COMMONWEALTH OF PENNSYLVANIA v. REINALDO FANTAUZZI
No. 502 EDA 2021
No. 503 EDA 2021
IN THE SUPERIOR COURT OF PENNSYLVANIA
FILED APRIL 27, 2022
2022 PA Super 75
BEFORE: OLSON, J., KING, J., and McCAFFERY, J.
J-S02008-22
Appeal from the Judgment of Sentence Entered November 9, 2020 In the Court of Common Pleas of Northampton County Criminal Division at No(s): CP-48-CR-0003898-2005
These cases are before us on consolidated cross-appeals.1 At 502 EDA 2021, the
After careful review and consideration, we conclude that the Commonwealth‘s jurisdictional argument is dispositive of all issues raised within the context of this appeal. Accordingly, we vacate the judgment of sentence entered on November 9, 2020, and remand this matter for re-imposition of the original sentence imposed by the trial court on September 14, 2006, and affirmed by this Court on August 15, 2007.
The record demonstrates that, on July 12, 2006, a jury convicted Fantauzzi of criminal attempt to commit homicide (2 counts), aggravated assault (4 counts), recklessly endangering another person (4 counts), persons not to possess firearms (1 count), and firearms not to be carried without a license (1 count).5 The charges arose from the following event:
[Fantauzzi‘s convictions arose from an incident in which he shot] at four people in a drive-by incident. One person was sitting in a car; three were on a porch of a nearby house. One of the individuals on the porch, who was already wheelchair bound, was struck [by a bullet] in the leg, thereby constituting serious bodily injury.
Commonwealth v. Fantauzzi, 2016 WL 1567073, at *1 (Pa. Super. Filed April 18, 2016) (unpublished memorandum).
The trial court imposed an aggregate sentence of 28 to 56 years’ incarceration on September 14, 2006. This Court affirmed Fantauzzi‘s judgment of sentence on August 15, 2007, and our Supreme Court
On February 13, 2008, Fantauzzi filed pro se a petition pursuant to the PCRA. The PCRA court denied Fantauzzi‘s petition on December 1, 2008. This Court affirmed the order denying Fantauzzi‘s PCRA petition on January 13, 2010. Commonwealth v. Fantauzzi, 991 A.2d 356 (Pa. Super. Filed January 13, 2010) (unpublished memorandum).6
On July 3, 2014, Fantauzzi filed pro se a petition for writ of habeas corpus.7 As our resolution of the issues raised in these appeals turns on the legal implications of Fantauzzi‘s July 3, 2014 filing, we recount the procedural developments surrounding that submission in some detail.
Upon its filing, the PCRA court treated Fantauzzi‘s petition for writ of habeas corpus as a PCRA petition.8 See PCRA Court Order, 8/7/14 (stating, “[t]his petition is construed as a motion for post-conviction collateral relief” (extraneous capitalization omitted)). The PCRA court subsequently appointed PCRA counsel to represent Fantauzzi.9 On November 5, 2014, the PCRA court ordered the following:
[Fantauzzi] shall have 30 days to file a petition nunc pro tunc for reconsideration
of sentence and a brief in support thereof. The Commonwealth shall have 30 days thereafter to file a responsive brief. Upon receipt of the Commonwealth‘s brief, the parties shall list this matter for a miscellaneous hearing list for argument.
PCRA Court Order, 11/5/14 (paragraph format omitted). On November 12, 2014, Fantauzzi filed a motion to correct illegal sentence and nunc pro tunc motion to modify sentence (“motion to correct illegal sentence“) asserting, inter alia, that Fantauzzi‘s sentence was illegal because the trial court imposed mandatory minimum sentences pursuant to
At the February 20, 2015 hearing, the PCRA court stated,
[Fantauzzi] has pursued petitions for post[-]conviction [collateral] relief which have been exhausted. He filed the instant motion to correct illegal sentence and nunc pro tunc motion to modify sentence on [] November 12, 2014. We are here for the hearing on that matter.
N.T., 2/20/15, at 3. The PCRA court stated that it understood that “there [was] an agreement of counsel in light of the [motion to correct illegal sentence] and proceed with a new sentence hearing that does not consider the [mandatory minimum sentence] provisions of
I have interpreted [Alleyne, supra,] and not only [its] progeny but also the cases that came before it[ regarding] Pennsylvania mandatory minimum sentences. [W]e believe that there was an issue with regard to the sentencing. However, the strength of that legal issue by agreement of what we‘re doing here today is not being contested. [T]his is part of the agreement that I believe we had with the Commonwealth. The [trial c]ourt is not being asked to pass on whether or not our motion [to correct illegal sentence] is correct or not. It is simply an agreement by the Commonwealth and [Fantauzzi] to allow the [trial c]ourt to re-evaluate or to evaluate not only the sentence that was given but also any new information that [the trial c]ourt might have in terms of imposing sentence.
Id. at 7-8 (paragraph formatting omitted). Thereupon, the PCRA court vacated the September 14, 2006 judgment of sentence and granted Fantauzzi relief in the form of a re-sentencing hearing. Id. at 9.
At the conclusion of the re-sentencing hearing, the trial court imposed an aggregate sentence of 28 to 56 years’ incarceration.12 Trial Court Order, 2/20/15 (noting that Fantauzzi‘s sentence was to run consecutively to all other sentences, and he was to be given credit for time served). On February 27, 2015, Fantauzzi filed a post-sentence motion requesting the trial court reconsider its judgment of sentence. The trial court subsequently denied Fantauzzi‘s post-sentence motion on March 2, 2015.
On appeal, this Court affirmed Fantauzzi‘s February 20, 2015 judgment of sentence.13 Fantauzzi, 2016 WL 1567073, at *1. Fantauzzi did not seek discretionary review by our Supreme Court.
On May 4, 2017, Fantauzzi filed pro se a PCRA petition asserting, inter alia, a claim of ineffective assistance of trial counsel and a claim asserting the imposition of a sentence greater than the lawful maximum. Fantauzzi‘s Pro Se PCRA Petition, 5/4/17, at ¶12; see also
On September 11, 2017, Fantauzzi filed pro se an amended PCRA petition asserting numerous claims of ineffective assistance of counsel. See Fantauzzi‘s Pro Se Amended PCRA Petition, 9/11/17, at 6. On November 8, 2017, the PCRA court denied Fantauzzi‘s petition.14 On appeal, Fantauzzi raised claims of ineffective assistance of re-sentencing counsel for (1) failure to object to the trial court‘s reliance on an incorrect prior record score when it re-sentenced Fantauzzi, and (2) for failure to object to Fantauzzi being re-sentenced for criminal attempt to commit homicide that involved serious bodily injury in violation of Fantauzzi‘s constitutional rights. Commonwealth v. Fantauzzi, 2019 WL 2226115, at *3 (Pa. Super. Filed May 22, 2019) (unpublished memorandum). This Court found that the PCRA court erred as a matter of law when it “incorrectly reasoned Fantauzzi had either waived his ineffectiveness claims or previously litigated them in earlier proceedings.” Id. at *5. Upon review, this Court found that,
the Commonwealth charged [Fantauzzi] with [criminal attempt to commit homicide] generally and did not include in the criminal complaint or information the element of serious bodily injury in relation to [this charge]. The Commonwealth also failed to put [Fantauzzi] on notice that the Commonwealth intended to prosecute and prove [criminal attempt to commit homicide involving serious bodily injury] at trial. The Commonwealth did not prosecute [Fantauzzi] for [criminal attempt to commit homicide involving serious bodily injury].
Id. at *7. As such, this Court concluded that Fantauzzi‘s sentence of 15 to 30 years’ incarceration for one count of criminal attempt to commit homicide – serious bodily injury constituted an illegal sentence because the re-sentencing court was not permitted to impose an enhanced sentence under
[Fantauzzi‘s] lack of notice and resultant inability to defend is apparent on the face of the record, and resentencing counsel should have brought this illegal sentence to the attention of the resentencing court [and] objected when the
resentencing court re-imposed the enhanced sentence of 15 to 30 years’ incarceration for attempted murder. Resentencing counsel had no rational basis for failing to raise a challenge to the illegal sentence, given the lack of notice. Further, resentencing counsel‘s failure to object at [the] resentencing [hearing] prejudiced [Fantauzzi], because it left [Fantauzzi] exposed to an enhanced maximum sentence for that offense, which he received in violation of Apprendi v. New Jersey, 530 U.S. 466 (2000), instead of the 20-year maximum for attempted murder generally. Thus, we conclude resentencing counsel was ineffective for failing to protect [Fantauzzi] from the illegal sentence enhancement he received for [criminal attempt to commit homicide involving] serious bodily injury.
Id. This Court vacated Fantauzzi‘s February 20, 2015 judgment of sentence and remanded the case so the trial court could re-sentence Fantauzzi without the criminal attempt to commit homicide enhancement pursuant to Section 1102(c). Id. at *8. Our Supreme Court denied Fantauzzi‘s petition for allowance of appeal on February 2, 2020. Commonwealth v. Fantauzzi, 223 A.3d 1286 (Pa. 2020).
On November 9, 2020, the trial court re-sentenced Fantauzzi to an aggregate 23 to 46 years’ incarceration. Trial Court Order, 11/9/20 (ordering that Fantauzzi receive credit for time served and that his newly-imposed sentence was to run consecutively to any other sentence he was serving). On November 19, 2020, Fantauzzi filed a post-sentence motion to modify his sentence. That same day, the Commonwealth filed a motion to modify Fantauzzi‘s sentence pursuant to
On March 1, 2021, both the Commonwealth and Fantauzzi appealed from the November 9, 2020 judgment of sentence as made final by the January 28, 2021 order denying their respective motions. The trial court ordered both the Commonwealth and Fantauzzi to file concise statements of errors complained of on appeal pursuant to
The Commonwealth raises the following issues for our review:
- Did the [trial] court err in finding that it had jurisdiction to resentence [Fantauzzi]?
- In the alternative, did the [trial] court err by misconstruing the remand directive from [this] Court?
Commonwealth‘s Brief (502 EDA 2021) at 4.
Fantauzzi raises the following issues for our
- Whether the trial court committed an abuse of discretion in imposing an aggregate sentence which was clearly unreasonable in light of the nature and circumstances of the offense?
- Whether the trial court erred in denying the motion for extraordinary relief?
Fantauzzi‘s Brief (503 EDA 2021) at 4 (extraneous capitalization omitted).
The Commonwealth‘s first issue - that the trial court lacked subject matter jurisdiction to re-sentence Fantauzzi on February 20, 2015, and November 9, 2020 - raises a pure question of law and is not waivable. Commonwealth v. Salley, 957 A.2d 320, 322 (Pa. Super. 2008) (stating that, a challenge to a trial court‘s lack of subject matter jurisdiction to resentence a defendant raises a question of law). When examining a question of law, our scope of review is de novo, and our standard of review is plenary. Commonwealth v. Hemingway, 13 A.3d 491, 496 (Pa. Super. 2011) (stating that, “[t]he existence of subject matter jurisdiction goes to the heart of a court‘s ability to act in a particular case” and a challenge to subject matter jurisdiction “is not waivable, even by consent, and may be raised by any party or by the court, sua sponte, at any stage of the proceeding“).
Here, the Commonwealth asserts that the genesis of Fantauzzi‘s November 9, 2020 judgment of sentence was Fantauzzi‘s petition for writ of habeas corpus filed on July 3, 2014, that resulted in a series of judicial events as follows: (1) the grant of collateral relief in the form of a new sentencing proceeding and Fantauzzi‘s February 20, 2015 judgment of sentence; (2) the subsequent filing of a PCRA petition raising an ineffective assistance of re-sentencing counsel claim; (3) the November 8, 2017 order denying Fantauzzi collateral relief; (4) this Court‘s May 22, 2019 decision remanding the matter to the trial court for a new sentencing proceeding; (5) the November 9, 2020 judgment of sentence; and (6) the instant appeal. Commonwealth‘s Brief (502 EDA 2021) at 13. The Commonwealth contends that the PCRA court properly treated Fantauzzi‘s July 3, 2014 petition for writ of habeas corpus as a PCRA petition, initially, but failed to recognize that, as a PCRA petition, it was untimely and without an exception to the jurisdictional time-bar. Id. at 13-17. As such, the Commonwealth argues that the PCRA court lacked jurisdiction over the untimely PCRA petition and was unable to grant relief in the form of a new sentencing proceeding. Id. at 17. The Commonwealth asserts that because the PCRA court lacked jurisdiction over the untimely PCRA petition, the subsequent February 20, 2015 judgment of sentence, and all matters which followed, including the November 9, 2020 judgment of sentence, were null and void ab initio. Id. at 19.
The Commonwealth‘s jurisdictional argument pertaining to the untimeliness of a PCRA petition that is not the basis of the instant appeal but, rather, appears in the procedural history of the case appears to be an issue of first impression. It is well-established that the timeliness of a PCRA petition is jurisdictional and that if the petition is untimely, courts lack jurisdiction over the petition and cannot grant relief. Commonwealth v. Wharton, 886 A.2d 1120, 1124 (Pa. 2005); see also Commonwealth v. Callahan, 101 A.3d 118, 121 (Pa. Super. 2014) (holding, courts do not have jurisdiction over an untimely PCRA petition). “[T]he PCRA is intended to be the sole means of achieving post-conviction [collateral] relief.” Commonwealth v. Taylor, 65 A.3d 462, 465 (Pa. Super. 2013). If an issue is cognizable under the PCRA, the issue
Here, the record demonstrates that the trial court imposed an aggregate sentence of 28 to 56 years’ incarceration on September 14, 2006. This Court affirmed Fantauzzi‘s judgment of sentence on August 15, 2007, and our Supreme Court denied Fantauzzi‘s petition for allowance of appeal on December 24, 2007. See Fantauzzi, 935 A.2d at 10; see also Fantauzzi, 940 A.2d at 362. Fantauzzi did not seek discretionary review before the Supreme Court of the United States. Consequently, Fantauzzi‘s judgment of sentence became final on March 24, 2008, 90 days after the expiration of the time in which to seek discretionary review with the Supreme Court of the United States.16 U.S. Sup. Ct. R 13(1) (stating, “A petition for a writ of certiorari seeking review of a judgment of a lower state court that is subject to discretionary review by the state court of last resort is timely when it is filed with the Clerk within 90 days after entry of the order denying discretionary review.“); see also
Here, a review of Fantauzzi‘s July 3, 2014 petition for writ of habeas corpus demonstrates that Fantauzzi asserted his sentence was illegal because the trial court imposed mandatory minimum sentences pursuant to
Fantauzzi‘s July 3, 2014 petition for writ of habeas corpus sets forth a claim that his aggregate sentence of 28 to 56 years’ incarceration resulted from the imposition of a sentence greater than the lawful maximum because the trial court imposed mandatory minimum sentences under Section 9712. Therefore, because Fantauzzi‘s claim of an illegal sentence, and the relief requested, are contemplated under the PCRA, the PCRA was the sole means of relief in this instance. Taylor, 65 A.3d at 465-466. As such, the PCRA court was required to treat Fantauzzi‘s petition for writ of habeas corpus as a PCRA petition. Wrecks, 934 A.2d at 1289. Counsel‘s subsequent filing of a motion to correct the illegal sentence, which raised a claim of an illegal sentence and requested relief contemplated under the PCRA, was also required to be treated as a PCRA petition, and, specifically, in the case sub judice, treated as an amended PCRA petition. Id.
Fantauzzi‘s judgment of sentence became final on March 24, 2008. Therefore, Fantauzzi‘s petition for writ of habeas corpus (PCRA petition) filed on July 3, 2014, more than six years after his judgment of sentence became final, was patently untimely.
If a PCRA petition is untimely filed, the jurisdictional time-bar can only be overcome if the petitioner alleges and proves one of the three statutory exceptions, as set forth in
Here, Fantauzzi, relying on Alleyne, supra, and its progeny, purported to invoke the after-recognized constitutional right that any fact that increases the mandatory minimum sentence of a crime is an element of that crime and must be submitted to the fact-finder and found beyond a reasonable doubt. See Fantauzzi‘s Pro Se Brief in Support, 7/3/14, at 1 (stating, “[Fantauzzi‘s] claims are that he is entitled to relief from a new constitutional rule of law“); see also Fantauzzi‘s Pro Se Petition for Writ of Habeas Corpus, 7/3/14; Fantauzzi‘s Motion to Correct Illegal Sentence and Nunc Pro Tunc Motion to Modify Sentence, 11/12/14. It is well-established, however, that the decision announced in Alleyne, supra, does not apply retroactively on collateral review where the judgment of sentence became final prior to the announcement of the Alleyne decision on June 17, 2013. Commonwealth v. Ramos, 241 A.3d 445, at *5 (Pa. Super. Filed October 19, 2020) (slip opinion), relying on, Commonwealth v. Washington, 142 A.3d 810 (Pa. 2016), appeal denied, 252 A.3d 1090 (Pa. 2021); see also Commonwealth v. DiMatteo, 177 A.3d 182, 192 (Pa. 2018) (stating that, ”Alleyne does not apply to cases where the judgment of sentence was final prior to Alleyne“). Moreover, because the decision announced in Alleyne, supra, does not apply retroactively on collateral review, a petitioner cannot rely on Alleyne to invoke the after-recognized constitutional right exception to the PCRA jurisdictional time-bar.19 Ramos, 241 A.3d at *5. Therefore, Fantauzzi, in the case sub judice, may not rely on Alleyne, and its progeny, to invoke an exception to the jurisdictional time-bar because his judgment of sentence was made final prior to the decision announced in Alleyne, supra, and Alleyne does not apply retroactively. Consequently, in requesting collateral relief via his July 13, 2014 submission, Fantauzzi failed to invoke a valid exception to the PCRA jurisdictional time-bar pursuant to
Because Fantauzzi‘s July 3 2014 PCRA petition, as amended, was untimely and without exception, the PCRA court did not have jurisdiction to grant Fantauzzi collateral relief in the form of a new sentencing proceeding that, ultimately, resulted in Fantauzzi‘s February 20 2015 judgment of sentence.20 Therefore, the PCRA court‘s order granting Fantauzzi a new sentencing proceeding and Fantauzzi‘s subsequent February 20, 2015 judgment of sentence were null and void ab initio because the PCRA court did not have jurisdiction to grant relief. It follows that Fantauzzi‘s February 20, 2015 judgment of sentence was a legal nullity and
Judgment of sentence vacated. Case remanded with instructions. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/27/2022
Notes
Except as provided under section 9716 (relating to two or more mandatory minimum sentences applicable), any person who is convicted in any court of this Commonwealth of a crime of violence as defined in section 9714(g) (relating to sentences for second and subsequent offenses), shall, if the person visibly possessed a firearm or a replica of a firearm, whether or not the firearm or replica was loaded or functional, that placed the victim in reasonable fear of death or serious bodily injury, during the commission of the offense, be sentenced to a minimum sentence of at least five years of total confinement notwithstanding any other provision of this title or other statute to the contrary.
Although the PCRA court initially treated Fantauzzi‘s July 3, 2014 petition for writ of habeas corpus as a PCRA petition, in the wake of the stipulation by counsel, the PCRA court granted relief without undertaking an assessment of whether the filing met the timeliness requirements of the PCRA and whether the PCRA court possessed jurisdiction to entertain the submission or grant relief, as more fully discussed infra.
In affirming Fantauzzi‘s February 20, 2015 judgment of sentence, we note that this Court did not undertake an assessment of whether the PCRA court had jurisdiction to consider Fantauzzi‘s July 3, 2014 petition for writ of habeas corpus (PCRA petition) and to award Fantauzzi relief in the form of resentencing as a matter of PCRA law. See Fantauzzi, 2016 WL 1567073, at *1 n.1 (stating, “Fantauzzi was resentenced because his original sentence, imposed in 2006, was illegal due to application of a mandatory minimum pursuant to
Notwithstanding section 1103(1) (relating to sentence of imprisonment for felony), a person who has been convicted of attempt, solicitation[,] or conspiracy to commit murder, murder of an unborn child[,] or murder of a law enforcement officer where serious bodily injury results may be sentenced to a term of imprisonment which shall be fixed by the [trial] court at not more than 40 years. Where serious bodily injury does not result, the person may be sentenced to a term of imprisonment which shall be fixed by the [trial] court at not more than 20 years.