Commonwealth v. Calderon

• Decision Date: 29 December 2022
• Docket Number: 906 MDA 2022,J-S41034-22
• Parties: COMMONWEALTH OF PENNSYLVANIA v. RONALD CALDERON Appellant
• Court: Pennsylvania Superior Court

COMMONWEALTH OF PENNSYLVANIA
v.
RONALD CALDERON Appellant

No. 906 MDA 2022

No. J-S41034-22

Superior Court of Pennsylvania

December 29, 2022

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

Appeal from the PCRA Order Entered November 15, 2021 In the Court of Common Pleas of Lebanon County Criminal Division at No(s): CP-38-CR-0000179-2015

BEFORE: LAZARUS, J., MURRAY, J., and STEVENS, P.J.E. ^[*]

MEMORANDUM

STEVENS, P.J.E.

Appellant Ronald Calderon appeals from the November 15, 2021, order entered in the Court of Common Pleas of Lebanon County, which denied Appellant's pro se petition filed under the Post Conviction Relief Act ("PCRA"), 42 Pa.C.S.A. §§ 9541-46. After a careful review, we vacate the PCRA court's order and remand for further proceedings consistent with this decision.

The relevant facts and procedural history are as follows: The Commonwealth charged Appellant with various crimes in connection with a home invasion, which resulted in the shooting of one of the victims. Represented by court-appointed counsel from the Office of the Public Defender, Appellant proceeded to a jury trial, and the jury convicted him of

1

three counts of robbery, five counts of criminal conspiracy, and two counts of aggravated assault.^[1]

On October 28, 2015, the trial court sentenced Appellant to an aggregate of thirteen and one-half years to thirty-one years in prison. On November 22, 2016, this Court affirmed Appellant's judgment of sentence. Appellant did not file a petition for allowance of appeal with our Supreme Court.

On July 26, 2021, Appellant filed a pro se document entitled "Motion to Correct Sentence"^[2] wherein he contended the trial court imposed an illegal sentence by failing to merge his conviction on one count of conspiracy (to commit robbery) with his conviction on one count of robbery. On July 29, 2021, the lower court summarily denied the "Motion to Correct Sentence" without prejudice to Appellant's right to file a PCRA petition.

On or about September 3, 2021, Appellant filed a pro se PCRA petition wherein he again asserted the trial court imposed an illegal sentence by failing

2

to merge his convictions. By order entered on November 15, 2021, the PCRA court summarily denied Appellant's pro se PCRA petition.^[3]

On November 23, 2021, Appellant filed a timely pro se notice of appeal.^[4]On June 29, 2022, this Court directed the PCRA court to determine whether Appellant was entitled to the appointment of counsel, and the PCRA court responded by appointing counsel to assist Appellant on appeal.

In his counseled brief, Appellant sets forth the following issue in his "Statement of the Questions Involved" (verbatim):

1. Did the Trial Court commit err (sic) when it did not merge Count I and Count II for sentencing

Appellant's Brief at 2 (suggested answer...