J-S41004-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JOSHUA WILLIAMS,
Appellant No. 1539 MDA 2016
Appeal from the Judgment of Sentence August 18, 2016
in the Court of Common Pleas of Dauphin County
Criminal Division at No.: CP-22-CR-0002720-2012
BEFORE: GANTMAN, P.J., LAZARUS, J., and PLATT, J.*
MEMORANDUM BY PLATT, J.: FILED AUGUST 03, 2017
Appellant, Joshua Williams, appeals from the judgment of sentence
imposed following remand to the trial court for re-sentencing on his
conviction of robbery.1 We affirm.
This case has a tortuous procedural history, complicated by Appellant’s
pro se filings in the trial court while he was represented by counsel.2 A
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
1
18 Pa.C.S.A. § 3701(a)(1)(i).
2
We note at the outset the well-settled principle that a criminal defendant is
not entitled to hybrid representation and trial courts are not required to
consider the pro se filings of counseled defendants. See Commonwealth
v. Blakeney, 108 A.3d 739, 763 n.21 (Pa. 2014), cert. denied, 135 S.Ct.
2817 (2015); see also Commonwealth v. Ellis, 626 A.2d 1137, 1141 (Pa.
1993); Pa.R.Crim.P. 576(A)(4).
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previous panel of this Court summarized the background of this case as
follows:
A jury found [Appellant] guilty of robbing Michael Barna on
the evening of March 3, 2012. On January 14, 2015, the trial
court sentenced [Appellant] to 7—14 years’ imprisonment.
[Appellant] filed timely post-sentence motions to modify his
sentence on the ground that the court used the wrong
sentencing guideline in its sentencing calculations. In an order
docketed on February 23, 2015, the court granted [Appellant’s]
motion. The order stated: “This court never made a
determination as to whether the offender possessed a deadly
weapon[,] therefore we cannot apply the Deadly Weapon
Enhancement. . . . The sentence is modified as follow[s]: 54—
72 months’ imprisonment.” The order did not specify whether
[Appellant’s] minimum term of imprisonment was 54 months, 72
months, or somewhere in between. Nor did the order specify
[Appellant’s] maximum term of imprisonment.
[Appellant] filed a timely notice of appeal. The sole issue
raised in [Appellant’s] Pa.R.A.P. 1925(b) statement and
appellate brief is: “Whether the evidence presented at trial was
insufficient to convict [Appellant] of the crime of robbery?”
(Commonwealth v. Williams, 2016 WL 2625676, at *1 (Pa. Super. filed
May 6, 2016) (unpublished memorandum) (footnote omitted)).
In that appeal, this Court sua sponte considered the legality of
Appellant’s sentence.3 We:
. . . affirm[ed] [Appellant’s] conviction, [and] remand[ed]
for resentencing due to defects in the February 23, 2015 order
granting [Appellant’s] post-sentence motions. This order merely
states that [Appellant’s] minimum sentence is ‘54—72 months’
____________________________________________
3
Challenges to an illegal sentence are non-waivable and may be raised sua
sponte by this Court. See Commonwealth v. Tanner, 61 A.3d 1043, 1046
(Pa. Super. 2013).
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without specifying the precise number of months in his new
minimum or maximum sentence. The Sentencing Code plainly
directs the trial court to specify minimum and maximum periods
of imprisonment. See 42 Pa.C.S.[A.] § 9756(b)(1) . . . We
direct[ed] the trial court to resentence [Appellant] in a manner
that complies with section 9756.
(Id. at *4) (footnote omitted).
On August 18, 2016, the trial court re-sentenced Appellant to a term
of not less than five nor more than ten years’ incarceration. Despite his
representation by court-appointed counsel, Appellant filed, on August 24,
2016,4 a pro se “Motion for Sentence Reduction Nunc Pro Tunc,” which the
trial court interpreted as a post-sentence motion, in the nature of a motion
to modify sentence. (See Order, 9/13/16, at unnumbered page 1). The
trial court denied the motion on September 13, 2016. Appellant, through
counsel, filed a timely notice of appeal on September 15, 2016, and then a
timely court-ordered concise statement of errors complained of on appeal.
See Pa.R.A.P. 1925(b).
Although counsel had already initiated this appeal, Appellant filed a pro
se notice of appeal on September 23, 2016. The pro se appeal was
withdrawn and discontinued in this Court on November 3, 2016. However,
the trial court, upon receipt of the pro se filing and of notice of the
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4
Pursuant to the prisoner mailbox rule, we deem Appellant’s pro se
documents filed on the day they were dated, rather than on the day they
were docketed. See Commonwealth v. Brandon, 51 A.3d 231, 234 n.5
(Pa. Super. 2012).
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discontinuation, issued a second order directing Appellant to file a Rule
1925(b) statement.5 Appellant filed a timely pro se concise statement on
December 1, 2016. The trial court entered an opinion on December 20,
2016, in which it addressed the issues raised Appellant’s pro se concise
statement. See Pa.R.A.P. 1925(a); (Trial Ct. Op., at 7).6
On appeal, in his counseled brief, Appellant raises the following issues
for review, which mirror those raised in his pro se Rule 1925(b) statement:
1. Whether the trial court erred when it denied Appellant’s
suppression motion?
2. Whether the trial court erred when it denied Appellant’s
request for nominal bail and dismissal of charges under
Pennsylvania Rule of Criminal Procedure 600?
3. Whether the trial court erred in allowing testimony presented
by witness which were [sic] inconsistent to the phone records
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5
The trial court appears to have acted under the mistaken belief that the
counseled appeal, rather than the pro se appeal, had been discontinued.
(See Trial Court Opinion, 12/20/16, at 2).
6
As previously noted, Appellant is not entitled to hybrid representation.
(See supra, at *1 n.2). However, the record reflects that the trial court
accepted as valid Appellant’s pro se post-sentence motion, that it ordered
the filing of a pro se Rule 1925(b) statement, and that it addressed the
issues he raised in that statement in its opinion. Thus, under the
circumstances of this case, we deem Appellant’s pro se filings sufficient for
issue preservation purposes. See Commonwealth v. Cooper, 27 A.3d
994, 1003 (Pa. 2011) (deeming pro se notice of appeal filed by counseled
criminal defendant valid under circumstances of procedurally complex case
and admonishing that “criminal rules are intended to provide for just
determination of every proceeding, and should be construed to secure
simplicity, fairness and elimination of delay”) (citation omitted).
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said to be his presented as evidence corroborating his
statement[?]
4. Whether the trial court erred in abusing its discretion in
resentencing Appellant[?]
(Appellant’s Brief, at 5) (unnecessary capitalization omitted); (see also Pro
Se Rule 1925(b) Statement, 12/01/16, at unnumbered page 1).
In his first three issues, Appellant raises allegations of trial court error
challenging his conviction. (See Appellant’s Brief, at 5, 14-19) (claiming
trial court error in denying his pre-trial motions and in allowing certain
testimony). However, we agree with the Commonwealth that Appellant
waived these issues by failing to raise them in his initial direct appeal. (See
Commonwealth’s Brief, at 8, 10).
Specifically, as discussed above, Appellant already had the benefit of a
direct appeal, where he challenged only the sufficiency of the evidence to
support his robbery conviction. (See Williams, supra at *1). That appeal
resulted in this Court’s sua sponte consideration of the legality of his
sentence, and limited remand to the trial court, for resentencing. (See id.
at *4). Now, on appeal following remand, Appellant cannot again challenge
his conviction, and “the only issues reviewable . . . [are] challenges to the
sentence imposed[.]” Commonwealth v. Anderson, 801 A.2d 1264, 1266
(Pa. Super. 2002); see also Commonwealth v. Lawson, 789 A.2d 252,
253 (Pa. Super. 2001) (explaining that, “where a case is remanded to
resolve a limited issue, only matters related to the issue on remand may be
appealed.”) (citation omitted). Therefore, Appellant’s challenges to his
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conviction, which this Court has already affirmed, “have been waived by his
failure to present them in his first appeal.” Commonwealth v. Mathis, 463
A.2d 1167, 1169 (Pa. Super. 1983) (citation omitted) (finding allegations of
trial errors waived on appeal following remand for resentencing). Thus,
Appellant’s first three issues are not reviewable.
In his fourth issue, Appellant challenges the discretionary aspects of
his sentence, arguing that it is excessive in light of the facts and
circumstances of this case. (See Appellant’s Brief, at 12-13, 19-20). He
claims that the trial court abused its discretion by failing to consider
adequately his character, background, and rehabilitative needs. (See id.).
Preliminarily,
[w]e note that [t]he right to appellate review of the discretionary
aspects of a sentence is not absolute. Rather, where an
appellant challenges the discretionary aspects of a sentence, the
appeal should be considered a petition for allowance of appeal.
* * *
An appellant challenging the discretionary aspects of his
sentence must invoke this Court’s jurisdiction by satisfying a
four-part test:
[W]e conduct a four-part analysis to
determine: (1) whether appellant has filed a timely
notice of appeal, see Pa.R.A.P. 902 and 903; (2)
whether the issue was properly preserved at
sentencing or in a motion to reconsider and modify
sentence, see Pa.R.Crim.P. [720]; (3) whether
appellant’s brief has a fatal defect, Pa.R.A.P.
2119(f); and (4) whether there is a substantial
question that the sentence appealed from is not
appropriate under the Sentencing Code, 42 Pa.C.S.A.
§ 9781(b).
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Commonwealth v. Hicks, 151 A.3d 216, 226 (Pa. Super. 2016), appeal
denied, 2017 WL 1735542 (Pa. filed May 3, 2017) (case citations and
quotation marks omitted).
In the instant case, Appellant timely appealed, preserved his claim in
the trial court by filing a post-sentence motion, and included a Rule 2119(f)
statement in his brief. With respect to the fourth requirement, “this Court
has held that an excessive sentence claim—in conjunction with an assertion
that the court failed to consider mitigating factors—raises a substantial
question.” Commonwealth v. Raven, 97 A.3d 1244, 1253 (Pa. Super.
2014), appeal denied, 105 A.3d 736 (Pa. 2014) (citations omitted).
Therefore, we will review Appellant’s claim on the merits.
Our standard of review is as follows:
Sentencing is a matter vested in the sound discretion of
the sentencing judge, and a sentence will not be disturbed on
appeal absent a manifest abuse of discretion. In this context, an
abuse of discretion is not shown merely by an error in judgment.
Rather, the appellant must establish, by reference to the record,
that the sentencing court ignored or misapplied the law,
exercised its judgment for reasons of partiality, prejudice, bias
or ill will, or arrived at a manifestly unreasonable decision.
Commonwealth v. Solomon, 151 A.3d 672, 677 (Pa. Super. 2016), appeal
denied, 2017 WL 1414955 (Pa. filed Apr. 19, 2017) (citations omitted).
Here, at the re-sentencing hearing, defense counsel requested a
sentence at the lowest end of the guideline range, and emphasized
Appellant’s successful participation in rehabilitative programs while in prison
and his willingness to find employment and continue treatment and
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counseling. (See N.T. Resentencing, 8/18/16, at 3-4). Counsel pointed out
that Appellant is the father of three children, and that he has accepted
responsibility for his actions. (See id.). Appellant addressed the court and
expressed remorse for his actions and his desire to make positive changes in
his life for himself and his family. (See id. at 4-5). The court stated that it
was taking into account the fact that Appellant has been incarcerated in this
matter since 2012, and imposed a sentence at the lower end of the standard
guideline range. (See id. at 6; see also Trial Ct. Op., at 13).
Our review of the record demonstrates that the trial court was well
aware of Appellant’s background and the circumstances of this case, and we
discern no abuse of discretion in its imposition of his sentence. See
Solomon, supra at 677. Appellant’s final issue lacks merit. Accordingly,
we affirm the judgment of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/3/2017
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