Case Information

NON -PRECEDENTIAL DECISION SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA ^[1] IN THE SUPERIOR COURT OF PENNSYLVANIA

Appellee

JASON CISNE

Appellant No. EDA 2014 Appeal from the Judgment of Sentence March 1, 2010 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP- 51 -CR- 0006829 -2008 BEFORE: GANTMAN, P.J., MUNDY, J., and MUSMANNO, J. FILED NOVEMBER 2016

MEMORANDUM BY GANTMAN, P.J.: Appellant, Jason Cisne, appeals nunc pro tunc from judgment of imposed by Philadelphia County Court of Common Pleas, following negotiated third degree murder, possession an instrument of crime ( "PIC "), possession firearm by prohibited person ( "VUFA ").1 For the following reasons, we conclude is entitled immediate release as he has requested, but entitled to some relief. Therefore, we vacate the sentence for third degree murder remand resentencing on count only, without the application of any sentence. Because resentencing count will not upset the overall sentencing parameters contemplated by both guilty Pa.C.S.A. §§ 2502(c), 907(a), 6105(a)(1), respectively. plea agreement and the court, we decline to vacate the entire judgment of sentence; instead, we affirm it in all other respects and deny counsel's petition to withdraw.

The relevant facts and procedural history of this case are as follows. The Commonwealth charged Appellant with numerous offenses arising from his involvement in the shooting death of Phillip Underwood ( "Victim ") on October 17, 2003, Philadelphia. Specifically, a witness saw Appellant shoot and kill Victim while he was lying face up on the sidewalk. Victim sustained single gunshot wounds to shoulder, abdomen, and left thigh, and two gunshot wounds to chest. At the time of the shooting, Appellant was ineligible possess firearm, due to prior felony drug conviction. initially charged Appellant with murder, VUFA- former convict, VUFA -no license, VUFA -on streets, PIC and REAP.

On March 2010, Appellant completed signed written guilty colloquy, tendered an oral plea before the court, third degree murder, VUFA- former convict (graded as second degree felony), PIC (graded first degree misdemeanor). In exchange, the agreed recommend aggregate sentence twenty -five fifty (50) years' incarceration. Both written oral plea colloquies also made clear would serve the recommended sentence years, concurrent the other sentences already serving unrelated matters. Neither colloquy contains any reference

-2 sentence. The court accepted Appellant's plea and

imposed 20 -40 years for third degree murder, 5 -10 years for VUFA, 2h/2- 5 years for PIC, yielding the aggregate sentence of 25 -50 years' incarceration, as recommended, running concurrently with the sentence(s) Appellant already serving. Appellant did not pursue a direct appeal.

Appellant timely filed pro se petition pursuant to Post Conviction Relief Act Pa.C.S.A. §§ 9541 -9546. court appointed counsel who withdraw "no- merit" filed motion letter pursuant to Turner, Pa. 491, 544 A.2d Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc). The issued notice, on February 22, 2013, of its intent to dismiss the petition without hearing, under Pa.R.Crim.P. 907. responded, challenging counsel's petition withdraw adding new claims relief, including counsel's ineffectiveness for failure file requested direct appeal. Nevertheless, the court dismissed petition on March 2013, but it did so without granting counsel's petition withdraw. On appeal, this Court observed Appellant's pro se status well as counsel's continued representation on record. Accordingly, this Court remanded the case with directions to counsel file advocate's brief Appellant's behalf or another no -merit letter brief proper petition withdraw per Turner /Finley.

Counsel then filed with this Court the same no -merit letter he had filed -3

with the PCRA court. This Court's independent review of the record on appeal, however, revealed one issue of arguable merit was not addressed by either PCRA counsel no -merit letter, or the PCRA in its opinion, i.e., Appellant had asked plea counsel to file a direct appeal, counsel failed to do so. Given the claim had arguable merit, this Court denied counsel's petition withdraw on March 28, 2014, vacated the order denying PCRA relief, and remanded the case evidentiary hearing on this particular assertion. By order issued on June 27, 2014, PCRA court reinstated Appellant's right file a direct appeal nunc pro tunc from judgment of sentence. Appellant timely filed current appeal on July 22, 2014.

Regardless of the fact appeal was a direct appeal nunc pro tunc from the judgment of sentence, counsel filed a brief designated as Turner /Finley no -merit letter a petition withdraw counsel on May 14, 2015. filed a pro se response confirming current appeal was direct appeal listing the issues wanted argued. This Court issued per curiam order September 15, 2015, observing the correct procedural posture of the case direct appeal nunc pro tunc from the judgment of sentence directing counsel to file proper advocate's brief or brief compliance Anders California, U.S. 738, 87 S.Ct. L.Ed.2d Santiago, 602, Pa. 159, 978 A.2d 349 (2009).

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On October 22, 2015, counsel filed a motion to withdraw and purported Anders brief. On February 12, 2016, we rejected the filing, because counsel had not complied with Anders /Santiago and paid only lip service to their technical requirements. Again, the case was remanded with instructions to counsel to file compliant motion withdraw and proper Anders brief, or an advocate's brief on behalf of Appellant, within days. Counsel filed new brief on May 10, 2016, continuing assert the appeal from denial of PCRA relief. By order May 24, 2016, we struck the new brief again ordered counsel to comply with our February 12, 2016 directives. Counsel's revised brief was due on or before June 23, 2016.

On July 7, 2016, we filed per curiam order, noting counsel's failure to comply with our May 24, 2016 order. July 7, order remanded the case the trial court for appointment new counsel within days remanded certified afford new appellate counsel record the opportunity review the record. Despite some effort by Appellant's then counsel to have July 7th order vacated, we declined recognized the continued problems counsel's filings and his failure consider any of issues wanted to raise on direct appeal. Upon remand, the trial court appointed new counsel July 2016. On August 15, 2016, newly- appointed counsel filed Anders brief separate petition to withdraw counsel.

As prefatory matter, Anders Santiago require counsel to: 1) -5

petition the Court leave to withdraw, certifying that after thorough review of the record, counsel has concluded the issues be raised are wholly frivolous; 2) file brief referring anything in record that might arguably support the appeal; and 3) furnish copy of the brief the appellant advise him right obtain new counsel or file pro se brief to raise any additional points the appellant deems worthy of review. Santiago, supra 173 -79, 978 A.2d at 358 -61. Substantial compliance these requirements sufficient. Commonwealth v. Wrecks, 934 A.2d 1287, 1290 (Pa.Super. 2007). "After establishing that the antecedent requirements have been met, this Court must then make an independent evaluation of the record to determine whether appeal is, in fact, wholly frivolous." v. Palm, 903 A.2d 1244, 1246 (Pa.Super. 2006) (quoting Townsend, 693 A.2d 982 (Pa.Super. 1997)).

In Santiago, supra, our Supreme Court addressed the briefing requirements where court -appointed appellate counsel seeks withdraw representation:

Neither Anders nor [Commonwealth McClendon, 495 Pa. 467, 434 A.2d 1185 (1981)] requires counsel's brief provide argument any sort, let alone the type of argument counsel develops merits brief. To repeat, what brief must provide under Anders are references anything record might arguably support appeal.

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Under Anders, the right to counsel is vindicated by counsel's examination and assessment of the record and counsel's references to anything the record that in arguably supports the appeal.

Santiago, supra at 176, 177, 978 A.2d at 359, 360. Thus, the Court held:

[I]n the Anders brief that accompanies court -appointed counsel's petition withdraw, counsel must: (1) provide a summary of the procedural history and facts, with citations the record; (2) refer anything the record that counsel believes arguably supports the appeal; (3) set forth counsel's conclusion the appeal is frivolous; and (4) state counsel's reasons for concluding the appeal is frivolous. Counsel should articulate relevant facts of record, controlling case law, and /or statutes on point that have led the conclusion appeal frivolous.

Id. 178 -79, 978 A.2d at 361.

Instantly, new appellate counsel has filed an Anders brief a petition leave to withdraw representation. petition states counsel performed extensive review of the record, well as the applicable law, concluded appeal wholly frivolous. Counsel also supplied Appellant with copy of the brief, the withdrawal petition, letter explaining Appellant's right to proceed pro se or new privately- retained counsel to raise any additional points deems worthy of this Court's In Anders brief, counsel provides candid summary of the attention. relevant facts procedural history of the case. Counsel refers facts in record which might arguably support issues raised appeal offers citations relevant law. Respecting this Court's directives, counsel further explores the issues, which Appellant previously raised pro se

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responses prior counsel's multiple petitions withdraw, translates them into possible appellate claims. The brief also provides counsel's reasons concluding appeal is ultimately frivolous. Thus, counsel has technically complied with requirements of Anders Santiago.

Counsel raises the following issue in the Anders brief: WHETHER THERE ARE ANY ISSUES OF ARGUABLE MERIT THAT COULD BE RAISED ON DIRECT APPEAL PRESENTLY BEFORE THIS COURT AND WHETHER THE APPEAL IS WHOLLY FRIVOLOUS?

(Anders Brief at 3).

In Anders brief, Appellant argues his sentence illegal, because imposed his new sentence concurrently with the sentence was already serving. Likewise, Appellant suggests his sentence illegal because it includes violates Alleyne U.S., , 133 S.Ct. 186 L.Ed.2d (2013), and its Pennsylvania

U.S. progeny. Next, Appellant claims plea was flawed because it was induced by counsel's promise Appellant would get an aggregate sentence of only twenty forty (40) years.2 filed pro se response counsel's Anders brief

petition, restating principal concern alleged mandatory minimum conclusion paragraph current counsel's Anders brief page is somewhat misstated, as Appellant's claims center primarily on his sentence suppression motion /ruling was guilty ever plea. No suggested /challenged any relevant filing. Therefore, we will treat this isolated reference suppression motion inadvertent disregard it.

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sentence he thinks he received under an infirm sentencing statute. To support claim Appellant attached, for first time all of his filings to date, as Exhibit most recent response, a purported notice from the Commonwealth of its intent to seek a mandatory minimum sentence pursuant to 42 Pa.C.S.A. § 9712 (sentences for offenses committed with firearms). Appellant fails identify which of the three sentences he received carried the infirm mandatory minimum sentence. Likewise, the proffered notice is undated, unfiled, not included the certified record. Nevertheless, Appellant presents it to explain why he thinks he somehow received sentence. Based on these assumptions, Appellant concludes he is entitled immediate release. For the following reasons, we resolve is not entitled immediate release but entitled remand potential resentencing.

This case involves number of legal principles, the first of which is: "Issues relating legality sentence are questions of law...." Diamond, 945 A.2d (Pa.Super. 2008), appeal denied, Pa. 755, 955 A.2d 356 (2008). "The defendant or the Commonwealth may appeal right legality of sentence." 42 Pa.C.S.A. § 9781(a). See also Commonwealth Edrington, 780 A.2d (Pa.Super. 2001) (maintaining legality of sentence claims cannot be waived, where reviewing has proper jurisdiction). When legality of issue appeal, our "standard of review over such

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questions is de novo our scope of review is plenary." Diamond, supra at 256. "A claim implicates the fundamental legal authority of the court impose a particular sentence constitutes a challenge legality of the sentence." Catt, 994 A.2d 1158, 1160 (Pa.Super. "If no statutory authorization exists for a particular 2010) (en banc). sentence, sentence is illegal subject correction. An illegal sentence must be vacated." Id. (quoting Watson, 945 A.2d 174, 178 -79 (Pa.Super. 2008)).

Related law makes clear, third degree murder graded felony of first degree. 18 Pa.C.S.A. § 2502(c). Notwithstanding 18 Pa.C.S.A. § 1103, which fixes the maximum for first -degree felony 20 years, "[A] person who has been convicted of murder of the third degree...shall be sentenced to term which shall be fixed by court at more than 40 years." 18 Pa.C.S.A. § 1102(d) (emphasis added). The third degree murder statute carries no mandatory minimum sentence. 18 Pa.C.S.A. § 2502.

A person who violates Section 6105(a.1)(1) of the Crimes Code (persons not to possess, use, manufacture, control, sell or transfer firearms) commits second -degree felony. 18 Pa.C.S.A. § 6105(a.1)(1). Section carries no sentence. Id. maximum term can impose second degree felony ten years. Pa.C.S.A. § 1103(2).

A violation 18 Pa.C.S.A. § 907(a) of the Crimes Code (possessing instruments of crime) constitutes first degree misdemeanor. 18 Pa.C.S.A. § 907(a). Section 907 carries no mandatory minimum sentence. Id. A first degree misdemeanor is subject maximum term of five years. 18 Pa.C.S.A. § 1104.

When was sentenced on March 1, 2010, 42 Pa.C.S.A. § 9712(a) governed sentences for offenses committed with firearms called for mandatory minimum sentence of five years See 42 Pa.C.S.A. § 9712(a). On June 17, 2013, the U.S. Supreme Court expressly held, in Alleyne v. United States, , 133 S.Ct. 2151, 186 L.Ed.2d 314 U.S. (2013), any fact increases sentence crime considered element of the crime be submitted the fact finder found beyond reasonable doubt. Id. Subsequent Alleyne, 9712.1 unconstitutional. this Court declared 42 Pa.C.S.A. § Newman, 99 A.3d 86 (Pa.Super. 2014) (en banc) (applying Alleyne to Section 9712.1 holding section unconstitutional insofar it permits automatic increase of minimum based on preponderance of evidence standard; statute inseverable and is unconstitutional its entirety). In later decision filed October 2014, this Court extended the logic of Alleyne Newman Sections 9712 9713. See Valentine, A.3d (Pa.Super. 2014), appeal denied, , A.3d 309 (holding Sections 9712 Pa. 9713 are likewise unconstitutional insofar they permit increase of defendant's minimum based on preponderance of evidence standard).

An Alleyne challenge can be raised on direct appeal. Newman, supra. Alleyne challenges are available direct appeal from sentences imposed pursuant sentencing statutes rendered constitutionally infirm, regardless of how triggering facts were determined case at hand, because the sentencing statutes are unlawful; so sentences flowing from those statutes are likewise illegal. v. Wolfe, Pa.

, 140 A.3d 654 (2016) (stating: "The effect Alleyne's new rule invalidate range of Pennsylvania sentencing statutes predicating penalties upon non -elemental facts requiring such facts be determined by preponderance of the evidence at sentencing ") (citing Hopkins, , 117 A.3d 247 (2015) Pa. (stating language providing "applicability this section shall be determined at sentencing" now void, given Alleyne's new description of aggravated offense)). See Valentine, supra at 811 (reasoning asking jury determine factual prerequisite for mandatory minimum sentence does not satisfy Alleyne; unconstitutional provisions of sentencing statutes issue are directly or indirectly severable). See also Commonwealth Fennell, 105 A.3d 13, 20 (Pa.Super. 2014), appeal denied, Pa. A.3d (reasoning stipulation facts needed for does not satisfy Alleyne; no functional difference exists between submission of fact to jury or accepting stipulation).

As general rule, the entry of guilty plea constitutes waiver of all defects defenses except lack of jurisdiction, invalidity of the plea, and legality of the sentence. Commonwealth v. Main, 6 A.3d 1026 (Pa.Super. 2010). "We have recognized the importance of the plea bargaining process significant part of the criminal justice system." Commonwealth v. Byrne, 833 A.2d 729, 735 (Pa.Super. 2003). Further,

A defendant wishing to challenge the voluntariness of guilty plea on direct appeal must either object during the plea colloquy or file motion to withdraw plea within Pa.R.Crim.P. 720(A)(1), ten days of sentencing. (B)(1)(a)(i). Failure to employ either measure results in waiver. Commonwealth v. Tareila, 895 A.2d 1266, 1270 n.3 (Pa.Super. 2006). Historically, Pennsylvania courts adhere this waiver principle because "[i]t for which accepted plea consider correct, first instance, any error which may have been committed." Roberts, [352 A.2d 140, 141 (Pa.Super. 1975)] (holding common and previously condoned mistake of attacking guilty plea on direct appeal without first filing petition withdraw plea trial court procedural error resulting waiver; stating, "(t)he swift orderly administration criminal justice requires lower courts be given opportunity rectify their errors before they are considered on appeal "; "Strict adherence this procedure could, indeed, time consuming, preclude otherwise costly, unnecessary appeal to this court "). Lincoln, 72 A.3d 606, 609 -10 (Pa.Super. 2013), appeal

denied, Pa. A.3d 319 (holding defendant failed to preserve challenge validity where did object during plea colloquy or file post- sentence motion withdraw plea).

"[A] defendant who attempts withdraw guilty plea after sentencing must demonstrate prejudice the order of manifest injustice before withdrawal is justified." Commonwealth v. Pantalion, 957 A.2d (Pa.Super. 2008). "A plea rises to the level of manifest injustice when it entered into involuntarily, unknowingly, or unintelligently." Id. (quoting v. Muhammad, 794 A.2d 378, 383 (Pa.Super. 2002)). Pennsylvania Rules of Criminal Procedure mandate pleas are taken open court and court must conduct an on- the -record colloquy ascertain whether defendant is aware his rights the consequences of plea. Hodges, 789 A.2d 764 (Pa.Super. 2002). Specifically, the must affirmatively demonstrate defendant understands: (1) the nature of the charges which he is pleading guilty; (2) the factual basis plea; (3) right trial by jury; (4) the presumption of innocence; (5) the permissible ranges of sentences fines possible; judge bound by the terms of agreement unless accepts the agreement. Commonwealth Watson, 835 A.2d 786 (Pa.Super. 2003). This Court will evaluate the adequacy of the plea colloquy voluntariness of the resulting plea by examining the totality of the circumstances surrounding the entry that plea. Muhammad, supra. Even when there an omission or defect the oral colloquy, guilty plea will remains valid if examination of totality of the circumstances surrounding the plea shows that the defendant had a full understanding of the nature and consequences of his plea such that he knowingly intelligently entered the plea of his own accord. Commonwealth v. Fluharty, 632 A.2d 312, 315 (Pa.Super. 1993). See also Rush, A.2d 805 (Pa.Super. 2006).

Pennsylvania law presumes defendant who entered a guilty plea was aware what he was doing bears the burden of proving otherwise. Pollard, 832 A.2d (Pa.Super. 2003). A defendant who decides to plead guilty bound by statements he makes while under oath, "and he may not later assert grounds for withdrawing plea which contradict statements he made at his plea colloquy." Id. at 523. "Our law does not require that defendant be totally pleased the outcome of his decision to plead guilty, only that his decision be voluntary, knowing intelligent." Id. 524.

Instantly, with Appellant's complaints about respect the voluntariness of plea and expectation lesser sentence, these claims were previously raised PCRA petition under the rubric of ineffective assistance of counsel. In response, PCRA court reasoned:

Petitioner further argues trial counsel ineffective for allegedly failing to reveal he would be subjected to twenty -five fifty (50) year sentence. Petitioner claims unknowingly unintentionally entered his guilty plea result of trial counsel's alleged ineffectiveness. ...

In this case, petitioner's guilty plea was entered knowingly, voluntarily, and intelligently. Before accepting petitioner's guilty plea, [the court] conducted a thorough colloquy to ensure that petitioner had actual knowledge of the implications and rights associated with a guilty plea. The record clearly shows that, before the entry of his guilty plea, petitioner was aware that his attorney recommended twenty -five fifty (50) year instead of the twenty -seven and one -half (271/2) fifty -five (55) year statutory maximum that could have been imposed. Petitioner was further informed of his rights the consequences of entering guilty plea the charges against him. In response series of inquiries, petitioner responded that he understood his rights the consequences his decision to plead guilty. Furthermore, petitioner told the court that he consulted with defense counsel before entry his guilty plea. He also told the court that was satisfied his attorney's services. There was no point during the colloquy where petitioner informed this his guilty plea was unlawfully induced by attorney.

Based on totality of the circumstances, the court accepted guilty plea after being satisfied it was entered voluntarily, knowingly, intelligently that trial counsel's representation competent.

(PCRA Court Opinion, filed June 25, 2013, at 3 -5) (internal citations Initially, we observe omitted). The record supports the court's analysis. did object during plea colloquy or file post- sentence motion withdraw plea, so any direct challenge guilty plea process this juncture arguably waived. See Lincoln, supra. Moreover, written guilty colloquy expressly states Appellant was facing 271/2 to 55 years' incarceration, the Commonwealth agreed to recommend sentence of years to run concurrently with other sentences already being served. (See Written Plea Colloquy, 3/1/10, at 1.) The sentence recommendation was repeated during the oral plea colloquy. Appellant knew sentence he faced as well as the recommended sentence, he affirmed no threats or promises had been made to induce his plea, he was entering the plea voluntarily because he was guilty. (See N.T. Guilty Plea Hearing, 3/1/10, 2 -11.) Regardless of the reasons entered plea, now bound by the statements he made when entering the plea and cannot contradict them question the lawfulness of plea proceedings. See Pollard, supra. Therefore, current counsel correct challenge guilty plea process as flawed would be wholly frivolous.

The PCRA also addressed Appellant's challenge the manner of sentencing as follows:

In total, petitioner could have, been sentenced to maximum imprisonment term of fifty -five (55) years. Instead, petitioner was sentenced aggregate imprisonment term twenty -five (25) fifty (50) years. There was no error in fashioning these sentences to run consecutive or concurrent to each other. Consequently, the court did abuse its discretion imposing sentence. Because there no error fashioning petitioner's sentences...this claim has no merit.

(PCRA Court Opinion at 7). We agree court's decision this point well. agreement included recommendation for 50 years' incarceration to run concurrently with whatever sentence Appellant was already serving. The agreement did not govern the court's internal structure of the new sentence, so how the court apportioned new sentence was left its discretion. To the extent Appellant baldly complains sentence somehow "illegal" because it was imposed to run concurrently with the sentences he already serving, we see no merit to argument. Thus, these sentencing challenges are wholly frivolous as well.

With respect to Appellant's Alleyne complaint, the Commonwealth submits the did exceed relevant statutory maximums or apply any mandatory minimum sentences, which would render Appellant's unconstitutional. Specifically, the Commonwealth questions the undated notice of intent from the Commonwealth, that attached to pro se response counsel's Anders brief, which references Pa.C.S.A. § 9712. The claims the mere existence of the notice fails to establish trial court actually imposed mandatory minimum sentence, particularly where neither the court nor the parties mentioned at sentencing. concludes nothing record supports Appellant's suggestion received mandatory minimum sentence. We cannot agree.

Instantly, upon our own independent review we have discovered that written sentencing order March 2010, contained the certified record, indicates the imposed mandatory minimum sentence for third degree murder. Specifically, the "mandatory sentence" box on third degree murder written sentencing sheet is checked "Yes." No other mention mandatory minimum sentence, however, appears the certified record. Nevertheless, we think this indicator on written sentencing sheet is enough to create discrepancy between the sentence as agreed to and orally pronounced and sentence as written. Without more, that written sentencing order would control any sentencing dispute. See Willis, A.3d 1010 (Pa.Super. 2013) (reiterating rule that written sentence generally controls where discrepancy exists between sentence written sentence as orally pronounced). Therefore, we conclude would not be entitled withdraw his guilty plea on the grounds alleged, because the negotiated plea involved no mandatory minimum term. Appellant entitled some relief, however, because raised Alleyne issue on direct appeal; the certified record seems to support position.

Based upon foregoing, we vacate the sentence imposed for third degree murder remand resentencing count only, confirming it without application of any sentence. Because we have not upset the overall sentencing parameters contemplated by both the agreement the sentencing court, we decline to vacate the entire judgment of sentence; instead, we affirm it all other respects deny counsel's petition withdraw.

Judgment of sentence vacated part affirmed in part; case is remanded resentencing third degree murder conviction only; counsel's petition withdraw denied. Jurisdiction relinquished.

Judge Mundy did participate the consideration or decision of this case.

Judgment Entered.

J: seph D. Seletyn,

Prothonotary

Date: 11/8/2016