Kendrick v. Dist. Atty. of County of Philadelphia

• Decision Date: 07 June 2007
• Docket Number: No. 02-3158.,02-3158.
• Citation: 488 F.3d 217
• Parties: Kevin KENDRICK, Appellant v. The DISTRICT ATTORNEY OF the COUNTY OF PHILADELPHIA; The Attorney General of the State of Pennsylvania; Nancy Bailey, Superintendent of FCI, Fort Dix.
• Court: U.S. Court of Appeals — Third Circuit

488 F.3d 217

Kevin KENDRICK, Appellant v. The DISTRICT ATTORNEY OF the COUNTY OF PHILADELPHIA; The Attorney General of the State of Pennsylvania; Nancy Bailey, Superintendent of FCI, Fort Dix.

No. 02-3158.

United States Court of Appeals, Third Circuit.

Originally Argued January 13, 2004.

Resubmitted May 1, 2007.

Filed June 7, 2007.

Peter A. Levin (Argued), Philadelphia, PA, Attorney for Appellant.

Thomas W. Dolgenos, J. Hunter Bennett (Argued), Office of District Attorney, Philadelphia, PA, Attorneys for Appellees.

Originally Argued Jan. 13, 2004

Before: BECKER, ALITO, and CHERTOFF, Circuit Judges.

Resubmitted May 1, 2007

Before: SLOVITER, McKEE, and CHAGARES, Circuit Judges^*.

OPINION OF THE COURT

SLOVITER, Circuit Judge.

This case comes before this court once again now that the Pennsylvania Supreme Court has answered the question of law we certified to that Court pursuant to 204 Pa.Code § 29.451(b). We review in brief the procedural history of this case.

On May 2, 1991, appellant, Kevin Kendrick, as part of a negotiated plea agreement, pled guilty in the Court of Common Pleas in Philadelphia, Pennsylvania to two counts of possession with intent to deliver a controlled substance, one count of rape, and one count of violating the Pennsylvania Corrupt Organizations Act ("PCOA"). The Commonwealth recommended that Kendrick be sentenced to two concurrent terms of five to ten years imprisonment for the two drug convictions, a consecutive term of ten to twenty years imprisonment for the rape conviction, and a term of ten to twenty years on the PCOA conviction to run concurrently to the rape conviction. The court sentenced Kendrick to an aggregate sentence of fifteen to thirty years. Kendrick did not file a direct appeal.

In 1994, Kendrick filed a petition under the Pennsylvania Post Conviction Relief Act ("PCRA"), 42 Pa. Cons.Stat. §§ 9541-9546, arguing that his guilty plea to a violation of the PCOA was invalid because the PCOA applied only to "organized crime that infiltrated a legitimate business enterprise" and his acts were confined to a wholly illegitimate and illegal enterprise, the distribution of narcotics. While Kendrick's petition was pending, the Pennsylvania Supreme Court issued its opinion in Commonwealth v. Besch, 544 Pa. 1, 674 A.2d 655 (1996), holding that the PCOA was "intended to criminalize only conduct involving otherwise legitimate business enterprises, and not enterprises (such as the drug enterprise in Besch) that were wholly illegitimate." Kendrick v. District Attorney Of Philadelphia County, 916 A.2d 529, 531-532 (Pa.2007). Shortly after the holding in Besch, the Pennsylvania Legislature amended the PCOA to include legitimate and illegitimate enterprises.

Kendrick amended his PCRA petition to reflect the holding in Besch. He asserted that his plea of guilty to violating the PCOA was invalid pursuant to Besch because at the time he pled guilty it was believed that the PCOA proscribed racketeering activities by both legitimate and illegal enterprises, such as the drug dealing enterprise with which he was involved. Nonetheless, his petition was denied and the Pennsylvania Superior Court affirmed the denial. Commonwealth v. Kendrick, 704 A.2d 1118 (1997). On August 18, 1999, his petition for allocatur to the Pennsylvania Supreme Court was denied as well. Commonwealth v. Kendrick, 560 Pa. 682, 742 A.2d 672 (1999).

On July 14, 2000, Kendrick filed a petition for habeas corpus under 28 U.S.C. § 2254 in the United States District Court for the Eastern District of Pennsylvania claiming that "his guilty plea to [the PCOA] was not voluntary, knowing, and intelligent because he pled guilty to conduct that was not criminal and he contends that he should be resentenced." App. at 6a. The Magistrate Judge recommended denying the Petition on the ground that Besch does not apply retroactively to cases on collateral review. App. at 14a. The District Court adopted the Magistrate Judge's Report and Recommendation and denied Kendrick's habeas petition. App. at 2a.

On appeal, a motions panel of this court granted Kendrick a Certificate of Appealability. On January 30, 2004, after hearing oral arguments on the matter, the panel filed a Petition for Certification of a Question of Law. The question of law that we certified was as follows:

Did the opinion in Commonwealth v. Besch, 544 Pa. 1, 674 A.2d 655 (1996), establish a new rule of law that cannot be applied retroactively to cases on collateral review?

Kendrick v. Dist. Att'y of Philadelphia County, No. 02-3158 (3d Cir. Jan. 30, 2004) (petition for certification of question of law).

The Pennsylvania Supreme Court provided its answer to the certified question in the opinion it issued on February 20, 2007. See Kendrick, 916 A.2d at 531.¹ The Court reviewed the history of its interpretation of the PCOA, particularly in its opinions in Besch and Commonwealth v. Shaffer, 696 A.2d 179 (Pa.Super.1997) ("Shaffer I"), rev'd, 557 Pa. 453, 734 A.2d 840 (1999) ("Shaffer II"), and the Pennsylvania legislature's 1996 amendment. In response to the certified question, the Court held that "Besch did not establish a new rule of law." Kendrick, 916 A.2d at 541. It explained that Besch "must be deemed to have merely explicated the meaning and scope of the term from the [PCOA's] original enactment in 1973." Id. at 538.

Following the issuance of the Pennsylvania Supreme Court's decision, we asked the parties to file memoranda regarding the effect of the Court's decision on this case. In his response, Kendrick quotes from the statement in this court's petition for certification where we stated: "[i]f Your Honorable Court decides that Besch did not establish a new rule, then Besch represents the meaning of the PCOA at the time Kendrick pleaded guilty, and we will be obliged to set aside his PCOA conviction." Accordingly, Kendrick states that his "PCOA conviction should be set aside." The Commonwealth agrees with Kendrick that we should vacate Kendrick's conviction, which necessarily means that we should grant the writ of habeas corpus, but argues that Kendrick's aggregate sentence should remain unchanged.

Because Kendrick was convicted of a violation of the PCOA that the Pennsylvania Supreme Court has held was inapplicable, and therefore his conviction was "constitutionally invalid," see Bousley v. United States, 523 U.S. 614, 619, 118 S.Ct. 1604, 140 L.Ed.2d 828 (1998), we will direct the District Court to grant the writ of habeas corpus to vacate Kendrick's conviction on that count.

There remains the question of the appropriate disposition of this appeal. Although Kendrick received an aggregate sentence of fifteen to thirty years imprisonment, that sentence encompassed the invalid PCOA conviction. The Commonwealth argues that there is no need to remand for resentencing. Although it eschews reliance on the concurrent sentence doctrine, stating explicitly in footnote 4 of its March 29, 2007, Memorandum Regarding Effect of Recent Decision by the Supreme Court of Pennsylvania that "the Commonwealth withdraws its `concurrent sentence' argument," it appears to us that it is in effect arguing for the application of the concurrent sentence doctrine without using those words. It argues that "[w]here an appellate court vacates one conviction, but leaves several others intact, and where the aggregate sentence is undisturbed, a remand for resentencing is unnecessary." In support of that statement, the Commonwealth cites Commonwealth v. Miller, 414 Pa.Super. 56, 606 A.2d 495, appeal denied, 531 Pa. 639, 611 A.2d 711 (1992) (affirming judgment of sentence when vacating conviction of one of the underlying charges), and Commonwealth v. Owens, 437 Pa.Super. 64, 649 A.2d 129 (1994), appeal denied, 540 Pa. 612, 656 A.2d 118 (1995) (...