Commonwealth v. Kennedy, 2005 PA Super 48 (PA 2/8/2005)
| Decision Date | 08 February 2005 |
| Docket Number | No. 206 WDA 2004.,206 WDA 2004. |
| Citation | 2005 PA Super 48 |
| Parties | COMMONWEALTH OF PENNSYLVANIA, Appellee v. WILLIAM JOSEPH KENNEDY, Appellant. |
| Court | Pennsylvania Supreme Court |
Appeal from the Judgment of Sentence December 11, 2003 In the Court of Common Pleas of Allegheny County Criminal at No(s): CC200215693 CC200301435.
Before: ORIE MELVIN, BENDER and POPOVICH, JJ.
OPINION BY BENDER, J.
¶ 1 William Joseph Kennedy appeals from the December 11, 2003 judgment of sentence imposed following his conviction on two counts of driving under the influence (DUI) and various summary violations. For the following reasons, we remand for resentencing.
¶ 2 A brief factual and procedural history follows. On September 25, 2003, Appellant pled guilty to charges contained in two separate criminal complaints. With regard to charges under the first complaint (CC 200301435), the Commonwealth asserted that at approximately 12:57 a.m., on October 8, 2002, police observed Appellant driving his motor vehicle without his headlights on. N.T. Guilty Plea Hearing, 9/25/03, at 9. Police stopped Appellant's vehicle. Id. at 10. Appellant admitted that he had been drinking. Id. The officers noticed the odor of alcohol on Appellant. Id. Appellant failed field sobriety tests at that time. Id. The officers arrested Appellant for DUI. Id. Police then discovered that Appellant had been operating his vehicle with a license that had been suspended due to prior DUIs. Id. The officers also found an open beer bottle in the vehicle. Id. Appellant refused to submit to either a blood or breath test for the presence of alcohol. Id. The charges relating to this incident included the DUI, and the summary violations of driving while operating privilege is suspended (DUI related), restriction on alcoholic beverages, and period for requiring lighted lamps.
¶ 3 Less than 23 hours later on the same day, i.e., October 8, 2002, police again effectuated a stop of Appellant's vehicle after observing him run a stop sign. Id. at 10-11. The officer conducting the stop noticed that Appellant had slurred speech and glassy eyes. Id. at 11. Again, Appellant failed field sobriety tests and was placed under arrest for DUI. The charges related to this latter incident were filed at CC 200215693 and, in addition to the DUI, included a charge of driving while operating privilege is suspended (DUI related), and a charge pertaining to running a stop sign. The cases were consolidated and Appellant pled guilty to charges based on the above facts as recited by the Commonwealth at the guilty plea hearing. The trial court ordered the preparation of a presentence report and scheduled sentencing for December 11, 2003. Notably, Appellant was on probation for a previous DUI when these offenses occurred.
¶ 4 With regard to the charges at CC 200215693, the trial court imposed a sentence of 2 ½ to 5 ¼ years' imprisonment and stated that this sentence "encompassed the sentence for both the [DUI] and driving while [Appellant's] operator's privileges have been suspended for an alcohol-related offense." N.T. Sentencing, 12/11/03, at 7. With regard to the charges at CC 200301435, the court sentenced Appellant to 2 1/2 to 5 1/4 years' imprisonment. The court ordered the sentences to run consecutively. The court also imposed various fines, ordered Appellant to complete safe-driving school, and ordered him to complete an alcohol evaluation by the probation office.
¶ 5 Appellant filed a Motion to Modify Sentence on December 15, 2003. The court denied this motion on December 30, 2003. On January 27, 2004, with new counsel, Appellant filed a notice of appeal from his judgment of sentence. The court ordered Appellant to file a concise statement of matters complained of on appeal pursuant to Pa.R.A.P. 1925(b). As described further below, along with filing his concise statement on March 16, 2004, Appellant filed a "Motion for Evidentiary Hearing in the Trial Court to Support Issues on Direct Appeal" (hereinafter, "Motion for Evidentiary Hearing"). The trial court denied this motion and soon thereafter issued its opinion pursuant to Pa.R.A.P. 1925(a).
¶ 6 In this appeal, Appellant contends that: (1) trial counsel provided ineffective assistance of counsel (IAC) by advising him to enter an open guilty plea and that the trial court should have granted an evidentiary hearing on this issue; (2) his sentence is illegal because it exceeds the statutory maximum and he did not get credit for time served; and (3) his sentence was excessive and the court considered improper factors when imposing the aggravated sentence. We consider these claims in the order presented.
¶ 7 First, Appellant argues that his trial counsel provided IAC for incorrectly advising him that he could avoid receiving consecutive sentences if he pled guilty to the charges in each case. Appellant's brief at 17, 18. Appellant raised this IAC issue for the first time in his Rule 1925(b) concise statement of matters complained of on appeal.1 Simultaneously with the filing of his Rule 1925(b) statement, Appellant filed his Motion for Evidentiary Hearing in which he reiterated his IAC claim and, in support thereof, attached a copy of a letter that he had received from his trial counsel informing him, in pertinent part, as follows: "Your sentence will be 2 ½ years to 5 years for the two DUI's [sic]. .... Please understand that if you would have went to trial on both cases and lost, your sentence would have been 2 ½ to 5 years consecutive." Letter from trial counsel to Appellant, 10/3/03. Appellant argued, in his Motion for Evidentiary Hearing that because of his trial counsel's incorrect advice, evidenced by the above-noted letter, he was led to believe that by pleading guilty he would avoid the possibility of consecutive sentences that would aggregate to a maximum of 10 years on the two DUI charges. Motion for Evidentiary Hearing at ¶ 9.
¶ 8 Thus, in his Motion for Evidentiary Hearing, Appellant asked the trial court to conduct a hearing to "flesh out the issues of ineffectiveness" or else those issues "will not be able to be presented on direct appeal." Motion for Evidentiary Hearing at ¶ 14. Appellant asserted that the court had jurisdiction to hold this evidentiary hearing under Pa.R.A.P. 1701(b)(4). Id. at ¶ 17.
¶ 9 Rule 1701 governs the effect the taking of an appeal has on the authority of the trial court to act. Specifically, Rule 1701(b)(4) provides that "[a]fter an appeal is taken ... the trial court ... may ... [a]uthorize the taking of depositions or the preservation of testimony where required in the interest of justice." Pa.R.A.P. 1701(b)(4). Appellant concluded his Motion for Evidentiary Hearing by arguing that it "is in the interest of justice to allow defendant to preserve testimony at this time in order to preserve issues of trial counsel's ineffectiveness for direct appeal." Motion for Evidentiary Hearing at ¶ 18.
¶ 10 As we noted above, the trial court denied the Motion for Evidentiary Hearing on March 17, 2004. Subsequently, on March 23, 2004, the trial court filed its Rule 1925(a) opinion in which it did not address the merits of Appellant's IAC issue but, rather, concluded that Appellant's IAC claim would not be reviewable on direct appeal pursuant Commonwealth v. Grant, 813 A.2d 726, 738 (2002), a case in which our Supreme Court announced that "as a general rule, a petitioner should wait to raise claims of ineffective assistance of trial counsel until collateral review."
¶ 11 The general rule in Grant is premised on the idea that the trial record that is established by the time of direct appeal is usually insufficient for an appellate court to properly review IAC claims presented at that time without essentially, and inappropriately, making findings of fact with regard to trial counsel's actions. In other words:
The [Grant] Court recognized that "oftentimes, demonstrating trial counsel's ineffectiveness will involve facts that are not available on the record." [Grant,] 813 A.2d at 737.
Waiting to raise claims on collateral review affords the opportunity to develop a factual basis for the claim that counsel's performance did not meet the standard for effective assistance of trial counsel. Many of these claims are based on omissions, which, by their very nature, do not appear on the record and thus, require further fact-finding, extra-record investigation and where necessary, an evidentiary hearing.
Related to this rationale is the general belief that an appellate court should not consider issues that were not raised and developed in the court below. Courts have recognized that this general rule and its accompanying rationale apply equally to ineffectiveness claims.
Commonwealth v. Dent, 837 A.2d 571, 587 (Pa. Super. 2003) (quoting Grant, ... 813 A.2d at 736). Commonwealth v. Blick, 840 A.2d 1025, 1026-27 (Pa. Super. 2004). In Blick, we summarized case law subsequent to Grant that clarified or defined exceptions to the general rule in Grant:
The Supreme Court noted that an exception to the general rule may be created when there has been a complete or constructive denial of counsel or that counsel has breached his or her duty of loyalty. Grant, ... 813 A.2d at 738 n.14. In addition, the appellate courts have carved out limited exceptions to the general rule set forth in Grant. For example, we will address ineffective assistance of trial counsel claims on direct appeal where the appellant would not be entitled to collateral relief due to the short duration of his sentence, Commonwealth v. Salisbury, 823 A.2d 914 (Pa. Super. 2003), and where the ineffectiveness claim was raised in a timely post-sentence motion, developed at a hearing, and ruled upon by the trial court, Commonwealth v. Bomar, 573 Pa. 426, 826 A.2d 831 (2003); Commonwealth v. Hudson, 820 A.2d 720 (Pa. Super. 2003). Moreover, this Court has recently addressed an ineffective assistance of trial counsel claim on direct appeal where the evidentiary...
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