Opinion
J-S11010-14 No. 3173 EDA 2012
03-28-2014
COMMONWEALTH OF PENNSYLVANIA, Appellee v. ANTHONY GAINES, Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence Entered October 22, 2012
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0013159-2008
BEFORE: BENDER, P.J.E., WECHT, J., and STRASSBURGER, J. MEMORANDUM BY BENDER, P.J.E.:
Retired Senior Judge assigned to the Superior Court.
Appellant, Anthony Gaines, appeals pro se from the judgment of sentence of one to two years' incarceration, imposed after he was convicted of possessing a controlled substance. After careful review, we are compelled to vacate Appellant's judgment of sentence and remand for resentencing.
Appellant was charged with the above-stated offense, as well as possession with intent to deliver (PWID). He waived his right to a jury trial and proceeded to a non-jury trial on January 14, 2010. At the close thereof, the court found Appellant guilty of both offenses. On March 9, 2010, the court sentenced Appellant to a term of two to four years' imprisonment for his PWID conviction. Appellant's conviction of possessing a controlled substance merged for sentencing purposes.
A full recitation of the facts of this case are set forth in the trial court's Pa.R.A.P. 1925(a) opinion filed on June 30, 2011.
Appellant filed a timely notice of appeal, solely arguing that the evidence was insufficient to sustain his PWID conviction. In an unpublished memorandum decision filed on May 18, 2012, a panel of this Court agreed with Appellant, reversed his PWID conviction, and vacated his sentence for that offense. Commonwealth v. Gaines, 50 A.3d 245 (Pa. Super. 2012). Because Appellant did not challenge his conviction for possessing a controlled substance, we remanded for resentencing for that offense.
On remand, the trial court resentenced Appellant to a term of one to two years' incarceration on his conviction for possessing a controlled substance. Appellant, who was represented by counsel at that point, filed a timely notice of appeal, as well as a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). On February 1, 2013, Appellant filed with the trial court a pro se petition for the removal of his counsel. After conducting a hearing pursuant to Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998), the court granted Appellant's petition, thus permitting him to proceed pro se in the instant appeal. Herein, Appellant raises the following issue for our review:
On November 13, 2012, the trial court issued an order directing Appellant to file a Rule 1925(b) statement "within Twenty-one (21) days from the entry of this Order or 21 days after the notes of testimony are available, whichever is later." Trial Court Order, 11/13/12, at 1. Appellant filed a pro se Rule 1925(b) statement on December 5, 2012. Therein, Appellant stated that he "has still not received the case file from the Public Defender's Association of Philadelphia," but presented three issues that he "plan[ned] to raise ... on appeal." Rule 1925(b) Statement, 12/5/12, at 1 (unnumbered pages). Neither the trial court nor the Commonwealth asserts that Appellant's pro se Rule 1925(b) statement was untimely. Because the court's order directing Appellant to file the statement was vague in regard to the time-frame within which that document had to be filed, and Appellant stated that he filed it before receiving the record, we will consider Appellant's Rule 1925(b) statement as timely.
Did not the trial court abused [sic] its discretion in evaluating Rule [600] issue, when misapplying law under false pretence [sic], where the Commonwealth admitted that a writ was not prepared and the trial court stated that a writ had been prepared?Appellant's Brief at 3.
We are compelled to deem this issue waived. Appellant has already had the benefit of a direct appeal. The issue he raised therein was successful, resulting in this Court remanding his case for resentencing. Now, on appeal following remand, "the only issues reviewable ... would be challenges to the sentence imposed...." Commonwealth v. Anderson, 801 A.2d 1264, 1266 (Pa. Super. 2002) (citation omitted). In other words, Appellant is barred from "fil[ing] another direct appeal attacking his conviction[,]" id., which is precisely what Appellant seeks to do by asserting that the trial court erred in denying his pretrial motion to dismiss based on Rule 600.
We acknowledge Appellant's argument that he should be permitted to raise his Rule 600 claim herein because his counsel abandoned the issue in his initial appeal. However, this assertion sounds in ineffective assistance of counsel and, under the circumstances of this case, we conclude that Appellant must wait to raise this claim on collateral review. See Commonwealth v. Holmes, 79 A.3d 562, 576 (Pa. 2013) (holding that absent a determination by the trial court that the claim of ineffectiveness is "both meritorious and apparent from the record so that immediate consideration and relief is warranted," assertions of ineffectiveness must be deferred to PCRA review). Accordingly, Appellant's Rule 600 issue is waived.
In our memorandum decision, we noted that Appellant had presented a claim "relating to the denial of a [Rule] 600 motion" in his Rule 1925(b) statement, but we concluded that he "abandoned" that issue in his appellate brief. Commonwealth v. Gaines, No. 964 EDA 2010, unpublished memorandum at 4 n.8 (Pa. Super. filed May 18, 2012).
While Appellant raised only the Rule 600 issue in the "Statement of Questions Involved" portion of his brief, he adds two more claims in his argument section. Specifically, Appellant avers that the court violated his constitutional rights, as well as Pa.R.Crim.P. 704(C)(1), by conducting the resentencing hearing without Appellant being present. While Appellant presumes that a resentencing hearing was conducted and he was simply not afforded the opportunity to attend, the record indicates otherwise. The trial court's docket reflects that the hearing was scheduled for September 7, 2012. On that date, the court continued the resentencing proceeding until October 22, 2012. The docket then contains an entry dated October 22, 2012, conveying the court's filing of a sentencing order. There is no docket entry reflecting that a hearing was actually held, and there are no transcripts of such a hearing contained in the certified record.
We acknowledge that Pa.R.A.P. 2116(a) directs that "[n]o question will be considered unless it is stated in the statement of questions involved or is fairly suggested thereby." However, because Appellant clearly delineates his additional issues in the argument portion of his brief, and presents clear and concise arguments thereon, our review of these claims is not hampered by Appellant's failure to raise them in his statement of the questions involved. Accordingly, we decline to deem these issues waived based solely on this briefing error.
Rule 704(C)(1) provides that "[a]t the time of sentencing, the judge shall afford the defendant the opportunity to make a statement in his or her behalf and shall afford counsel for both parties the opportunity to present information and argument relative to sentencing."
We reject the Commonwealth's evasive argument that Appellant waived his sentencing claim "because he has failed to fulfill his burden to ensure that the notes of testimony for his resentencing hearing are included in the certified record on appeal." Commonwealth's Brief at 10 (relying on Commonwealth v. Little, 879 A.2d 293, 301 (Pa. Super. 2005)). Curiously, at no point does the Commonwealth inform this Court of the date on which the resentencing proceeding occurred. Indeed, in its recitation of the procedural history of this case, the Commonwealth simply declares that "[o]n October 22, 2012, [the trial court] vacated [Appellant's] PWID conviction and resentenced him to one to two years' incarceration for possession of a controlled substance." Id. at 4.
Because the record does not confirm that the trial court conducted a resentencing hearing in this case, we are compelled to agree with Appellant that the court violated Rule 704(C). That rule mandates, in pertinent part, that at the time of sentencing, the defendant shall be afforded an "opportunity to make a statement," and the court must "state on the record the reasons for the sentence imposed." Pa.R.Crim.P. 704(C)(1), (2). The record does not demonstrate that either of these requirements was satisfied in this case. Consequently, we are constrained to once again vacate Appellant's judgment of sentence and remand for resentencing.
Before concluding, we also note one final argument presented by Appellant. He maintains that despite the fact that this Court reversed his PWID conviction in his prior appeal, the trial court's current sentencing order (which we are vacating herein) erroneously states under the PWID offense (Count 1), "A determination of guilt without further penalty." Sentencing Order, 10/22/12, at 1 (emphasis added). We agree with Appellant that the current sentencing order is improper in this regard. Upon remand and resentencing, we direct the trial court to remove the offense of PWID from the sentencing order.
Judgment of sentence vacated. Case remanded for resentencing. Jurisdiction relinquished. Judgment Entered. __________
Joseph D. Seletyn, Esq.
Prothonotary