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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JACOB RALPH HELSEL, :
:
Appellant : No. 1169 WDA 2019
Appeal from the PCRA Order Entered July 22, 2019
In the Court of Common Pleas of Blair County Criminal Division at No(s):
CP-07-CR-0002011-2017
BEFORE: LAZARUS, J., DUBOW, J., and MUSMANNO, J.
MEMORANDUM BY DUBOW, J.: FILED JUNE 22, 2020
Appellant, Jacob Ralph Helsel, appeals from the Order denying the relief
requested in his first Petition filed pursuant to the Post-Conviction Relief Act,
42 Pa.C.S. §§ 9541-46. He challenges the legality of his sentence as well as
the stewardship of plea counsel. After careful review, we conclude that
Appellant waived his ineffective assistance of plea counsel claim and did not
receive an illegal sentence. We, thus, affirm.
On June 25, 2018, Appellant entered an open guilty plea to one count
each of Accidents Involving Death or Personal Injury, Simple Assault, and
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Tampering with/Fabricating Physical Evidence.1,2 On September 11, 2018, the
court sentenced Appellant for the Accidents Involving Death pursuant to 75
Pa.C.S. § 3742(b)(3)(i) to a term of four to eight years’ incarceration.3
Appellant did not appeal his Judgment of Sentence.
On December 18, 2018, Appellant timely filed his PCRA Petition in which
he sought (1) to withdraw his guilty plea based on an assertion that it was
coerced by ineffective assistance of plea counsel; (2) a new trial or re-
sentencing based on counsel’s ineffectiveness; and (3) resentencing based on
an illegal sentence claim.
The PCRA court held a hearing on July 11, 2019, at which Appellant’s
plea counsel and Appellant testified.4 See N.T. PCRA Hearing, 7/11/19, at 1-
10. Counsel for both parties provided extensive argument regarding which
sentencing provision of 75 Pa.C.S. §3742(b) applied. The PCRA court took the
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175 Pa.C.S. § 3742(a), 18 Pa.C.S. § 2701(a)(1), and 18 Pa.C.S. § 4910(a)(1),
respectively.
2 The certified record contains the written plea colloquy and the Order of the
Hon. Elizabeth Doyle indicating that she accepted Appellant’s open guilty plea
and was satisfied that the guilty plea was entered knowingly, intelligently, and
voluntarily. See Order, dated 6/25/18; Guilty Plea Colloquy Form, dated
6/25/18 and executed by Appellant. The record does not contain any notes
of testimony from the plea hearing. The Hon. Timothy M. Sullivan presided
at Appellant’s sentencing hearing.
3 The court sentenced Appellant to a term of two years’ probation on the
Tampering conviction, to be served consecutive to his incarceration.
4 At the PCRA hearing, Appellant testified that he discussed the statute with
his plea counsel and entered the guilty plea knowing that he would be subject
to a three-year minimum sentence. See PCRA Hearing, 7/11/19, 8-9.
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matter under advisement and on July 22, 2019, issued an Opinion and Order
denying relief.
Appellant timely appealed. He filed a court-ordered Pa.R.A.P. 1925(b)
Statement stating only the following issue:
The Trial Court erred and/or abused its discretion or misapplied
the law when it failed to grant the Appellant’s PCRA [sic] in regards
to the Court’s application of the mandatory three (3) year
sentence imposed by 75 Pa.C.S.[] § 3742(3)(i). The Court did so
even though the evidence was clear that the victim was already
deceased by the time the Appellant’s vehicle came upon the
scene. The Trial Court should have applied a penalty provision of
75 Pa.C.S.[] § 3742(1) or (2) [sic] depending upon what type of
injury the Court determines the Appellant caused to the victim.
Appellant’s Rule 1925(b) Statement of Matters Complained of on Appeal, filed
8/20/19, at 1-2.5
In his Brief, Appellant presents the following issue for our review:
Whether the trial court erred and/or abused its discretion in
dismissing Appellant’s PCRA [sic] due to the ineffective assistance
of counsel resulting in the trial court’s application of the
mandatory sentence in 75 Pa.C.S.[] § 3742(B)(3)(i).
Appellant’s Brief at 4.6
We review an order denying a petition for collateral relief to determine
whether the PCRA court’s decision is supported by the evidence of record and
free of legal error. Commonwealth v. Jarosz, 152 A.3d 344, 350 (Pa.
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5 In response, the PCRA court relied on its July 22, 2019 Opinion.
6 PCRA counsel passed away in October 2019, approximately two months after
filing the Rule 1925(b) Statement. Appellant is now represented by
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Super. 2016) (citing Commonwealth v. Fears, 86 A.3d 795, 803 (Pa.
2014)).
Initially, we must determine whether Appellant preserved his claim of
ineffective assistance of counsel. It is well-settled that when an appellant files
a court-ordered Pa.R.A.P. 1925(b) Statement of Matters Complained of on
Appeal, any issues not raised in the Rule 1925(b) Statement will be deemed
waived. Commonwealth v. Lord, 719 A.2d 306, 309 (Pa. 1998).
Here, the issue raised in Appellant’s Rule 1925(b) Statement, noted
above, failed to include any challenge to the effectiveness of plea counsel’s
assistance. Accordingly, Appellant has waived his ineffective assistance of
counsel claim for appellate review.7
Appellant has also raised a challenge to the legality of his sentence when
he argues that, based on the facts of the case, he should have been sentenced
pursuant to 75 Pa.C.S. § 3742(b)(2), and not Section 3742(b)(3)(i).
Appellant’s Br. at 6. We may sua sponte address the legality of Appellant’s
sentence. Commonwealth v. Orellana, 86 A.3d 877, 882 n.7 (Pa. Super.
2014); Commonwealth v. Fahy, 737 A.2d 214, 223 (Pa. 1999) (recognizing
that traditional appellate waiver rules do not apply so illegal sentencing claims
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7In addition, Appellant did not raise any issue implicating his guilty plea in his
Rule 1925(b) Statement.
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may be addressed on collateral review if they were raised in a timely-filed
PCRA petition).8
Issues pertaining to the the legality of a sentence are questions of law.
Accordingly, our standard of review is de novo and our scope of review is
plenary. Commonwealth v. Gentry, 101 A.3d 813, 817 (Pa. Super. 2014).
Appellant pled guilty to the offense of Accidents Involving Death or
Injury. The legislature defined the offense as follows:
The driver of any vehicle involved in an accident resulting in
injury or death of any person shall immediately stop the
vehicle at the scene of the accident or as close thereto as
possible but shall then forthwith return to and in every event shall
remain at the scene of the accident until he has fulfilled the
requirements of section 3744 (relating to duty to give information
and render aid).
75 Pa.C.S. § 3742(a).
When a defendant enters a guilty plea to 75 Pa.C.S. § 3742(a), the court
must impose sentence in accordance with the statutory mandates set forth in
Section 3742(b). This provision provides, in relevant part, as follows:
(b) Penalties.—
(1) Except as otherwise provided in this section, any person
violating this section commits a misdemeanor of the first degree.
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8 Appellant’s counsel “suggests” that this Court may consider an Alleyne
challenge sua sponte with regard to the “sentence enhancements in this
matter.” Appellant’s Br. at 9 n.1. However, the Pennsylvania Supreme Court
has held that Alleyne does not apply retroactively to cases pending on
collateral review. See Commonwealth v. Washington, 142 A.3d 810, 820
(Pa. 2016). Accordingly, we may not consider his Alleyne challenge.
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(2) If the victim suffers serious bodily injury, any person
violating subsection (a) commits a felony of the third degree, and
the sentencing court shall order the person to serve a minimum
term of imprisonment of not less than 90 days and a mandatory
minimum fine of $1,000, notwithstanding any other provision of
law.
(3)(i) If the victim dies, any person violating subsection (a)
commits a felony of the second degree, and the sentencing court
shall order the person to serve a minimum term of
imprisonment of not less than three years and a mandatory
minimum fine of $2,500, notwithstanding any other provision of
law.
****
75 Pa.C.S. § 3742(b).
Appellant contends that his sentence is illegal because it is based on a
violation of 75 Pa.C.S. 3742(a) and this provision applies only to a "driver of
any vehicle involved in an accident resulting in ... death of any person."
(emphasis added). Appellant argues that since the "uncontroverted evidence"
demonstrated that the victim had died before his vehicle ran her over, it was
not his vehicle that was "involved in an accident resulting in ...death."
Appellant's brief at 6. Unfortunately, Appellant agreed when he pled guilty
pursuant to this Section that he was the driver of a "vehicle involved in an
accident resulting in ...death of any person." Thus, the fact that the victim
may have already died before Appellant's vehicle ran her over does not matter
because Appellant conceded that his vehicle was "involved" in the accident.
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Accordingly, the court had no discretion but to sentence Appellant to a
minimum of three years’ incarceration pursuant to Section 3742(b)(3)(i). We,
thus, conclude that the PCRA court did not err or abuse its discretion in
denying the relief requested in Appellant’s Petition.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/22/2020
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