Opinion
J.S29033/16 No. 1591 WDA 2015
04-12-2016
COMMONWEALTH OF PENNSYLVANIA, v. MARK GRABOWSKI, Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence January 9, 2014 in the Court of Common Pleas of Erie County Criminal Division at No(s): CP-25-CR-0000081-2011 BEFORE: BENDER, P.J.E., PANELLA, and FITZGERALD, JJ. MEMORANDUM BY FITZGERALD, J.:
Former Justice specially assigned to the Superior Court.
Appellant, Mark Grabowski, appeals, nunc pro tunc, from the judgment of sentence entered in the Erie County Court of Common Pleas resentencing him to five to ten years' imprisonment for robbery and one year of probation for simple assault. The probationary sentence for simple assault was concurrent to the sentence imposed for robbery. Appellant claims that the court erred in failing to comply with the remand order of this Court as to the resentencing. We affirm.
We adopt the procedural history set forth in the trial court's opinion. See Trial Ct. Op., 11/13/15, at 1-5. Appellant raises the following issue for our review: "Whether the lower [c]ourt committed legal error and abused its discretion in failing to comply with the remand order of the Superior Court of Pennsylvania as to resentencing of [A]ppellant?"
As a prefatory matter, we consider whether Appellant has waived this issue on appeal. We note that Appellant cites no law in support of his claim of trial court error. We reproduce the argument section of the brief verbatim:
A. The lower court failed to comply with remand order as to resentencing.Appellant's Brief at 6. In Commonwealth v. Johnson , 985 A.2d 915 (Pa. 2009), the Pennsylvania Supreme Court held "where an appellate brief fails to provide any discussion of a claim with citation to relevant authority or fails to develop the issue in any other meaningful fashion capable of review, that claim is waived." Id. at 924 (citations omitted). Therefore, we could find the issue waived. See id. Assuming that the issue is not waived, we will address it.
The lower [c]ourt committed legal error and abused its discretion as to the resentencing imposed on January 9, 2014 in that the [c]ourt failed to wholly comply with the dictates of the remand order issued by the Superior Court of Pennsylvania on January 6, 2014 and otherwise failed to duly correct or modify the original sentencing order of November 7, 2011.
In the appeal from the judgment of sentence entered on November 7, 2011, this Court found that there was insufficient evidence to sustain Appellant's conviction for Recklessly Endangering Another Person ("REAP"). Commonwealth v. Grabowski , 141 WDA 2013 (unpublished memorandum at 5) (Pa. Super. Nov. 15, 2013). This Court opined:
We note that Appellant received a sentence of one years' probation at the count of [REAP]. This sentence was to be
served consecutively to both his term of incarceration, and an additional one-year term of probation. Because our disposition reduces the aggregate term of Appellant's sentence, we conclude that it upsets the trial court's overall sentencing scheme. Commonwealth v. Thur , 906 A.2d 552, 569 (Pa. Super. 2006). Accordingly, we remand this case for resentencing at the remaining two counts.Id. at 5-6. "It is axiomatic that the court below, on remand, must comply strictly with the mandate of the higher court." Commonwealth v. Williams , 877 A.2d 471, 475 (Pa. Super. 2005).
On January 9, 2014, the court resentenced Appellant to five to ten years' imprisonment for robbery and a concurrent term of one year of probation for simple assault. Pa.R.A.P. 2591(a) "authorizes a trial court to proceed with the directives of the appellate court after remand of the record." Commonwealth v. Salley , 957 A.2d 320, 323 (Pa. Super. 2008) (emphasis omitted). The trial court opined: "Appellant, in his own Notice of appeal/Motion for reconsideration Nunc Pro Tunc filed November 20, 2014 . . . acknowledged the trial court corrected the November 7, 2011 sentence in compliance with the remand order." Trial Ct. Op. at 7. We agree no relief is due.
We note that the record was returned from the Superior Court to the trial court on January 6, 2014.
Appellant's Notice of Appeal/Motion for Reconsideration Nunc Pro Tunc belies his claim that the court failed to comply with the remand order. Appellant averred: "On January 9, 2014, the Honorable Brabender corrected the November 7, 2011, sentence in compliance with the Superior Court's order, Keith H. Clelland, Esq., represented [Appellant]." Notice of Appeal/Motion for Reconsideration Nunc Pro Tunc, 11/20/14, at 1 ¶ 2 (emphasis added).
We reiterate this motion "was in the nature of a timely, first petition filed under the PCRA [Post Conviction Relief Act, 42 Pa.C.S. §§ 9541-9546], as it raised an issue cognizable under the PCRA, and was filed within one year after [Appellant's] judgment of sentence became final." Commonwealth v. Grabowski , 2067 WDA 2014 (unpublished memorandum at 4) (Pa. Super. June 3, 2015) (footnote omitted). Counsel was appointed to represent Appellant and filed a Supplement to Motion for Post Conviction Collateral Relief. Appellant requested "post-conviction collateral relief in the nature of the reinstatement of his right to appeal nunc pro tunc from the January 9, 2014 resentencing order." Supplement to Mot. for Post Conviction Collateral Relief, 9/8/15, at 4. Appellant's right to appeal nunc pro tunc from the resentencing order of January 9, 2014 was granted. See Order, 9/11/15. The instant timely appeal followed.
The trial court complied with this Court's directive on remand. See Williams , 877 A.2d 471, 475. Therefore, we affirm the judgment of sentence.
Judgment of sentence affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 4/12/2016
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