Com. v. Cole, J.
Com. v. Cole, J. No. 615 WDA 2016
| Pa. Super. Ct. | May 26, 2017Background
- James Charles Cole pleaded guilty (Mar. 18, 2013) to multiple offenses involving a minor and was sentenced to 6–12 months, immediately paroled, and placed on five years’ probation with one year of intermediate punishment.
- On March 24, 2014 the trial court revoked probation for technical violations and lack of housing for intermediate punishment and resentenced Cole to 2–6 years’ incarceration plus 11 years’ probation consecutive to incarceration.
- Cole appealed; his first appeal was deemed waived for failure to include a Pa.R.A.P. 2119(f) statement. He then filed a timely pro se PCRA petition and counsel was appointed.
- In an amended PCRA petition Cole alleged ineffective assistance of hearing and appellate counsel for failing to preserve discretionary-sentencing claims and for omitting a Rule 2119(f) statement, and sought reinstatement of post-sentence and direct-appeal rights nunc pro tunc.
- The PCRA court reinstated Cole’s direct-appeal rights nunc pro tunc but did not expressly reinstate his post-sentence motion rights; Cole appealed the revocation sentence nunc pro tunc.
- The Superior Court held Cole’s challenge to the discretionary aspects of sentencing was waived because he did not object at sentencing or file a post-sentence motion; the court declined to reach the merits and affirmed the judgment of sentence.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the revocation sentence (2–6 years) was an abuse of discretion under 42 Pa.C.S. § 9771(c) given it was based on technical violations and lack of housing | Cole: sentence is disproportionate to conduct (housing inability/technical violations) and discretionary aspects should be reviewed | Commonwealth: sentence was within court’s discretion after probation revocation; procedural default applies | Waived: Cole failed to object at sentencing or file a post-sentence motion; claim is waived and merits not reached |
| Whether the PCRA court’s reinstatement of direct appeal rights (but not post-sentence rights) should allow merits review of discretionary-sentencing claim | Cole: ineffective assistance of counsel deprived him of post-sentence remedies and PCRA relief should restore those rights nunc pro tunc | Commonwealth/PCRA court: reinstated direct-appeal rights only; appellant did not preserve argument before this court | Denied: Superior Court declined to remand or reach merits because post-sentence rights were not reinstated and Cole did not preserve the issue on appeal |
Key Cases Cited
- Liston v. Commonwealth, 977 A.2d 1089 (Pa. 2009) (PCRA court may reinstate post-sentence rights nunc pro tunc when ineffective assistance is proven)
- Cartrette v. Commonwealth, 83 A.3d 1030 (Pa. Super. 2013) (challenges to discretionary aspects of sentence must be raised in post-sentence motion or at sentencing)
- Kalichak v. Commonwealth, 943 A.2d 285 (Pa. Super. 2008) (when probation is revoked, defendant must preserve discretionary-sentencing challenges at revocation sentencing or in a post-sentence motion)
- Carrillo-Diaz v. Commonwealth, 64 A.3d 722 (Pa. Super. 2013) (four-part test for invoking appellate review of discretionary aspects of sentence)
- Allen v. Commonwealth, 24 A.3d 1058 (Pa. Super. 2011) (appellate review of discretionary sentencing is not absolute and requires procedural prerequisites)