Commonwealth v. Davis

262 A.3d 589

COMMONWEALTH of Pennsylvania, Appellee

v.Gerald Howard DAVIS, Jr., Appellant

Commonwealth of Pennsylvania, Appellee

v.Gerald Howard Davis, Appellant

No. 882 WDA 2020

No. 883 WDA 2020

Superior Court of Pennsylvania.

Submitted August 2, 2021

Filed: September 13, 2021

Gerald H. Davis Jr., appellant, pro se.

Keaton Carr, Assistant District Attorney, Pittsburgh, for Commonwealth, appellee.

BEFORE: DUBOW, J., KING, J., and STEVENS, P.J.E.^*

OPINION BY KING, J.:

Appellant, Gerald Howard Davis, appeals pro se from the order entered in the Allegheny County Court of Common Pleas, which denied his first petition filed pursuant to the Post Conviction Relief Act ("PCRA") at 42 Pa.C.S.A. §§ 9541 - 9546, following resentencing in this case. We affirm.

The relevant facts and procedural history of this case are as follows. On August 29, 2012, Appellant entered guilty pleas at two separate docket numbers, to numerous counts of robbery, theft, conspiracy, recklessly endangering another person ("REAP"), receiving stolen property and related offenses, in connection with Appellant's string of robberies of restaurants and convenience stores in Allegheny County.¹ On January 18, 2013, the trial court sentenced Appellant to an aggregate term across both dockets of 22 to 44 years' imprisonment. Some of Appellant's robbery convictions included mandatory minimum sentences per 42 Pa.C.S.A. § 9712 (sentences for offenses committed with firearms). This Court affirmed Appellant's judgment of sentence on June 25, 2014, and our Supreme Court denied allowance of appeal on November 25, 2014. See Commonwealth v. G. Davis , 105 A.3d 46 (Pa.Super. 2014) (unpublished memorandum), appeal denied , 628 Pa. 627, 104 A.3d 2 (2014).

On April 28, 2015, Appellant timely filed a pro se PCRA petition alleging, inter alia , the court had imposed mandatory minimum sentences for some of his convictions which were rendered illegal by Alleyne v. United States , 570 U.S. 99, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013) (holding facts that increase mandatory minimum sentences must be submitted to jury and found beyond reasonable doubt). The court appointed PCRA counsel (Attorney Christy Foreman), who filed an amended petition on August 3, 2015. The Commonwealth subsequently filed an answer, agreeing that Appellant was entitled to resentencing based on the illegal mandatory minimum sentences.

On February 19, 2016, the court held a hearing, during which the court stated that it would be granting the PCRA petition and resentencing Appellant in light of the illegal mandatory minimum sentences. At the hearing, the Commonwealth reiterated that Appellant was entitled to resentencing relief. The Commonwealth also acknowledged that undoing the mandatory minimum sentences would disrupt the sentencing scheme, and asked the court to vacate the entire sentence and impose a new sentence based on what the court deemed appropriate. (See N.T. Hearing, 2/19/16, at 2-3). At the conclusion of the hearing, the court resentenced Appellant to an aggregate term across both dockets of 17 to 40 years' imprisonment. The court also entered separate orders that same date (1) granting Appellant's amended PCRA petition; and (2) resentencing Appellant. Each order expressly states that the original sentence of January 18, 2013 was vacated.

Appellant timely filed a notice of appeal from his new judgment of sentence. On March 21, 2016, the court permitted PCRA counsel (Attorney Foreman) to withdraw and appointed new counsel (Attorney Thomas Farrell). On appeal, Appellant challenged the court's authority to resentence him on two counts for which the court had originally imposed "no further penalty." Appellant's co-defendant Mr. Fields had also been resentenced and raised similar claims in his appeal. Consequently, this Court consolidated Appellant's and Mr. Fields' appeals. Following oral argument before a three-judge panel, the panel requested the appeals be certified for en banc review, which this Court granted.

In their en banc appeals, Appellant and Mr. Fields argued that under 42 Pa.C.S.A. § 9543(a)(1)(i) (stating that to be eligible for PCRA relief, petitioner must be currently serving sentence of imprisonment, probation, or parole), the PCRA court lacked jurisdiction to grant PCRA relief as to those counts on which their original sentences had already been served, or on which they had received no further penalty. Commonwealth v. Fields , 197 A.3d 1217, 1221 (Pa.Super. 2018) (en banc ) (plurality). Appellant specifically took issue with the PCRA court's authority to vacate his sentences of "no further penalty" for one count of REAP and one count of firearms not to be carried without a license, and to resentence Appellant to terms of imprisonment for each of those convictions.² See id.

In authoring the majority opinion in support of affirmance ("Majority OISA"),³ President Judge Emeritus Bender rejected Appellant's and Mr. Fields' contention that Section 9543(a)(1)(i) prohibited the court's jurisdiction to resentence the defendants. In so holding, the Majority OISA explained that the plain language of Section 9543 did not mention jurisdiction of the PCRA court, but rather set forth the eligibility requirements a petitioner must meet to obtain PCRA relief. Id. at 1222 (holding that requirements set forth in Section 9543 establish only petitioner's eligibility for PCRA relief, and do not implicate PCRA court's jurisdiction to act on petition).

The Majority OISA went on to decide that Appellant and Mr. Fields had waived their claims for review because they should have appealed from the respective orders granting PCRA relief and vacating their sentences, instead of from their new judgments of sentence. Id. at 1223. Because the essence of their issue was that the PCRA court lacked the ability to disturb their sentences on certain counts, which the court did in the PCRA orders vacating those sentences, the Majority OISA held that Mr. Fields and Appellant waived their challenge by not appealing from those orders. Id. Even if Appellant and Mr. Fields had properly raised their claims in the appeals from their new judgments of sentence, the Majority OISA still deemed the issue waived where Appellant and Mr. Fields raised their argument that the court lacked authority to resentence them on certain counts for which they were not serving a sentence, for the first time on appeal. Id. at 1224. Further, the Majority OISA held that the issue on appeal did not implicate the legality of the sentence, such that this Court could review the issue sua sponte . Id.

Judge Olson authored an opinion in support of reversal ("OISR").⁴ Initially, the OISR agreed that Section 9543 of the PCRA did not implicate the PCRA court's jurisdiction. Nevertheless, the OISR concluded that Appellant and Mr. Fields had preserved their claims and were entitled to relief under Section 9543. In doing so, the OISR opined that a "PCRA court lacks the judicial power to alter sentences that have already been served." Id. at 1225. In the OISR's view, "Appellants were not serving a judgment of sentence, or waiting to serve a judgment of sentence, for offenses that the PCRA courts ‘granted relief on,’ i.e. , vacated. Our General Assembly has not conferred on courts the power to grant relief in such instances. Hence, the PCRA courts lacked the judicial power to vacate those judgments of sentence." Id. at 1228.

Further, the OISR took the position that Appellant and Mr. Fields did not waive their claims. Relying on a time stamp of the PCRA court's order granting the amended PCRA petition, and the timing of the resentencing hearing, the OISR indicated that the resentencing preceded the order granting PCRA relief and purporting to vacate the original sentence. Thus, the OISR decided that Appellant and Mr. Fields could not have appealed the respective PCRA court orders prior to resentencing or objected to the orders vacating their original sentences prior to resentencing. Id. at 1228. The OISR suggested that Appellant and Mr. Fields properly preserved their issue for review. Id. at 1229.

In a separate Minority OISA, Judge Stabile⁵ agreed with the Majority OISA that Section 9543 is an eligibility provision (and not jurisdictional) but disagreed with the Majority OISA's waiver analysis. The Minority OISA opined: "Appellants could not appeal from the orders granting their PCRA relief vacating their original judgments of sentence..., as they were not aggrieved parties under those orders. I therefore disagree with the [Majority OISA] that Appellants waived their claims by not appealing from the PCRA orders that vacated their original sentences." Id. at 1230. Regarding waiver, the Minority OISA decided that Appellant and Mr. Fields' claims implicated the legality of their respective sentences, "as the claims challenge the sentencing court's ability to impose punishment a second time for crimes Appellants claim their sentences already had been served." Id. at 1232. Thus, the Minority OISA concluded that waiver was inappropriate.

On the merits, the Minority OISA stated:

The Appellants sought and received relief that disrupted their original sentencing schemes. When the PCRA court vacated Appellants' original judgments of sentence, the effect of those orders was to vacate the sentences in their entireties and to render them null and void. The slate was wiped clean and the sentencing court was free to resentence without regard to the original sentence, so long as the new sentences did not impose more severe penalties that ran afoul of double jeopardy principles. [B]y filing a petition for collateral relief, [Appellants] assumed the risk that [their] sentencing on the various counts would be adjusted insofar as was necessary to preserve the integrity of the original sentencing scheme. The trial court did precisely that and resentenced Appellants to terms of incarceration less than those imposed under their original sentences. The fact that Appellants also were resentenced

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