Opinion
1159 MDA 2021
06-28-2022
COMMONWEALTH OF PENNSYLVANIA v. TYHIR KHALIL WATERS Appellant
Joseph D. Seletyn, Esq.
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the PCRA Order Entered August 7, 2021 In the Court of Common Pleas of Tioga County Criminal Division at No(s): CP-59-CR-0000305-2019.
Joseph D. Seletyn, Esq.
BEFORE: BOWES, J., NICHOLS, J., and McCAFFERY, J.
MEMORANDUM
NICHOLS, J.
Appellant Tyhir Khalil Waters appeals from the order denying his timely first Post Conviction Relief Act (PCRA) petition. Appellant contends that his counsel at his sentencing hearing (sentencing counsel) was ineffective for failing to object to the sentencing court's incorrect description of the firearm Appellant possessed, and the failure to correct the court's misapprehension caused the sentencing court to impose a longer sentence. We affirm.
The record reflects that Appellant entered an open guilty plea to one count of persons not to possess firearms, graded as a first-degree felony. N.T., 5/29/20, at 1-2. On May 29, 2020, the trial court sentenced Appellant to term of sixty to 120 months of incarceration with 365 days of credit for time served. Id. at 33. Appellant did not file a post-sentence motion or direct appeal.
The affidavit of probable cause indicates that Appellant was one of several individuals engaged in an altercation at a convenience store. The individuals fled the scene in two separate cars and police pursued them. The police stopped both cars. Appellant was the front seat passenger of one car that was occupied by four individuals. When the car was stopped, the attesting officer saw a rifle next to Appellant, leaning against the console beside him, and a loaded magazine was found in between the seat and console where Appellant was sitting. A witness told police that the front seat passenger pointed what the witness thought was a BB gun at the other vehicle. Aff. of Probable Cause, 6/6/19, at 1-3.
On February 25, 2021, Appellant filed a timely pro se PCRA petition. The PCRA court appointed counsel, and Appellant filed a counseled amended PCRA petition on April 29, 2021. In the amended petition, Appellant asserted that at the sentencing hearing, the sentencing court and the district attorney referred to the rifle as an "automatic rifle." Am. PCRA Pet., 4/29/21, at 2-4. Following a hearing, the PCRA court concluded that the errant reference to the rifle was harmless error, and therefore, Appellant failed to establish that sentencing counsel was ineffective. Order, 8/7/21. Accordingly, the PCRA court denied Appellant's petition. Id. Appellant filed a timely notice of appeal, and both the PCRA court and Appellant complied with Pa.R.A.P. 1925. On appeal, Appellant raises the following issue:
The trial court said "automatic rifle" twice, and the district attorney used the term once. N.T., 5/29/20 at 6, 12.
Although the order was dated August 6, 2021, the trial court docket reflects that the order was not served on the parties until August 7, 2021. Criminal Docket Entries, at 12. The date of entry of an order is "the day the clerk of the court . . . mails or delivers copies of the order to the parties, . . . ." Pa.R.A.P. 108(a)(1), (d)(1). Accordingly, we refer to the order using August 7, 2021.
Did the PCRA court err when it concluded that the sentencing court's repeated and inaccurate mischaracterization of an AR-15 as an automatic rifle was a harmless error, even though the sentencing court specifically referenced the nature of the weapon as weighing against mitigation, and the sentencing court may have imposed a harsher sentence based on a mistaken belief that [Appellant] possessed a far more dangerous and unusual weapon than was in fact the case?
Appellant's Brief at 4 (formatting altered). Appellant contends that sentencing counsel's failure to object to the sentencing court's misapprehension regarding the type of rifle and erroneous description constituted ineffective assistance of counsel. Id. at 9-12. Appellant asserts that the trial court "appears to have been under a misapprehension regarding a fact directly relevant to the seriousness of the crime, and sentencing counsel failed to correct such misapprehension." Id. at 9. Appellant points out that the sentencing judge said: ". . . apparently these were pretty substantial firearms; AR, I believe that means automatic rifle." Id. at 10 (quoting N.T., 5/29/20, at 6). Appellant notes that the sentencing court continued:
Although Appellant argues ineffectiveness in his appellate brief, his Rule 1925(b) statement and question presented in his brief is a bare assertion that the PCRA erred in concluding that the sentencing court's reference to Appellant's firearm was harmless error. We note that relief is statutorily limited under the PCRA, and a vague Rule 1925(b) statement may result in waiver. See, e.g., Commonwealth v. Fowler, 930 A.2d 586, 593 (Pa. Super. 2007) (noting that challenges to the discretionary aspects of sentencing are not cognizable under the PCRA); see also Commonwealth v. Pukowsky, 147 A.3d 1229, 1236 (Pa. Super. 2016) (explaining that a vague Rule 1925(b) statement may result in waiver). However, Appellant's imprecise Rule 1925(b) statement does not preclude our review, and we decline to find waiver.
. . . that unnerves me because you're - what you're saying to me is, I've got a young man here that is on drugs to the point that he doesn't know [what] he is doing, but he's in possession or access of automatic rifles. That, that, that takes me to, that takes me to a land I don't want to go to.
Appellant's Brief at 10 (quoting N.T., 5/29/20, at 6).
The Commonwealth argues that whether Appellant was in possession of an automatic rifle as opposed to a semi-automatic rifle did not impact the sentence, and any error was harmless. Commonwealth Brief at 8-10. The Commonwealth points out that there were only passing references to the type of firearm. Id. at 8. Whether the rifle Appellant pled guilty to possessing was automatic or semi-automatic had no impact on the sentence imposed. Id. at 8-10.
We begin our discussion by setting forth our standard of review:
[O]ur standard of review from the denial of a PCRA petition is limited to examining whether the PCRA court's determination is supported by the evidence of record and whether it is free of legal error. The PCRA court's credibility determinations, when supported by the record, are binding on this Court; however, we apply a de novo standard of review to the PCRA court's legal conclusions.
Furthermore, to establish a claim of ineffective assistance of counsel, a defendant must show, by a preponderance of the evidence, ineffective assistance of counsel which, in the circumstances of the particular case, so undermined the truth-
determining process that no reliable adjudication of guilt or innocence could have taken place. The burden is on the defendant to prove all three of the following prongs: (1) the underlying claim is of arguable merit; (2) that counsel had no reasonable strategic basis for his or her action or inaction; and (3) but for the errors and omissions of counsel, there is a reasonable probability that the outcome of the proceedings would have been different.
We have explained that a claim has arguable merit where the factual averments, if accurate, could establish cause for relief. Whether the facts rise to the level of arguable merit is a legal determination.
The test for deciding whether counsel had a reasonable basis for his action or inaction is whether no competent counsel would have chosen that action or inaction, or, the alternative, not chosen, offered a significantly greater potential chance of success. Counsel's decisions will be considered reasonable if they effectuated his client's interests. We do not employ a hindsight analysis in comparing trial counsel's actions with other efforts he may have taken.
Prejudice is established if there is a reasonable probability that, but for counsel's errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.
Boilerplate allegations and bald assertions of no reasonable basis and/or ensuing prejudice cannot satisfy a petitioner's burden to prove that counsel was ineffective. Moreover, a failure to satisfy any prong of the ineffectiveness test requires rejection of the claim of ineffectiveness.Commonwealth v. Sandusky, 203 A.3d 1033, 1043-44 (Pa. Super. 2019) (citations omitted and formatting altered). Additionally:
[a] defendant raising a claim of ineffective assistance of counsel is required to show actual prejudice; that is, that counsel's ineffectiveness was of such magnitude that it could have reasonably had an adverse effect on the outcome of the proceedings. [Commonwealth v.] Pierce, 527 A.2d [973,] 977 [(Pa. 1987)]. This standard is different from the harmless error analysis that is typically applied when determining whether the trial court erred in taking or failing to take certain action. The
harmless error standard, as set forth by this Court in Commonwealth v. Story, 383 A.2d 155, 164 (Pa. 1978), states that whenever there is a reasonable possibility that an error might have contributed to the conviction, the error is not harmless. This standard, which places the burden on the Commonwealth to show that the error did not contribute to the verdict beyond a reasonable doubt, is a lesser standard than the Pierce prejudice standard, which requires the defendant to show that counsel's conduct had an actual adverse effect on the outcome of the proceedings. This distinction appropriately arises from the difference between a direct attack on error occurring at trial and a collateral attack on the stewardship of counsel. In a collateral attack, we first presume that counsel is effective, and that not every error by counsel can or will result in a constitutional violation of a defendant's Sixth Amendment right to counsel. Pierce, supra.Commonwealth v. Spotz, 84 A.3d 294, 315 (Pa. 2014) (quoting Commonwealth v. Gribble, 863 A.2d 455, 472 (Pa. 2004)) (some formatting altered).
Our review reflects that the PCRA court conceded that the sentencing court erroneously used the term automatic rifle. Supp. PCRA Ct. Op., 10/25/21, at 1. However, the PCRA court concluded that the error was harmless. Id. The PCRA court explained that it was Appellant's active role in picking up the firearm, not the "firing capacity or dangerousness" of the rifle that prevented the sentencing court from imposing a lesser sentence. Id. at 1-2. Therefore, the PCRA court found that Appellant failed to establish a claim of ineffective assistance of counsel. Id. at 2.
After review, we note that aside from Appellant's argument, there is no indication that the description or type of firearm that Appellant possessed had any impact on the sentence imposed. The record reveals that at the start of the sentencing hearing, the sentencing court informed Appellant that the offense gravity score (OGS) was eleven and Appellant's prior record score (PRS) was four. N.T., 5/29/20, at 3. The sentencing court explained that Appellant was pleading guilty to a first-degree felony charge. Id. The sentencing court then explained that the grade of the offense, in combination with the OGS and Appellant's PRS, resulted in a minimum sentence of between sixty and seventy-eight months under the Sentencing Guidelines. Id. The sentencing court clarified that when Appellant picked up the firearm, he was not a passive passenger in a car with firearms, he became an active participant, and that fact "extinguishes or goes to extinguish . . . mitigation that [the sentencing court] might have been willing to give him." Id. at 16. Ultimately, the sentencing court imposed a sentence with a minimum of sixty months and a maximum of 120 months of incarceration, which is at the lowest end of the standard range of the Sentencing Guidelines. See N.T., 5/29/20, at 33; see also 204 Pa.Code § 303.16(a) (Basic Sentencing Matrix).
Indeed, a sentence of seventy-eight to 156 months would have been a standard-range sentence. See 204 Pa.Code § 303.16(a).
The record reflects the extensive discussion about the standard-range sentence before sentence was imposed. N.T., 5/29/20, at 26. The sentencing court explained that Appellant's first-degree felony charge, in conjunction with Appellant's PRS, formed the basis for imposing the sentence of sixty months, which is the low end of the standard sentencing range. Id. The sentencing court detailed that the grading of the offense impacted the standard-range sentence, and if Appellant had been charged with a second-degree felony or a third-degree felony, a lower standard-range sentence would have been imposed. Id. We note that throughout the entire proceeding, the sentencing court discussed sentencing at the lowest end of the standard range of the Sentencing Guidelines. Id. at 18-33.
We conclude that Appellant received the instant sentence based on the sentencing court's consideration of multiple factors including Appellant's PRS and criminal history which prohibited Appellant from possessing a firearm, and that Appellant pled guilty to the underlying crime graded as a first-degree felony. Even if sentencing counsel objected to the description of the firearm, it is unlikely that the result of the sentencing proceeding would have been different. There is no evidence that the type of the firearm affected Appellant's guilty plea to the possession of a firearm that was prohibited to him due to his felony record. Nor does the record support Appellant's claim that the type of firearm affected his sentencing which was imposed at the lowest end of the standard range of the Sentencing Guidelines. Indeed, the OGS was not dependent on the type of firearm that Appellant illegally possessed. As the sentencing court stated, an important consideration was Appellant's active role in handling the firearm, not the type of firearm, that supported the sentence. Id. at 16.
The dissent posits that we have "minimized the seriousness" of the sentencing court's misstatements. Dissenting Mem., at 1. As noted, the trial court used the term "automatic" to describe Appellant's AR-15, which is a semi-automatic weapon. See N.T., 5/29/20, at 6. Without discussing the singular term "automatic," the dissent proceeds to quote language from the Supreme Court of the United States which explains the distinction between a "fully automatic" weapon and a "semi-automatic" weapon. Dissenting Mem. at 1-3 (citing Staples v. U.S., 511 U.S. 600, 603 (1994)). In Staples, the Court stated the level of proof that was required to establish that a firearm falls within the statutory definition of a "machine gun," a fully automatic firearm. Staples, 511 U.S. at 602. However, in the case at bar, the sentencing court never referred to Appellant's firearm as "fully automatic" or as a "machine gun." Additionally, we point out that referring to a semiautomatic weapon as "automatic," is not uncommon. See, e.g., Commonwealth v. Almodovar, 2022 WL 122614, at *1 (Pa. Super. filed Jan. 13, 2022) (unpublished mem.). Moreover, despite the dissent's suppositions, it is clear that Appellant failed to establish that the result of the sentencing hearing would have been different if counsel had objected to the term "automatic" and pointed out to the sentencing court that the weapon was "semi-automatic" as opposed to "automatic." Indeed, neither the dissent's position that semi-automatic weapons are regularly utilized by civilians, nor the rate of fire for an AR-15 were factors that could increase or decrease the applicable Sentencing Guidelines for 18 Pa.C.S. § 6105(a)(1). Finally, because Appellant received a sentence at lowest end of the standard range, we presume that his sentence was reasonable. See, e.g., Commonwealth v. Fowler, 893 A.2d 758, 767 (Pa. Super. 2006). Pursuant to our standard of review, we do not find that the PCRA court erred in denying Appellant relief.
On this record, we agree with the PCRA court's conclusion that the erroneous description of Appellant's firearm was harmless and therefore, there was no prejudice to Appellant. Supp. PCRA Ct. Op., 10/25/21, at 1-2.
Because Appellant has not established prejudice, his claim of ineffective assistance of counsel fails and no relief is due. See Sandusky, 203 A.3d at 1043-44; see also Spotz, 84 A.3d at 315. For these reasons, we affirm the PCRA court's order.
Order affirmed.
Judge McCaffery joins the memorandum.
Judge Bowes files a dissenting memorandum.
Judgment Entered.
DISSENTING MEMORANDUM
BOWES, J.:
I respectfully dissent. Since there is no dispute that the sentencing court misapprehended a significant aspect of the crime committed by Appellant and explicitly relied upon that misapprehension in handing down its sentence, I would conclude that counsel rendered ineffective assistance by: (1) failing to object to the inaccuracy during Appellant's sentencing; and (2) declining to request resentencing to correct the factual inaccuracy which occurred. Therefore, I would reverse the order of the PCRA court, vacate Appellant's judgment of sentence, and remand for resentencing.
With all due respect, I find that the Majority's discussion has minimized the seriousness of the trial court's misinterpretation of the facts in this case. Accordingly, I think it is important to review the sentencing court's comments in the context in which they appeared. Although Appellant pled guilty to person not to possess a firearm, at sentencing Appellant argued that the offense was the product of his long-term abuse of narcotics and requested intermediate punishment to address his underlying issues with addiction:
[DEFENSE COUNSEL]: Okay. So, as you, as you see, [Appellant] is a 24-year-old man. He's been using drugs since the age of 15, he had indicated. You look at his prior history, everything that he's done wrong in his life has been drug related, and that's the issue; that's the issue he's been having. . . . But for his drug use, he'd probably be a productive member of society, but instead, it keeps putting him back in. . . .
[H]e has been incarcerated before, but it has not stopped him from using drugs, so I am trying to stress to you, Judge, that if we warehouse him for an extended period of time, it's not going to help him; he needs to get the help to get rid of his addiction. If you sentence him to a [s]tate [s]entence, that State Intermediate Punishment Program would be perfect for him. . . . He doesn't remember anything because he was on meth, he doesn't even remember sitting next to the gun, he doesn't remember even brandishing the gun, and . . . I think just putting him in jail is not going to be enough.
THE COURT: I, I would normally buy that argument, but this
is the leap that I'm having trouble making. If [Appellant] came to me and he was on a drug charge, if he was on some kind of theft, if he was on a burglary or criminal trespass, even if it was perhaps an assault, I can say, "Okay, it's drug related." [B]ut now I have this giant leap to possession of firearms, and apparently these were pretty substantial firearms; AR, I believe means automatic rifle.
[DEFENSE COUNSEL]: That's right, but once again, like I said, he was using drugs that day, he was using meth the day it happened. Everything he's done in his life, every problem he's had has been drug related.
THE COURT: So, you - but - that unnerves me because you're - what you're saying to me is, I've got a young man here that is on drugs to the point that he doesn't know where he's going, but he's in possession or access of automatic rifles. That, that, that takes me to, that takes me to a land I don't want to go to.
N.T. Sentencing, 5/29/20, at 4-6 (emphases added). Later in the same proceeding, the Commonwealth referenced the same erroneous information. See id. at 12 ("Driving down the road with an automatic rifle in your possession, as the facts allege, pointing it at people. We are very fortunate that this didn't end up any worse than it already did."). Ultimately, the trial court denied Appellant's request for intermediate punishment based, at least in part, upon the type of weapon it believed Appellant had possessed.
The references highlighted above refer to Appellant's undisputed possession of an AR-15. As the Supreme Court of the United States has explained, "[t]he AR-15 is the civilian version of the military's M-16 rifle, and is, unless modified, a semiautomatic weapon." Staples v. U.S., 511 U.S. 600, 603 (1994) (emphasis added). This means that the weapon "fires only one shot with each pull of the trigger[.]" Id. at 602 n.1. Semiautomatic weapons like the AR-15 are distinct from "automatic" or "fully automatic" weapons, which fire "repeatedly with a single pull of the trigger" and "will automatically continue to fire until its trigger is released or the ammunition is exhausted." Id. Thus, the AR-15 is not an automatic rifle. This distinction is not merely formalistic but concerns the offensive capability and perceived character of the firearm. This is particularly so where, as here, possession of a firearm is the only criminal activity implicated in this matter.
As the Supreme Court's discussion in Staples evinces, semi-automatic weapons are regularly utilized by civilians while automatic weapons are typically restricted to use by the military. Staples, supra at 603. Instantly, the sentencing court expressed concern at multiple junctures that Appellant had possessed an automatic weapon. Indeed, the court stated that his alleged possession of an automatic weapon had convinced it to deny Appellant's request for intermediate punishment. See N.T. Sentencing, 5/29/20, at 4-6. Accordingly, there is unanimity in that Appellant, the Commonwealth, and the PCRA court are all in agreement that the above-quoted references to automatic weapons were erroneous. See PCRA Court Opinion, 10/25/21, at 1 (holding the error to be harmless); Commonwealth's brief at 7 ("[A]n error in defining the firearm, an AR-15, as an 'automatic rifle' was made by both the Judge and the District Attorney and was not questioned or corrected by Defense Counsel[.]"); Appellant's brief at 4-6 (same).
Appellant has framed this issue as one addressed to the effectiveness of defense counsel in a timely PCRA petition. See Appellant's brief at 11 ("[S]entencing counsel took no steps whatsoever to correct the court's misunderstanding or to preserve the issue for appellate review."). Accordingly, he must satisfy the three-part inquiry that Pennsylvania courts have "refined" from Strickland v. Washington, 466 U.S. 668 (1984) by showing that: (1) his underlying claim is of arguable merit; (2) counsel had no reasonable basis for his action or inaction; and (3) the petitioner suffered actual prejudice as a result. Commonwealth v. Sarvey, 199 A.3d 436, 452 (Pa.Super. 2018). Both the PCRA court and the Majority predicate their holding upon a finding that the inaccuracy described above was "harmless." See PCRA Court Opinion, 10/25/21, at 1 (finding that all references to an "automatic rifle" constituted "harmless error"); Majority Memorandum at 9 ("On this record, we agree with the PCRA court's conclusion that the erroneous description of Appellant's firearm was harmless and therefore, there was no prejudice to Appellant."). I must respectfully disagree. In my opinion, Appellant has satisfied all three elements of the test for ineffectiveness.
It is well-established that a claim that a sentencing court has considered improper or erroneous factors in handing down a sentence does not implicate the legality of the sentence. See Commonwealth v. Archer, 722 A.2d 203, 210 (Pa.Super. 1998) (en banc) ("[I]f a sentencing court considers improper factors in imposing sentence upon a defendant, the court thereby abuses its discretion, but the sentence imposed is not rendered illegal.").
As a general matter, "[t]here is no reason to prohibit the sentencing court from taking into consideration the facts of the crime and how those facts supported a potentially more serious sentence when the court is weighing whether to impose a standard or mitigated sentence." Commonwealth v. Macias, 968 A.2d 773, 778 (Pa.Super. 2009). In exercising this discretion, however, the judge must rely on "full and accurate information[.]" Commonwealth v. Maxwell, 421 A.2d 699, 703 (Pa.Super. 1980). Indeed, "[p]recisely because of the wide latitude afforded sentencing courts and because we recognize the court's ability to arrive at a balanced judgment when possessed of all the facts, it becomes imperative that the facts relied upon by the sentencing court be accurate." Commonwealth v. Medley, 725 A.2d 1225, 1229 (Pa.Super. 1999) (emphasis in original).
Accordingly, it is equally well-established under Pennsylvania law that it is "improper for a court to sentence pursuant to facts de hors the record[.]" Commonwealth v. Griffin, 804 A.2d 1, 17 (Pa.Super. 2002) (cleaned up). Indeed, it is well-settled that,
prior to imposing sentence [a] sentencing judge may appropriately conduct an inquiry broad in scope, largely unlimited either as to the kind of information he may consider, or the source from which it may come.
Nevertheless, the discretion of a sentencing judge is not unfettered; a defendant has the right to minimal safeguards to ensure that the sentencing court does not rely on factually erroneous information, and any sentence predicated on such false assumptions is inimicable [sic] to the concept of due process.Commonwealth v. Melvin, 172 A.3d 14, 25 (Pa.Super. 20176). Accordingly, "[i]f the court relies on improper considerations or information, . . . new sentencing is required." Commonwealth v. Cowan, 418 A.2d 753, 753 (Pa.Super. 1980). In light of this case law, I find that Appellant's argument concerning the use of erroneous information has arguable merit.
Turning to the second element of ineffectiveness, our precedent provides that we "should not deem counsel's strategy or tactic unreasonable unless it can be concluded that an alternative not chosen offered a potential for success greater than the course actually pursued." Commonwealth v. Koehler, 36 A.3d 121, 132 (Pa. 2012) (cleaned up). Ordinarily, Appellant's failure to adduce testimony from trial counsel concerning this strategic choice at the PCRA hearing would be fatal to his claim. Id. at 146. Here, however, the lack of a strategic basis is "self-evident." Id. Specifically, counsel not only failed to object or attempt to correct the record concerning the AR-15, he doubled down on the misapprehension by purporting to confirm the trial court's erroneous assertion that an AR-15 is an "automatic" weapon. See N.T. Sentencing, 5/29/20, at 6. Thus, counsel's failure to raise any concern appears to be the result of the same misunderstanding, i.e., he also believed that an AR-15 is an "automatic" firearm. Under these circumstances, it is self-evident that defense counsel did not make a conscious choice to permit a factual inaccuracy to inform the sentence imposed upon his client. Accordingly, I would hold Appellant has also satisfied the second prong of ineffectiveness. See, e.g., Commonwealth v. Kennedy, 323 A.2d 384, 386 (Pa.Super. 1974) ("If . . . counsel's course of action is unmotivated by any reasonable tactical choice, the defendant . . . may, in a collateral proceeding, obtain relief on the basis of ineffective assistance of counsel." (cleaned up)).
As the Majority has aptly noted, the test for prejudice in this context is not insubstantial. See Commonwealth v. Spotz, 84 A.3d 294, 315 (Pa. 2014) (opining that prejudice in the context of ineffectiveness "requires the defendant to show that counsel's conduct had an actual adverse effect on the outcome of the proceedings"). Even with such a standard in mind, I believe that these circumstances are indicative of prejudice. I find substantial guidance from our case law addressing the importance of the accuracy of information relied upon by the trial court in imposing criminal sentences. This Court has held that "it is sufficient to render a sentence invalid if it reasonably appears from the record that the sentencing court relied in whole or in part upon an erroneous consideration." Commonwealth v. Kerstetter, 580 A.2d 1134, 1136 (Pa.Super. 1990) (emphasis added). Thus, in deciding whether a trial judge considered only permissible factors in sentencing a defendant, this Court has observed as follows:
A sentence is invalid if the record discloses that the sentencing court may have relied in whole or in part upon an impermissible consideration. This is so because the court violates the defendant's right to due process if, in deciding upon the sentence, it considers unreliable information, or information affecting the court's impartiality, or information that it is otherwise unfair to hold against the defendant.Commonwealth v. Downing, 990 A.2d 788, 793 (Pa.Super. 2010) (emphasis added). In the instant case, it is beyond cavil that the trial court, in part, relied upon the erroneous categorization of Appellant's firearm in imposing his sentence. See N.T. Sentencing, 5/29/20, at 4-6.
The Majority recites the other valid considerations of the sentencing court in great detail and accuracy. See Majority Memorandum at 6-8. However, to my mind, the fact that the trial court also considered permissible and accurate facts does not obviate the underlying error in this case. As our Supreme Court has aptly observed, "a sentence based in part on an impermissible consideration is not made proper simply because the sentencing judge considers other permissible factors as well." Commonwealth v. Bethea, 379 A.2d 102, 106 (Pa. 1977). Under these circumstances,
it is not the duration or severity of this sentence that renders it constitutionally invalid; it is the careless or designed pronouncement of a sentence on a foundation so extensively and materially false, which the prisoner had no opportunity to correct by the services which counsel would provide, that renders the proceedings lacking in due process.Townsend v. Burke, 334 U.S. 736, 741 (1948).
Here, Appellant was entitled to be sentenced according to accurate facts and the considerations that stemmed therefrom. There is no question that the sentencing court misapprehended the facts and based Appellant's sentence, in part, upon that misunderstanding. As such, I would hold that he suffered prejudice as a result of this deprivation of due process. Had defense counsel acted appropriately, the record would have been corrected and the sentencing court would have been forced to re-evaluate its initial conclusions regarding the nature of the weapon. To my mind, such an approach would have presented a greater probability of success than the tact actually pursued by counsel, i.e., erroneously confirming the court's factual error. Thus, Appellant has also established prejudice. Since this due process violation strikes at the heart of Appellant's sentencing, I cannot deem it to be harmless.
To the extent that the PCRA court speculates concerning the motivations of the sentencing court in this case, I note that this case has been assigned to a different jurist during these collateral proceedings. Accordingly, the PCRA court in this matter is unable to directly speak to the sentencing court's motivations, or what sentence might have been imposed in the absence of the factual error described at length above.
Based on the foregoing, I would reverse the order of the PCRA court, vacate Appellant's sentencing order, and remand for resentencing. Accordingly, I respectfully dissent.