Com. v. Cruz, G.

J-S22028-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
GABRIEL CRUZ :
:
Appellant : No. 2084 EDA 2020

Appeal from the PCRA Order Entered September 24, 2020
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0011957-2010

BEFORE: BOWES, J., McCAFFERY, J., and SULLIVAN, J.

MEMORANDUM BY McCAFFERY, J.: FILED FEBRUARY 15, 2023

Gabriel Cruz (Appellant) appeals from the order entered in the

Philadelphia County Court of Common Pleas, dismissing his first, timely Post

Conviction Relief Act1 (PCRA) petition without a hearing. Appellant was

convicted by a jury of attempted murder, aggravated assault, and conspiracy

to commit aggravated assault.2. Appellant raises a new claim for the first time

in this appeal: that PCRA counsel was ineffective for not challenging the

legality of his 20 to 40-year enhanced sentence for attempted murder under

Apprendi v. New Jersey, 530 U.S. 466 (2000). Rather than reviewing this

claim of ineffective assistance, we sua sponte address the underlying illegal

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1 42 Pa.C.S. §§ 9541-9546.

2 18 Pa.C.S. §§ 901(a), 2502(a), 2702(a), 903(a), respectively.
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sentence issue3 and conclude the sentence was unlawful under Apprendi

because the jury did not render any finding as to the predicate fact for an

enhanced sentence — that serious bodily resulted from the attempted murder.

Thus, we reverse the order denying PCRA relief, vacate the judgment of

sentence, and remand for resentencing.

I. Facts & Procedural History

A detailed discussion of the underlying facts was presented in this

Court’s direct appeal memorandum.4 For our present disposition, we may

summarize the following: on May 9, 2010, Mother’s Day, two neighboring

families on West Butler Street in Philadelphia were involved in a dispute over

a parking space. See N.T. Trial Vol. 1, 9/20/12, at 17. There were multiple

confrontations, which escalated to a “melee” on the street. See Cruz, 611

EDA 2014 at 2. Ultimately, Appellant restrained the arms of Felix Santos (the

Victim) while Jose Torres (Co-Defendant) stabbed the Victim multiple times in

the chest and torso. “Due to extreme blood loss and the resulting loss of

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3This Court may consider an issue of illegality of sentence sua sponte, so long
as we have proper jurisdiction over a matter. Commonwealth v. Miller, 102
A.3d 988, 995 (Pa. Super. 2014). Appellant filed a timely PCRA petition and
a timely notice of appeal, and thus we have jurisdiction over this appeal.

4See Commonwealth v. Cruz, 611 EDA 2014 (unpub. memo. at 1-4) (Pa.
Super. May 12, 2015), appeal denied, 89 EAL 2018 (Pa. July 3, 2018).

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oxygen to the brain, [the Victim] was put on life support, and is expected to

remain in a vegetative state for the duration of his life.”5 Id. at 1.

Appellant was charged with, inter alia, attempted murder, aggravated

assault, and conspiracy to commit aggravated assault. This case proceeded

to a joint jury trial with Co-Defendant and a third defendant, Khalief Green,

on September 12, 2012.6 The jury found Appellant guilty of all three of the

above-listed offenses.

On September 26, 2013, the trial court initially imposed sentences on

each of Appellant’s three convictions, all to run consecutively, for an aggregate

term of 40 to 80 years’ imprisonment. Upon Appellant’s motion for

reconsideration, however, the trial court agreed that the sentences for

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5The certified record does not indicate the Victim’s health status as of the
March 2019 PCRA petition.

6 Appellant and Co-Defendant are brothers-in-law. Cruz, 611 EDA 2014 at 2.
The jury found Co-Defendant guilty of the same offenses as Appellant:
attempted murder, aggravated assault, and conspiracy to commit aggravated
assault. N.T. Trial Vol. 5, 9/28/15, at 139-140. Like Appellant, Co-Defendant
was initially sentenced to an aggregate term of 40 to 80 years’ imprisonment,
but following reconsideration, received a new aggregate sentence of 30 to 60
years. This Court affirmed Co-Defendant’s judgment of sentence on direct
appeal in 2015, as well as the dismissal of his first, timely-filed PCRA petition
in 2020. Commonwealth v. Torres, 2382 EDA 2018 (unpub. memo.) (Pa.
Super. Sept. 15, 2020), appeal denied, 379 EAL 2020 (Pa. Apr. 7, 2021);
Commonwealth v. Torres, 464 EDA 2014 (unpub. memo.) (Pa. Super. Mar.
24, 2015).

The third co-defendant, Khalief Green, was dating the cousin of Co-
Defendant. N.T. Trial Vol. 1 at 23-24. Green was found not guilty of all
charges. N.T. Trial Vol. 5 at 140-41.

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attempted murder and aggravated assault should have merged. Thus, at a

resentencing hearing on January 13, 2014, the court vacated the sentence for

aggravated assault, and re-imposed the same sentences of 20 to 40 years for

attempted murder and a consecutive 10 to 20 years for conspiracy.

Appellant’s new aggregate sentence was thus 30 to 60 years.

Appellant filed a new post-sentence motion, which was denied, and then

a timely direct appeal. This Court affirmed the judgment of sentence on May

12, 2015. Following the reinstatement of Appellant’s right to file a petition for

allowance of appeal, our Supreme Court denied allowance of appeal on July 3,

2018.

On March 5, 2019, Appellant filed a pro se timely, first PCRA petition7

with an accompanying brief. The trial court appointed Thomas Coleman,

Esquire (PCRA Counsel), to represent Appellant. PCRA Counsel then filed a

Turner/Finley8 no-merit letter and petition to withdraw from representation,

arguing Appellant’s PCRA issues lacked merit. On July 9, 2020, the PCRA court

issued Pa.R.Crim.P. 907 notice of intent to dismiss Appellant’s petition without

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7 For PCRA filing purposes, Appellant’s judgment of sentence became final on
October 1, 2018, when the 90-day period to seek certiorari with the United
States Supreme Court expired. See 42 Pa.C.S. § 9545(b)(3); Sup.Ct.R.13.
Appellant then generally had one year, or until October 1, 2019, to file a PCRA
petition. See 42 Pa.C.S. § 9545(b)(1). The instant pro se petition was timely
filed on March 5, 2019.

8Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth v.
Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).

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a hearing. The court also permitted PCRA Counsel to withdraw from

representation, and appointed new counsel, James Berardinelli, Esquire.

Appellant did not file any response to the Rule 907 notice, and the PCRA

court entered the underlying order on September 24, 2020, formally

dismissing the PCRA petition. Attorney Berardinelli filed a timely notice of

appeal on Appellant’s behalf. Ultimately, Matthew Sullivan, Esquire, was

appointed to represent Appellant. He filed a Rule 1925(b) statement, which

raised one of Appellant’s pro se PCRA petition issues — that trial counsel was

ineffective for not calling his wife and mother-in-law as alibi witnesses.9

II. Preservation of Issue

On appeal, Appellant abandons the Rule 1925(b) statement claim and

presents a new issue for the first time:

Did PCRA counsel provide ineffective assistance for not filing an
amended PCRA petition alleging trial counsel’s ineffectiveness for
failing to object to [Appellant’s] sentence for attempted murder,
which violated Apprendi v. New Jersey, 530 U.S. 466 (2000)?

See Appellant’s Brief at 5.

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9 We note that on October 27, 2020, the PCRA court directed Appellant to file
a Pa.R.A.P. 1925(b) statement of errors complained of on appeal within 21
days, and there were no extensions of time granted. Attorney Sullivan was
not appointed until December 9th, and he filed a Rule 1925(b) statement on
June 13, 2021 — almost seven months after the 21-day deadline.
Nevertheless, we decline to find waiver for an untimely Rule 1925(b)
statement, where our Supreme Court has held a criminal defense attorney’s
failure to file a timely Rule 1925(b) statement is per se ineffectiveness, for
which the defendant is entitled to immediate relief. See Commonwealth v.
Parrish, 224 A.3d 682, 701-02 (Pa. 2020).

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With respect to the preservation of this issue, Appellant relies on the

Pennsylvania Supreme Court’s October 20, 2021, decision in Commonwealth

v. Bradley, 261 A.3d 381 (Pa. 2021), which held “that a PCRA petitioner may,

after a PCRA court denies relief, and after obtaining new counsel or acting pro

se, raise claims of PCRA counsel’s ineffectiveness at the first opportunity to

do so, even if on appeal.[ ]” See id. at 401. The Commonwealth agrees that

Bradley applies, and it does not oppose a limited remand for reconsideration

of the ineffectiveness claim raised on appeal.10 Commonwealth’s Brief at 7.

In any event, we observe the underlying issue in Appellant’s

ineffectiveness claim is the legality of his sentence, over which this Court’s

standard of review would be de novo and our scope of review plenary. See

Commonwealth v. Barnes, 167 A.3d 110, 116 (Pa. Super. 2017). In

reviewing Appellant’s arguments, we conclude we may sua sponte grant relief

on the underlying legality of sentence issue. See Miller, 102 A.3d at 995.

Thus, we do not reach the separate question of PCRA Counsel’s

ineffectiveness.

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10Appellant filed his notice of appeal two days after Bradley was issued, and
thus is entitled to the benefit of Bradley’s holding. But see Commonwealth
v. Washington, 142 A.3d 810, 813 (Pa. 2016) (although “a new rule of
constitutional law is generally retrospectively applicable . . . to cases pending
on direct appellate review[,]” “a new constitutional rule of criminal procedure
[generally] does not apply . . . to convictions that were final when the new
rule was announced”).

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III. Section 1102(c) & Case Authority

For ease of discussion, we first set forth the relevant provisions of

Section 1102 of the Crimes Code, which governs sentencing for attempt to

commit murder:

(c) Attempt, solicitation and conspiracy. —
Notwithstanding section 1103(1) (relating to sentence of
imprisonment for felony), a person who has been convicted of
attempt . . . to commit murder . . . 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.

See 18 Pa.C.S. § 1102(c) (paragraph break added). Accordingly, under the

statute, the maximum sentence for attempted murder generally is 20 years,

whereas the maximum sentence when serious bodily injury results 11 is 40

years. Id.

In Apprendi, the United States Supreme Court held that “[o]ther than

the fact of a prior conviction, any fact that increases the penalty for a crime

beyond the prescribed statutory maximum must be submitted to a jury, and

proved beyond a reasonable doubt.” Barnes, 167 A.3d at 116, citing

Apprendi, 530 U.S. at 490.

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11 “The Crimes Code defines ‘serious bodily injury’ as [b]odily injury which
creates a substantial risk of death or which causes serious, permanent
disfigurement, or protracted loss or impairment of the function of a bodily
member or organ.’ 18 Pa.C.S.A. § 2301.” Barnes, 167 A.3d at 116 at n.5.

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In the Superior Court’s en banc Barnes decision, the defendant raised

an Apprendi challenge to his 20 to 40 year-sentence for attempted murder,

arguing there was no jury finding that serious bodily injury arose from his

commission of attempted murder. Barnes, 167 A.3d at 116. The Barnes

Court extensively reviewed a 2006 decision, Commonwealth v. Johnson,

910 A.2d 60 (Pa. Super. 2006).12 In both Barnes and Johnson: the

defendants were not charged with attempted murder resulting in serious

bodily injury; the juries were not presented with the question of whether

serious bodily injury resulted from attempted murder; and saliently, the juries

did not enter any finding that serious bodily injury resulted from the attempted

murder. Barnes, 167 A.3d at 117-19. Furthermore, in Johnson, this Court

rejected the trial court’s reasoning “that serious bodily injury had been

established because the jury found the defendant guilty of the companion

offense of aggravated assault.” Id. at 117, citing Johnson, 910 A.2d at 67.

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12 In Barnes, the defendant twice strangled his minor girlfriend until she lost
consciousness. Barnes, 167 A.3d at 114. When the victim regained
consciousness the second time, “she was wrapped in a blanket and lying head-
first in a recycling dumpster under” a bridge. Id. The victim suffered, inter
alia, a broken vertebra in her neck. Id.

In Johnson, the victim had testified against the defendant’s brother in
an unrelated first-degree murder case. Johnson, 910 A.2d at 62. Three
weeks later, the defendant ambushed the victim and her sister as they were
walking home. Id. “[T]he defendant pointed a handgun at the victim’s head
and fired but missed[,] pursued the victim and fired several more rounds at
her, striking [her] in the heel of her foot.” Barnes, 167 A.3d at 117.

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The Johnson Court reasoned, under an Apprendi review, it was the jury’s

sole responsibility “to find, beyond a reasonable doubt, whether a serious

bodily injury resulted from the instant attempted murder.” Id.

In light of the foregoing, the Barnes Court agreed with the defendant

that the trial court erred, under Apprendi, “in sentencing [him] to the

maximum term of imprisonment of 40 years for attempted murder because

the jury did not determine that serious bodily injury occurred relative to the

attempted murder charge.” Barnes, 167 A.3d at 119.

IV. Analysis

Appellant avers PCRA Counsel was ineffective for not filing an amended

PCRA petition and challenging his attempted murder sentence of 20 to 40

years’ imprisonment.13 With respect to the underlying issue, Appellant

maintains the sentence was unlawful pursuant to Apprendi, Barnes, and

Johnson because the jury did not return any finding of serious bodily injury

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13 This Court has stated:

To prevail on a claim alleging counsel’s ineffectiveness under the
PCRA, [a petitioner] must demonstrate (1) that the underlying
claim is of arguable merit; (2) that counsel’s course of conduct
was without a reasonable basis designed to effectuate his client’s
interest; and (3) that he was prejudiced by counsel’s
ineffectiveness, i.e. there is a reasonable probability that but for
the act or omission in question the outcome of the proceedings
would have been different.

Commonwealth v. Timchak, 69 A.3d 765, 769 (Pa. Super. 2013) (citations
omitted).

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with respect to attempted murder. Appellant further contends PCRA Counsel

had no reasonable basis for this action, as “[t]here was no possible strategic

reason for trial counsel not to object” to the sentence. Appellant’s Brief at 14.

Finally, Appellant maintains, he was prejudiced by PCRA Counsel’s

ineffectiveness, where his (Appellant’s) maximum sentencing exposure for

attempted murder would have been halved. We agree that the underlying

issue merits relief.

At trial, the trial court did not charge the jury, with respect to the

attempted murder charge, with finding whether Appellant caused the

Victim serious bodily injury.14 See N.T. Trial Vol. 5 at 119-21 (jury charge for

attempted murder). Although the trial court properly charged the jury, with

respect to the aggravated assault charge, with whether Appellant caused

serious bodily injury to the Victim, there was no similar charge with respect

to the attempted murder charge. See id. at 122. In any event, the jury’s

hand-completed verdict sheet, the jury’s oral reading of its verdict on the

record, and the “Trial Disposition and Dismissal Form” verdict report did not

include any such finding by the jury. See id. at 141. Accordingly, we deem

the circumstances in this matter are analogous to those in Barnes and

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14 Instead, the trial court charged the jury with finding whether: (1) Appellant,
or his co-conspirator or accomplice, committed the act of stabbing the Victim;
(2) Appellant or his co-conspirator or accomplice committed the act with the
intent to commit murder; and (3) the act constituted a substantial step toward
the commission of the crime. N.T. Trial Vol. 5 at 119-20.

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Johnson, and consistent with those decisions, conclude Appellant’s attempted

murder sentence of 20 to 40 years’ imprisonment runs afoul of Apprendi.

V. Conclusion

We reiterate that Appellant presents this sentencing issue as a part of

his ineffective assistance of counsel claim. However, as our standard of review

of an illegal sentence claim is de novo and our scope of review plenary, we

sua sponte grant relief on the underlying sentencing issue. See Barnes, 167

A.3d at 116; Miller, 102 A.3d at 995. Rather than remanding for the PCRA

court to consider Appellant’s ineffectiveness claim, we reverse the order

dismissing the PCRA petition, vacate the judgment of sentence, and remand

for resentencing consistent with this memorandum.

We acknowledge the devastating and permanent injuries sustained by

the Victim, as well as the statements made by the Victim’s wife at the

September 26, 2013, sentencing hearing, as to both her husband and their

three children. N.T. Sentencing, 9/26/13, at 19-21. Nevertheless, in light of

Section 1102(c) and the above-discussed authority, we conclude that

resentencing is required pursuant to Apprendi.

Order vacated. Judgment of sentence vacated. Case remanded for

resentencing. Jurisdiction relinquished.

Judge Sullivan joins this Memorandum.

Judge Bowes files a Concurring Memorandum.

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Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 2/15/2023

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