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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
SHAWN RYAN CARR
Appellant No. 430 WDA 2015
Appeal from the PCRA Order February 4, 2015
In the Court of Common Pleas of Jefferson County
Criminal Division at No(s): CP-33-CR-0000026-2009;
CP-33-CR-0000125-2009; CP-33-CR-0000126-2009;
CP-33-CR-0000127-2009
BEFORE: GANTMAN, P.J., SHOGAN, J., and FITZGERALD, J.*
MEMORANDUM BY GANTMAN, P.J.: FILED APRIL 14, 2016
Appellant, Shawn Ryan Carr, appeals from the order entered in the
Jefferson County Court of Common Pleas, which denied his first petition filed
pursuant to the Post Conviction Relief Act (“PCRA”).1 We affirm.
The relevant facts and procedural history of this case as follows:
On February 17, 2010, Appellant pled guilty to four (4)
counts of delivery of a controlled substance in Jefferson
County.1 That same day, the Jefferson County court
sentenced Appellant on each count to fourteen (14)
months’ to three (3) years’ imprisonment, followed by two
(2) years’ probation, with all sentences to run
concurrently. While under supervision, Appellant
committed new crimes in Clarion County. On August 14,
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1
42 Pa.C.S.A. §§ 9541-9546.
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*Former Justice specially assigned to the Superior Court.
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2013, Appellant pled guilty in the Clarion County Court of
Common Pleas to delivery of a controlled substance, drug
delivery resulting in death, criminal use of communication
[facility], and abuse of a corpse.2 The Clarion County
court sentenced Appellant to eight (8) to sixteen (16)
years’ imprisonment.
1
35 P.S. § 780-113(a)(30)
2
35 P.S. § 780-113(a)(30), 18 Pa.C.S.A. §§
2506(a), 7512(a), and 5510, respectively.
The Jefferson County court held a Gagnon II[2] revocation
hearing on September 18, 2013, in which the court took
judicial notice of Appellant’s plea and sentence in Clarion
County, and revoked his probation. The Jefferson County
court resentenced Appellant to five (5) to (15) years’
imprisonment on each count of delivery of a controlled
substance, to run consecutively, for an aggregate of
twenty (20) to sixty (60) years’ imprisonment. The
Jefferson County court also ordered the sentence to run
consecutively to Appellant’s Clarion County sentence.
Appellant filed a post-sentence motion for reconsideration
on September 26, 2013, which the Jefferson County court
denied on October 10, 2013. … Appellant filed a timely
notice of appeal on October 18, 2013.
Commonwealth v. Carr, S., No. 1699 WDA 2013, unpublished
memorandum at 1-3 (Pa.Super. filed June 16, 2014) (affirming Appellant’s
judgment of sentence). Appellant did not seek further direct review.
On December 11, 2014, Appellant timely filed a pro se PCRA petition.
The PCRA court appointed counsel, who filed a petition to withdraw and “no-
merit” letter on January 9, 2015. On that same date, the court permitted
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2
Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656
(1973).
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counsel to withdraw and issued notice of its intent to dismiss Appellant’s
petition without a hearing, pursuant to Pa.R.Crim.P. 907. Appellant filed a
response on January 29, 2015. The court dismissed the petition on February
4, 2015. On February 23, 2015, Appellant timely filed a pro se notice of
appeal. The court ordered Appellant to file a concise statement of errors
complained of on appeal per Pa.R.A.P. 1925(b), and Appellant timely
complied.
Appellant raises the following issues for our review:
DID THE [TRIAL] COURT COMMIT AN [ERROR] OF LAW IN
[ITS] REVOCATION HEARING/RESENTENCING APPELLANT
OUTSIDE THE PLEA AGREEMENT INITIALLY IMPOSED?
IS APPELLANT[’S] SENTENCE ILLEGAL AND
UNCONSTITUTIONAL SINCE 18 PA.C.S.A. § 7508 HAS
BEEN DECLARED UNCONSTITUTIONAL IN [ITS] ENTIRETY?
(Appellant’s Brief at 4).
In his first issue, Appellant argues the court improperly resentenced
him in violation of the terms of his original plea agreement. Appellant
asserts the court had no authority to impose consecutive sentences upon
revocation because the court had originally imposed concurrent sentences
pursuant to the plea agreement. Appellant concludes this Court should
vacate his sentence and remand for resentencing. We cannot agree.3
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3
Appellant also argues his revocation sentence is manifestly excessive; the
court failed to consider the applicable sentencing factors; and the court
imposed a sentence outside of the Sentencing Guidelines without stating
(Footnote Continued Next Page)
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Our standard of review of the denial of a PCRA petition is limited to
examining whether the record evidence supports the court’s determination
and whether the court’s decision is free of legal error. Commonwealth v.
Ford, H., 947 A.2d 1251 (Pa.Super. 2008), appeal denied, 598 Pa. 779, 959
A.2d 319 (2008). This Court grants great deference to the findings of the
PCRA court if the record contains any support for those findings.
Commonwealth v. Carr, M., 768 A.2d 1164 (Pa.Super. 2001). We give no
deference, however, to the court’s legal conclusions. Commonwealth v.
Ford, J., 44 A.3d 1190, 1194 (Pa.Super. 2012). A petitioner is not entitled
to a PCRA hearing as a matter of right; the PCRA court can decline to hold a
hearing if there is no genuine issue concerning any material fact, the
_______________________
(Footnote Continued)
appropriate reasons on the record. Appellant’s arguments challenge the
discretionary aspects of his sentence and are not cognizable under the PCRA.
See Commonwealth v. Hyland, 875 A.2d 1175 (Pa.Super. 2005), appeal
denied, 586 Pa. 723, 890 A.2d 1057 (2005) (stating claim that sentencing
court failed to consider mitigating factors challenges discretionary aspects of
sentencing); Commonwealth v. Lutes, 793 A.2d 949 (Pa.Super. 2002)
(stating claim that sentence is manifestly excessive challenges discretionary
aspects of sentencing); Commonwealth v. Davis, 737 A.2d 792 (Pa.Super.
1999) (stating claim that court imposed sentence outside of guidelines
without placing sufficient explanation on record implicates discretionary
aspects of sentencing). See also Commonwealth v. Wrecks, 934 A.2d
1287 (Pa.Super. 2007) (stating challenges to discretionary aspects of
sentencing are not cognizable under PCRA). Moreover, this Court resolved
all of Appellant’s discretionary sentencing claims on the merits in his direct
appeal. See Carr, S., supra. See also Commonwealth v. Turetsky, 925
A.2d 876, 879 (Pa.Super. 2007), appeal denied, 596 Pa. 707, 940 A.2d 365
(2007) (stating: “[T]o be entitled to PCRA relief, a petitioner must plead and
prove, inter alia, that the allegation of error has not been previously litigated
or waived”). Therefore, we give those claims no further attention.
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petitioner is not entitled to PCRA relief, and no purpose would be served by
any further proceedings. Commonwealth v. Hardcastle, 549 Pa. 450, 701
A.2d 541 (1997).
“An issue is waived if it could have been raised prior to the filing of the
PCRA petition, but was not.” Commonwealth v. Berry, 877 A.2d 479, 482
(Pa.Super. 2005) (en banc), appeal denied, 591 Pa. 688, 917 A.2d 844
(2007). See also 42 Pa.C.S.A. § 9544(b). Nevertheless, “claims pertaining
to the legality of sentence are non-waivable[.]” Commonwealth v. Foster,
960 A.2d 160, 163 (Pa.Super. 2008). A defendant’s claim that he was
sentenced in violation of his plea agreement does not implicate the legality
of the sentence, where the defendant fails to identify any statutory reason or
double jeopardy basis for declaring the sentence illegal. Berry, supra
(holding PCRA petitioner waived claim that his sentence violated terms of
plea agreement by failing to raise issue on direct appeal). Further,
It is clearly stated in the Sentencing Code not only that the
court may revoke a defendant’s probation if appropriate,
but also that “[u]pon revocation the sentencing
alternatives available to the court shall be the same as
were available at the time of initial sentencing.” 42
Pa.C.S. § 9771 (emphasis added). Likewise, [the
Pennsylvania Supreme] Court has explicitly stated that
“upon revocation of probation, the court possesses the
same sentencing alternatives that it had at the time of the
initial sentencing.” Commonwealth v. Pierce, 497 Pa.
437, [440], 441 A.2d 1218, 1219 (1982). As it is well
established that the sentencing alternatives available to a
court at the time of initial sentencing are all of the
alternatives statutorily available under the Sentencing
Code, these authorities make clear that at any revocation
of probation hearing, the court is similarly free to impose
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any sentence permitted under the Sentencing Code and is
not restricted by the bounds of a negotiated plea
agreement between a defendant and prosecutor.
Commonwealth v. Wallace, 582 Pa. 234, 241-42, 870 A.2d 838, 842-43
(2005) (footnotes omitted). See also Commonwealth v. Raphael, 879
A.2d 1264 (Pa.Super. 2005), appeal denied, 587 Pa. 712, 898 A.2d 1070
(2006) (holding imposition of consecutive sentences upon revocation of
defendant’s probation, rather than concurrent sentences according to terms
of plea agreement, was not improper).
Instantly, on direct appeal, Appellant could have raised his claim that
the trial court improperly imposed consecutive sentences following
revocation of Appellant’s probation, purportedly in violation of the original
plea agreement, which called for concurrent sentences. Appellant failed to
do so. Further, as presented, Appellant’s claim does not implicate the
legality of his sentence. Thus, Appellant’s claim is waived. See Berry,
supra. Moreover, after the court revoked Appellant’s probation, it was free
to impose any of the sentencing alternatives available at the time of initial
sentencing, regardless of the terms of Appellant’s plea agreement.4 See
Wallace, supra; Raphael, supra. Therefore, even if Appellant had not
waived the issue, it would merit no relief.
In his second issue, Appellant argues the court unlawfully imposed
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4
Appellant cites contrary case law expressly overruled by the Pennsylvania
Supreme Court in Wallace, supra.
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five-year mandatory minimum terms of incarceration under 18 Pa.C.S.A. §
7508, in violation of Alleyne v. United States, ___ U.S. ___, 133 S.Ct.
2151, 186 L.Ed.2d 314 (2013), and its Pennsylvania progeny. Appellant
concludes he is entitled to resentencing without application of a mandatory
minimum term. We cannot agree.
A sentencing challenge premised on Alleyne implicates the legality of
the sentence and cannot be waived. Commonwealth v. Newman, 99 A.3d
86 (Pa.Super. 2014) (en banc), appeal denied, ___ Pa. ___, 121 A.3d 496
(2015). In Alleyne, the United States Supreme Court held that any fact
increasing the mandatory minimum sentence for a crime is considered an
element of the crime to be submitted to the fact-finder and found beyond a
reasonable doubt. See id. Section 7508(b) states that its statutory
provisions shall not be an element of the crime and applicability of the
statute shall be determined at sentencing by a preponderance of the
evidence. In Newman, this Court addressed the constitutionality of a
similar statute, 42 Pa.C.S.A. § 9712.1, in light of Alleyne. Newman held
that Section 9712.1 can no longer pass constitutional muster as it “permits
the trial court, as opposed to the jury, to increase a defendant’s minimum
sentence based upon a preponderance of the evidence that the defendant
was dealing drugs and possessed a firearm, or that a firearm was in close
proximity to the drugs.” Newman, supra at 98. Subsequently, this Court
directly addressed the constitutionality of Section 7508 in Commonwealth
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v. Vargas, 108 A.3d 858 (Pa.Super. 2014) (en banc), appeal denied, ___
Pa. ___, 121 A.3d 496 (2015), where the trial court imposed a mandatory
minimum sentence for the defendant’s conviction for possession with intent
to deliver a controlled substance, pursuant to Section 7508(a)(7)(iii). On
appeal, this Court emphasized that Section 7508 is structured in the same
manner as the statute at issue in Newman. Id. at 876-77. This Court
concluded that Section 7508 is likewise unconstitutional in its entirety. Id.
Instantly, Appellant could have but failed to raise his Alleyne
challenge on direct appeal, or in his PCRA petition. Nevertheless, we will
address the issue on the merits because it is a non-waivable challenge to the
legality of Appellant’s sentence. See Newman, supra. Here, the court
resentenced Appellant to a term of five (5) to fifteen (15) years’
incarceration for each count of delivery of a controlled substance. Appellant
assumes the court applied Section 7508 simply because the statute sets
forth a mandatory minimum term of five years’ incarceration for certain drug
offenses. Careful review of the record, however, reveals that the court
applied no mandatory minimum sentence. As Appellant concedes, the court
made no mention of a mandatory minimum at sentencing. Moreover, the
sentencing order and court commitment form indicate no mandatory
minimum term was imposed. Therefore, Alleyne is not implicated, and no
relief is due. Accordingly, we affirm.
Order affirmed.
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Fitzgerald, J. concurs in the result.
Shogan, J. files a concurring and dissenting memorandum.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/14/2016
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