Com. v. Ferst, V.
1007 EDA 2016
Pa. Super. Ct.Oct 30, 2017Background
- Vincent Ferst was convicted in 2003 of multiple robberies, aggravated assault, and related offenses across several docket numbers; aggregate sentence totaled 44.5 to 94 years.
- Mandatory minimum five-to-ten year enhancements under 42 Pa.C.S. § 9712(a) (firearm-based) were applied to some robbery convictions.
- After post-conviction proceedings and appeals, this Court found trial counsel ineffective for failing to appeal those mandatory minimums and remanded for limited resentencing on one docket.
- On remand (March 21, 2013) Ferst’s robbery sentences on the instant docket were reduced (to 4–8 years) and set to run concurrently with related sentences; mandatory minimums were removed on that docket.
- Appellate counsel filed an Anders brief and sought to withdraw, arguing the appeal was frivolous; Ferst filed a pro se brief arguing Alleyne invalidated mandatory minimums on his other unrelated docket numbers.
- The Superior Court reviewed counsel’s Anders compliance, considered Ferst’s pro se claim challenging pre-Alleyne mandatory minimums, and affirmed the judgment of sentence while granting counsel leave to withdraw.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Alleyne renders Ferst’s other pre-Alleyne mandatory minimum sentences illegal and subject to correction on this appeal | Ferst: Alleyne invalidates mandatory minimums imposed on his other docket numbers and the court has continuing jurisdiction to correct illegal sentences | Commonwealth: The resentencing on the instant docket does not implicate other dockets; pre-Alleyne sentences are not automatically illegal absent applicable retroactivity | Court: Denied relief — limited 2013 resentencing affected only the instant docket; pre-Alleyne mandatory minimums are not per se void absent retroactive application of Alleyne |
| Whether appellate counsel complied with Anders/Santiago requirements such that counsel may withdraw | N/A (appellate counsel sought withdrawal) | N/A (court reviews compliance) | Court: Counsel’s Anders brief and client notice satisfied Santiago requirements; withdrawal granted |
| Whether the discretionary aspects of the resentencing present a non-frivolous appellate issue | Ferst suggested he must appeal sentencing steps | Counsel: Any discretionary-sentencing claim is waived and lacks a substantial question; sentences are within guideline ranges and improved | Court: Agreed with counsel — no substantial question or meritorious discretionary-sentencing claim |
| Whether any additional non-frivolous issues exist in the record overlooked by counsel | Ferst filed one pro se claim (Alleyne-related) | Court reviewed the record independently | Court: No additional arguably meritorious issues found; appeal is frivolous |
Key Cases Cited
- Anders v. California, 386 U.S. 738 (1967) (procedure for appointed counsel to withdraw on appeal when case is frivolous)
- Commonwealth v. Dickson, 918 A.2d 95 (Pa. 2007) (holding mandatory enhancement did not apply to an unarmed co-conspirator)
- Alleyne v. United States, 133 S. Ct. 2151 (2013) (any fact that increases penalty must be treated as an element and found by a jury)
- Commonwealth v. Washington, 142 A.3d 810 (Pa. 2016) (Alleyne announces a new rule that does not automatically void pre-existing sentences absent retroactive application)
- Commonwealth v. Ciccone, 152 A.3d 1004 (Pa. Super. 2016) (rejected view that Alleyne renders affected statutes void ab initio for prior sentences)
- Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009) (Anders brief must follow specified content and client notice requirements)
- Commonwealth v. Flowers, 113 A.3d 1246 (Pa. Super. 2015) (appellate court must independently review the record when counsel files an Anders brief)