Opinion
J-S75038-16 No. 3529 EDA 2015
12-19-2016
COMMONWEALTH OF PENNSYLVANIA v. SILEEN KENNEY, Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the PCRA Order November 12, 2015 in the Court of Common Pleas of Philadelphia County, Criminal Division, No(s): CP-51-CR-0010010-2009; CP-51-CR-0010011-2009; CP-51-CR-0010012-2009 BEFORE: BOWES, MOULTON and MUSMANNO, JJ. MEMORANDUM BY MUSMANNO, J:
Sileen Kenney ("Kenney") appeals from the Order dismissing his first Petition for relief filed pursuant to the Post Conviction Relief Act ("PCRA"). We affirm the denial of reinstatement of Kenny's direct appeal rights nunc pro tunc, reverse the Order denying PCRA relief, vacate Kenney's judgment of sentence, and remand for resentencing.
See Pa.C.S.A. §§ 9541-9546.
In its Opinion, the PCRA court set forth the relevant factual and procedural history of this case, which we adopt for the purpose of this appeal. See PCRA Court Opinion, 1/28/16, at 1-4.
On appeal, Kenney raises the following issues for our review:
I. Did the [PCRA] court err in not reinstating [Kenney's] right to file an appeal nunc pro tunc from the judgment of sentence because [Kenney's] defense counsel was ineffective in representing [Kenney] on appeal?
II. Is [Kenney] entitled to a new sentence[ing] hearing because the sentence imposed by the trial court was illegal because a sentence imposed on criminal conspiracy can[]not run consecutive[ly] to a sentence imposed on attempted murder?Brief for Appellant at 2.
We review an order dismissing a petition under the PCRA in the light most favorable to the prevailing party at the PCRA level. This review is limited to the findings of the PCRA court and the evidence of record. We will not disturb a PCRA court's ruling if it is supported by evidence of record and is free of legal error. This Court may affirm a PCRA court's decision on any grounds if the record supports it. We grant great deference to the factual findings of the PCRA court and will not disturb those findings unless they have no support in the record. However, we afford no such deference to its legal conclusions. [Further, w]here the petitioner raises questions of law, our standard of review is de novo and our scope of review [is] plenary.Commonwealth v. Ford , 44 A.3d 1190, 1194 (Pa. Super. 2012) (citations omitted).
In his first claim, Kenney contends that his appellate counsel was ineffective for failing to raise, with adequate specificity, a sufficiency claim regarding the mens rea element of the offense of attempted murder. Brief for Appellant at 6. Kenney points out that, on direct appeal of his judgment of sentence, this Court determined that Kenney's sufficiency claim was waived because his court-ordered Pa.R.A.P. 1925(b) Statement was vague and non-specific. Id. Kenney asserts that, although the trial court addressed the issue, it applied the wrong standard in determining that the Commonwealth was required to establish that Kenney acted with malice aforethought rather than with a specific intent to kill. Id. Kenney claims that that the Commonwealth's evidence did not establish a specific intent to kill, and that this Court declined to address the issue due to his appellate counsel's ineffectiveness. Id. at 7. Kenney argues that, due to appellate counsel's ineffectiveness, the PCRA court should have reinstated his direct appeal rights nunc pro tunc. Id .
The PCRA court addressed Kenney's first issue, set forth the relevant law, and determined that his ineffectiveness claim lacked merit because the evidence was sufficient to support his convictions. See PCRA Court Opinion, 1/28/16, at 4-6 (relying on the trial court's painstaking review of the sufficiency of the evidence for each of the charges against Kenney, and incorporating the trial court's analysis by reference); see also Trial Court Opinion, 3/28/11, at 19-29 (meticulously setting forth the evidence supporting Kenney's convictions, and concluding that the evidence was sufficient to support them). We agree with the sound reasoning of the PCRA court, and affirm on this basis as to Kenney's first issue. See PCRA Court Opinion, 1/28/16, at 4-6; see also Trial Court Opinion, 3/28/11, at 19-29.
In his second issue, Kenney contends that, pursuant to 18 Pa.C.S.A. § 906, the sentence imposed on the attempted murder conviction, of 20 to 40 years in prison, followed by 10 years of probation for the conspiracy to commit murder conviction, was illegal because the offenses of attempted murder and criminal conspiracy merge for sentencing purposes. Brief for Appellant at 7. Kenney claims that his judgment of sentence should be vacated, and the case remanded for resentencing. Id. The Commonwealth concedes that, pursuant to 18 Pa.C.S.A. § 906, the trial court erred by imposing consecutive sentences for attempted murder and conspiracy to commit murder when sentencing Kenney in relation to victim Niles Elo ("Elo"). Commonwealth Brief at 11.
Pursuant to section 906 "[a] person may not be convicted of more than one of the inchoate crimes of criminal attempt, criminal solicitation or criminal conspiracy for conduct designed to commit or to culminate in the commission of the same crime." 18 Pa.C.S.A. § 906.
A claim that crimes should have merged for sentencing purposes presents a challenge to the legality of a sentence. See Commonwealth v. Rhoades , 8 A.3d 912, 918 (Pa. Super. 2010). Although Kenney's legality of sentence claim was not raised in his pro se PCRA Petition or in his counseled amended Petition, such a claim can be raised sua sponte by this Court, where we have jurisdiction. See Commonwealth v. Edrington , 780 A.2d 721, 723 (Pa. Super. 2001). Thus, because Kenney's Petition was timely filed, this Court has jurisdiction to address his challenge to the legality of his sentence. See Commonwealth v. Berry , 877 A.2d 479, 482 (Pa. Super. 2005) (holding that legality of sentence claims may be addressed if the PCRA petition was timely filed).
We conclude that the trial court erred by imposing consecutive sentences for attempted murder and conspiracy to commit murder when sentencing Kenney in relation to Elo. See 18 Pa.C.S.A. § 906 (providing that a person may not be sentenced for both criminal attempt and criminal conspiracy in the commission of the same crime). Because vacating Kenney's sentence for conspiracy to commit murder may disrupt the trial court's overall sentencing scheme, we vacate his judgment of sentence in its entirety and remand for resentencing. See Commonwealth v. Barton-Martin , 5 A.3d 363, 370 (Pa. Super. 2010) (providing that where vacating a sentence disrupts a trial court's overall sentencing scheme, this Court will remand to the trial court for resentencing).
Order affirmed in part and reversed in part; judgment of sentence vacated; case remanded for resentencing; Superior Court jurisdiction relinquished. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 12/19/2016
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