Commonwealth v. Corley

• Decision Date: 25 October 2011
• Citation: 2011 PA Super 227,31 A.3d 293
• Parties: COMMONWEALTH of Pennsylvania, Appellee v. David Anthony CORLEY, Appellant.
• Court: Pennsylvania Superior Court

2011 PA Super 227

31 A.3d 293

COMMONWEALTH of Pennsylvania, Appellee

v.David Anthony CORLEY, Appellant.

Superior Court of Pennsylvania.

Submitted Aug. 15, 2011.Filed Oct. 25, 2011.

Charles A. Banta, Schnecksville, for appellant.

James B. Martin, Assistant District Attorney, Allentown, for Commonwealth, appellee.

BEFORE: BOWES, SHOGAN, and FREEDBERG, JJ.

OPINION BY BOWES, J.:

David Anthony Corley appeals from the June 26, 2009 judgment of sentence of sixty-nine months to twelve years imprisonment imposed after he pled guilty to one count of criminal conspiracy to commit aggravated assault. After careful review, we affirm.

The facts giving rise to Appellant's criminal prosecution are gleaned from our review of the record. On May 6, 2008, at approximately 2:00 a.m., there was a shootout outside the Joker's Bar in Allentown. Two individuals suffered shotgun wounds and were treated at local hospitals. Witnesses identified Appellant as the driver of a vehicle in which the passenger, Anthony Royale, was observed holding a shotgun. They described the clothing Appellant and his cohort were wearing. Police arrested Appellant and, after waiving his Miranda rights, Appellant told police that the altercation started as he and Royale were exiting the bar. An unknown man pulled a handgun from his parked vehicle and threatened him. Appellant entered a vehicle with Royale and the two went to Royale's home and retrieved a twelve-gauge shotgun that they had placed in the bushes. They returned to the area of Joker's Bar where a shootout ensued and Royale shot Charles Powell and Chris Jackson. Police recovered twenty-eight shells of many different calibers from the scene.

Appellant was charged with two counts each of attempted homicide, aggravated assault, and recklessly endangering another person, and one count each of criminal conspiracy and possession of marijuana. Pursuant to an agreement with the Commonwealth, Appellant pled guilty to one count of criminal conspiracy to commit aggravated assault, a first-degree felony. On April 20, 2009, he was sentenced to seven to fourteen years incarceration.

Appellant timely moved for reconsideration of his sentence and reconsideration was granted. On June 26, 2009, the court resentenced him to sixty-nine months to twelve years in a state correctional institution. Immediately following the pronouncement of the new sentence, counsel for Appellant orally moved to withdraw and the court granted the motion. The court did not appoint counsel for a possible direct appeal and no direct appeal was filed.

Appellant timely filed a PCRA petition and counsel was appointed. Counsel filed an amended petition on Appellant's behalf alleging that as a result of counsel's withdrawal at sentencing, Appellant was denied effective assistance of counsel post-sentence and for purposes of appeal. Following an evidentiary hearing on January 20, 2010, the court denied PCRA relief. Appellant timely appealed to this Court and we held that the PCRA court failed to determine, as mandated in Pa.R.Crim.P. 120(B)(3), whether, upon granting counsel's leave to withdraw, new counsel was entering an appearance or being appointed, or whether Appellant was proceeding without counsel. Commonwealth v. Corley, 26 A.3d 1210, 2011 Pa.Super. LEXIS 1599 (unpublished memorandum). Since Appellant did not waive counsel or indicate that he desired to proceed pro se, Appellant was denied counsel and effectively foreclosed from pursuing a direct appeal. We reversed and remanded for reinstatement of Appellant's appellate rights nunc pro tunc and appointment of counsel.

On April 19, 2011, following remand, Appellant sought reinstatement of his right to file a post-sentence motion, averring that the Superior Court's reversal included the right to file a post-sentence motion nunc pro tunc. By order dated April 20, 2011, the court denied Appellant's petition. Appellant filed the within appeal to this Court on May 5, 2011, and complied with the trial court's order to file a Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal. The trial court filed its Rule 1925(a) opinion incorporating its earlier opinion of February 9, 2010. The matter is now ready for our review.

Appellant raises two issues for our consideration:

I. Is there a substantial question for which the Superior Court should grant allowance of appeal from the discretionary aspects of the sentence?

II. Is the sentence harsh and manifestly excessive, and therefore unjust and unreasonable?

Appellant's brief at 4.

Appellant's issues on appeal challenge discretionary aspects of his sentence. We held in Commonwealth v. Malovich, 903 A.2d 1247, 1250 (Pa.Super.2006) that before we reach the merits of such a claim, we must engage in a four part analysis to determine: (1) whether the appeal is timely; (2) whether Appellant preserved his issues; (3) whether Appellant's brief includes a concise statement of the reasons relied upon for allowance of appeal with respect to the discretionary aspects of sentence; and (4) whether the concise statement raises a substantial question that the sentence is inappropriate under the sentencing code. Commonwealth v. Hyland, 2005 PA Super 199, 875 A.2d 1175, 1183 (Pa.Super.2005). The third and fourth of these requirements arise because Appellant's attack on his sentence is not an appeal as of right. Id. Rather, he must petition this Court, in his concise statement of reasons, to grant consideration of his appeal on the grounds that there is a substantial question. Id. Finally, if the appeal satisfies each of these four requirements, we will then proceed to decide the substantive merits of the case. Id.

Appellant's appeal is timely. We turn next to determine whether Appellant has preserved his challenge that his sentence is manifestly excessive. Upon remand, Appellant sought permission to file a post-sentence motion nunc pro tunc in order to preserve this claim. In its April 20, 2011 order, the trial court denied his petition, reasoning that this Court's reinstatement of Appellant's appellate rights did not include the right to file a post-sentence motion because Appellant had previously filed such a motion and was granted relief. Order, 4/20/11, at 1 n. 1. Appellant asks that this Court treat his petition for reinstatement of his right to file a post-sentence motion as a post-sentence motion. Appellant's brief at 14. The Commonwealth counters that the issue is waived as Appellant did not raise it at sentencing or by post-sentence motion, citing Commonwealth v. Mann, 820 A.2d 788 (Pa.Super.2003). The Commonwealth insists that by failing to file such a motion, Appellant deprived the sentencing judge of the opportunity to reconsider or modify its sentence. Appellant's brief at 7. We disagree for the following reasons.

At first blush it would appear that our Supreme Court's decision in Commonwealth v. Liston (Liston II), 602 Pa. 10, 977 A.2d 1089 (2009) governs this issue. Therein, the court held that the reinstatement of the appellant's direct appeal rights nunc pro tunc where his counsel neglected to file a requested appeal did not include the reinstatement of his right to file post-sentence motions nunc pro tunc. The Court relied upon the rule in Commonwealth v. Grant, 572 Pa. 48, 813 A.2d 726 (2002), that generally a defendant should wait to raise claims of ineffective assistance of trial counsel until collateral review. While an exception to that rule was carved out in Commonwealth v. Bomar, 573 Pa. 426, 826 A.2d 831, 854–55 (2003) for ineffective assistance of counsel claims that were raised below, developed in the certified record, and definitively determined by the trial court, the Court declined to extend the Bomar exceptions permitting a defendant to obtain what it characterized as collateral review even before a direct appeal was filed. The Court held that counsel's failure to file post-sentence motions did not fall within the narrow ambit of ineffectiveness claims requiring no finding of prejudice. Id. at 1092 (citing Commonwealth v. Reaves, 592 Pa. 134, 923 A.2d 1119 (2007)).

This Court subsequently relied upon Liston II in Commonwealth v. Fransen, 986 A.2d 154 (Pa.Super.2009), holding that a PCRA petitioner who is granted reinstatement of his direct appeal rights nunc pro tunc is not entitled to a subsequent order reinstating his right to file post-sentence motions nunc pro tunc if he did not request such relief from the PCRA court, and if the court did not hold an evidentiary hearing on that issue.

We find Liston II and Fransen to be distinguishable on the facts. Therein, the issues involved the ineffectiveness of counsel and Grant's prohibition against the review of such claims on direct appeal. Instantly, Appellant was granted PCRA relief because he was denied counsel entirely throughout the post-sentence and direct appeal period when he was constitutionally entitled to counsel. As relief was not based on the ineffective assistance of counsel, but instead the denial of counsel, Grant is not directly implicated and the rationale underlying Liston II and Fransen is inapplicable.¹

We also note that Appellant, in his first PCRA appeal, specifically alleged that he was denied his Sixth Amendment right to counsel at both the post-sentence and direct appeal stages. This Court agreed, finding a violation of Pa.R.Crim.P. 120(B)(2)(b), and reinstated Appellant's appellate rights. We find that our prior holding implicitly countenanced the filing of a post-sentence motion upon remand since Appellant was without counsel at the time such motion was due.

Furthermore, the purpose behind a post-sentence motion has been satisfied herein. The trial court already had an opportunity to modify Appellant's sentence prior to the first appeal and did so. Moreover, we have the benefit of the trial court's reasoning in imposing Appellant's sentence as the court addressed this at length in its Rule 1925(b) opinions. For the foregoing...