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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
REINALDO FANTAUZZI :
:
Appellant : No. 19 EDA 2018
Appeal from the PCRA Order November 8, 2017
In the Court of Common Pleas of Northampton County
Criminal Division at No(s): CP-48-CR-0003898-2005
BEFORE: GANTMAN, P.J., McLAUGHLIN, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY GANTMAN, P.J.: FILED MAY 22, 2019
Appellant, Reinaldo Fantauzzi, appeals pro se from the order entered in
the Northampton County Court of Common Pleas, which denied his first
petition filed under the Post Conviction Relief Act (“PCRA”).1 We reverse the
order, vacate the judgment of sentence, and remand with instructions for
resentencing.
The relevant facts and procedural history of this case are as follows. On
August 13, 2005, Appellant shot Ernesto Rivera in the leg while firing multiple
shots in the direction of four Victims, including Mr. Rivera. No other Victims
suffered injuries, and Mr. Rivera survived the attack. The Commonwealth
charged Appellant with four counts each of attempted murder, aggravated
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1 42 Pa.C.S.A. §§ 9541-9546.
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assault, and reckless endangerment of another person (“REAP”), and one
count each of persons not to possess a firearm and firearms not to be carried
without a license. The Commonwealth did not charge Appellant with
attempted murder resulting in serious bodily injury or put Appellant on notice
that the Commonwealth intended to pursue serious bodily injury related to
the attempted murder charges. The criminal complaint and information did
not allege Appellant caused serious bodily injury to Mr. Rivera in connection
with that attempted murder charge.
At trial, the parties made several stipulations at the close of the
Commonwealth’s case in chief. The court announced to the jury the parties’
stipulations, in relevant part, as follows:
COURT: … The third stipulation is that
the gunshot injuries suffered by Ernesto Rivera qualifies as
serious bodily injury as will be defined to the jury in the
[c]ourt’s instructions at the end of this case.
* * *
Counsel, have I properly set
forth the stipulations in this case?
[COMMONWEALTH]: Yes, Your Honor.
COURT: [Defense counsel]?
[DEFENSE COUNSEL]: Yes, Your Honor. Thank you.
(N.T. Trial, 7/12/06, at 108-109). During the jury charge, the court instructed
the jury to render a finding on serious bodily injury in relation to the
aggravated assault offense against Mr. Rivera only. The court did not instruct
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the jury to render a finding on serious bodily injury in relation to any
attempted murder charge. Additionally, the verdict sheet included no mention
of the elements of the charged offenses, including serious bodily injury.
Rather, the verdict sheet merely listed each charge and its corresponding
Victim.
On July 12, 2006, the jury convicted Appellant of four counts each of
aggravated assault and REAP, two counts of attempted murder, and one count
each of persons not to possess firearms and possession of a firearm without
a license. Specifically, the jury convicted Appellant of one count of attempted
murder and one count of aggravated assault/serious bodily injury against Mr.
Rivera. With the benefit of a presentence investigation (“PSI”) report, the
court sentenced Appellant on September 14, 2006, to an aggregate term of
twenty-eight (28) to fifty-six (56) years’ incarceration, which included an
enhanced sentence of fifteen (15) to thirty (30) years for attempted
murder/serious bodily injury. The court stated at sentencing as follows:
COURT: … On the charge of criminal attempt to
commit homicide of Ernesto Rivera where serious bodily
injury was caused and was, in fact, stipulated to at trial, I
am imposing a sentence of incarceration in the state
correctional institution of a minimum of 15 years to a
maximum of 30 years.
(N.T. Sentencing, 9/14/06, at 15). Additionally, several of Appellant’s
convictions included mandatory minimum sentences under 42 Pa.C.S.A. §
9712(a) (requiring mandatory minimum sentences for offenses committed
with visible firearm).
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This Court affirmed the judgment of sentence on August 15, 2007, and
our Supreme Court denied allowance of appeal on December 24, 2007. See
Commonwealth v. Fantauzzi, 935 A.2d 10 (Pa.Super. 2007) (unpublished
memorandum), appeal denied, 596 Pa. 702, 940 A.2d 362 (2007). On
February 13, 2008, Appellant timely filed his first pro se PCRA petition. The
PCRA court appointed counsel on March 4, 2008, and denied PCRA relief on
December 1, 2008. This Court affirmed on January 13, 2010. See
Commonwealth v. Fantauzzi, 991 A.2d 356 (Pa.Super. 2010) (unpublished
memorandum).
Appellant filed a second pro se PCRA petition, styled as petition for writ
of habeas corpus, subsequently retained counsel, and challenged his
mandatory minimum sentences under Alleyne v. United States, 570 U.S.
99, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013). On February 20, 2015, the trial
court vacated the original judgment of sentence, conducted a resentencing
hearing, and resentenced Appellant to the same aggregate term of twenty-
eight (28) to fifty-six (56) years’ incarceration, but without any mandatory
minimum sentences. The new sentence also included the enhanced sentence
of fifteen (15) to thirty (30) years’ incarceration for attempted murder/serious
bodily injury. The resentencing court noted it relied upon: (1) the PSI report
from the original sentencing, with minimal revisions regarding Appellant’s
contact with his child; and (2) the new sentencing guidelines forms with
corrections to the guidelines originally used. This Court affirmed the new
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judgment of sentence on April 18, 2016. See Commonwealth v. Fantauzzi,
145 A.3d 784 (Pa.Super. 2016) (unpublished memorandum).
On May 4, 2017, Appellant timely filed pro se this first PCRA petition
following the judgment of sentence. The same jurist, who had resentenced
Appellant in 2015, presided over the PCRA proceedings and appointed counsel
on May 16, 2017. On June 12, 2017, Appellant filed a motion to proceed pro
se. Following a Grazier2 hearing on August 4, 2017, the PCRA court permitted
Appellant to proceed pro se. On September 11, 2017, Appellant filed pro se
an amended PCRA petition. The PCRA court conducted a hearing on October
26, 2017, where the parties presented argument but no testimony. On
November 8, 2017, the PCRA court denied relief. Appellant timely filed a pro
se notice of appeal on December 7, 2017, per the prisoner mailbox rule. 3 The
PCRA court ordered Appellant on December 21, 2017, to file a concise
statement of errors complained of on appeal per Pa.R.A.P. 1925(b); following
an extension, Appellant timely complied on January 31, 2018, per the prisoner
mailbox rule.
Appellant raises the following issues for our review:
WHETHER THE PCRA COURT ERRED IN DETERMINING THAT
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2 Commonwealth v. Grazier, 552 Pa. 9, 713 A.2d 81 (1998).
3 Appellant’s notice of appeal was postmarked December 7, 2017. See
Commonwealth v. Chambers, 35 A.3d 34 (Pa.Super. 2011), appeal denied,
616 Pa. 625, 46 A.3d 715 (2012) (explaining prisoner mailbox rule provides
that pro se prisoner’s document is deemed filed on date he delivers it to prison
authorities for mailing).
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APPELLANT’S ISSUE, THAT RESENTENCING COUNSEL
RENDERED INEFFECTIVE ASSISTANCE OF COUNSEL AT THE
RESENTENCING HEARING WHEN HE FAILED TO OBJECT TO
APPELLANT BEING RESENTENCED WITH AN INCORRECT
PRIOR RECORD SCORE, WAS WAIVED, IN VIOLATION OF
APPELLANT’S RIGHTS UNDER THE SIXTH AND FOURTEENTH
AMENDMENTS TO THE UNITED STATES CONSTITUTION?
WHETHER THE PCRA COURT COMMITTED AN ERROR OF
LAW IN DETERMINING THAT APPELLANT’S CLAIM, THAT
RESENTENCING COUNSEL RENDERED INEFFECTIVE
ASSISTANCE OF COUNSEL IN FAILING TO OBJECT TO
APPELLANT BEING SENTENCED FOR ATTEMPTED MURDER
WITH SERIOUS BODILY INJURY, IN VIOLATION OF
APPELLANT’S RIGHTS UNDER THE SIXTH, EIGHTH, AND
FOURTEENTH AMENDMENTS TO THE UNITED STATES
CONSTITUTION, WAS WAIVED?
(Appellant’s Brief at ix).4
Our standard of review of the denial of a PCRA petition is limited to
examining whether the evidence of record supports the court’s determination
and whether its decision is free of legal error. Commonwealth v. Conway,
14 A.3d 101, 109 (Pa.Super. 2011), appeal denied, 612 Pa. 687, 29 A.3d 795
(2011). This Court grants great deference to the PCRA court’s findings, if the
record contains any support for those findings. Commonwealth v. Boyd,
923 A.2d 513, 515 (Pa.Super. 2007), appeal denied, 593 Pa. 754, 932 A.2d
74 (2007). We do not give the same deference to the court’s legal
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4 To the extent Appellant tries to argue ineffective assistance of PCRA counsel
regarding the current petition, those claims are waived because Appellant
raises them for the first time on appeal. See Pa.R.A.P. 302(a) (explaining
general rule that issues not raised before trial court are waived and cannot be
raised for first time on appeal).
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conclusions. Commonwealth v. Ford, 44 A.3d 1190, 1194 (Pa.Super. 2012).
The law presumes counsel has rendered effective assistance.
Commonwealth v. Gonzalez, 858 A.2d 1219 (Pa.Super. 2004), appeal
denied, 582 Pa. 695, 871 A.2d 189 (2005). In general, to prevail on a claim
of ineffective assistance of counsel, a petitioner must show, by a
preponderance of the evidence, ineffective assistance of counsel which, in the
circumstances of the particular case, so undermined the truth-determining
process that no reliable adjudication of guilt or innocence could have taken
place. Commonwealth v. Turetsky, 925 A.2d 876 (Pa.Super. 2007), appeal
denied, 596 Pa. 707, 940 A.2d 365 (2007). The petitioner must demonstrate:
(1) the underlying claim has arguable merit; (2) counsel lacked a reasonable
strategic basis for his action or inaction; and (3) but for the errors and
omissions of counsel, there is a reasonable probability that the outcome of the
proceedings would have been different. Id. at 880. “The petitioner bears the
burden of proving all three prongs of the test.” Id.
“A claim has arguable merit where the factual averments, if accurate,
could establish cause for relief.” Commonwealth v. Stewart, 84 A.3d 701,
707 (Pa.Super. 2013) (en banc), appeal denied, 625 Pa. 664, 93 A.3d 463
(2014). “[T]he ultimate question of whether facts rise to the level of arguable
merit is a legal determination.” Commonwealth v. Saranchak, 581 Pa. 490,
511 n.14, 866 A.2d 292, 304 n.14 (2005). Regarding the second prong of the
ineffectiveness test, our Supreme Court has explained:
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[W]e do not question whether there were other more logical
courses of action which counsel could have pursued; rather,
we must examine whether counsel’s decisions had any
reasonable basis. We will conclude that counsel’s chosen
strategy lacked a reasonable basis only if [a]ppellant proves
that an alternative not chosen offered a potential for success
substantially greater than the course actually pursued.
Commonwealth v. Chmiel, 612 Pa. 333, 361-62, 30 A.3d 1111, 1127
(2011) (internal citations and quotation marks omitted). Generally, an
evidentiary hearing on counsel’s strategy is preferred before the PCRA court
decides if counsel lacked a reasonable basis for his actions, except in those
cases where the reasons for counsel’s conduct are clear and apparent from
the record. Commonwealth v. Hanible, 612 Pa. 183, 30 A.3d 426 (2011),
cert. denied, 568 U.S. 1091, 133 S.Ct. 835, 184 L.Ed.2d 662 (2013). With
respect to the prejudice prong, “a reasonable probability is a probability that
is sufficient to undermine confidence in the outcome of the proceeding.”
Commonwealth v. Ali, 608 Pa. 71, 86-87, 10 A.3d 282, 291 (2010).
Prejudice is established when [an appellant] demonstrates
that counsel’s chosen course of action had an adverse effect
on the outcome of the proceedings. The [appellant] must
show that there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding
would have been different. A reasonable probability is a
probability sufficient to undermine confidence in the
outcome.
Commonwealth v. Chambers, 570 Pa. 3, 21-22, 807 A.2d 872, 883 (2002)
(internal citations and quotation marks omitted).
Further, “to succeed on an allegation of…counsel’s ineffectiveness…a
post-conviction petitioner must, at a minimum, present argumentation
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relative to each layer of ineffective assistance, on all three prongs of the
ineffectiveness standard….” Commonwealth v. D’Amato, 579 Pa. 490, 500,
856 A.2d 806, 812 (2004) (internal citations omitted). “[A] petitioner does
not preserve a…claim of ineffectiveness merely by focusing his attention on
whether…counsel was ineffective. Rather, the petitioner must also present
argument as to how the second and third prongs of the [ineffectiveness] test
are met with regard to the…claim.” Commonwealth v. Santiago, 579 Pa.
46, 69, 855 A.2d 682, 696 (2004).
Appellant first argues resentencing counsel failed to object to the prior
record score the resentencing court used to impose Appellant’s new sentence.
Appellant avers the PSI report incorrectly included a 2005 conviction for
possession of a small amount of marijuana and applied a prior record score of
“4,” when the score should have been a “3.” Appellant insists he informed
resentencing counsel of the inaccuracy beforehand, but resentencing counsel
rendered ineffectiveness assistance when he failed to object to the erroneous
prior record score, without reason, which prejudiced Appellant at
resentencing. Appellant submits the incorrect prior record score of “4” led to
a greater sentence than a score of “3.”
Appellant next argues resentencing counsel failed to protect Appellant
against the imposition of an illegal sentence for attempted murder/serious
bodily injury. Appellant avers his sentence of 15 to 30 years’ imprisonment
for attempted murder/serious bodily injury is unlawful because it exceeds the
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maximum penalty of 20 years’ imprisonment for the attempted murder
offense generally as charged, i.e., without serious bodily injury. Appellant
contends he had no notice of serious bodily injury related to the attempted
murder offense, which increases the statutory maximum penalty for that
offense and is a fact that must be proved beyond a reasonable doubt, under
Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435
(2000). Appellant asserts the Commonwealth did not charge or prosecute him
with attempted murder/serious bodily injury; the trial court did not instruct
the jury on serious bodily injury in relation to attempted murder; and the jury
did not find any of Appellant’s attempted murder convictions involved serious
bodily injury. Appellant submits resentencing counsel was ineffective for
failing to object to the enhanced sentence for attempted murder under these
circumstances. Appellant complains the current PCRA court incorrectly
deemed these claims of ineffectiveness of resentencing counsel were waived
or previously litigated as Appellant could not have litigated them in any earlier
proceedings. Appellant insists his first opportunity to assert resentencing
counsel ineffectiveness was in the current PCRA petition. Appellant concludes
this Court should reverse the PCRA court order, vacate the February 2015
judgment of sentence, and remand for resentencing. We agree.5
Preliminarily, to be eligible for relief under the PCRA, a petitioner must
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5 We reject outright the Commonwealth’s contention that Appellant waived
any current appellate issue as a precondition to resentencing.
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plead and prove by a preponderance of the evidence: “[t]hat the allegation of
error has not been previously litigated or waived.” 42 Pa.C.S.A. § 9543(a)(3).
The PCRA defines “previous litigation” as follows:
§ 9544. Previous litigation and waiver
(a) Previous litigation.—For purposes of this
subchapter, an issue has been previously litigated if:
* * *
(2) the highest appellate court in which the petitioner
could have had review as a matter of right has ruled on
the merits of the issue; or
(3) it has been raised and decided in a proceeding
collaterally attacking the conviction or sentence.
42 Pa.C.S.A. § 9544(a)(2-3) (emphasis added). “[A] reviewing court must
consider and substantively analyze an ineffectiveness claim as a distinct legal
ground for PCRA review because[,] while an ineffectiveness claim may fail for
the same reasons that the underlying claim faltered on direct review, the Sixth
Amendment basis for ineffectiveness claims technically creates a separate
issue for review under the PCRA.” Commonwealth v. Tedford, 598 Pa. 639,
662, 960 A.2d 1, 14 (2008) (internal citation and quotation marks omitted).
“[A]s a general rule, a petitioner should wait to raise claims of ineffective
assistance of trial counsel until collateral review.” Commonwealth v. Grant,
572 Pa. 48, 67, 813 A.2d 726, 738 (2002). Our Supreme Court has recognized
two very limited exceptions to the general rule in Grant regarding when trial
courts may review ineffective assistance of counsel claims: (1) in
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extraordinary circumstances where claims of trial counsel’s ineffectiveness are
apparent from the record and immediate consideration best serves the
interests of justice and/or (2) where there is good cause shown and review of
the claim is preceded by a waiver of the right to seek collateral review.
Commonwealth v. Holmes, 621 Pa. 595, 598-99, 79 A.3d 562, 563-64
(2013). Ineffectiveness claims may be raised on direct appeal only if: (1) the
appellant raised his claim(s) in a post-sentence motion; (2) an evidentiary
hearing was held on the claim(s); and (3) a record devoted to the claim(s)
has been developed. Commonwealth v. Leverette, 911 A.2d 998, 1004
(Pa.Super. 2006).
Instantly, Appellant is before us on appeal from the denial of his first
and timely-filed PCRA petition following resentencing. Appellant asserts
resentencing counsel’s ineffectiveness in both appellate issues. Appellant
could not have raised these claims prior to the current PCRA petition or
previously made a knowing, intelligent, and voluntary waiver of his right to
claim resentencing counsel ineffectiveness in the current PCRA petition. See
Grant, supra; Holmes, supra; Leverette, supra. To the contrary,
Appellant’s first opportunity to assert resentencing counsel’s ineffectiveness
was in the current PCRA petition. See Grant, supra. The PCRA court
incorrectly reasoned Appellant had either waived his ineffectiveness claims or
previously litigated them in earlier proceedings. To the contrary, Appellant’s
claims regarding resentencing counsel are distinct claims subject to
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consideration and substantive analysis as discrete legal grounds for PCRA
review “because the Sixth Amendment basis for ineffectiveness claims
technically creates a separate issue for review under the PCRA.” See
Tedford, supra; 42 Pa.C.S.A. 9544(a)(2-3). Therefore, we conclude
Appellant’s claims of resentencing counsel’s ineffectiveness were neither
waived nor previously litigated, they were properly before the PCRA court for
consideration on the merits, and they are correctly before us now on appeal.
The legality of a sentence is a question of law. Commonwealth v.
Barnes, 167 A.3d 110, 116 (Pa.Super. 2017) (en banc). Thus, our standard
of review is de novo and our scope of review is plenary. Id. This Court has
observed:
A claim that implicates the fundamental legal authority of
the court to impose a particular sentence constitutes a
challenge to the legality of the sentence. If no statutory
authorization exists for a particular sentence, that sentence
is illegal and subject to correction. An illegal sentence must
be vacated. Likewise, a sentence that exceeds the statutory
maximum is illegal. If a court imposes a sentence outside
of the legal parameters prescribed by the applicable statute,
the sentence is illegal and should be remanded for
correction.
Commonwealth v. Infante, 63 A.3d 358, 363 (Pa.Super. 2013) (internal
citations and quotation marks omitted).
Pennsylvania Rule of Criminal Procedure 560 describes the content of a
criminal information and requires “a plain and concise statement of the
essential elements of the offense substantially the same as or cognate to the
offense alleged in the complaint.” Pa.R.Crim.P. 560(B)(5) (emphasis added).
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[Informations] must be read in a common sense manner
and are not to be construed in an overly technical sense.
The purpose of the [information] is to provide the accused
with sufficient notice to prepare a defense, and to [ensure]
that he will not be tried twice for the same act.
Commonwealth v. Ohle, 503 Pa. 566, 588, 470 A.2d 61, 73 (1983) (internal
citations and quotation marks omitted). “A criminal information is not
constitutionally infirm if it notified the defendant of the crime with which he is
charged.” Commonwealth v. Jones, 590 Pa. 202, 237, 912 A.2d 268, 289
(2006). “Variations between allegations and proof at trial are not fatal unless
a defendant could be misled at trial, prejudicially surprised in efforts to
prepare a defense, precluded from anticipating the prosecution’s proof, or
otherwise impaired with respect to a substantial right.” Commonwealth v.
Kelly, 487 Pa. 174, 178, 409 A.2d 21, 23 (1979). Accord Ohle, supra at
589, 470 A.2d at 73; Commonwealth v. Zullinger, 676 A.2d 687, 689
(Pa.Super. 1996).
A defendant can be convicted of an uncharged lesser-included offense if
the defendant had “fair notice and an opportunity to present an adequate
defense.” Commonwealth v. Houck, 102 A.3d 443, 450 (Pa.Super. 2014)
(citing Commonwealth v. Pemberth, 489 A.2d 235, 237 (Pa.Super. 1985)).
“This end has frequently been achieved in one of two ways: either the
Commonwealth will give an accused express notice by charging him with the
less culpable offense or it will give him implicit notice through the information
where the proven, but uncharged crime is a lesser-included offense of the
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charged, but unproven, offense.” Houck, supra at 450.
The Pennsylvania Consolidated Statutes define the sentence for
attempted murder as follows:
§ 1102. Sentence for murder, murder of unborn child
and murder of law enforcement officer
* * *
(c) Attempt, solicitation and conspiracy.—
Notwithstanding section 1103(1) (relating to sentence of
imprisonment for felony), a person who has been convicted
of attempt, solicitation or conspiracy to commit murder,
murder of an unborn child or murder of a law enforcement
officer where serious bodily injury results may be sentenced
to a term of imprisonment which shall be fixed by the court
at not more than 40 years. Where serious bodily injury does
not result, the person may be sentenced to a term of
imprisonment which shall be fixed by the court at not more
than 20 years.
18 Pa.C.S.A. § 1102(c). In other words, “Section 1102(c) imposes a condition
precedent to the imposition of a maximum term of imprisonment of up to 40
years, specifically, that ‘serious bodily injury’ must have resulted from the
attempted murder. Otherwise, the sentence shall be not more than 20 years.”
Barnes, supra at 117 (quoting Commonwealth v. Johnson, 910 A.2d 60,
66 (Pa.Super. 2006), appeal denied, 592 Pa. 766, 923 A.2d 1173 (2007)
(stating jury has sole responsibility to find beyond reasonable doubt whether
serious bodily injury resulted from attempted murder offense)). Further, “any
finding by the jury of serious bodily injury for aggravated assault could not be
used to infer that the jury found serious bodily injury for the attempted murder
charge.” Barnes, supra at 119. The Commonwealth must give the
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defendant notice that it intends to prosecute and prove serious bodily injury
specifically related to the attempted murder charge before the 40-year
maximum sentence for attempted murder/serious bodily injury can apply.
Commonwealth v. Bickerstaff, ___ A.3d ___, 2019 PA Super 51 (filed
February 22, 2019).
Instantly, the Commonwealth charged Appellant with attempted murder
generally and did not include in the criminal complaint or information the
element of serious bodily injury in relation to attempted murder. The
Commonwealth also failed to put Appellant on notice that the Commonwealth
intended to prosecute and prove attempted murder/serious bodily injury at
trial. The Commonwealth did not prosecute Appellant for attempted
murder/serious bodily injury. Rather, the parties stipulated that Mr. Rivera’s
injury constituted serious bodily injury “as will be defined to the jury in the
[c]ourt’s instructions at the end of this case.” (N.T. Trial, 7/12/06, at 108).
The court, however, did not instruct the jury on serious bodily injury related
to any of the attempted murder charges. Instead, the court gave the jury an
instruction on serious bodily injury only in conjunction with aggravated
assault. Furthermore, the verdict sheet did not refer to serious bodily injury
at all; it included only the charges and Victims associated with each charge.
After the jury convicted Appellant of two counts of attempted murder, the
original sentencing court sentenced Appellant on one count of attempted
murder to an enhanced sentence of 15 to 30 years’ incarceration. The
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resentencing court again imposed the enhanced sentence of 15 to 30 years’
on the one count of attempted murder.
Under these circumstances, the parties’ stipulation at trial did not put
Appellant on notice to defend against attempted murder/serious bodily injury
or that he would be exposed to an enhanced sentence for attempted
murder/serious bodily injury. See Barnes, supra; Bickerstaff, supra.
Appellant’s lack of notice and resultant inability to defend is apparent on the
face of the record, and resentencing counsel should have brought this illegal
sentence to the attention of the resentencing court and/or objected when the
resentencing court re-imposed the enhanced sentence of 15 to 30 years’
incarceration for attempted murder. Resentencing counsel had no rational
basis for failing to raise a challenge to the illegal sentence, given the lack of
notice. Further, resentencing counsel’s failure to object at resentencing
prejudiced Appellant, because it left Appellant exposed to an enhanced
maximum sentence for that offense, which he received in violation of
Apprendi, supra, instead of the 20-year maximum for attempted murder
generally. Thus, we conclude resentencing counsel was ineffective for failing
to protect Appellant from the illegal sentence enhancement he received for
attempted murder/serious bodily injury. See Turetsky, supra.
Appellant’s remaining issue concerning the calculation of his prior record
score implicates the discretionary aspects of sentence. See Commonwealth
v. Anderson, 830 A.2d 1013 (Pa.Super. 2003) (holding contention trial court
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miscalculated prior record score raises substantial question as to discretionary
aspects of sentencing); Commonwealth v. Medley, 725 A.2d 1225
(Pa.Super. 1999), appeal denied, 561 Pa. 672, 749 A.2d 428 (2000) (finding
appellant raised substantial question where appellant alleged trial court
miscalculated prior record score). Additionally, in the context an
ineffectiveness claim, “if the court purports to sentence consistently with the
guidelines, but applies the guidelines erroneously, the defendant obviously
has been prejudiced.” Commonwealth v. Dickerson, 590 A.2d 766, 773
(Pa.Super. 1991), affirmed, 533 Pa. 294, 621 A.2d 990 (1993) (emphasis in
original).
Instantly, the resentencing court reviewed the original PSI report, with
minor unrelated revision, and relied on it to impose Appellant’s new sentence.
At resentencing, counsel did not challenge the PSI report, the accuracy of
Appellant’s criminal history, or the purportedly incorrect prior record score.
During the current PCRA proceedings, Appellant appeared before the
same jurist who had resentenced Appellant in 2015. Although Appellant raised
in his current PCRA petition the ineffectiveness claims regarding resentencing
counsel, and the court conducted a hearing, the court heard only argument at
the hearing. The PCRA court denied Appellant’s ineffectiveness claim on the
grounds that: (1) several appellate courts and a PCRA court previously
deemed Appellant’s sentence, and implicitly the prior record score, proper;
(2) Appellant failed to demonstrate what his sentence would have been if the
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resentencing court had applied the allegedly correct record score; and (3)
resentencing counsel did not object to the resentencing court’s application of
the prior record score of “4.”
Here, the record establishes the resentencing court intended to
resentence Appellant consistent with the sentencing guidelines. Thus,
Appellant suffered prejudice if the resentencing court relied upon an
inaccurate prior record score. See Turetsky, supra; Dickerson, supra. The
PCRA court, however, did not review the accuracy of the prior record score or
resentencing counsel’s basis for failing to challenge the prior record score at
resentencing. Therefore, the record is insufficient for us to determine whether
Appellant has satisfied the arguable merit and reasonable basis prongs of the
ineffective assistance of counsel test related to Appellant’s prior record score.
See Turetsky, supra. Consequently, a remand is necessary to evaluate
evidence regarding the accuracy of Appellant’s prior record score. See
Commonwealth v. Kenney, 557 Pa. 195, 202-03, 732 A.2d 1161, 1165
(1999) (holding Superior Court has no original jurisdiction in PCRA
proceedings; if record is insufficient to adjudicate allegations, case should be
remanded for further inquiry).
In light of the foregoing, the best resolution of this case is to reverse,
vacate and remand for resentencing. See Infante, supra; Conway, supra.
On remand, the court shall verify Appellant’s prior record score before
imposing a new sentence. Accordingly, we reverse the PCRA court order,
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vacate the February 2015 judgment of sentence, and remand for verification
of Appellant’s prior record score and resentencing without the enhancement
on the attempted murder conviction.
Order reversed; judgment of sentence vacated; case remanded with
instructions for resentencing. Jurisdiction is relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/22/19
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