Com. v. Whitmore

• Decision Date: 29 December 2006
• Citation: 912 A.2d 827
• Parties: COMMONWEALTH of Pennsylvania, Appellant v. Raheem WHITMORE, Appellee.
• Court: Pennsylvania Supreme Court

912 A.2d 827

COMMONWEALTH of Pennsylvania, Appellant v. Raheem WHITMORE, Appellee.

Supreme Court of Pennsylvania.

Submitted January 19, 2006.

Decided December 29, 2006.

Hugh J. Burns, Philadelphia, Robert F. Patrone, for the Com. of PA, appellant.

Emily Beth Cherniack, Ardmore, for Raheem Whitmore, appellee.

BEFORE: CAPPY, C.J., CASTILLE, NEWMAN, SAYLOR, EAKIN, BAER AND BALDWIN, JJ.

OPINION

Justice NEWMAN.

We granted allowance of appeal to decide "whether the Superior Court exceeded its authority by sua sponte removing the sentencing judge." Commonwealth v. Whitmore, 584 Pa. 436, 884 A.2d 247 (2005). For the reasons herein, we hold that it did, and therefore, reverse the Superior Court.

FACTS AND PROCEDURAL HISTORY

On January 11, 1999, in the entrance of an alleyway behind the 3100 block of Custer Street in Philadelphia, Raheem Whitmore (Appellee) sold Patricia Lee (Lee) six clear plastic, black-lidded vials containing crack cocaine in exchange for an undetermined amount of U.S. currency. Sergeant Frank Gillespie (Sgt. Gillespie), Officer Dan Calder (Officer Calder), and Officer John McNesby (Officer McNesby) drove past in an unmarked car and observed the hand-to-hand exchange. All three officers are plainclothes officers with the City's narcotics enforcement team and were in the area investigating complaints of open-air drug transactions. Officer Calder, who had extensive experience with narcotics investigations, immediately recognized that he had witnessed a narcotics transaction. The officers exited their vehicle, approached Appellee and Lee, and saw Appellee sorting out the cash Lee had given him. Appellee also appeared to be holding more small objects in his hand, which Officer Calder believed to be narcotics.

Upon seeing the officers, Appellee and Lee immediately separated and walked in different directions. Additionally, Appellee dropped two more clear plastic, black-lidded vials of crack cocaine into a nearby yard, crumpled and dropped the money Lee had handed him, and fled down the alley. Sgt. Gillespie pursued Lee from the alley and quickly arrested her. When searching her, Sgt. Gillespie recovered the six clear plastic, black-lidded vials of crack cocaine, which he saw her put in her right jacket pocket, three packets of crack cocaine, and a bag of sixteen prescription pills from elsewhere on her person.

A repair truck blocked the end of the alley in which Appellee was fleeing, thereby giving Officer Calder an opportunity to apprehend Appellee and arrest him. Officer Calder recovered the two vials of crack cocaine and Officer McNesby recovered the cash, totaling $75.00, which Appellee had discarded.

On March 29, 2000, following a trial presided over by the Honorable Judge Eugene E.J. Maier (Judge Maier), a jury convicted Appellee of possession of a controlled substance, 35 P.S. § 780-113(a)(16), and possession with intent to deliver a controlled substance (PWID), 35 P.S. § 780-113(a)(30). Following the denial of post-trial motions, on April 5, 2000, Judge Maier sentenced Appellee to an aggregate term of ten to twenty years of imprisonment. Because Appellee was convicted of PWID with respect to crack cocaine, he was eligible for a maximum sentence of ten years. See 35 P.S. § 780-113(f)(1.1). However, this conviction was Appellee's second drug offense. As such, the trial court was authorized to sentence Appellee to a term of imprisonment of up to twice the term otherwise authorized. See 35 P.S. § 780-115(a) (the recidivist statute for repeat drug offenders). Thus, the applicable statutory limit for Appellee, as a repeat drug offender, was twenty years of imprisonment. Appellee did not object at the time of sentencing nor did he file any motion to reconsider his sentence before the trial court. Instead, Appellee filed a timely Notice of Appeal.

Upon receipt of Appellee's Notice of Appeal, the trial court ordered him to file a Rule 1925(b), Pa.R.A.P.1925(b), statement of matters complained of on appeal. Appellee timely complied, alleging various trial errors and a single sentencing claim that Judge Maier erred by departing from the sentencing guidelines. On September 8, 2000, counsel filed an untimely Amended Rule 1925(b) Statement raising an additional sentencing claim that the trial court "double counted" his prior conviction by using it in the calculation of the prior record score and then using that same conviction for sentencing enhancements.

On July 26, 2001, in a memorandum Opinion, a three-judge panel of the Superior Court affirmed the Judgment of Sentence. After addressing and rejecting Appellee's claims of error during trial, the panel turned to Appellee's sentencing claims. First, the panel recognized that Appellee was requesting review of two issues: (1) whether the trial court improperly "double counted" Appellee's criminal history when imposing sentence; and (2) whether the trial court failed to place on the record adequate reasons for imposing the statutory maximum sentence, which was beyond the aggravated guideline range. The panel recognized that Appellee failed to include his first claim concerning "double counting" within his original Rule 1925(b) Statement, and only raised it in the Amended Rule 1925(b) Statement, which was untimely filed. Therefore, the panel deemed this issue waived. The panel also determined that Appellee's second issue, that the trial court failed to articulate adequate reasons for the sentence imposed, was interdependent with his "double counting" claim and, therefore was also waived. Finding waiver of both issues, the Superior Court affirmed the trial court. Commonwealth v. Whitmore, 782 A.2d 1061 (Pa.Super.2001). On January 8, 2002, this Court denied Appellee's Petition for Allowance of Appeal. Commonwealth v. Whitmore, 568 Pa. 631, 793 A.2d 907 (2002).

Appellee then filed a timely Petition pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. The PCRA court appointed counsel, who filed an Amended PCRA Petition, alleging ineffective assistance of prior counsel for failing to preserve Appellee's sentencing claims. The Commonwealth filed a Motion to Dismiss. After issuing notice of intent to dismiss pursuant to Pa.R.Crim.P. 907, the PCRA court issued an order dismissing the Amended PCRA Petition without a hearing. The PCRA court determined that the sentencing claims had been previously litigated, citing Commonwealth v. Bracey, 568 Pa. 264, 795 A.2d 935 (2001), and opined that Appellee was not entitled to post-conviction review of claims previously litigated by alleging ineffective assistance of prior counsel and presenting new theories of relief to support previously litigated claims. PCRA counsel filed a timely notice of appeal.

A three-judge panel of the Superior Court reversed in a published Opinion. Commonwealth v. Whitmore, 860 A.2d 1032 (Pa.Super.2004). The Superior Court disagreed with the PCRA court that the discretionary aspects of sentencing issues were previously litigated. It noted that Appellee's claims on direct appeal were rejected because they were not properly preserved and the prior appeal did not reach the merits of the claims. The panel further found that because the sentencing claims raised on collateral appeal were couched in terms of ineffective assistance of counsel, they were cognizable under the PCRA, citing Commonwealth v. Hernandez, 755 A.2d 1, 6 (Pa.Super.2000). Hence, the panel proceeded to address the merits. Whitmore, 860 A.2d at 1036.

The Superior Court focused on Appellee's allegation that the trial court impermissibly "double counted" by twice relying on his prior conviction in imposing sentence. The panel determined that this claim amounted to the type of substantial question contemplated in Commonwealth v. Mouzon, 571 Pa. 419, 812 A.2d 617 (2002) (holding that a substantial question exists where a party articulates reasons why a particular sentence raises doubts that the trial court did not properly consider the general sentencing guidelines). The Superior Court further found that Appellee's "double counting" claim had arguable merit, satisfying the first prong of the ineffective assistance of counsel test. See Commonwealth v. Pierce, 567 Pa. 186, 786 A.2d 203, 213 (2001), abrogated on other grounds, Commonwealth v. Grant, 572 Pa. 48, 813 A.2d 726 (2002) (holding that to prove ineffective assistance of counsel, a three-prong test must be satisfied: (1) that the underlying claim is of arguable merit; (2) counsel's performance lacked a reasonable basis; and (3) the ineffectiveness of counsel caused the defendant prejudice). The Superior Court concluded as follows:

It is well-settled that only discretionary sentencing challenges which present a substantial question fall within the scope of appellate review. See Commonwealth v. Mouzon, 571 Pa. 419, 812 A.2d 617, 626 (2002). A claim that the sentencing court failed to state adequate reasons on the record for the sentence imposed presents a substantial question. See Commonwealth v. Goggins, 748 A.2d 721, 728 (Pa.Super.2000). Additionally, an assertion that the sentencing judge in imposing sentence relied on factors already included in the defendant's prior record score raises a substantial question. Id. at 732. Thus, Whitmore's claims have arguable merit. Moreover, we need not remand for hearing as appellate counsel's failure to perfect on appeal a discretionary sentencing claim which has arguable merit is without any reasonable basis designed to effectuate his client's interest. Cf. Commonwealth v. Hernandez, 755 A.2d 1, 12 (Pa.Super.2000) (observing that counsel's failure to preserve a discretionary sentencing challenge for direct appeal lacks a reasonable basis to effectuate appellant's interest). Consequently, our only inquiry is to determine whether Whitmore's claims rise to the level of requisite prejudice to afford him relief.

Whitmore, 860 A.2d at 1036 (citations modified).

Concluding that trial counsel's performance lacked a...