COMMONWEALTH of Pennsylvania, Appellee v. Robert Da-Juan GAINES, Appellant.
Superior Court of Pennsylvania.
Argued June 30, 2015. Filed Nov. 5, 2015.
October 13, 2015, we ordered the unpublished memorandum withdrawn, and we now replace it with the present opinion.
Zachary I. Mills, Assistant District Attorney, Chambersburg, for Commonwealth, appellee.
BEFORE: GANTMAN, P.J., BENDER, P.J.E., PANELLA, J., DONOHUE, J., SHOGAN, J., ALLEN, J., LAZARUS, J., MUNDY, J., and STABILE, J.
OPINION BY MUNDY, J.:
Appellant, Robert Da-Juan Gaines, appeals from the July 15, 2013 order dismissing his first petition for relief filed pursuant to the Post Conviction Relief Act (PCRA),
We summarize the relevant facts and procedural history of this case as follows. On September 8, 2009, the Commonwealth filed an information charging Appellant with two counts each of unlawful delivery of a controlled substance, criminal conspiracy, and criminal use of a communication facility.1 On October 11, 2010, Appellant proceeded to a jury trial, at the conclusion of which the jury found Appellant guilty of all counts except for one count of unlawful delivery of a controlled substance. On November 17, 2010, the trial court imposed
On September 14, 2012, Appellant filed a timely, counseled PCRA petition. Among the claims therein, Appellant argued that “[his c]ounsel failed to bring to the attention of the [s]entencing [c]ourt the miscalculation of [his prior record score], leading to a standard range sentence that did not accurately reflect a proper calculation of his prior record.” Appellant‘s PCRA Petition, 9/14/12, at ¶ 6. The Commonwealth filed its answer on October 8, 2012. On April 12, 2013, the PCRA court entered an order scheduling resentencing in accordance with a stipulation between Appellant and the Commonwealth that Appellant‘s original sentence was based on an improperly calculated prior record score.2 On April 25, 2013, Appellant filed a petition to amend his PCRA petition, which the PCRA court granted on May 1, 2013. Appellant filed an amended PCRA petition on May 21, 2013.3 The PCRA court conducted a hearing on June 19, 2013. On July 15, 2013, the PCRA court еntered an order denying Appellant‘s request for PCRA relief; however, the record reveals that the clerk of courts did not mail said order to Appellant until July 17, 2013. On July 17, 2013, the trial court resentenced Appellant to an aggregate term of 64 to 156 months’ imprisonment with credit for time served. On July 29, 2013, Appellant filed a motion to modify sentence, which was granted the next day to include that Appellant was RRRI eligible.4 On August 19, 2013, Appellant filed a notice of appeal.5
In his substituted brief, Appellant raises one issue for our review.
A. [Whether the] ineffectiveness of trial counsel resulted in a conviction that was unjustly reached[?]
Appellant‘s Brief at 4.
Before we address the merits of Appellant‘s appeal, we first address the question upon which we granted reargument en banc, that is, whether this appeal is properly before us. We may raise issues concerning our appellate jurisdiction sua sponte. Commonwealth v. Andre, 17 A.3d 951, 957-958 (Pa.Super.2011). In order tо invoke our appellate jurisdiction, Pennsylvania Rule of Appellate Procedure 903 requires that all “notice[s] of appeal ... shall be filed within 30 days after the entry of the order from which the appeal is taken.”
In general, appeals are properly taken from final orders. See
An order granting, denying, dismissing, or otherwise finally disposing of a petition for post-conviction collateral relief shall constitute a final order for purposes of appeal.
In our view, there can be no serious dispute that the order granting in part and denying in part all the issues raised in the PCRA petition “finally dispos[ed]” of Appellant‘s PCRA petition.
Here, the PCRA court‘s order was docketed on July 15, 2013. However, as this order was not mailed to Appellant until July 17, 2013, the appeal рeriod did not begin until this date.8 See
However, Appellant avers that the PCRA court‘s July 15, 2013 order was not final. In his reargument petition, Appellant averred that his appeal lies from the new July 17, 2013 judgment of sentence. Appellant‘s Reargument Petition, 7/23/14,
at 9-10. Stated another way, Appellant‘s argument is that an order granting relief under the PCRA is not a final order; rather, the final order is the order imposed at the completion of the trial court proceeding ordered by the PCRA court‘s grant of relief.10 This proposed procedural rule would resolve this exact case because here the Commonwealth stipulated that Appellant was entitled to resentencing, essentially precluding the Commonwealth from appealing the grant of PCRA relief in the form of resentencing. However, this rule would have to be applied to all PCRA appeals that come to this Court. When applied outside of this specific case and taken to its logical conсlusion, Appellant‘s proposed procedure would have serious far-reaching consequences.
For example, let us assume a timely PCRA petition raises one guilt-phase claim and one sentencing-phase claim. The PCRA court conducts an evidentiary hearing and grants the defendant a new trial, rendering the sentencing issue moot. Under Appellant‘s proposed procedure, the Commonwealth would be required to wait to appeal this PCRA order until an order is imposed following the conclusion of the
Finally, if we adopted Appellant‘s proposed rule, this Court would be creating an entirely new procedure for the appealability of a PCRA court order that grants resentencing but denies a new trial. However, Article V, section 10(c) of the Pennsylvania Constitution states, that “[t]he Supreme Court shall have the power to prescribe general rules governing practice, procedure and the conduct of all courts[.]”
Appeal quashed.
Judge PANELLA and Judge LAZARUS join the opinion.
Judge STABILE concurs in the result.
Judge DONOHUE files a concurring opinion in which Judge STABILE joins. President Judge EMERITUS BENDER files a dissenting opinion in which President Judge GANTMAN and Judge SHOGAN join.
Judge ALLEN did not participate in the consideration or decision of this case.
CONCURRING OPINION BY DONOHUE, J.:
I agree that this appeal is untimely and concur with the decision to quash, but for different reasons. The Majority conducts its review from the premise that the petition Gaines filed on May 21, 2013 was an amended PCRA petition. In my view, Gaines’ May 21, 2013 filing was an untimely second PCRA petition rather than an amendment to his first PCRA petition. Thus, the issue of whether a PCRA order is final when entered or following the completion of further action ordered by the PCRA court is not properly before this Court.
The relevant timeline is as follows. Gaines’ judgment of sentence became final on September 15, 2011. On September 14, 2012, Gaines filed his first PCRA petition. A hearing on the PCRA claims was scheduled for April 11, 2013, and after convening on that date, the PCRA court entered an order granting resentencing. On May 1, 2013, as the parties awaited resentencing, Gaines filed a petition seeking permission to amend his PCRA petition. The trial court granted this petition and on May 21, 2013, Gaines filed what he called an “amended PCRA petition,” raising claims of ineffective assistance of counsel. The PCRA cоurt denied this “amended petition” on July 15, 2013. On July 17, 2013, the trial court resentenced Gaines. On August 19, 2013, Gaines filed his appeal from the July 15, 2013 order denying his “amended” PCRA petition.
As stated above, my departure from the Majority‘s view stems from its characterization of the petition Gaines filed on May 21, 2013 as an amended PCRA petition. When the parties convened for the hearing on Gaines’ first PCRA petition, no hearing occurred; rather, the parties entered into a stipulation that Gaines’ prior record score was incorrectly calculated at the time of his sentencing. PCRA Court Order, 4/11/13, ¶ 2. Based upon this stipulation, the PCRA court ordered that Gaines be resentenced, and set the resentencing for May 22, 2013. Id., ¶ 7. The PCRA court took no further action on Gаines’ remaining claims (all of which asserted ineffective assistance of counsel) based upon Gaines’ stated intention to withdraw these claims in light of the Commonwealth‘s agreement regarding his prior record score. Id. ¶ 4. Accordingly, I conclude that the PCRA court granted relief as to one of Gaines’ claims and Gaines withdrew the remaining claims, thereby fully disposing of his PCRA petition. This conclusion is buttressed by the fact that the PCRA court ordered and scheduled Gaines’ resentencing during this proceeding even though, in his PCRA petition, Gaines sought a new trial based upon his allegations of ineffective assistance of counsel. PCRA Petition, 9/14/12, ¶ 9. Why would the PCRA court grant resentencing if claims were still pending that could re-
The Majority takes the position that the PCRA court granted Gaines permission to amend his PCRA petition in its April 12, 2013 order. Maj. Op. at 16 n. 3. With due respect, the record does not support this conclusion. The PCRA court stated merely that Gaines’ counsel “has alerted [it] to additional information that he has recently learned which may require him to amend [Gaines‘] PCRA petition” and then ordered that Gaines remain in the local jail so that they could confer. PCRA Court Order, 4/11/13, ¶ 5 (emphasis added). This statement memorializes Gaines’ counsel‘s intention to investigate whether a new source of information could give rise to additional claims, not an affirmative intention to raise additional claims or the grant of permission to raise such claims. Obviously, Gaines did not understand that he was granted permission to amend the PCRA petition since he affirmatively sought that precise relief when he filed a petition seeking permission to amend on May 21, 2013.
Critically, at the time of the heаring on his first PCRA petition, the period for Gaines to file a timely PCRA petition had run.1 The PCRA expressly provides a mechanism for raising additional claims based upon new information discovered after the expiration of the one year time limit. See
For these reasons, I conclude that the pеtition that Gaines filed on May 21, 2013 was a second, untimely PCRA petition rather than an amendment to his first PCRA petition. As a separate, second PCRA petition, the PCRA court‘s disposition of it was completely unrelated to its disposition of Gaines’ first PCRA petition (which awarded the resentencing) and the subsequent resentencing. In order words, the order denying Gaines’ second PCRA petition, which is the order under review in this appeal, is entirely unconnected to Gaines’ resentencing. There is no need to consider, as the Majority does, whether resentencing must occur before the PCRA order granting resentencing is deemed final and appealable. See Maj. Op. at 17-19.
Nonetheless, I conсlude, as does the Majority, that Gaines failed to timely file his notice of appeal. The PCRA court entered the order denying Gaines’ second PCRA petition on July 15, 2013 and mailed it to Gaines on July 17, 2013. As the Majority correctly explains, the period of time for Gaines to file an appeal began on the date the order was mailed, July 17, 2013.
STABILE, J. joins this Concurring Opinion.
DISSENTING OPINION BY BENDER, P.J.E.:
For the reasons stated infra, I would conclude that Appellant‘s appeal is timely, as it properly lies from the court‘s imposition of his new judgment of sentence on July 17, 2013. Accordingly, I respectfully dissent.
Initially, because the PCRA court‘s July 15, 2013 order denied Appellant‘s substantive claims, yet granted his challenge to the legality of his sentence, I consider it a hybrid order that was not final for purposes of
[t]he Order of the PCRA court fully and finally disposed of all issues before it. Accordingly, it was a final order that Bryant, the Commonwealth or both could have appealed. Had Bryant not filed a notice of appeal within thirty days of the entry of the Order, as required by
Pa.R.A.P. 903 , he would have waived future review of the decision of the PCRA court.
The Court next “consider[ed] whether the Superior Court erred in determining that review of the guilt phase issues must wait until the trial court imposes a new sentence.” Id. at 648. In holding that this Court did err in that determinаtion, the Bryant Court stated:
Bryant asserts that the procedure endorsed by the Superior Court prejudices a defendant because it significantly delays the review of the merits of his claim. Moreover, it requires the defendant to endure the anxiety attendant to a capital re-sentencing procedure, although the underlying conviction may be reversed because of the errors raised on appeal. Along with these concerns, which are unique to the defendant, there are also concerns regarding the efficient
I disagree with this hypothetical for two reasons. First and foremost, in this case, the PCRA court granted Appellant‘s sentencing claim and denied his substantive claims. In the Majority‘s hypothetical, however, the PCRA court ruled only on the merits of the ‘guilt-phase claim’ аnd issued no ruling on the moot sentencing issue. Thus, the PCRA court‘s order in the Majority‘s hypothetical is not a ‘partial grant of relief’ — it is a total grant of relief. I cannot conceive of a scenario where a PCRA court‘s grant of a new trial would result in a truly ‘hybrid’ order, such as the order at issue in the present case. Accordingly, the Majority‘s fear that ‘Appellant‘s rule’ would apply to an order granting a new trial is unfounded.
Secondly, the Majority‘s hypothetical is premised on its unsupported declarations that sentencing is a trial court function, id. at 17, and “[t]here is no functional difference between a grant of resentencing and the grant of a new trial, as they both would artificially end collateral review under Appellant‘s rule,” id. at 19. However, the Majority correctly (and contradictorily) acknowledges in a footnote that “[i]n appropriate circumstances, a PCRA court may impose the new sentence....” Id. at 18 n. 6; see also Commonwealth v. Bartrug, 732 A.2d 1287, 1289 (Pa.Super.1999) (recognizing that resentencing is not outside “the power or jurisdiction” of the PCRA court). In my view, when a PCRA court vacates an illegal sentence, that same court may also impose a new sentence. See Bartrug, supra. The same is not true when a PCRA court orders a new trial; only a trial court may preside over a criminal trial. Therefore, where a PCRA court issues an order granting a new trial, it is clear that that order ends the post-conviction proceedings, and is final for purposes of appeal. The same is not dеfinitively true for a PCRA court‘s order granting a petitioner‘s challenge to the legality of his sentence and vacating his term of incarceration in anticipation that a new sentence will be shortly imposed.
For these reasons, I disagree with the Majority that ‘Appellant‘s rule’ could apply to an order granting a petitioner a new trial. Such orders would remain ‘final’ and immediately appealable even if we held today that hybrid orders (denying substantive claims and granting resentencing) are not appealable until the petitioner has been resentenced.
administration of justice. It would be wasteful of scarce judicial resources to empanel a new sentencing jury, apprise it of the facts of the underlying crime, hold a full hearing, instruct the jury about sentencing in a capital case and then allow it [to] deliberate and reach a decision, only to have the sentence rendered a nullity if the decision of the PCRA court regarding the guilt phase is reversed on appeal.
Re-sentencing the defendant before engaging in appellate review of the denial of PCRA relief also results in piecemeal litigation, delay in the determination of guilt phase issues, and potential misuse of judicial resources if the new sentence is rendered moot by subsequent disposition of the guilt phase issues. For these reasons, the orderly administration of justice requires that review of the PCRA court‘s decision denying guilt phasе relief should precede the imposition of a new sentence by the trial court.
Id. at 648.
I would interpret the Supreme Court‘s decision in Bryant as applying only to capital petitioners. Notably, the Bryant Court explicitly stated that it was addressing “the correct procedure for a capital defendant to follow when the PCRA court grants his request for a new sentencing hearing, but denies his request for guilt-phase relief.” Bryant, 780 A.2d at 647 (emphasis added). In both the Court‘s statement of the issue, and in its analysis thereof, the Court repeatedly used terms attendant only to death-penalty cases, such as “guilt-phase issues,” “guilt-phase relief,” and “capital resentencing.” I presume that when the Supreme Court renders a decision, it chooses its wording carefully and purposefully; therefore, the plain language of Bryant limits the holding therein to capital cases.
Moreover, in my view, certain policy consideratiоns emphasized by the Bryant Court do not apply to (or at least do not weigh as heavily in favor of) requiring non-capital petitioners to appeal prior to resentencing. Namely, non-capital petitioners do not have to “endure the anxiety attendant to a capital resentencing procedure,” and resentencing in a non-capital case does not require all of the resources necessarily utilized in resentencing a capital defendant. Id. at 648. Furthermore, I believe that extending Bryant‘s procedural rule to non-capital defendants will hamper “the orderly administration of justice....” Bryant, 780 A.2d at 648. For instance, I cannot disregard the waiver trap that will inevitably result from the Majority‘s holding today, which requires a petitioner to file a notice of appeal from a hybrid order that denies his substantive claims, yet grants resentencing. A pro se petitioner, and attorneys inexperienced in the complexities of PCRA litigation, may reasonably presume that, as with a direct appeal, the petitioner must wait until after the court resentences him to file a notice of appeal. Such a presumption is logical when considering that if the petitioner files a notice of appeal prior to being resentenced, the lower court will lose jurisdiction and the petitioner‘s resentencing will be stayed until after the appeal from the denial of his substantive claims, which could take months, if not years.3
Additionally, deeming the order that resentences a PCRA petitioner as the final
The procedure mandated in Bryant is also not appropriate in non-capital cases because, unlike capital petitioners who necessarily will be resentenced to either life imprisonment, or the penalty of death, non-capital petitioners have no assurance of any certain sentence. Consequently, the Majority‘s holding that requires non-capital petitioners to file an appeal from the denial of their substantive claims, prior to being resentenced, poses two significant problems. First, such a procedure could result in a petitioner‘s serving unnecessary prison time if the disposition of their appeal from the denial of their substantive claims takes longer than the new sentence ultimately imposed by the court.4 Second, our legislature clearly stated in the PCRA that to be eligible for relief, a petitioner must plead and prove, inter alia, that he is “currently serving a sentence of imprisonment, probation or parole for the crime[.]”
In sum, the considerations discussed herein compel me to conclude that the procedure mandated in Bryant applies only to capital petitioners. Thus, I would hold that in non-capital cases, an appeal from a hybrid PCRA order that denies substantive claims, yet grants resentencing, must be filed within 30 days of the order resentencing the petitioner, or within 30 days of an order deciding a timely-filed post-sentence motion. In that appeal, the petitioner would be permitted to challenge both the PCRA court‘s denial of his substantive claims, as well as raise any issues regarding the new sentence imposed by the court.
In this case, Appellant‘s notice of appeal was filed within 30 days оf the PCRA court‘s July 30, 2013 order granting his timely-filed post-sentence motion. Therefore, I would deem his appeal timely and conclude that we have jurisdiction to review the merits of this appeal. Because the Majority holds otherwise, I dissent.
President Judge GANTMAN and Judge SHOGAN join this dissenting opinion.
Notes
PCRA Court Order, 4/12/13, at 2-3. Therefore, the PCRA court‘s order that granted resentencing alsо granted Appellant leave to amend his petition. We note that this technically rendered Appellant‘s April 25, 2013 formal request for leave to amend superfluous. Nevertheless, it is axiomatic that granting leave to amend was well within the PCRA court‘s discretion. SeeThe defense counsel has alerted ... the Court to additional information that he has recently learned which may require him to amend [Appellant‘s] PCRA petition. The Court finds that in the interest of judicial economy, that [Appellant] shall be detained in the Franklin County Jail for a period of 10 days from today‘s date so that he may meet with his counsel ... for the development of an amended PCRA petition.
We also stress that when a PCRA court grants in part and denies in part a PCRA petition, the fact that it is final for purposes of appeal is not a procedure that our Supreme Court invented specifically for Bryant. Rather, it is a straightforward application of Rule 910, which our Supreme Court explicitly cited to with apрroval in Bryant. Bryant, supra, quoting