J-S12026-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
KIRK KAPEACE GILLUMS :
:
Appellant : No. 1601 EDA 2019
Appeal from the Judgment of Sentence Entered May 13, 2019
In the Court of Common Pleas of Bucks County Criminal Division at
No(s): CP-09-CR-0001985-2019
BEFORE: SHOGAN, J., McCAFFERY, J., and COLINS, J.*
MEMORANDUM BY McCAFFERY, J.: FILED: FEBRUARY 22, 2021
Kirk Kapeace Gillums (Appellant) appeals pro se from the judgment of
sentence entered in the Bucks County Court of Common Pleas, following his
entry of a negotiated nolo contendere plea to indecent assault1 and other
offenses. This appeal returns to this panel after we remanded, on April 13,
2020, for the trial court to conduct a Grazier2 hearing. The trial court has
determined Appellant may proceed pro se on appeal, and both parties have
filed new briefs in this Court. Appellant now: (1) presents several claims of
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* Retired Senior Judge assigned to the Superior Court.
1 18 Pa.C.S. § 3126(a)(1).
2See Commonwealth v. Grazier, 713 A.2d 81, 82 (Pa. 1998) (when waiver
of right to counsel is sought at appellate stage, on-the-record determination
should be made that waiver is knowing, intelligent, and voluntary).
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both ineffective assistance of counsel and challenges to the discretionary
aspect of sentencing; (2) argues his sentence is illegal because the trial court
failed to award sentencing credit and because the prison is unsafe due to the
COVID-19 pandemic; and (3) contends his SORNA registration requirements
are unconstitutional. We affirm.
The trial court summarized the underlying facts as follows:
In early August of 2017, the victim, [L.B.], contacted Schneider
Moving and Storage via an on-line inquiry to provide long distance
moving services from her current apartment . . . in Newtown
Township, Bucks County, to her new home . . . in Winter,
Wisconsin. [T]he victim was given a quote and was informed that
Kirk[, (Appellant’s first name),] was her account manager and that
she should contact him directly on his cell phone. The victim never
got a last name or any other identifying infowrmation.
In the following weeks Kirk and the victim had several text
conversations about the details[.] On August 17th, 2017, [L.B.]
received a text from Kirk informing that the original quote was
broad and with an in-home visit he may be able to reduce it by as
much as 20 percent. They decided the visit would occur on August
29th of 2017.
On the 29th of August, [s]hortly after 10:00 a.m., a black male[,
Appellant,] arrived on the property as a rear passenger inside a
sedan. The male came to the door introducing himself as Kirk,
and the victim invited him into the apartment. The victim and
[Appellant] had coffee while affirming details[.]
They then walked around the apartment to assess the work,
during which the victim felt Kirk brush up against her bottom
several times. Once they were done the walk-through they
negotiated an amount. The victim, based on prior conversations,
said that the down payment was going to be $1,100 in cash, but
Kirk said it was now $1[,]440. The victim provided Kirk with cash
of $1[,]440, and he said he would [e-mail a receipt] to her.
As they walked to door, Kirk asked for a hug. The victim thought
it was odd but also thought that he seemed like a nice man, so
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she gave him a hug. While doing so, Kirk began roughly grabbing
her vaginal area and sliding his fingers around while whispering in
her ear, “I want to fuck your pussy.” Kirk also kissed her while
inserting his tongue into her mouth, and she pulled away. Kirk
then turned and walked out the door.
The victim began crying and had her son call 911.
Minutes after Kirk left the house, the victim received a text from
Kirk’s cell that contained a digital image of [Appellant] sitting
behind a desk that said, “Why don’t you take a road trip to my
house you Wicked Witch.” The text was followed by a digital
image of a black penis.
The victim complained of vaginal pain and went to Aria-Bucks
Hospital, where she underwent a sexual assault exam. [T]he
medical staff described abrasions to the vaginal area that were
also digitally photographed.
[In the investigation, the police identified Appellant] with the cell
phone number provided as the probable possessor of it, with [an]
address in New York. [The police] prepared a [photo] line-up for
the victim, who immediately identified [Appellant] as the
individual who assaulted her.
[The police] contacted . . . Schneider Moving and Storage and
confirmed that Kirk had been employed there; however, had not
been for two weeks for similar actions. The move that was
scheduled with the victim did not take place.
Trial Ct. Op., 7/20/20, at 1-3 (footnote omitted).
On May 13, 2019, Appellant entered a negotiated nolo contendere plea
to indecent assault, simple assault, and theft by unlawful taking. 3 He was
represented by Bucks County Assistant Public Defender Bradley Bastedo, Esq.
The trial court immediately imposed the sentences negotiated by the parties:
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3 18 Pa.C.S. §§ 2701(a)(1), 3921(a).
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(1) two consecutive terms of one to two years’ imprisonment, for indecent
assault and simple assault; (2) a consecutive three years’ probation for theft
by unlawful taking; and (3) restitution of $2,264.12.4 N.T., Nolo Contendere
Plea & Sentencing H’rg, 5/13/19, at 7-8, 31. The aggregate sentence was
thus two to four years’ imprisonment and three years’ probation, and was to
be served concurrently with any other sentence “he might be serving,
particularly that in Connecticut.” Id. at 31-32. Finally, the court ordered
Appellant to comply with SORNA registration for a period of 15 years.5 Id. at
18. We note that at the time of this hearing, Appellant was serving a sentence
in Connecticut, and would be remanded to the Connecticut prison. Id. at 20,
29.
On May 28, 2019, Appellant, although represented by counsel, filed a
timely pro se notice of appeal. Attorney Bastedo subsequently averred he was
not aware Appellant would file a pro se notice of appeal.6 In any event, we
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4 The restitution amount included the $1,440 cash that Appellant took from
the victim, as well as the cost of the flight and hotel for the victim — who had
moved to Wisconsin — to appear at the sentencing hearing. N.T. at 27-28.
5 Pennsylvania Sex Offender Registration and Notification Act, 42 Pa.C.S.
§§ 9799.10 to 9799.42. See 42 Pa.C.S. §§ 9799.14(b)(6) (classifying
indecent assault as Tier I offense), 9799.15(a)(1) (requiring Tier I offender to
register for 15 years).
6 Appellant’s Petition for Extension of Time to File Docketing Statement,
6/19/19, at 1; Appellant’s Petition for Extension of Time to File Statement of
Matters Complained of on Appeal, 6/19/19, at 1.
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note Appellant did not file any post-sentence motion. The trial court properly
entered the pro se notice of appeal on the docket, forwarded notice to Attorney
Bastedo,7 and directed Appellant to file a Pa.R.A.P. 1925(b) statement of
errors complained of on appeal. The ensuing procedural history was set forth
in detail in this Court’s April 13, 2020, memorandum, and we need not repeat
it.8 At this juncture, we summarize the following salient points: no Rule
1925(b) statement was ever filed. Attorney Bastedo advised both the trial
court and this Court that he had attempted, unsuccessfully, to communicate
with Appellant in the Connecticut prison. Nevertheless, Appellant continued
to file pro se documents in this Court.9 Upon this Court’s October 15, 2019,
per curiam order, the trial court conducted a Grazier hearing and permitted
Appellant to proceed pro se. Thereafter, Appellant filed a pro se brief. This
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7 See Pa.R.Crim.P. 576(A)(4) (if represented criminal defendant submits for
filing a written notice that has not been signed by his attorney, clerk of courts
shall accept it for filing, and copy of time-stamped document shall be
forwarded to defendant’s attorney and Commonwealth within 10 days). This
Court likewise entered the notice of appeal on our docket. See Superior Ct.
O.P. § 65.24 (pro se notice of appeal received from trial court shall be
docketed, even where appellant is represented by counsel).
8 See Commonwealth v. Gillums, 1601 EDA 2019 (unpub. memo. at 3-5)
(Pa. Super. Apr. 13, 2020).
9 On August 29, 2019, this Court sent a Jette letter to counsel, enclosing the
pro se documents received from Appellant. See Commonwealth v. Jette,
23 A.3d 1032, 1044 (Pa. 2011) (proper response to any pro se pleading is to
refer pleading to counsel, and to take no further action on pro se pleading
unless counsel forwards a motion).
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panel concluded, however, Appellant’s issues would be waived for Attorney
Bastedo’s failure to comply with the trial court’s Rule 1925(b) order.10 We
thus remanded, on April 13, 2020, for the trial court to conduct a second
Grazier and to allow Appellant, whether pro se or with counsel, to file a Rule
1925(b) statement nunc pro tunc.
The trial court has conducted the Grazier hearing and determined
Appellant may proceed pro se. Appellant filed a Rule 1925(b) statement, the
trial court issued an opinion, and both parties have filed new briefs in this
Court.
Preliminarily, we note deficiencies in Appellant’s pro se brief. He has
failed to include a statement of questions involved in his brief. See Pa.R.A.P.
2111(a)(4) (appellant’s brief shall include, separately and distinctly entitled,
a statement of the questions involved); 2116(a) (“The statement of the
questions involved must state concisely the issues to be resolved, expressed
in the terms and circumstances of the case but without unnecessary detail.”).
The argument section of his brief, entitled “Memorandum of Law,” does not
include headings. See Pa.R.A.P. 2119(a) (“The argument shall be divided into
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10See Commonwealth v. Parrish, 224 A.3d 682, 693 (Pa. 2020) (“[A]ll
appellants must file a Rule 1925(b) statement, if ordered to do so by the trial
court, enumerating all issues they wish to have the appellate court consider,
or those issues will be deemed waived for appellate review.”) The
Commonwealth acknowledged, in its brief, that the failure to file a Rule
1925(b) statement does not appear to have been caused by any fault of
Appellant.
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as many parts as there are questions to be argued; and shall have at the head
of each part — in distinctive type or in type distinctively displayed — the
particular point treated therein, followed by such discussion and citation of
authorities as are deemed pertinent.”). Furthermore, the argument itself,
rather than being organized by issues, jumps from claim to claim, and some
claims are discussed, to varying degrees, over different pages. These defects
are amplified by Appellant’s general lack of meaningful discussion. See id.;
Appellant’s Brief at 5-15. As a result, Appellant’s argument is a disorganized
assortment of prolix bald accusations.
We remind Appellant that “pro se defendants are subject to the same
rules of procedure as are represented defendants,” “pro se status confers no
special benefit upon a litigant, and a court cannot be expected to become a
litigant’s counsel or find more in a written pro se submission than is fairly
conveyed in the pleading.” See Commonwealth v. Blakeney, 108 A.3d
739, 766 (Pa. 2014). Nevertheless, because we may discern the gist of
Appellant’s claims, we will address them. Briefly, Appellant’s issues are: (1)
claims of ineffective assistance of counsel; (2) challenges to the discretionary
aspects of his sentence; (3) an illegal sentence claim due to the court’s failure
to award sentencing credit; (4) the unconstitutionality of SORNA registration
requirements; and (5) an illegal sentence due to unsafe COVID-19 conditions
at the prison.
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First, Appellant raises multiple claims of plea counsel’s alleged
ineffective assistance. Appellant avers counsel was unavailable “following
Appellant’s sentencing hearing” and “did not file a post-sentence motion,
PCRA[11] application or direct appeal,” and thus “Appellant, a layman at
matters of law, had to file his Notice of Appeal, pro se, on May 28th, 2019.”
Appellant’s Brief at 5, 7. Appellant also alleges counsel: (1) “did not have a
reasonable basis for advising [him] to plead nolo contendere to . . . Indecent
Assault;” (2) “failed to fully explain the risks and ramifications” relating to
SORNA; and (3) did not raise “an objection to the Court’s failure to entertain
mitigating factors[12];” and (4) lacked sufficient “knowledge of the Jail-Time
Credit Act as [counsel] failed to advise Appellant that his nolo contendere plea
was in exchange for a definite sentence with a specific start date, absent time
served.” Id. at 6, 10.
We conclude these ineffective claims are waived, as Appellant did not
raise them before the trial court. See Pa.R.A.P. 302(a) (“Issues not raised in
the trial court are waived and cannot be raised for the first time on appeal.”).
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11 Post Conviction Relief Act, 42 Pa.C.S. §§ 9541-9545.
12 Appellant provides no further explanation for this reference to “mitigating
factors,” aside from a citation to Commonwealth v. Tigney, 730 A.2d 968
(Pa. Super. 1999). Appellant’s Brief at 6. We note Tigney addressed a claim
that “trial counsel was ineffective for not raising an objection to the trial court’s
failure to inform him of his right of allocution pursuant to [former]
Pa.R.Crim.P. 1409(C)(1),” now renumbered as Pa.R.Crim.P. 704(C)(1). Id.
at 969. Tigney did not, however, make any mention of “mitigating factors.”
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Furthermore, we agree with the trial court that claims of ineffective
assistance of counsel are generally “not eligible under direct appeal, but
should be brought instead under the” PCRA. See Trial Ct. Op. at 5. The
Pennsylvania Supreme Court has explained:
[W]here the defendant seeks to litigate multiple or prolix claims
of counsel ineffectiveness . . . on post-verdict motions and direct
appeal, we repose discretion in the trial courts to entertain such
claims, but only if (1) there is good cause shown, and (2)
the unitary review so indulged is preceded by the
defendant’s knowing and express waiver of his entitlement
to seek PCRA review from his conviction and sentence, including
an express recognition that the waiver subjects further collateral
review to the time and serial petition restrictions of the PCRA.
Commonwealth v. Holmes, 79 A.3d 562, 564 (Pa. 2013) (emphases added
and footnotes omitted). As Appellant did not raise any ineffectiveness claims
before the trial court, he likewise did not show “good cause” why pre-collateral
review is proper, nor did he waive his PCRA rights. See id. Accordingly, we
conclude no relief is due, without prejudice to Appellant to properly raise these
issues in PCRA proceedings.
Next, Appellant raises the following various challenges to his sentence:
“The Court colloquy was inadequate, insofar [as] the sentencing judge did not
place on the record the reasons for dispensing with the pre-sentence
investigation report[.]” Appellant’s Brief at 7. The trial court miscalculated
his prior record score and offense gravity score, and “neglect[ed] to consider
mitigating factors or the incongruousness of Appellant’s out-of-state record.”
Id. at 7-8. At the preliminary arraignment, his counsel and the
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Commonwealth “agreed to a sentence of two to four years.” Id. at 8. “[T]he
offenses served as the sole basis for determining the sentence.” Id. We
conclude these claims are waived.
These claims go to the discretionary aspects of sentencing. See
Commonwealth v. Sunealitis, 153 A.3d 414, 421 (Pa. Super. 2016) (claim
of improper calculation of offense gravity score); Commonwealth v.
Anderson, 830 A.2d 1013, 1018 (Pa. Super. 2003) (challenge to calculation
of prior record score); Commonwealth v. Goggins, 748 A.2d 721, 727-28
(Pa. Super. 2000) (en banc) (claim that sentencing court failed to state
adequate reasons for dispensing with a pre-sentence report).
As stated above, Appellant entered into a negotiated nolo contendere
plea, and received the sentence agreed upon: two consecutive terms of one
to two years’ incarceration, to be followed by three years’ probation. N.T. at
7-8, 31. Accordingly, he may not now challenge the discretionary aspects of
his sentence. See Commonwealth v. Morrison, 173 A.3d 286, 290 (Pa.
Super. 2017) (“It is well settled when . . . the plea agreement contains a
negotiated sentence which is accepted and imposed by the sentencing court,
there is no authority to permit a challenge to the discretionary aspects of that
sentence.”). Additionally, these sentencing claims are waived, as Appellant
did not raise them at sentencing or in any post-sentence motion. See
Sunealitis, 153 A.3d at 420 (to preserve an appellate challenge to the
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discretionary aspects of a sentence, an appellant must, inter alia, preserve
the issue at sentencing or in a motion to reconsider and modify sentence).
Third, Appellant contends his sentence is illegal because the trial court
did not grant him sentencing credit, from March 20 to May 13, 2019, when he
was “in custody” as a result of the instant criminal charges. Appellant’s Brief
at 9. He avers: (1) “Although [he] was officially detained in Connecticut prior
to sentencing, [he] is entitled to [this] credit[;]” (2) the fact that Connecticut
“was the first to arrest Appellant was immaterial, as the doctrine of primary
jurisdiction does not determine how credit is allocated when two or more
sovereigns imposed sentences;” and (3) “Appellant’s pretrial incarceration
was attributable to both the CT detainer and the new criminal charges.” Id.
at 9-10. He then reasons that the Connecticut “incarceration was not already
credited to his CT detainer, because the PA Court did not have the discretion
to give Appellant ‘double credit’ for time already served concurrently.” Id. at
11. No relief is due.
We note Appellant did not raise the issue of sentencing credit before the
trial court. However, this claim goes to the legality of his sentence and thus
cannot be waived. See Commonwealth v. Druce, 868 A.2d 1232, 1235 (Pa
Super. 2005). “[T]he issue of whether a sentence is illegal is a question of
law; therefore, our task is to determine whether the sentencing court erred
as a matter of law and, in doing so, our scope of review is plenary.” Id. at
1236.
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Section 9760 of the Sentencing Code provides:
After reviewing the information submitted under section 9737
(relating to report of outstanding charges and sentences) the
court shall give credit as follows:
(1) Credit against the maximum term and any minimum
term shall be given to the defendant for all time spent in
custody as a result of the criminal charge for which
a prison sentence is imposed or as a result of the
conduct on which such a charge is based. Credit
shall include credit for time spent in custody prior to trial,
during trial, pending sentence, and pending the
resolution of an appeal.
42 Pa.C.S. § 9760(1) (emphasis added). Credit may not be awarded for time
served on charges unrelated to the sentence for which a defendant seeks
credit. See Taglienti v. Dep’t of Corr., 806 A.2d 988, 991-92 (Pa. Cmwlth.
2002) (“It is clear that the first three [subsections of] Section 9760 do not
permit a sentencing court to provide a prisoner with credit for time served on
another unrelated offense.”); Doria v. Pa. Dep’t of Corr., 630 A.2d 980, 982
(Pa. Cmwlth. 2002) (“[T]he rule in Pennsylvania is well settled that credit for
pre-sentence custody time cannot be earned against criminal charges
pending in a different county.”).13
Although the trial court did not address the merits of this claim, see
Trial Ct. Op. at 8, the Commonwealth points out — and Appellant’s own
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13“While decisions of the Commonwealth Court are not binding upon us, they
may serve as persuasive authority.” Commonwealth v. Simmons, 56 A.3d
1280, 1284 n.1 (Pa. Super. 2012).
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argument concedes — that he was incarcerated in Connecticut on Connecticut
charges during the 54-day period for which he now demands credit. See
Commonwealth’s Brief at 15; Appellant’s Brief at 9 (“Although [he] was
officially detained in Connecticut prior to sentencing, [he] is entitled to [this]
credit.”). A careful review of Appellant’s brief reveals the absence of contrary
argument that would support his claim for sentencing credit; Appellant does
not aver his detention in Connecticut was solely a result of the instant
charges, nor does he claim he did not receive credit for that time on his
Connecticut charges. Thus, we agree with the Commonwealth that “Appellant
has provided no argument or legal authority . . . why he is entitled to this
credit as he was serving another sentence in Connecticut during that same
time period.” See Commonwealth’s Brief at 15. We reiterate that we “cannot
be expected to become a litigant’s counsel or find more in a written pro se
submission than is fairly conveyed in the pleading.” See Blakeney, 108 A.3d
at 766. For the foregoing reasons, no relief is due.
Fourth, Appellant argues the trial court’s “application of the SORNA
statute was an abuse of discretion” and the imposition of SORNA registration
requirements “without a jury trial is unconstitutional.” Appellant’s Brief at 12.
He also “avers the disconnect between sexually violent predators (‘SVPs’) and
misdemeanor indecent assault with no sexual element is so broad as to
constitute judicial overreach.” Id.
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These challenges to Appellant’s registration requirements are waived
because they were not raised before the trial court. See Pa.R.A.P. 302(a);
Commonwealth v. Resklink, 2020 WL 7415959 at ** 3-4 (Pa. Super. 2020)
(defendant waived appellate challenge to SORNA registration where he did not
raise them “before the trial court, in a motion to bar application of SORNA, or
in post-sentence motions,” and instead raised them “for the first time on
appeal”). Furthermore, Appellant is mistaken that the trial court had
discretion to choose whether to impose the provisions of SORNA, or that a
jury trial was required before SORNA was applied. Instead, the provisions,
whenever invoked by the fact of a defendant’s conviction, are mandatory. See
42 Pa.C.S. § 9799.23(b)(1) (“All sexual offenders must register in accordance
with this subchapter. . . . Failure by the court to provide the information
required in this section, to correctly inform a sexual offender of the sexual
offender’s obligations or to require a sexual offender to register shall not
relieve the sexual offender from the requirements of this subchapter.”).
Appellant’s final claim is that his sentence is illegal because unsafe
COVID-19 conditions exist at his prison, SCI-Chester. Appellant’s Brief at 13.
He cites “[t]he potential outbreak of COVID-19 in facilities housing adult
offenders” and the “inadequate” action by the Pennsylvania Department of
Corrections (DOC) “to mitigate the potential of an institutional health crisis.”
Id. Appellant maintains he is 57 years old, is African American, and has
“preexisting medical conditions and an immune deficiency.” Id. He avers
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that continued incarceration during the “pandemic may subject [him] to illness
or death and a violation of his right to due process and not to be subject to
cruel and unusual punishment.” Id. No relief is due.
We note that whereas Appellant was sentenced on May 13, 2019, the
COVID-19 pandemic in Pennsylvania did not begin until the spring of 2020.
The pandemic is not related to the trial court’s authority to impose the
sentence, and thus cannot be the basis of any alleged illegality. Furthermore,
as the trial court points out, any issue relating to safety conditions of the
prison are not proper in a direct appeal, see Trial Ct. Op. at 8, but instead
would be properly addressed to the Department of Corrections.
As we conclude none of Appellant’s claims merit relief, we affirm the
judgment of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/22/21
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Com. v. Gillums, K
Combined Opinion