Com. v. Hernandez

• Decision Date: 22 May 2000
• Citation: 755 A.2d 1
• Parties: COMMONWEALTH of Pennsylvania, Appellee, v. Ricardo HERNANDEZ, Appellant.
• Court: Pennsylvania Superior Court

755 A.2d 1

COMMONWEALTH of Pennsylvania, Appellee, v. Ricardo HERNANDEZ, Appellant.

Superior Court of Pennsylvania.

Argued May 11, 1999.

Filed May 22, 2000.

Reconsideration Denied July 28, 2000.

Lawrence J. Rosen, Harrisburg, for appellant.

K. Kenneth Brown, II, Asst. Dist. Atty., Lancaster, for the Com., appellee.

Before POPOVICH, ORIE MELVIN and BROSKY, JJ.

POPOVICH, J.:

¶ 1 This is an appeal from the order entered by the Court of Common Pleas of Lancaster County on September 4, 1998, which denied appellant's petition for leave to appeal nunc pro tunc. Upon review, we find that the lower court erred in refusing to grant appellant's petition to appeal nunc pro tunc. However, we need not remand this case for the filing of a direct appeal. Rather, given the present state of the record, we are able to resolve appellant's lone appellate claim, an attack upon the discretionary aspects of his sentence. Upon review, we find that the lower court did not abuse its discretion when fashioning appellant's sentence. Accordingly, we affirm appellant's judgment of sentence.

¶ 2 Herein, appellant questions:

I. Is Appellant entitled to an appeal nunc pro tunc when seeking to challenge the discretionary aspect(s) of sentence in a criminal proceeding when said sentence was rendered pursuant to a guilty plea and trial counsel failed to properly perfect Appellant's appeal, having been directed to do so by Appellant?

II. In an appeal to establish a Defendant's right to appeal nunc pro tunc, may the Court consider and rule on Defendant's underlying claims where a complete record is before the Court and the issues have been briefed?

III. Is a Defendant entitled to have his/her case remanded for resentencing where it is shown that the Sentencing Court failed to adequately support its sentence when that sentence was substantially beyond the aggravated range of the guidelines?

IV. Is a Defendant entitled to have his/her case remanded for resentencing where it is shown that the sentencing court clearly usurped the prosecution's prerogative and imposed the mandatory minimum where the record clearly demonstrates that the prosecution had agreed to waive the mandatory minimum?

V. Did the Sentencing Court's imposition of an aggregate sentence of ninety months when the outer limits of the aggravated range of the sentencing guidelines called for a sentence of no more than fifty two months constitute a complete departure from the sentencing guidelines and thus an abuse of discretion mandating that the case be remanded for resentencing?

VI. Did the sentencing judge's actions reflect such prejudice towards appellant and an unwillingness to adhere to the resentencing (sic) guidelines such that the present case should be remanded for resentencing before another judge?

Appellant's Brief, pp. 5-6.

¶ 3 The record reveals that on September 20, 1996, appellant pleaded guilty to one count of robbery, one count of aggravated assault, one count of recklessly endangering another person and three counts of criminal conspiracy. In exchange for appellant's guilty pleas, the Commonwealth agreed not to proceed under 42 Pa.C.S.A. § 9712, which, upon notice from the Commonwealth, requires the sentencing court to impose a five-year mandatory minimum sentence when the defendant visibly possesses a firearm during the commission of the crimes of robbery or aggravated assault, among other crimes. Guilty Plea Colloquy, 9/20/96, p. 3.

¶ 4 Following a presentence investigation, appellant was sentenced on January 17, 1997. The court sentenced appellant to a term of five to ten years of imprisonment for the robbery and a consecutive term of two and one-half to five years for the aggravated assault. The court also sentenced appellant to two terms of two and one-half to five years of imprisonment for the conspiracy to commit a robbery and the conspiracy to commit aggravated assault, to be served concurrently to one another and concurrently to the robbery sentence. The remaining offenses merged for sentencing purposes. During the sentencing, the court noted that the sentence recommended by the sentencing guidelines was "totally inappropriate" in light of the aggravating circumstances of this case.

¶ 5 Neither appellant nor his counsel objected to his sentence in any manner at the time of its imposition. Further, neither appellant nor his counsel filed a post-sentence motion to modify sentence. Rather, appellant, through counsel, filed a notice of appeal on February 14, 1997. On February 21, 1997, the lower court directed appellant to file a concise statement of matters complained of on appeal within fourteen days, in accordance with Pa. R.A.P.1925. On March 10, 1997, the lower court filed its opinion, in which it noted that appellant did not comply with its order to file a Pa.R.A.P.1925 statement. Nevertheless, the court attempted to review "the unknown `merits' of the appeal." Therein, the court opined that appellant's guilty plea was entered knowingly, intelligently and voluntarily and that the court was not limited in its sentencing options by the Commonwealth's agreement not to invoke the mandatory sentencing provisions of 42 Pa.C.S.A. § 9712.

¶ 6 On direct appeal, this court, in Commonwealth v. Hernandez, No. 00812 Philadelphia 1997, 704 A.2d 1117 (Pa.Super.1997), held that appellant's challenge to the discretionary aspects of his sentence had been waived due to counsel's failure to object to appellant's sentence at the time of its imposition, counsel's failure to file a motion to modify sentence and counsel's failure to file a concise statement of matters claimed on appeal, despite a court order so to do. See Commonwealth v. Jarvis, 444 Pa.Super. 295, 663 A.2d 790 (1995)

(although motion to modify sentence is optional under Pa.R.Crim.P. 1410, defendant still must preserve challenge to discretionary aspects of sentence at the time of sentencing or in a motion to modify, so that the lower court has an opportunity to address the issue); Commonwealth v. Egan, 451 Pa.Super. 219, 679 A.2d 237 (1996) (Superior Court may address challenge to discretionary aspects of sentence even though claim was not raised in a motion to modify sentence where claim was raised in Pa.R.A.P.1925 statement and lower court addressed issue in its opinion).

¶ 7 On July 17, 1998, appellant, through new counsel, filed a petition for leave to appeal nunc pro tunc. Therein, he alleged that he directed his prior counsel to take all necessary steps to perfect a direct appeal properly from the discretionary aspects of his sentence. He specifically requested the court to find that counsel rendered ineffective assistance due to his failure to preserve properly his constitutional right to appeal the discretionary aspects of his sentence. Finally, appellant asked the court to grant him the right to file a direct appeal nunc pro tunc.

¶ 8 On September 4, 1998, the lower court dismissed appellant's petition for leave to appeal nunc pro tunc and granted appellant leave to file a petition pursuant to the Post Conviction Relief Act, 42 Pa. C.S.A. §§ 9541-9546, subject to its provisions concerning eligibility for relief and filing deadlines. This appeal followed.

¶ 9 To begin, we note that appellant filed his petition for appeal nunc pro tunc on July 17, 1998. Several months earlier, this court, in Commonwealth v. Lantzy, 712 A.2d 288, 291 (Pa.Super.1998) (en banc), reversed, 558 Pa. 214, 736 A.2d 564 (1999), held that:

If a defendant desires to assert that counsel's ineffective assistance deprived him of the right to appeal, causing him prejudice, but not affecting the underlying verdict or adjudication, the defendant can seek relief by requesting an appeal nunc pro tunc. See Commonwealth v. Stock, 545 Pa. 13, 19, 679 A.2d 760, 764 (1996)

(granting a defendant an appeal nunc pro tunc where counsel failed to timely file a direct appeal and noting that "an appeal nunc pro tunc is intended as a remedy to vindicate the right to appeal where that right has been lost due to extraordinary circumstances."). The fact that he will not be awarded relief under the PCRA does not prevent the petitioner from obtaining relief altogether.

¶ 10 Appellant's filing of a petition for leave to appeal nunc pro tunc in the present case, rather than a PCRA petition, clearly is a result of our decision in Lantzy. Appellant's lone issue on direct appeal was an attack upon the discretionary aspects of his sentence. Previous holdings of this court clearly indicated that a claim that counsel was ineffective for failing to preserve a sentencing claim for direct appeal was not a cognizable PCRA claim under 42 Pa.C.S.A. § 9545(a)(2)(ii), since such an error by counsel could not "so undermine the truth-determining process that no reliable adjudication of guilt or innocence could have taken place." See e.g., Lantzy, 712 A.2d at 292

(claim that counsel was ineffective for advising defendant to withdraw his appeal and post-sentence motions was not a cognizable PCRA claim, since PCRA relief is available only for sentences greater than the lawful maximum); Commonwealth v. Lewis, 430 Pa.Super. 336, 634 A.2d 633, 636 (1993) (claim that counsel was ineffective for failing to file a motion to modify sentence is a challenge to the discretionary aspects of sentencing and, therefore, not cognizable under the PCRA), appeal denied, 539 Pa. 689, 653 A.2d 1228 (1994); Commonwealth v. Grier, 410 Pa.Super. 284, 599 A.2d 993, 996 (1991),

appeal denied, 530 Pa. 639, 607 A.2d 250 (1992)(claim that counsel was ineffective for failing to preserve the issue of sentencing by filing a motion to modify sentence is outside the scope of the PCRA); Commonwealth v. Wolfe, 398 Pa.Super. 94, 580 A.2d 857, 860 (1990)(claim that counsel was ineffective for failing to challenge the discretionary aspects of sentence on appeal is not a cognizable PCRA claim since such an ineffectiveness claim does not affect the truth-determining process so as to render the...