation pursuant to Anders, supra and
Santiago, supra. Upon review, we found “significant discrepancies” between
the criminal information and the sentencing order. Commonwealth v.
Richardson, 2707 EDA 2017, at *13 (Pa. Super. April 8, 2019) (unpublished
memorandum) (Richardson I). Recognizing that the discrepancies
“potentially indicate . . . illegal sentencing concerns,” we explained:
The Commonwealth charged Appellant under two provisions of the
IDSI statute in the criminal information. See Criminal
Information, 5/22/14, at 1. He was charged with a violation of
Section 3123(a)(1) at count 1, and Section 3123(a)(7) at count
4. Subsequently, Count 4 was nolle prossed prior to
trial. See Trial Disposition and Dismissal Form (hereinafter
“TDDF”), 7/19/16, at 1. However, the verdict slip indicates that
the jury found Appellant guilty of “Involuntary Sexual Deviate
Intercourse with a [c]hild under 13,” indicating a violation under
Section 3123(b). See Verdict Report, 7/15/16, at 1 (single page).
Moreover, the TDDF indicates that Appellant was convicted at
count 1 of a violation of Section 3123(b), where, as noted above,
count 1 was listed as a violation of Section 3123(a)(1) in the
-4-
J-S04029-22
criminal information. In the sentencing order, Appellant was
sentenced for a violation of Section 3123(a)(7) at count 4,
whereas the trial court indicated in the TDDF that count 4 had
been nolle prossed prior to trial. These discrepancies, which
potentially indicate the presence of non-frivolous claims that could
have been raised on direct appeal, were not addressed in
[the] Anders Brief, nor were they addressed in the trial court’s
Rule 1925(a) opinion.
Richardson I, at *13-14 (footnote omitted). We denied counsel’s petition to
withdraw, remanded with instructions, and retained jurisdiction. Id. at 16.
On remand, the trial court appointed new counsel, who filed a timely
Rule 1925(b) statement. See Richardson II, at *2. The trial court issued a
supplemental Rule 1925(a) statement and the case returned to Superior
Court. We explained:
On remand, the trial court, the Commonwealth, and Appellant
reached a consensus that the court erroneously sentenced
Appellant at count 4, a charge that had been nolle prossed prior
to trial. See Supplemental Trial Court Opinion (STCO), 7/31/19,
at 4; Commonwealth’s Post-Remand Brief at 9; Appellant’s Post-
Remand Brief at 33. The trial court attributes this to a clerical
error, and indicates that it intended to sentence Appellant to 10
years’ probation at count 1, not count 4. STCO at 4. The
Commonwealth agrees, and suggests a limited remand for
correction of the sentencing order. Commonwealth’s Post-Remand
Brief at 9. Appellant argues that we need only vacate the sentence
imposed at count 4. Appellant’s Post-Remand Brief at 35. He
contends that we need not remand for resentencing—ostensibly
because vacating the sentence at count 4 does not upset the
sentencing scheme below. Id. at 33.
The trial court’s sentencing scheme clearly would be impacted if
we vacated Appellant’s sentence at count 4 and took no further
action. The trial court sentenced Appellant to 10-20 years’
incarceration at count 2 (UCM); to a 2½-5 years’ incarceration at
count [10] (COM), consecutive to count 2; and to 10 years’
probation at count 4, consecutive to the imposed terms of
incarceration. Vacating a consecutive term of 10 years’ probation
-5-
J-S04029-22
will have a substantial effect on the sentencing scheme by
reducing the time which Appellant will be under supervision by 10
years.
Moreover, Appellant concedes that 1) he was also charged with
IDSIC at count 1; 2) the trial court instructed the jury on that
charge, and 3) the jury convicted him for that offense. Id. Yet,
Appellant makes no argument disputing the trial court’s finding
that it intended the sentence imposed at count 4 to be applied at
count 1. For these reasons, we reject Appellant’s request that we
vacate his sentence at count 4 and take no further action.
However, we note that the trial court has acted inconsistently with
its contention that the mistake here was merely a clerical error.
“It is well-settled in Pennsylvania that a trial court has the
inherent, common-law authority to correct ‘clear clerical errors’ in
its orders.” Commonwealth v. Borrin, 12 A.3d 466, 471 (Pa.
Super. 2011). “A trial court maintains this authority even after the
expiration of the 30 day time limitation set forth in 42 Pa.C.S.A. §
5505 for the modification of orders.” Id.; see also 42 Pa.C.S.A.
§ 5505 (“Except as otherwise provided or prescribed by law, a
court upon notice to the parties may modify or rescind any order
within 30 days after its entry, notwithstanding the prior
termination of any term of court, if no appeal from such order has
been taken or allowed.”). Here, the trial court describes the
sentence imposed at count 4 as a clerical error, but it provides no
indication to this Court that the error has been corrected. As no
correction has been made, Appellant’s sentence imposed at count
4 remains illegal. If we were to merely vacate Appellant’s sentence
at count 4, the trial court’s overall sentencing scheme will be
disrupted. Accordingly, we vacate Appellant’s sentence and
remand for resentencing.
Richardson II, at *2.
Following our second remand, the trial court conducted a sentencing
hearing on March 5, 2020, and entered an amended sentence which provided:
COUNT 1 18 Pa.C.S.A. § 3123(b) IDSIC 10 years of
probation “consecutive to” confinement at Count 10
COUNT 2 18 Pa.C.S.A. § 6318(a)(1) UCM 10 – 20 years of
incarceration
-6-
J-S04029-22
COUNT 10 18 Pa.C.S.A. § 6301(a)(1) COM 2½ - 5 years in
prison “consecutive to the confinement sentence on
Count 2.”
Amended Sentence, 3/5/20.
Appellant did not file a timely appeal. On July 8, 2020, Appellant filed
a petition pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§
9541-9546, requesting to permission to appeal nunc pro tunc. The
Commonwealth filed a response indicating it did not oppose the request. On
August 27, 2020, the PCRA court granted Appellant permission to appeal nunc
pro tunc and appointed Counsel to represent Appellant. Counsel filed an
appeal on Appellant’s behalf, and the trial court directed Appellant to file a
Rule 1925(b) statement.2
On December 29, 2020, Counsel filed a statement consistent with
Pa.R.A.P. 1925(c)(4) (in criminal cases, “counsel may file of record and serve
on the judge a statement of intent to file an Anders/Santiago brief in lieu of
filing a Statement”). Counsel averred that after “thorough review of the notes
of testimony and various court pleadings and documents, counsel now states
that there are no non-frivolous issues preserved for appellate review, i.e.,
direct appeal.” Concise Statement, 12/29/20.3 Because there “were no issues
____________________________________________
2 The trial court granted Counsel’s request for extension of time to file the
statement.
3 On January 22, 2021, Appellant submitted a pro se motion to this Court,
presumably in response to Counsel’s December 29, 2020, statement asserting
there were no non-frivolous issues for appellate review. In the motion,
Appellant asserted that as a result of being resentenced, his “status summary
(Footnote Continued Next Page)
-7-
J-S04029-22
raised” in the concise statement, the trial court issued an opinion finding “all
issues for appeal have been waived.” Trial Court Opinion, 3/16/21, at 2.
On August 3, 2021, Counsel filed the Anders brief and petition to
withdraw from representation. On August 16, 2021, we issued an order
finding Counsel’s petition to withdraw deficient, noting Counsel’s letter to
Appellant “fails to specifically advise Appellant of his right to ‘raise any points
that the appellant deems worth of the court’s attention in addition to the points
raised by counsel in the Anders brief.’” Order, 8/16/21 (quoting
Commonwealth v. Harden, 103 A.3d 107, 110 (Pa. Super. 2014)). We
directed Counsel to furnish an amended letter to Appellant advising him of his
right to raise additional points with this Court within 14 days. Id. Counsel
complied with the order.
On September 2, 2021, Appellant filed a pro se response in opposition
to Counsel’s Anders brief. Appellant asserts “there are merit[orious] issues.”
Pro Se Response to Anders Brief at 15 (numbering corrected). Appellant
claims an additional four years “have been added onto the minimum and
maximum dates of Appellant’s sentence which should have never been added.
____________________________________________
from prison records” indicated his minimum and maximum sentence dates
were “increased by 4 yrs.” Appellant attached two “Sentence Status
Summary” documents, dated 2017 and 2020, issued by the Department of
Corrections. Because Appellant was represented by Counsel, we forwarded
the pro se motion to Counsel, with “documents herewith that we received from
your client, Andrew Richardson, in the above-captioned matter. This is being
forwarded to you, unfiled, pursuant to Commonwealth v. Jette, 23 A.3d
1032 (Pa. 2011) [(rejecting hybrid representation)].” Letter, 1/22/21
(emphasis added).
-8-
J-S04029-22
And this not only shows a violation of Appellant’s right but also a violation of
orders from the Superior Court.” Id. Appellant requests that Counsel “not be
granted approval to withdraw from representation.” Id.Perhaps unaware of Appellant’s pro se filing, the Commonwealth, on
December 19, 2021, filed a brief expressing agreement with Counsel that “no
non frivolous issues can be raised on appeal,” and concluding “no appellate
relief is due.” Commonwealth Brief at 4.
It is well-settled that before being permitted to withdraw from
representation, Counsel must satisfy procedural and substantive
requirements:
Counsel must: 1) petition the court for leave to withdraw stating
that, after making a conscientious examination of the record,
counsel has determined that the appeal would be frivolous; 2)
furnish a copy of the brief to the defendant; and 3) advise the
defendant that he or she has the right to retain private counsel or
raise additional arguments that the defendant deems worthy of
the court’s attention.
Commonwealth v. Cartrette, 83 A.3d 1030, 1032 (Pa. Super. 2013) (en
banc) (citing Commonwealth v. Lilley, 978 A.2d 995, 997 (Pa. Super.
2009)).
Here, Counsel’s petition to withdraw states he has conducted a careful
and thorough review of the record and applicable case law in determining the
appeal is frivolous. Petition to Withdraw from Representation, 8/3/21, at ¶ 2.
Counsel also filed a copy of the amended letter he sent to Appellant, in which
Counsel advised Appellant he could retain private counsel, proceed pro se or
-9-
J-S04029-22
raise any additional points Appellant deems worthy of this Court’s attention.
Amended Letter, 8/30/21. Counsel attached a copy of the Anders brief to his
letter. Thus, Counsel satisfied the procedural mandates for withdrawal.
With respect to substantive requirements, an Anders brief must:
(1) provide a summary of the procedural history and facts, with
citations to the record; (2) refer to anything in the record that
counsel believes arguably supports the appeal; (3) set forth
counsel’s conclusion that the appeal is frivolous; and (4) state
counsel’s reasons for concluding that the appeal is frivolous.
Counsel should articulate the relevant facts of record, controlling
case law, and/or statutes on point that have led to the conclusion
that the appeal is frivolous.
Cartrette, 83 A.3d at 1032 (citing Santiago, 978 A.2d at 361)). If Counsel
has satisfied the above requirements, it is this Court’s duty to conduct review
to determine whether there are any non-frivolous issues the appellant could
raise on appeal. Commonwealth v. Dempster, 187 A.3d 266, 272 (Pa.
Super. 2018) (en banc).
Instantly, Counsel’s Anders brief includes the history and facts of the
case, references facts supporting Appellant’s appeal, sets forth Counsel’s
conclusion that the appeal has no merit, and includes Counsel’s reasoning for
his conclusion. See Anders Brief at 4-7. Counsel has complied with the
procedural and substantive requirements of Anders and Santiago.
In the Anders brief, Counsel examines whether the trial court imposed
an illegal sentence. Counsel relates that the trial court resentenced Appellant
on March 5, 2020, correcting the error previously identified by this Court.
Anders Brief at 20; see also Richardson II. Counsel avers the “sentencing
- 10 -
J-S04029-22
scheme for the aggregate sentence imposed on March 5, 2020, is exactly the
same as the sentencing scheme for the aggregate sentence imposed on July
24, 2017.” Id. Counsel thus concludes that “there are no non-frivolous issues
preserved for appeal.” Id.As discussed above, Appellant disputes Counsel’s conclusion that his
sentencing claim is frivolous and lacks merit. Although Appellant did not
specifically identify time credit and the calculation of his sentence with the
trial court, challenges to the legality of a sentence cannot be waived. See
Commonwealth v. Davis, 852 A.2d 392, 399 (Pa. Super. 2004) (“An attack
upon the court’s failure to give credit for time served is an attack upon the
legality of the sentence and cannot be waived.”). “Issues concerning the
legality of a sentence are questions of law; our standard of review is de novo
and our scope of review is plenary. Commonwealth v. Alston, 212 A.3d
526, 528 (Pa. Super. 2019).
The Sentencing Code provides:
(1) Credit against the maximum term and any minimum term
shall be given to the defendant for all time spent in custody as
a result of the criminal charge for which a prison sentence is
imposed or as a result of the conduct on which such a charge is
based. Credit shall include credit for time spent in custody prior
to trial, during trial, pending sentence, and pending the resolution
of an appeal.
42 Pa.C.S.A. § 9760(1) (emphasis added). Thus, “a defendant shall be given
credit for any days spent in custody prior to the imposition of sentence, but
only if such commitment is on the offense for which sentence is
- 11 -
J-S04029-22
imposed.” Commonwealth v. Infante, 63 A.3d 358, 367 (Pa. Super. 2013)
(citation omitted).
As noted, the trial court at the first sentencing hearing stated that
Appellant was to receive “[c]redit for time served.” N.T., 7/24/17, at 32. At
the second resentencing hearing, there was no discussion or mention of time
credit or recalculation of the amended sentence. See generally N.T., 3/5/20;
Amended Sentencing Order, 3/5/20. Also, the record contains DC-300B Court
Commitment Forms, which state Appellant is to receive “0 days” credit for
time served. See Court Commitment Form, 7/24/17, at 1, 3; Court
Commitment Form (Corrected), 3/5/20, at 1, 3. At this juncture, it bears
repeating that Appellant appears to have been incarcerated since his arrest
on April 1, 2014. Further, Appellant’s sentence in this case may be impacted
by unrelated sentence(s), given the brief discussion at the first sentencing
hearing regarding Appellant’s incarceration for a robbery conviction. See
N.T., 7/24/17, at 30-31. Accordingly, we are constrained to vacate Appellant’s
sentence and remand for resentencing.
We recognize that when an Anders brief has been filed and we disagree
with counsel’s conclusion that the appeal is frivolous, we may remand for the
filing of an advocate’s brief. See Commonwealth v. Wrecks, 931 A.2d 717,
721 (Pa. Super. 2007). However, under the circumstances, we decline to
direct the filing of an advocate’s brief on remand. Rather, the trial court shall
conduct a third sentencing hearing and impose a sentence consistent with this
- 12 -
J-S04029-22
decision. See Commonwealth v. Hankerson, 118 A.3d 415, 421-22 (Pa.
Super. 2015) (vacating an illegal sentence and remanding for resentencing
without ordering the filing of an advocate’s brief).
Counsel’s petition to withdraw denied. Judgment of sentence vacated.
Case remanded for proceedings consistent with this decision. Jurisdiction
relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/14/2022
- 13 -