Commonwealth v. Outterbridge

• Decision Date: 27 September 2016
• Docket Number: J-S60009-16,No. 3187 EDA 2015,3187 EDA 2015
• Parties: COMMONWEALTH OF PENNSYLVANIA, Appellee v. ELANTE OUTTERBRIDGE, Appellant
• Court: Pennsylvania Superior Court

COMMONWEALTH OF PENNSYLVANIA, Appellee v. ELANTE OUTTERBRIDGE, Appellant

J-S60009-16

No. 3187 EDA 2015

SUPERIOR COURT OF PENNSYLVANIA

SEPTEMBER 27, 2016

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

Appeal from the PCRA Order September 22, 2015

In the Court of Common Pleas of Philadelphia County

Criminal Division at No(s): CP-51-CR-0001809-2011, CP-51-CR-0012306-2012

BEFORE: SHOGAN, OTT, and STRASSBURGER,^* JJ.

MEMORANDUM BY SHOGAN, J.:

Elante Outterbridge ("Appellant") appeals, pro se, from the order denying his petition for relief filed under the Post Conviction Relief Act ("PCRA"), 42 Pa.C.S. §§ 9541-9546. We reverse the PCRA order, vacate the judgment of sentence and guilty plea, and remand for further proceedings.

Appellant was arrested on January 12, 2011, in connection with the shooting of Ronnie Brown ("the victim") during an altercation on November 13, 2010. Criminal Complaint, 11/15/10, at 1. Appellant was charged with, inter alia, aggravated assault and possession of an instrument of crime withintent to employ it criminally. Id. at 2. Appellant was arrested again on August 30, 2012, in connection with his possession of a black, Browning Arms .22 caliber handgun in his waistband. Criminal Complaint, 8/30/12, at 1. Appellant was charged with, inter alia, possessing a firearm without a license. Id. at 2.

Appellant entered a negotiated plea on both criminal dockets, whereby he pled guilty to aggravated assault, PIC, and possessing a firearm without a license, and the Commonwealth nol prossed the remaining charges. N.T., 10/15/13; Written Guilty Plea Colloquy, 10/15/13. The trial court sentenced Appellant the same day to incarceration for an aggregate term of five to fifteen years. Appellant filed an untimely pro se motion for reconsideration on March 19, 2014, which the trial court denied. Order, 5/1/14. Appellant did not file a direct appeal.

Appellant filed a timely pro se PCRA petition, averring he did not receive credit for time served. PCRA Petition, 9/29/14, at 4. The PCRA court appointed counsel on April 23, 2015. Three days later, counsel filed a "no merit" letter pursuant to Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988), and a motion to withdraw representation. In response, Appellant filed a pro se application for leave to amend his PCRA petition, raising a legality-of-sentence issue premised on U.S. v. Alleyne, ___ U.S. ___, 133 S.Ct. 2151 (2013). Application for Leave to Amend, 5/5/15.

Without addressing Appellant's request for permission to amend his petition, the PCRA court sent a notice of its intent to dismiss Appellant's petition pursuant to Pa.R.Crim.P. 907 on July 7, 2015. In response, Appellant filed a pro se objection to the Rule 907 notice. Objection to Notice of Intention to Dismiss, 7/21/15. The PCRA court dismissed Appellant's petition and permitted counsel to withdraw, with no mention of Appellant's legality-of-sentence claim. Order, 9/22/15. This appeal followed. Appellant and the PCRA court have complied with Pa.R.A.P. 1925.

Appellant presents the following issues for our consideration:

Is the appellant freely allowed to file an/or amended PCRA-petition, while the initial PCRA-petition was still pending so that appellant can achieve substantial justice?

Is the appellant serving a mandatory minimum sentence that's unconstitutional and illegal?

Appellant's Brief at 7 (verbatim).

When reviewing the propriety of an order denying PCRA relief, we consider the record "in the light most favorable to the prevailing party at the PCRA level." Commonwealth v. Stultz, 114 A.3d 865, 872 (Pa. Super. 2015) (quoting Commonwealth v. Henkel, 90 A.3d 16, 20 (Pa. Super. 2014) (en banc)). This Court is limited to determining whether the evidence of record supports the conclusions of the PCRA court and whether the ruling is free of legal error. Commonwealth v. Rykard, 55 A.3d 1177, 1183 (Pa. Super. 2012). We grant great deference to the PCRA court's findings that are supported in the record and will not disturb them unless they have nosupport in the certified record. Commonwealth v. Rigg, 84 A.3d 1080, 1084 (Pa. Super. 2014).

Regarding Appellant's first issue, amendment of a PCRA petition, the Pennsylvania Supreme Court has stated:

Our criminal procedural rules reflect that the PCRA judge "may grant leave to amend ... a petition for post-conviction collateral relief at any time," and that amendment "shall be freely allowed to achieve substantial justice." Pa.R.Crim.P. 905(A); see Commonwealth v. Williams, 573 Pa. 613, 633, 828 A.2d 981, 993 (2003) (noting that the criminal procedural rules contemplate a "liberal amendment" policy for PCRA petitions). Nevertheless, it is clear from the rule's text that leave to amend must be sought and obtained, and hence, amendments are not "self-authorizing." Commonwealth v. Porter, 613 Pa. 510, 523, 35 A.3d 4, 12 (2012). Thus, for example, a petitioner may not "simply 'amend' a pending petition with a supplemental pleading." Id. Rather, Rule 905 "explicitly states that amendment is permitted only by direction or leave of the PCRA Court." Id. at 523-24, 35 A.3d at 12; see also Williams, 573 Pa. at 625, 828 A.2d at 988 (indicating that the PCRA court retains discretion whether or not to grant a motion to amend a post-conviction petition). It follows that petitioners may not automatically "amend" their PCRA petitions via responsive pleadings.

Commonwealth v. Baumhammers, 92 A.3d 708, 730-731 (Pa. 2014). In sum, claims raised outside of a court-authorized PCRA petition are subject to waiver. Commonwealth v. Reid, 99 A.3d 470, 484 (Pa. 2014). See also Commonwealth v. Mason, 130 A.3d 601, 627 (Pa. 2015) (finding claim waived for failure to raise it in an authorized amended PCRA petition).

Here, despite being represented, Appellant sought, pro se, the PCRA court's permission to amend his petition with an Alleyne sentencing claim. Application for Leave to Amend, 5/5/15. Without granting Appellant leave toamend, the PCRA court dismissed Appellant's petition on the merits.¹ In its Pa.R.A.P. 1925(a) opinion, however, the PCRA court expressly recognized Appellant's sentencing issue: "Since [Appellant's] motion to amend challenges the legality of his sentence, the [c]ourt is treating his pro se PCRA petition as having been properly amended." PCRA Court Opinion, 2/19/16, at 2 n.1.

Pennsylvania jurisprudence recognizes that a legality-of-sentence issue is not subject to the traditional waiver doctrine. See Commonwealth v. Wolfe, 140 A.3d 651, 660 (Pa. 2016) ("[T]his Court has previously foundthat an asserted [Alleyne] violation implicated the legality of a sentence . . . and that legality-of-sentence claims are not subject to the traditional waiver doctrine." (internal citations omitted)); Commonwealth v. Hopkins, 67 A.3d 817, 821 (Pa. Super. 2013) ("As a general rule, a challenge to the application of a mandatory minimum sentence is a non-waivable challenge to the legality of sentence." (internal quotations omitted)). Therefore, despite the PCRA court's failure to formally grant Appellant leave to amend his petition to include a legality-of-sentence issue, we discern no abuse of the PCRA court's discretion in treating Appellant's PCRA petition as properly amended.

Appellant's second issue implicates the legality of his sentence. According to Appellant, his sentence was imposed under the illegal mandatory minimum sentencing scheme of 42 Pa.C.S. § 9712(a). Appellant's Brief at 11 (citing Commonwealth v. Hopkins, 117 A.3d 247 (Pa. 2015)). Contrarily, the Commonwealth asserts that "[Appellant] negotiated the sentence the court imposed as part of his guilty plea, and the sentence was not a mandatory minimum sentence. Alleyne does not apply." Commonwealth's Brief at 6. In support of its position, the Commonwealth asserts:

[Appellant] made no proffer to the PCRA court - and offers none now on appeal - that a mandatory sentence under Section 9712 was imposed. In fact, on the court's October 15, 2013, Sentencing Order, the "No" box is checked under the heading "Mandatory Sentence". At the plea proceeding, the court explicitly stated on the record, "It's my intention to impose thesentence that was recommended by the DA and agreed to by the defense as part of the negotiated plea" (N.T. 10/15/13, 16), which [Appellant] confirmed when he "waived the ordering of a presentence investigation report in light of the negotiated agreement." (N.T. 10/15/13, 17).

Id. at 7-8 (some internal citations omitted).

In retrospect, the PCRA court found Appellant's sentencing challenge meritorious, opining, in relevant part, as follows:

This matter falls into a very narrow category of cases wherein defendants entered into negotiated plea agreements shorty after Alleyne was decided which were premised on the application of Pennsylvania's statutory mandatory minimum sentence scheme. As part of these plea agreements, as in the instant matter, the defendants admitted to the predicate act leading to the imposition of a mandatory minimum sentence.

Alleyne held that any predicate fact that triggers an increase in the mandatory minimum sentence for a crime is necessarily an element of the offense and that such fact must be found "beyond a reasonable doubt" by a jury. ...

* * *

Alleyne, was decided on June 17, 2013, and, as noted above, [Appellant] was sentenced on October 15, 2013, some four months later. . . . Subsequently, our Supreme Court, in Commonwealth v. Newman, 99 A.3d 86 (Pa. 2014), held that in Pennsylvania, Alleyne was to be applied retroactively to any proceeding pending at the time Alleyne was decided. Therefore, [Appellant's] sentence is subject to review under Alleyne. ...

Before accepting [Appellant's] plea the [PCRA court] engaged him in an extensive colloquy to ascertain whether or not his plea was in fact voluntary. During this colloquy, [Appellant], on the Bill of Information relating to the charge of Aggravated Assault and PIC, admitted to getting into an altercation with the [victim]

...