J-A24033-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
CHARLES A. BELLON :
:
Appellant : No. 137 WDA 2020
Appeal from the Judgment of Sentence Entered January 10, 2020
in the Court of Common Pleas of Blair County
Criminal Division at No(s): CP-07-CR-0001272-2002
BEFORE: BENDER, P.J.E., McLAUGHLIN, J., and MUSMANNO, J.
MEMORANDUM BY MUSMANNO, J.: FILED FEBRUARY 23, 2021
Charles A. Bellon (“Bellon”) appeals from the judgment of sentence
imposed following his convictions of eleven counts of possession with intent
to deliver a controlled substance (“PWID”), two counts of corrupt
organizations, and one count each of conspiracy, criminal use of a
communication facility, and dealing in unlawful proceeds.1 We affirm.
This Court previously summarized the lengthy procedural history of this
case as follows:
On May 9, 2002, the Pennsylvania Office of Attorney General
[] filed a criminal [C]omplaint charging [Bellon] with 23 offenses,
including: seventeen counts of possession with intent to deliver a
controlled substance [], two counts of corrupt organizations, and
one count each of criminal conspiracy, criminal use of a
communication facility, dealing in unlawful proceeds, and simple
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1 35 Pa.C.S.A. § 780-113(a)(30); 18 Pa.C.S.A. §§ 911(b)(3), (b)(4),
903(a)(1), 7512(a)(1), 5111(a)(1).
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assault. [Bellon]’s charges stemmed from his involvement in a
large-scale drug dealing operation conducted throughout Blair
County and several surrounding counties from 1997 through
2001.
[Bellon] initially entered into a negotiated plea agreement
whereby he pled guilty to seven counts of PWID in exchange for
the Commonwealth’s withdraw[al of] all [] the remaining charges
and recommend[ation of] a sentence of 20 to 40 years [in prison].
However, prior to his sentencing hearing, [Bellon] filed a [M]otion
to withdraw his plea. The trial court denied that [M]otion and
sentenced [Bellon] to 20 to 32 years [in prison]. On appeal to
[this] Court, we concluded that [Bellon]’s presentence [M]otion to
withdraw his plea should have been granted. Accordingly, we
reversed his judgment of sentence and remanded for trial.
Commonwealth v. Bellon, 864 A.2d 574 (Pa. Super. 2004)
(unpublished memorandum[ at 1-2]).
Upon remand, [Bellon] proceeded to a jury trial and, on
August 7, 2006, he was convicted of eleven counts of PWID, two
counts of corrupt organizations, and one count each of conspiracy,
criminal use of a communication facility, and dealing in unlawful
proceeds. On April 5, 2007, [Bellon] was sentenced to an
aggregate term of 31 to 62 years [in prison], followed by 10 years’
probation. [In particular, at ten of the PWID convictions, Bellon
was sentenced to a period of 7 to 14 years in prison.] On April
18, 2011, this Court affirmed his judgment of sentence.
Commonwealth v. Bellon, 29 A.3d 836 (Pa. Super. 2011)
(unpublished memorandum[ at 1-4]).
[Bellon] filed a pro se [Post Conviction Relief Act2 (“PCRA”)]
[P]etition on September 30, 2011. Counsel was appointed and
filed an [A]mended [P]etition on [Bellon]’s behalf. New counsel
subsequently entered his appearance and was granted leave to
file, and did file, two more [A]mended [P]etitions. After
conducting an initial hearing to ascertain the precise issues
[Bellon] was raising, the PCRA court conducted an evidentiary
hearing on August 23, 2012. On August 26, 2013, the [PCRA]
court issued an order and a 72-page opinion denying [Bellon]’s
[P]etition.
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2 See 42 Pa.C.S.A. §§ 9541-9546.
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[This Court affirmed, and Bellon] filed a [P]etition for
allowance of appeal, which our Supreme Court denied. [See
Commonwealth v. Bellon, 106 A.3d 154 (Pa. Super. 2014)
(unpublished memorandum at 1-3); see also] Commonwealth
v. Bellon, 109 A.3d 677 (Pa. 2015).
[Bellon,] pro se[,] filed [his second] PCRA [P]etition [] on
July 7, 2015, claiming his sentence was illegal based on the United
States Supreme Court’s holding in [Alleyne v. United States,
570 U.S. 99 (2013)3]. …
The PCRA court appointed counsel, and counsel filed an
[A]mended [P]etition on January 25, 2016. …
Thereafter, [Bellon filed numerous pro se filings, despite
being represented by counsel. The PCRA court ordered the
Prothonotary not to accept any pro se filings from Bellon]. On
August 22, 2016, the PCRA court held a hearing pursuant to
Commonwealth v. Grazier, 713 A.2d 1 (Pa. 1998). The PCRA
court granted [Bellon]’s [M]otion to proceed pro se and permitted
counsel to withdraw.
On January 27, 2017, the PCRA court held a hearing on the
timeliness of [Bellon]’s PCRA [P]etition. … On July 13, 2018, the
PCRA court dismissed [Bellon]’s PCRA [P]etition as untimely filed.
[Bellon] filed a [N]otice of [A]ppeal [to this Court].
Commonwealth v. Bellon, 227 A.3d 426 (Pa. Super. 2018) (unpublished
memorandum at 1-7) (footnotes added, some citations omitted).
Contemporaneous with his second PCRA Petition, on May 1, 2015,
Bellon, pro se, filed a habeas corpus Petition in the United States District Court
for the Western District of Pennsylvania. Bellon was appointed counsel, who
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3 In Alleyne, the United States Supreme Court held that any fact that, by law,
increases the penalty for a crime must be treated as an element of the offense,
submitted to a jury, rather than a sentencing judge, and found beyond a
reasonable doubt. Alleyne, 570 U.S. at 115-16.
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subsequently filed an Amended Petition. In federal court, Bellon claimed, inter
alia, that, at ten of his PWID convictions, his maximum sentences were illegal,
as they exceeded the statutory maximum of ten years in prison.4 See 35 P.S.
§ 780-113(f)(1.1) (effective January 18, 2005 to April 18, 2010) (providing
that anyone found guilty under the subsection “shall be sentenced to
imprisonment not exceeding ten years[.]”).
The District Court assigned the case to a federal district magistrate. On
August 15, 2019, the federal district magistrate issued a Report and
Recommendation, concluding that ten of Bellon’s PWID sentences were illegal
because Bellon’s maximum sentence of 14 years exceeded the 10-year
statutory maximum sentence.
On September 27, 2019, the District Court adopted the magistrate’s
Report and Recommendation. See Bellon v. Ferguson, Case No. 3:15-cv-
131-KRG-KAP, Memorandum Order, 9/27/2019, at 1-2. The District Court
denied in part, and granted in part, Bellon’s habeas corpus Petition. Id.
Specifically, the District Court stated that all of Bellon’s prior counsel were
ineffective for failing to argue that Bellon’s sentence was illegal, where Bellon’s
sentences for ten of his PWID convictions exceeded the statutory maximum
of 10 years. Id. Accordingly, the District Court issued an Order stating that
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4 Bellon was convicted of eleven counts of PWID. At ten of these convictions,
the trial court sentenced Bellon to 7 to 14 years in prison. At his eleventh
remaining PWID conviction, Bellon was sentenced to a period of 3 to 6 years
in prison.
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a writ of habeas corpus “shall issue if within 120 days the Court of Common
Pleas of Blair County does not impose a new judgment of sentence in which
the maximum sentence as to [the ten PWID convictions] is 10 years.” Id.
Before the trial court, the Commonwealth filed a Memorandum
requesting that the trial court amend Bellon’s maximum sentences for the 10
PWID convictions from 14 years to 10 years in prison.5 Bellon filed a
Memorandum in response, in which he argued that imposing a new sentence,
without holding a fully-litigated sentencing hearing, would be illegal. The trial
court rejected Bellon’s arguments, and, on January 16, 2020, the trial court
issued an Order that altered the maximum sentences at 10 of Bellon’s PWID
convictions from 14 years to 10 years. Further, the Order reflected that
Bellon’s adjusted aggregate sentence was a period of 31 to 46 years in prison.
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5 Bellon’s appeal from the dismissal of his second PCRA petition was still
pending before this Court at the time the District Court granted Bellon habeas
corpus relief. The Commonwealth requested that this Court temporarily
remand the PCRA appeal to the trial court for the limited purpose of
conforming the judgment of sentence to the District Court’s Order. On
November 8, 2019, this Court granted the Commonwealth’s application and
remanded the case to the trial court for the limited purpose of conforming
Bellon’s maximum sentence in accordance with the District Court’s Order.
Order, 11/08/19, at 1-2. This Court further ordered that “the PCRA court shall
return the record to this Court for a determination of the claims raised in
Bellon’s pending PCRA appeal.” Id. Subsequently, Bellon’s PCRA appeal
returned to this Court, and on February 18, 2020, this Court affirmed the PCRA
court’s Order dismissing Bellon’s second PCRA Petition. See Bellon, 227 A.3d
426 (unpublished memorandum at 11). On September 22, 2020, our
Supreme Court denied Bellon’s Petition for allowance of appeal. See
Commonwealth v. Bellon, 283 A.3d 1169 (Pa. 2020).
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Bellon filed a timely Notice of Appeal and a court-ordered Pa.R.A.P.
1925(b) Concise Statement of errors complained of on appeal.
Bellon now raises the following claims for our review:
1. Where, after a federal court ordered the [trial] court to vacate
Bellon’s judgment of sentence and impose a new sentence, did
the [trial] court impose an illegal sentence when it applied a
mandatory minimum sentence that is no longer legal?
2. Did the state court also impose an illegal sentence when it
resentenced Bellon without holding a fully litigated sentencing
hearing?
Brief for Appellant at 4.
In his first claim, Bellon claims that the trial court’s reimposition of his
7-year mandatory minimum sentence pursuant to 18 Pa.C.S.A. 7508 was
illegal, where 18 Pa.C.S.A. § 7508 is no longer constitutional. Brief for
Appellant at 9. Bellon relies on Alleyne and several cases from this Court
which found Section 7508 to be unconstitutional. Id. Bellon argues that,
when the District Court ordered the trial court to change Bellon’s maximum
sentence, the trial court was obligated to change his mandatory minimum
sentence because Section 7508 was no longer constitutional. Id. at 9-10.
Bellon asserts that the District Court vacated his prior pre-Alleyne sentence.
Id. at 10-11. Further, Bellon argues that his newer sentence is post-Alleyne
and, therefore, his new sentence cannot be subject to unconstitutional pre-
Alleyne statutes. Id.
At the outset, we must determine whether, by granting habeas corpus
relief, the District Court vacated Bellon’s sentence. “[F]ederal habeas
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directives to state authorities are designed to be coercive [and, t]hus the
federal courts issue a ‘conditional’ grant of the writ, which delays
implementing the writ … to allow the state the opportunity to correct the
perceived constitutional violation.” Commonwealth v. Lesko, 15 A.3d 345,
364 (Pa. 2011) (citing Henderson v. Frank, 155 F.3d 159, 168 (3d Cir.
1998). Additionally, federal habeas relief “should be narrowly designed to
enable the state court to fulfill its constitutional obligation.” Id. at 365; see
also id. (observing that “federal courts have most often granted [habeas
relief] that has required the least intervention into the state criminal
process.”) (emphasis added). Our Supreme Court has explained that when a
defendant is awarded federal habeas relief, “[a]ll other aspects of the original
judgment remain as before—final.” Id. at 366 (emphasis in original).
Here, the Federal District Court’s Order specifically provided as follows:
[I]t is ORDERED that [Bellon’s] petition for a writ of habeas
corpus is granted in part and denied in part as recommended in
the Report and Recommendation [and] is adopted as the
[O]pinion of the [c]ourt. A writ of habeas corpus shall issue if
within 120 days the Court of Common Pleas of Blair County does
not impose a new judgment of sentence in which the maximum
sentence as to [the 10 PWID convictions] is 10 years.”
Bellon v. Ferguson, Case No. 3:15-cv-131-KRG-KAP, Memorandum Order,
9/27/2019, at 2 (emphasis added).
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The District Court did not vacate Bellon’s sentence, but rather, ordered
the correction of only the maximum sentences.6 See Bellon v. Ferguson,
Case No. 3:15-cv-131-KRG-KAP, Memorandum Order, 9/27/2019, at 2; see
also Lesko, supra. Consequently, Bellon cannot retroactively receive the
benefit of Alleyne, because he was not sentenced “post-Alleyne.” Rather,
his sentence was tailored to comport with the statutes in effect in 2007. See
Bellon v. Ferguson, supra; see also Commonwealth v. Washington, 142
A.3d 810, 820 (Pa. 2016) (stating that Alleyne does not apply retroactively);
Commonwealth v. Bellon, 106 A.3d 154 (Pa. Super. 2014) (unpublished
memorandum at 30) (stating that Alleyne does not apply retroactively to
Bellon). Accordingly, we cannot grant Bellon relief on this claim.
In his second claim, Bellon asserts that his sentence is illegal because
the trial court failed to afford him a fully-litigated sentencing hearing when it
reduced his maximum sentences from 14 years to 10 years. Brief for
Appellant at 11-12. Bellon argues, again, that the District Court vacated his
sentence in its entirety and, therefore, he is entitled to a new sentencing
hearing. Id. at 11-13. Bellon contends that the trial court effectively denied
him his right to allocution by “merely chang[ing] some numbers” of his
sentence. Id. at 12-14.
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6 The Federal District Court specifically granted Bellon relief on his challenges
to the maximum sentences imposed at 10 of his PWID convictions. In doing
so, the District Court granted Bellon relief that allowed the least intervention
possible. See Lesko, supra.
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As we discussed supra, the District Court did not vacate Bellon’s
sentence. See Bellon v. Ferguson, Case No. 3:15-cv-131-KRG-KAP,
Memorandum Order, 9/27/2019, at 2; see also Lesko, supra. Instead, the
District Court specifically granted habeas corpus relief in the form of reducing
Bellon’s 14-year maximum sentences to 10-year maximum sentences. See
Bellon v. Ferguson, Case No. 3:15-cv-131-KRG-KAP, Memorandum Order,
9/27/2019, at 2. Accordingly, Bellon’s claim is belied by the record, and we
can grant Bellon no relief on this claim.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/23/2021
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