J-A06016-18
2018 PA Super 307
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
MELISSA A. SARVEY :
:
Appellant : No. 284 WDA 2017
Appeal from the PCRA Order January 27, 2017
In the Court of Common Pleas of Jefferson County Criminal Division at
No(s): CP-33-CR-0000014-2012
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
MELISSA ANN SARVEY :
:
Appellant : No. 285 WDA 2017
Appeal from the PCRA Order January 27, 2017
In the Court of Common Pleas of Jefferson County Criminal Division at
No(s): CP-33-CR-0000605-2007
BEFORE: BENDER, P.J.E., SHOGAN, J., and STRASSBURGER*, J.
OPINION BY SHOGAN, J.: FILED NOVEMBER 16, 2018
Melissa Ann Sarvey (“Appellant”) appeals from the January 27, 2017
order denying her petition for relief filed pursuant to the Post Conviction Relief
Act (“PCRA”), 42 Pa.C.S. §§ 9541–9546.1 After careful review, we reverse
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1 While there are two separate captions, the PCRA court drafted a single order,
entered on January 27, 2017.
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* Retired Senior Judge assigned to the Superior Court.
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the order of the PCRA court. Additionally, although we will not disturb the
verdict, we vacate the judgment of sentence and remand for re-sentencing.
The relevant facts and procedural history are as follows: On July 26,
2011, while Appellant was incarcerated at the Jefferson County Correctional
Facility, she attempted to deliver one-half of a tablet of Oxycodone and one
tablet of Zolpidem (Ambien) to another inmate. The incident was recorded on
video. Appellant hid the pills under a commissary form and slid them under
her cell door toward another inmate’s cell. N.T. (Trial), 4/16/12, at 126–133.
A corrections officer noticed the papers being pushed underneath Appellant’s
cell door and attempted to pick them up. Id. at 94–97. Appellant refused to
release the papers, and after a struggle, the officer was able to take the papers
away from Appellant. Id. at 95. The officer handed the commissary form
back to Appellant, and as the officer walked away, she noticed a baggie
containing two pills in the place where the paper had been. Id. at 96. The
officer confiscated the baggie, and following an investigation, Appellant was
initially charged with two counts of possession with intent to deliver (“PWID”)
and two counts of possession of a controlled substance by an inmate
(“possession by an inmate”).2
On April 13, 2012, the Friday before trial began, the Commonwealth
filed a motion to amend the information, seeking to add two counts of
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2 35 P.S. § 780-113(a)(30) and 18 Pa.C.S. § 5123(a.2), respectively.
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controlled substance contraband to confined persons prohibited (“controlled
substance to prison”) and two counts of criminal attempt.3 The motion also
sought to change the names of the drugs in the information from Ambien to
Zolpidem and Vicodin to Oxycodone. Appellant objected to the
Commonwealth adding additional charges, but she did not object to the
changes in the drug names. The trial court granted the Commonwealth’s
motion on April 16, 2012; Appellant was ultimately charged with two counts
of PWID, two counts of possession by an inmate, two counts of controlled
substance to prison, and two counts of criminal attempt.
On April 16, 2012, a jury found Appellant guilty on all charges. On
May 17, 2012, the trial court sentenced Appellant to consecutive terms of
incarceration of one to three years for one PWID count and one and one-half
years to three years for the second PWID count. The court further imposed
consecutive terms of incarceration of one and one-half years to three years
for each count of possession by an inmate, and a term of incarceration of two
to five years for each count of controlled substance to prison. Finding that the
criminal attempt convictions merged with the controlled substance to prison
convictions, the sentencing court did not impose a sentence for the criminal
attempt convictions. The trial court also revoked Appellant’s probation on a
single count of hindering apprehension at Docket CP-33-CR-605-2007 and
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3 18 Pa.C.S. §§ 5123(a) and 901, respectively.
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sentenced her to an additional term of confinement of one to two years.
Finally, the trial court revoked Appellant’s probation at Dockets CP-33-CR-
662-2008, CP-33-CR-387-2008, and CP-33-CR-388-2008, and resentenced
Appellant to five years of probation at each docket, running concurrent to each
other. Appellant’s total period of incarceration was ten and one-half to
twenty-four years of incarceration followed by five years of probation.
Appellant filed a timely direct appeal, arguing that the trial court erred
when it allowed the Commonwealth to amend the charges immediately before
trial. On direct appeal, she argued that the amendment did not allow her
sufficient time to adjust her defense strategy and subjected her to mandatory
minimum sentences that increased the severity of her penalty. This Court
found that Appellant’s appeal was without merit because the new charges did
not arise from different facts nor would they have required her to alter her
trial or defense strategy; thus, she was not prejudiced by the amendment.
See Commonwealth v. Sarvey, 68 A.3d 368, 968 WDA 2012 (Pa. Super.
filed February 21, 2013) (unpublished memorandum) (“Sarvey I”). Appellant
sought Supreme Court review, which was denied on September 14, 2013.
Commonwealth v. Sarvey, 74 A.3d 1031 (Pa. 2013).
Appellant sought timely collateral review, and the PCRA court appointed
counsel. Counsel filed a no merit letter/petition to withdraw as counsel
pursuant to Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc), on
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February 14, 2014. After receiving notice of the PCRA court’s intent to dismiss
the PCRA petition without a hearing, Appellant sent the court a letter in which
she stated she wanted to continue the appeal. Ultimately, and after a
convoluted path and a change of counsel, this Court directed the PCRA court
to order Appellant to file an amended PCRA petition within thirty days from
the date of our memorandum.
Appellant filed her timely amended petition, and following an extensive
hearing, the PCRA court denied her petition. Both Appellant and the PCRA
court have complied with Pa.R.A.P. 1925.
Appellant presents the following questions for our review, which we have
reordered for purposes of our analysis:
I. Were [Appellant’s] constitutional rights to due process and
to a trial by jury violated when she was punished for taking
her case to trial by the District Attorney filing a Motion to
Amend the Information the last business day before
[Appellant’s] trial and two charges being added the day of
trial that carried mandatory minimum sentences of two
years each?
II. Did the trial court err in granting the District Attorney’s
Motion to Amend the Information which added four new
charges to [Appellant’s] Information, two of which carried
mandatory minimum sentences of at least two years each?
III. Was [Appellant’s] sentence illegal?
A. Was [Appellant’s] sentence illegal because several of
[Appellant’s] charges should have merged;
B. Did the sentencing court’s failure to merge the charges
result in a violation of [Appellant’s] rights to due process
and against double jeopardy?
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C. Were [Appellant’s] prior counsel ineffective for failing to
raise the issue of merger?
IV. Did the trial court err in imposing a sentence greater than
the lawful maximum as [Appellant] was re-sentenced on a
probation violation to two counts of Hindering Apprehension
to docket number 605-2007, when in fact she only pled
guilty to one count and the other count of Hindering
Apprehension was nolle prossed?
V. [Questions raising the ineffectiveness of Appellant’s
counsel:]
[a.] Was [Appellant’s] trial counsel ineffective in failing to
object to the District Attorney’s Motion to Amend the
Information, which changed the controlled substances that
[Appellant] is alleged to have possessed?
[b.] Was [Appellant’s] trial counsel ineffective in failing to
object at sentencing to [Appellant] being sentenced to
consecutive sentences for offenses which should have
merged?
[c.] Was trial counsel ineffective for failing to take
sufficient time to discuss the consequences of the
amendment of the Information with [Appellant] after the
trial court granted the Motion to Amend to enable
[Appellant] to make an informed decision about whether to
take her case to trial?
[d.] Was trial counsel ineffective for failing to ask for a
continuance of the trial after additional charges were added
on the day of trial to allow him more time to discuss the
consequences of the amendment with [Appellant] and to
give him additional time to prepare for trial?
[e.] Was trial counsel ineffective for failing to request that
Judge Foradora recuse himself from [Appellant’s] case after
he made derogatory statements which demonstrated the
Judge’s bias against the [Appellant], her family and her
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fiancé during [Appellant’s] sentencing hearing and her PCRA
hearing?
[f.] Was trial counsel ineffective for failing to point out to
the Court errors in the pre-sentence investigation report,
including that: (1) charges that should have been Nolle
Prossed (one of 2 Hindering charges at 605-2007) were
incorrectly included in the report; (2) the report included a
Theft by Unlawful Taking charge which appears as dated 10-
25-07 and shows that she received 5 years concurrent
probation to Receiving Stolen Property (RSP), although the
RSP charge would have merged for sentencing purposes?
[g.] Was trial counsel ineffective for failing to raise on
appeal the discretionary aspects of the lower court’s
sentence?
Appellant’s Brief at 6–8 (reorganized for ease of disposition).
When reviewing the propriety of the denial of a PCRA petition, we apply
the following standard and scope of review: “[A]n appellate court reviews the
PCRA court’s findings to see if they are supported by the record and free from
legal error. The court’s scope of review is limited to the findings of the PCRA
court viewed in the light most favorable to the prevailing party.”
Commonwealth v. Fitzgerald, 979 A.2d 908, 910 (Pa. Super. 2009)
(quoting Commonwealth v. Hammond, 953 A.2d 544, 556 (Pa. Super.
2008) (citation omitted)). “Because most PCRA appeals involve questions of
fact and law, we employ a mixed standard of review. We defer to the PCRA
court’s factual findings and credibility determinations supported by the record.
In contrast, we review the PCRA court’s legal conclusions de novo.”
Commonwealth v. Reyes-Rodriguez, 111 A.3d 775, 779 (Pa. Super. 2015)
(citations omitted).
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In support of her first issue, Appellant avers that her constitutional
rights to due process were “violated when she was punished for taking her
case to trial by the District Attorney filing a Motion to Amend the Information”
on the Friday before trial started and that her counsel was ineffective for failing
to raise the issue.4 Appellant’s Brief at 22. Specifically, Appellant alleges that
the addition of the two charges constitutes prosecutorial vindictiveness. As
an initial matter, we find that Appellant waived this issue by failing to raise it
on direct appeal. See 42 Pa.C.S. § 9544(b) (“For purposes of this subchapter,
an issue is waived if the petitioner could have raised it but failed to do so
before trial, at trial, during unitary review, on appeal or in a prior state
postconviction proceeding.”). However, even if the issue was preserved, we
would conclude that it lacks merit.
In order to show prosecutorial vindictiveness, “the defendant must
prove that: (1) others who are similarly situated to the defendant are not
generally prosecuted for similar conduct; and (2) the defendant has been
intentionally and purposefully singled out for prosecution for an invidious
reason.” Commonwealth v. Butler, 533 A.2d 105, 109 (Pa. Super. 1987)
(citation omitted). In support of her argument, Appellant cites only a single
case setting forth two circumstances in which prosecutorial vindictiveness can
occur. Appellant’s Brief at 22 (citing Commonwealth v. Rocco, 544 A.2d
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4 We address the merits of Appellant’s ineffective assistance of counsel claim
relating to this issue infra.
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496, 498 (Pa. Super. 1987) (stating that prosecutorial vindictiveness occurs
where a prosecutive decision is based on race, religion, or other impermissible
classification or where the accused is treated harshly because he has chosen
to exercise a lawful right)). Appellant then engages in speculation regarding
the Commonwealth’s motivation for moving to amend the information before
trial, and she makes conclusory statements regarding the same with little
factual support. Indeed, Appellant’s only factual statement, as opposed to
suppositions about the Commonwealth’s motivation, is in the form of
testimony from Appellant’s trial counsel. Counsel testified that he had not
litigated another case where the charges were amended the day of trial. 5
Appellant’s Brief at 23 (quoting N.T. (PCRA), 01/08/16, at 57–58).
It is well established that “[a] pre-trial charging decision is less likely to
be improperly motivated than a decision made after trial.” Commonwealth
v. Chamberlain, 30 A.3d 381, 418–419 (Pa. 2011) (citation omitted); see
also United States v. Goodwin, 457 U.S. 368 (1982) (presumption
of prosecutorial vindictiveness not warranted where defendant charged with a
felony after refusing to plead guilty to misdemeanor charges; prosecutor’s
charging decision made before trial less likely to be improperly motivated than
decision made after trial). Moreover, in its motion to amend the information,
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5 The Motion to Amend the information was filed on Friday, April 13, 2012,
and the trial court granted the motion on Monday, April 16, 2012, the same
day Appellant’s trial began.
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the Commonwealth stated that following the “recent investigation of the
Pennsylvania State Police as requested by the District Attorney’s Office, it is
believed that [Appellant] brought the subject controlled substances into the
prison.” Motion to Amend Information, 4/13/12, at unnumbered 3. Further,
Appellant’s trial attorney testified during the PCRA hearing that he did not
believe the Commonwealth’s amendment of the information was punitive in
nature. N.T. (PCRA), 1/8/16, at 57. Given the above, Appellant has failed to
show she was subjected to prosecutorial vindictiveness. Consequently, no
relief is due.
In her second issue, Appellant argues that the trial court erred when it
granted the Commonwealth’s motion to amend the information to add four
new charges. Appellant’s Brief at 28. In her brief, Appellant acknowledges
that she raised this exact issue in her direct appeal in this case, Sarvey I,
and this Court found Appellant’s claim to be of no merit. Appellant’s Brief at
28.
Pursuant to 42 Pa.C.S. § 9543(a)(3), which governs eligibility for PCRA
relief, a petitioner must prove that the issue raised in the PCRA petition is one
that “has not been previously litigated or waived.” Section 9544 of the PCRA
states that an issue has been previously litigated if “the highest court in which
the petitioner could have had review as a matter of right has ruled on the
merits of the issue. . . .” 42 Pa.C.S. § 9544(a)(2). The Superior Court of
Pennsylvania is the highest court with review as a matter of right in this case,
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and this issue was previously litigated in this Court.6 To the extent Appellant
is attempting to reframe the prejudice she allegedly suffered to avoid the bar
on previously litigated issues, she is not entitled to relief. See
Commonwealth v. Roane, 142 A.3d 79, 94 (Pa. Super. 2016) (“The fact
that a petitioner presents a new argument or advances a new theory in
support of a previously litigated issue will not circumvent the previous
litigation bar.”).
Appellant next asserts that the sentencing court erred when it failed to
merge several of her convictions. Appellant’s Brief at 14. Specifically,
Appellant claims that the sentencing court erred when it failed to merge the
PWID convictions in counts one and two with the delivery to prison convictions
at counts five and six. Id. at 16. She also alleges that the possession by an
inmate convictions at counts three and four should have merged either with
the PWID convictions at counts one and two or the controlled substance to
prison convictions at counts five and six. Id. Appellant alleges that this failure
resulted in an illegal sentence, which also violated her right to due process
and against double jeopardy. Id.
Preliminarily, we note that “articulating the contours and application of
the merger doctrine has proven a complex task for courts across this country,
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6 The sole issue Appellant raised on appeal was “[w]hether the trial court
erred in allowing the Commonwealth, over objection, to amend the charges
against the defendant, which amendment was done just prior to trial.”
Sarvey I, at *1.
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and this Court has been no exception.” Commonwealth v. Baldwin, 985
A.2d 830, 832 (Pa. 2009). Whether Appellant’s crimes should have merged
for sentencing implicates the legality of sentencing and not the discretionary
aspects of sentencing. Id. at 833. Unlike the discretionary aspects of
sentencing, a challenge to the legality of sentence is not subject to waiver and
may be raised at any time. Commonwealth v. Kitchen, 814 A.2d 209, 214
(Pa. Super. 2002). Our standard of review is de novo, and our scope of review
is plenary. Baldwin, 985 A.2d at 833.
Our Supreme Court extensively addressed the merger issue in Baldwin.
In that decision, the Court found that a conviction for possession of a firearm
without a license, 18 Pa.C.S. § 6106, did not merge with a conviction for
possession of a firearm on public streets of Philadelphia, 18 Pa.C.S. § 6108.
Baldwin, 985 A.2d at 834. In reaching that decision, the Court analyzed 42
Pa.C.S. § 9765, which contains the following language:
No crimes shall merge for sentencing purposes unless the crimes
arise from a single criminal act and all of the statutory elements
of one offense are included in the statutory elements of the other
offense. Where crimes merge for sentencing purposes, the court
may sentence the defendant only on the higher graded offense.
42 Pa.C.S. § 9765. The Baldwin Court concluded that merger is prohibited
unless the following two-pronged test is satisfied: “1) the crimes arise from a
single criminal act; and 2) all of the statutory elements of one of the offenses
are included in the statutory elements of the other.” Baldwin, 985 A.2d at
833.
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In reaching that holding, the Court noted that although each crime
contains a shared element, namely the lack of a license to carry the gun, each
offense contained a requirement the other did not. Baldwin, 985 A.2d at
834. Specifically, to violate Section 6106, a defendant must carry a weapon
in his vehicle or about his person; to violate Section 6108, the weapon must
be carried on the streets of Philadelphia. Id. Thus, the Court found that
because each offense contained an element the other did not, merger would
be inappropriate. Id.
There have been a number of cases analyzing the merger doctrine in
the context of other offenses since Baldwin. In Commonwealth v.
Martinez, 153 A.3d 1025, 1033 (Pa. Super. 2016), this Court found that
charges of robbery and terroristic threats should have merged. Specifically,
we held:
The relevant elements of terroristic threats comprise the
communication of a threat to commit a crime of violence with the
intent to cause terror. Robbery, as charged in this case, requires
threatening serious bodily injury or intending to place a victim in
fear of serious bodily injury. Though the two statutes do not
employ identical words, it would be championing a distinction
without a difference to conclude that threatening serious bodily
injury or intending to cause fear of serious bodily injury was not
the functional equivalent of a threat of violence intended to cause
terror. Particularly where, as here, both offenses arose from the
same act, we do not discern from these statutes the legislative
intent to permit separate sentences.
Id. at 1032–1033.
In the same opinion, this Court found that the conviction for robbery did
not merge with the convictions for recklessly endangering another person
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(“REAP”) and simple assault. Martinez, 153 A.3d at 1033. In making that
determination, this Court noted that each conviction required proof that the
others did not. Id. Specifically, the REAP conviction required a showing that
the defendant had the “actual present ability to inflict harm, which is absent
in the elements of robbery and a conviction for robbery requires a showing
that the victim was placed in fear of serious bodily injury,” an element not
required in REAP. Id. Similarly, simple assault requires a showing that that
the defendant caused or attempted to cause bodily injury, whereas robbery
requires only a threat of injury, and the proscribed conduct must occur during
the course of a theft. Id. Thus, merger was not appropriate. See also
Commonwealth v. Calhoun, 52 A.3d 281, 287 (Pa. Super. 2012) (finding
that simple assault and REAP did not merge because “the mischiefs to be
remedied” were not identical); Commonwealth v. Nero, 58 A.3d 802 (Pa.
Super. 2012) (finding that conviction for owning a chop shop did not merge
with receiving stolen property as receiving stolen property required a higher
mens rea than owning a chop shop); Commonwealth v. Rhoades, 8 A.3d
912 (Pa. Super. 2010) (holding that two convictions for aggravated assault,
18 Pa.C.S. § 2702(a)(1) and (a)(4), did not merge because subsection four
requires the use of a deadly weapon and subsection one does not). But see
Commonwealth v. Hill, 140 A.3d 713 (Pa. Super. 2016) (finding that
convictions for home improvement fraud and deceptive business practices
merged because all of the elements of deceptive business practices are
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included within the elements of home improvement fraud, and home
improvement fraud has an additional element); Commonwealth v. Tanner,
61 A.3d 1043 (Pa. Super. 2013) (finding, sua sponte, that convictions for
homicide while driving under the influence and driving under the influence
should merge); Commonwealth v. Lomax, 8 A.3d 1264 (Pa. Super. 2010)
(finding that indecent assault and rape of a child should merge for sentencing
purposes because indecent assault requires indecent contact, which is
satisfied by the sexual intercourse requirement of the latter).
Preliminarily, we note it appears that the instant crimes did not
necessarily arise from a single act. In this case, the Commonwealth moved
to amend the information and add the controlled substance to prison and
criminal attempt charges after an investigation revealed “that [Appellant]
brought the subject controlled substances into the prison.” Motion to Amend
Information, 4/13/12, at unnumbered 3. Further, the Commonwealth
presented evidence, in the form of testimony from Appellant’s cellmate at the
time Appellant attempted to pass the pills to another inmate, that Appellant
brought the controlled substances into prison in a body cavity.7 The crime of
controlled substance to prison does not require delivery of the controlled
substance to another person or inmate; rather, it can be satisfied solely by
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7 Specifically, Appellant’s cellmate testified that she noticed movement and a
foul odor coming from Appellant’s bunk, which her cellmate identified as
coming from Appellant’s vagina, prior to her attempt to pass the controlled
substance. N.T. (Trial), 4/16/12, at 61, 82.
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the act of bringing the controlled substance into a prison. See
Commonwealth v. Williams, 579 A.2d 869, 871–872 (Pa. 1990) (“Hence,
in dismissing the present charge on the ground that there was no evidence
that [the appellant] entered the State Correctional Institute at Camp Hill with
an intention to transfer marijuana [to a] person confined there, the courts
below erred.”). Pursuant to the language of the controlled substance to prison
statute, the jury could have found Appellant guilty based upon the fact that
she brought the controlled substances into the prison or that she put them in
a place where they could have been secured by an inmate.
Furthermore, the second prong of the merger analysis requires that the
statutory elements of one offense be included in the other. Appellant also
fails to meet this prong. Appellant was convicted of two counts of PWID, which
is defined as follows:
Except as authorized by this act, the manufacture, delivery, or
possession with intent to manufacture or deliver, a controlled
substance by a person not registered under this act, or a
practitioner not registered or licensed by the appropriate State
board, or knowingly creating, delivering or possessing with intent
to deliver, a counterfeit controlled substance.
35 P.S. § 780-113(a)(30) (emphases added). In addition, she was convicted
of two counts of possession by an inmate, pursuant to 18 Pa.C.S. § 5123(a.2),
which provides that:
A prisoner or inmate commits a felony of the second degree if
he unlawfully has in his possession or under his control any
controlled substance in violation of section 13(a)(16) of The
Controlled Substance, Drug, Device and Cosmetic Act. For
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purposes of this subsection, no amount shall be deemed de
minimis.
18 Pa.C.S. § 5123(a.2) (emphases added). Finally, Appellant was convicted
of two counts of controlled substance to prison, which is defined as follows:
A person commits a felony of the second degree if he sells,
gives, transmits or furnishes to any convict in a prison, or
inmate in a mental hospital, or gives away in or brings into
any prison, mental hospital, or any building appurtenant thereto,
or on the land granted to or owned or leased by the
Commonwealth or county for the use and benefit of the prisoners
or inmates, or puts in any place where it may be secured by a
convict of a prison, inmate of a mental hospital, or employee
thereof, any controlled substance included in Schedules I
through V of the act of April 14, 1972 (P.L. 233, No. 64), known
as The Controlled Substance, Drug, Device and Cosmetic
Act, (except the ordinary hospital supply of the prison or mental
hospital) without a written permit signed by the physician of such
institution, specifying the quantity and quality of the substance
which may be furnished to any convict, inmate, or employee in
the prison or mental hospital, the name of the prisoner, inmate,
or employee for whom, and the time when the same may be
furnished, which permit shall be delivered to and kept by the
warden or superintendent of the prison or mental hospital.
18 Pa.C.S. § 5123(a) (emphases added).8
In order to convict a defendant of PWID, the Commonwealth must
prove that the defendant “possessed a controlled substance and did so with
the intent to deliver it.” Commonwealth v. Bricker, 882 A.2d 1008, 1015
(Pa. Super. 2005). Pursuant to the controlled substance to prison statute, 18
Pa.C.S. § 5123(a), a conviction is proper, inter alia, where an individual sells,
gives, or furnishes contraband to an inmate. However, a conviction of
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8 Appellant was also convicted of two counts of criminal attempt; however,
those convictions merged with the controlled substance to prison convictions.
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controlled substance to prison also is proper if an individual brings contraband
into prison, regardless of whether he intended to distribute it to an inmate.
See Williams, 579 A.2d at 870. Thus, PWID contains an element—namely
the intent to deliver—that is absent in the crime of controlled substance to
prison. Similarly, the elements of controlled substance to prison are satisfied
when an individual brings a controlled substance into a prison, without a
permit, regardless of whether they intended to deliver said substance to an
inmate. Under a Baldwin analysis, merger is improper because PWID
requires intent to deliver a controlled substance, and controlled substance to
prison has no intent requirement but does require that the controlled
substance be brought into, sold, or given away in prison or mental hospital.
Moreover, the “mischiefs sought to be remedied” by the two statutes
are readily distinguishable. See Calhoun, 52 A.3d at 287 (“The plain
language of the statutes establishes that the mischiefs to be remedied are
readily distinguishable and independent of each other[,] and the elements of
the crimes are distinct. The sentences do not merge, and Appellant is not
entitled to a ‘volume discount.’”). Pursuant to the plain language of the
controlled substance to prison statute, the legislature was seeking to prevent,
inter alia, controlled substances from entering a prison, regardless of whether
they were brought in with intent to deliver them to an inmate or prisoner.
See 18 Pa.C.S. § 5123(a) (stating that an individual commits a felony of the
second degree if an individual brings a controlled substance into any prison or
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mental hospital). PWID seeks to prevent any individual from possessing a
controlled substance with the intent to deliver that substance. See 35 P.S.
§ 780-113(a)(30). Finally, we note that merger is improper because it is
possible for an individual to commit the crime of controlled substance to prison
and not PWID and vice versa. See e.g. Commonwealth v. Cianci, 130 A.3d
780, 782 (Pa. Super. 2015) (finding that conviction for aggravated assault did
not merge with REAP, and stating that the “relevant question in merger
analysis is whether [a] person can commit one crime without also committing
the other crime” and if elements differ, merger is improper) (emphasis in
original).
Similarly, possession by an inmate does not merge with PWID or
controlled substance to prison because possession by an inmate requires that
the individual possessing the contraband is an inmate or prisoner, a
requirement absent from both PWID and controlled substance to prison. This
disparate element, absent from both of the other statutes, renders merger
improper. Baldwin, 985 A.2d at 834. We find the PCRA did not err when it
found merger was not proper.
In her next issue, Appellant asserts that the trial court imposed a
sentence greater than the lawful maximum. Appellant’s Brief at 48. Appellant
alleges that the trial court erred when it revoked her probation at Docket CP-
33-CR-605-2007 because it revoked her probation on two counts of hindering
apprehension when one of the two counts had been nol prossed. Id. This
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implicates the legality of Appellant’s sentence, which, as discussed supra,
cannot be waived.
Appellant’s claim that she was sentenced for two hindering
apprehension convictions is belied by the record. During Appellant’s
sentencing, the trial court incorrectly stated that it was revoking Appellant’s
probation on two counts of hindering apprehension. N.T. (Sentencing and
Gagnon9 Hearing), 5/16/12, at 14. Pursuant to the Gagnon order, however,
which was filed on May 24, 2012, Appellant’s probation was properly revoked
for a single count of hindering apprehension, and a total of one to two years
of incarceration was added to her sentence. Gagnon Order, 5/24/12. “In
Pennsylvania, the text of the sentencing order, and not the statements a trial
court makes about a defendant’s sentence, is determinative of the court’s
sentencing intentions and the sentence imposed.” Commonwealth v.
Borrin, 80 A.3d 1219, 1226 (Pa. 2013). As such, the trial court properly re-
sentenced Appellant for a single count of hindering apprehension. Thus, the
trial court’s misstatement of Appellant’s sentence is not controlling, Appellant
has suffered no harm or prejudice due to the misstatement, and Appellant is
due no relief.
The remainder of Appellant’s claims relate to ineffective assistance of
her trial and appellate counsel. In her brief, Appellant asserts her trial counsel
____________________________________________
9 Gagnon v. Scarpelli, 411 U.S. 778 (1973).
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and/or appellate counsel were ineffective for failing to: (1) object to the
Commonwealth’s motion to amend the information; (2) raise the issue of
merger/object to the sentence on those grounds; (3) take sufficient time to
discuss the amendment with Appellant; (4) seek a continuance after the trial
court granted the motion to amend; (5) request the trial court recuse itself
from the case; (6) point out errors in the pre-sentence investigative report;
and (7) raise the discretionary aspects of sentence on appeal. Appellant also
included claims of ineffectiveness of counsel in her arguments regarding
prosecutorial vindictiveness and illegal sentence as it related to the hindering
apprehension probation revocation.
It is well settled that:
[c]ounsel is presumed effective, and to rebut that presumption,
the PCRA petitioner must demonstrate that counsel’s performance
was deficient and that such deficiency prejudiced him. In
Pennsylvania, we have refined the Strickland v. Washington,
466 U.S. 668 (1984) performance and prejudice test into a three-
part inquiry. Thus, to prove counsel ineffective, the petitioner
must show that: (1) his underlying claim is of arguable merit; (2)
counsel had no reasonable basis for his action or inaction; and (3)
the petitioner suffered actual prejudice as a
result. See Commonwealth v. Pierce, 527 A.2d 973 (Pa.
1987). If a petitioner fails to prove any of these prongs, his claim
fails. Generally, counsel’s assistance is deemed constitutionally
effective if he chose a particular course of conduct that had some
reasonable basis designed to effectuate his client’s interests.
Where matters of strategy and tactics are concerned, a finding
that a chosen strategy lacked a reasonable basis is not warranted
unless it can be concluded that an alternative not chosen offered
a potential for success substantially greater than the course
actually pursued. To demonstrate prejudice, the petitioner must
show that there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceedings would have
been different. A reasonable probability is a probability that is
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sufficient to undermine confidence in the outcome of the
proceeding.
Commonwealth v. Charleston, 94 A.3d 1012, 1019 (Pa. Super. 2016)
(internal brackets and some internal citations omitted). Moreover, “[a] court
is not required to analyze the elements of an ineffectiveness claim in any
particular order of priority; instead, if a claim fails under any necessary
element of the ineffectiveness test, the court may proceed to that element
first.” Commonwealth v. Tharp, 101 A.3d 736, 747 (Pa. 2014) (citation
omitted).
Appellant first alleges that trial counsel was ineffective for failing to
object to the amendment seeking to change one of the controlled substances
from Vicodin to Oxycodone in the information in this case. Appellant’s Brief
at 24. Appellant fails to cite a single case in support of this argument, and
instead relies on suppositions and bald statements of fact; thus, Appellant has
waived this issue. See Commonwealth v. Williams, 959 A.2d 1252, 1258
(Pa. Super. 2008) (finding waiver where appellant’s argument on an issue
consisted of two pages of discussion and lacked citation to legal authority).
Even if we were to reach the merits of this ineffective-assistance-of-
counsel claim, we would not grant relief. Pursuant to the version of
Pa.R.Crim.P. 564 in effect at the time of the trial, “the court may allow an
information to be amended when there is a defect in form, the description of
the offense(s), the description of any person or any property.” Correcting the
name of the illicit drug from Vicodin to Oxycodone falls within the purview of
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that rule. Moreover, “[t]he purpose of Rule 564 is to ensure that a defendant
is fully apprised of the charges, and to avoid prejudice by prohibiting the last
minute addition of alleged criminal acts of which the defendant is uninformed.”
Commonwealth v. Sinclair, 897 A.2d 1218, 1221 (Pa. Super. 2006)
(citation omitted). The amendment of the information to correct the name of
the controlled substance Appellant was charged with possessing does not
impact the charges of which she was convicted nor the sentence she received.
Appellant would be unable to show this issue has merit and therefore would
not be entitled to relief.
Next, Appellant avers that her prior counsel was ineffective for failing
to raise the issue of merger. Appellant’s Brief at 20. In support of her
argument, Appellant asserts that the first prong of the test, namely that the
underlying claim has merit, is satisfied. Id. Given our finding that merger
was not appropriate in this case, supra, Appellant’s ineffectiveness claim does
not have merit and fails for that reason.
Appellant next asserts that her trial counsel was ineffective for failing to
seek a continuance after the trial court granted the motion to amend and for
failing to discuss the consequences of the amendment. Appellant’s Brief at
28–31. Once again, Appellant has failed to cite a single case in support of her
claim. Instead, she cites a rule of professional conduct, Pa.R.P.C. 1.1. That
rule states, “A lawyer shall provide competent representation to a client.
Competent representation requires the legal knowledge, skill, thoroughness
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and preparation reasonably necessary for the representation.” Pa.R.P.C. 1.1.
Appellant fails to set forth any legal authority as to what constitutes competent
representation. Thus, this issue is waived. Commonwealth v. Rhodes, 54
A.3d 908 (Pa. Super. 2012); Pa.R.A.P. 2119.
Even if we did not find waiver, this ineffective-assistance-of-counsel
claim lacks merit. Preliminarily, as discussed supra, on direct appeal this
Court specifically found that Appellant was not prejudiced by the amendment;
thus, she fails to satisfy the prejudice requirement of an ineffective assistance
of counsel claim. Further, Appellant’s counsel testified during the PCRA
hearing that his main concern was the changes that he would need to make
to his opening statement, but his defense strategies remained the same. N.T.
(PCRA) 1/8/16, at 55. Counsel was unable to say how Appellant was
prejudiced, and he testified that in hindsight, there was nothing he would have
done differently. Id. at 69, 79.
Appellant also argues that her trial counsel was ineffective for failing to
take the time to discuss the consequences of the amendment; however, this
argument is belied by the record. Specifically, Appellant’s trial counsel testified
that after he learned the trial court had granted the Commonwealth’s motion
to amend the information, he informed Appellant that she potentially could
face significant jail time if she were convicted of the additional charges. N.T.
(PCRA), 1/8/16, at 53, 56. He further testified that Appellant wanted to take
the case to trial because she was concerned about the effect the probation
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revocations would have on her total sentence and because Appellant believed
she was innocent. Id. at 79–80, 91. Moreover, we note that despite
Appellant’s attempt to establish prejudice by claiming she was not given an
opportunity to reconsider a plea deal she previously had refused, there is
nothing in the record reflecting that a plea deal had been offered following the
amendment. Finally, Appellant testified unequivocally that she would not have
accepted an open plea. Id. at 110. Thus, Appellant has failed to show that
her counsel was ineffective for failing to request a continuance on any
grounds. No relief is due.
Appellant next asserts that that her trial counsel was ineffective for
failing to request that the trial judge recuse himself. Appellant’s Brief at 36.
Appellant argues that the judge’s behavior during her sentencing and PCRA
hearing demonstrates bias and that her trial counsel was ineffective for failing
to request a recusal. Id. Appellant relies on statements made by the judge
during sentencing, which included referencing Appellant’s ex-husbands’ and
children’s contact with the court system and stating that he hoped she would
be a productive citizen when she completed her sentence, but if not, she was
not going to get another chance. Id. at 38.
“The party who asserts a trial judge must be disqualified bears the
burden of producing evidence establishing bias, prejudice, or unfairness
necessitating recusal, and the decision by a judge against whom a plea of
prejudice is made will not be disturbed except for an abuse of discretion.”
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Commonwealth v. Kearney, 92 A.3d 51, 60 (Pa. Super. 2014) (quoting
Commonwealth v. Druce, 848 A.2d 104, 108 (Pa. 2004) (citation omitted)).
As the PCRA Court noted in its opinion, “[J]udges in the smaller counties
commonly preside over multiple proceedings involving a given defendant and
his or her friends and family, and that fact, in and of itself, is not indicative of
bias.” PCRA Court Opinion, 1/27/17, at 2. A jurist, when a motion for recusal
is filed, must “consider whether his or her involvement in the case creates an
appearance or impropriety and/or would tend to undermine public confidence
in the judiciary.” Kearney, 92 A.3d at 60. The trial judge’s comments
regarding Appellant’s children and former spouses do not rise to the level of
undermining public confidence. As such, Appellant’s trial counsel was not
ineffective for failing to request recusal.
Next, Appellant alleges that trial counsel was ineffective for failing to
alert the court to issues in the Pre-Sentence Investigation Report (“PSI”).
Appellant’s Brief at 41. Specifically, she alleges the PSI improperly stated that
she pled guilty to two counts of hindering apprehension, when in fact she pled
guilty to one count of hindering and the other count was nol prossed. Id. She
further alleges that there is an error in the PSI because it reflected that
Appellant had been convicted of receiving stolen property and theft when
those two charges should have merged for sentencing. Appellant’s claims do
not have merit.
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In this case, the attendant order correctly reflected that Appellant pled
guilty to only one count and the other count was nol prossed. As discussed
supra, Appellant’s probation was revoked on a single count, and Appellant did
not receive any additional time on the nol prossed charge; thus, she has failed
to establish she was prejudiced by the alleged ineffectiveness of her counsel.
Appellant also alleges that trial counsel was ineffective for failing to point
out an error in the PSI, namely, that it reflected that she received five years
of probation for a charge of receiving stolen property because that conviction
should have merged with her theft conviction. Appellant’s Brief at 42. As the
PCRA court correctly found, Appellant makes a bald allegation that the two
crimes, which she committed in 2007, should have merged, but fails to provide
any background or factual support for that claim. PCRA Court Opinion,
1/27/17, at 7. We agree. Appellant has failed to show the underlying claim
has merit, and her ineffective assistance of counsel claim fails for that reason.
Appellant next argues that trial counsel was ineffective for failing to
appeal the discretionary aspects of her sentence. Appellant’s Brief at 44. Our
court has held that claims implicating the discretionary aspects of sentencing
raised in the context of an ineffectiveness claim are cognizable under the
PCRA. Commonwealth v. Whitmore, 860 A.2d 1032, 1036 (Pa. Super.
2004), reversed in part on other grounds, 912 A.2d 827 (Pa. 2006) (“[A] claim
that counsel was ineffective for failing to perfect a challenge to the
discretionary aspects of sentencing is cognizable under the PCRA.” (citations
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omitted)); Commonwealth v. Watson, 835 A.2d 786, 801 (Pa. Super. 2003)
(“[A] claim regarding the discretionary aspects of [the defendant’s] sentence,
raised in the context of an ineffectiveness claim, would be cognizable under
the PCRA”) (discussing Commonwealth ex. rel. Dadario v. Goldberg, 773
A.2d 126 (Pa. 2001)) (footnote omitted).
Appellant was convicted of two counts of PWID, two counts of
possession by an inmate, two counts of controlled substance to prison, and
two counts of criminal attempt based upon her attempt to pass one and one-
half pills to another inmate.10 Individually, the sentences imposed at each
count were within the guidelines. However, her aggregate sentence of
incarceration for these one and one-half pills was ten and one-half to twenty-
four years because the sentencing court decided to impose the sentences
consecutively. The court justified its decision in part by referring to “the
breadth of the judge’s sentencing discretion in the arenas of both original and
revocation sentences,” as well as Appellant’s “extensive history with the
court.” PCRA Opinion, 1/27/17, at 10. Considering that the individual
sentences were within the guidelines and below the statutory maximums, the
sentencing court concluded that Appellant’s counsel was not ineffective for
declining to appeal the discretionary aspects of Appellant’s sentence. Id.
____________________________________________
10 35 P.S. § 780-113(a)(30), 18 Pa.C.S. §§ 5123(a.2), § 5123(a), and 901,
respectively. At sentencing, the sentencing court found the criminal attempt
convictions merged.
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It is well-settled that a challenge to the discretionary aspects of a
sentence must present a substantial question.11 A sentencing court’s decision
to impose consecutive as opposed to concurrent sentences generally does not
present a substantial question. See Commonwealth v. Zirkle, 107 A.3d
127, 133 (Pa. Super. 2014) (noting that the decision to impose consecutive
or concurrent sentences lies within the discretion of the trial court). However,
“the imposition of consecutive, rather than concurrent, sentences may raise a
substantial question . . . where the aggregate sentence is unduly harsh,
considering the nature of the crimes and length of imprisonment.”
Commonwealth v. Moury, 992 A.2d 162, 171–172 (Pa. Super. 2010).
Accord Commonwealth v. Mastromarino, 2 A.3d 581, 587 (Pa. Super.
2010) (“[A substantial question is presented when] the decision to sentence
consecutively raises the aggregate sentence to, what appears upon its face to
be, an excessive level in light of the criminal conduct at issue.”).
Although we are cognizant of the danger of any amount of drugs in a
prison setting and realize the sentencing court was familiar with Appellant’s
history, we opine that the sentence was unquestionably harsh.12 Technically,
____________________________________________
11 We note that Appellant complied with Pa.R.A.P. 2119(f) and included a
concise statement of her reasons relied upon for the allowance of her appeal,
albeit within the argument section of her brief.
12 If the sentencing court had ordered Appellant’s sentences to run
concurrently, the aggregate sentence would have been two to five years of
incarceration.
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the counts of which Appellant was convicted do not merge, as discussed supra,
but it is undeniable that there is substantial overlap among PWID, possession
by an inmate, and controlled substance to prison. We also note that
Appellant’s crime did not involve violence. Further, we reiterate that
Appellant’s crime involved one episode of attempting to pass a very small
quantity of prescription pills. We thus conclude that Appellant’s challenge
presents a substantial question.
Pursuant to 42 Pa.C.S. § 9781(c)(2), this Court shall vacate a sentence
where “the sentencing court sentenced within the sentencing guidelines but
the case involves circumstances where the application of the guidelines would
clearly be unreasonable.” Pursuant to Section 9781(d), “the appellate courts
must review the record and consider the nature and circumstances of the
offense, the sentencing court’s observations of the defendant, the findings
that formed the basis of the sentence, and the sentencing guidelines[,]” with
particular concern for whether the defendant received an individualized
sentence. Commonwealth v. Bowen, 975 A.2d 1120, 1123–1124 (Pa.
Super. 2009).
Where, as here, Appellant’s individual sentences were within the
guideline range, we must “determine whether the trial court’s [aggregate]
sentence is ‘clearly unreasonable.’” Commonwealth v. Dodge, 957 A.2d
1198, 1200 (Pa. Super. 2008) (quoting 42 Pa.C.S. § 9781(c)(2)). “An
unreasonable decision from the sentencing court would be one that is
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‘irrational’ or ‘not guided by sound judgment.’” Dodge, 957 A.2d at 1200. As
we concluded in Commonwealth v. Williams, 69 A.3d 735, 742 (Pa. Super.
2013),13 “by any measure employed by a civilized society, the severity of
[a]ppellant’s sentence was disproportional to her conduct” and, thus, clearly
unreasonable. See also Dodge, 957 A.2d 1198 (finding that imposition of
consecutive sentences for thirty-seven counts of receiving stolen property,
which resulted in an aggregate sentence of fifty-two and one-half to one
hundred and eleven years of incarceration, was unreasonable where none of
the offenses involved violence against a person and the property received was
of little monetary value). Given our finding that Appellant’s sentence was
unduly harsh and clearly unreasonable given the nature and circumstances of
the offenses, the claim underlying her claim of ineffective assistance of counsel
for failing to appeal her sentence has merit.
Next, we must determine whether Appellant’s claim satisfies the two
remaining prongs of the ineffectiveness test. Charleston, 94 A.3d at 1019.
We first look to whether Appellant’s counsel had a reasonable basis for failing
to appeal the discretionary aspect of Appellant’s sentence. “In determining
____________________________________________
13 In Williams, the appellant was sentenced to a minimum aggregate term
of incarceration of over thirty years following her guilty plea to three counts
of burglary and subsequent revocation of probation following several
violations of her probation. Id. at 738. The appellant’s crimes did not involve
violence, except using physical force when she fled on two occasions, and at
no point did she possess a weapon or cause or risk causing serious bodily
injury. Id. at 743.
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whether counsel’s performance lacked a reasonable basis, a court will not find
counsel to be ineffective if the particular course chosen by counsel had some
reasonable basis designed to effectuate his client’s interest.”
Commonwealth v. Williams, 899 A.2d 1060, 1064 (Pa. 2006).
During Appellant’s May 23, 2016 PCRA hearing, trial counsel, Attorney
Knaresboro, testified that, although he was aware that Appellant was
sentenced to consecutive sentences for each of the six counts, he did not
object to the sentence, nor did he file a motion to reconsider the sentence or
a direct appeal raising that issue. N.T. (PCRA), 5/23/16, at 11. When asked
why he failed to raise the issue on direct appeal, trial counsel testified that,
although he believed Appellant was given a significant sentence, he did not
believe the issue to be of merit. Id. at 29. He further testified that by failing
to file post-sentence motions, he believed the issue had been waived, and
even if it had not been waived, he believed it was sufficient that the sentencing
court stated its reasons for Appellant’s sentence on the record. Id. Given the
factual circumstances of the crimes of which Appellant was convicted and the
length of the aggregate sentence she received, this Court is unable to find a
reasonable basis for counsel’s failure to file a post-sentence motion and appeal
the discretionary aspect of Appellant’s sentence.
Having determined that Appellant’s claim satisfies the first two prongs
of the ineffectiveness test, we must look to whether Appellant was prejudiced
by her counsel’s failure to appeal the discretionary aspect of her sentence.
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Commonwealth v. Johnson, 966 A.2d 523, 532–533 (Pa. 2009). An
appellant “establishes prejudice when he demonstrates that there is a
reasonable probability that but for counsel’s unprofessional errors, the result
of the proceeding would have been different.” Id. at 533 (quoting Strickland,
466 U.S. at 694) (internal quotation marks omitted).
Here, counsel’s failures deprived Appellant of this Court’s direct review
of the claim. Given our finding that Appellant’s sentence of over ten years of
incarceration for attempting to pass one and one-half pills was clearly
unreasonable, the outcome of Appellant’s case—specifically the length of her
term of incarceration—likely would have been different but for counsel’s
failures. Appellant’s counsel was thus ineffective for failing to preserve and
appeal the discretionary aspects of Appellant’s sentence.
In her final issue, Appellant raised ineffectiveness-of-counsel claims
within her argument relating to prosecutorial vindictiveness and her argument
that her sentence was illegal because she was sentenced for two counts of
hindering apprehension when one count had been nol prossed. Appellant’s
Brief at 23, 48. We addressed the merits of each of these issues supra and
found them to be lacking; therefore, Appellant has failed to prove the merit
underlying these claims.
For the reasons set forth above, we reverse the order of PCRA court,
vacate the judgment of sentence, and remand for resentencing consistent with
this opinion.
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Order reversed. Judgment of sentence vacated. Case remanded with
instructions. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/16/2018
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