Commonwealth v. Sarvey

199 A.3d 436

COMMONWEALTH of Pennsylvania

v.Melissa A. SARVEY, Appellant

Commonwealth of Pennsylvania

v.Melissa Ann Sarvey Appellant

No. 284 WDA 2017

No. 285 WDA 2017

Superior Court of Pennsylvania.

Argued February 27, 2018

Filed November 16, 2018

David R. Osipovich, Pittsburgh, for appellant.

Jeffrey D. Burkett, District Attorney, Brookville, for Commonwealth, appellee.

BEFORE: BENDER, P.J.E., SHOGAN, J., and STRASSBURGER^* , J.

OPINION BY SHOGAN, J.:

Melissa Ann Sarvey ("Appellant") appeals from the January 27, 2017 order denying her petition for relief filed pursuant to the Post Conviction Relief Act ("PCRA"), 42 Pa.C.S. §§ 9541 – 9546.¹ After careful review, we reverse the order of the PCRA court. Additionally, although we will not disturb the verdict, we vacate the judgment of sentence and remand for re-sentencing.

The relevant facts and procedural history are as follows: On July 26, 2011, while Appellant was incarcerated at the Jefferson County Correctional Facility, she attempted to deliver one-half of a tablet of Oxycodone and one tablet of Zolpidem (Ambien ) to another inmate. The incident was recorded on video. Appellant hid the pills under a commissary form and slid them under her cell door toward another inmate's cell. N.T. (Trial), 4/16/12, at 126–133. A corrections officer noticed the papers being pushed underneath Appellant's cell door and attempted to pick them up. Id. at 94–97. Appellant refused to release the papers, and after a struggle, the officer was able to take the papers away from Appellant. Id. at 95. The officer handed the commissary form back to Appellant, and as the officer walked away, she noticed a baggie containing two pills in the place where the paper had been. Id. at 96. The officer confiscated the baggie, and following an investigation, Appellant was initially charged with two counts of possession with intent to deliver ("PWID") and two counts of possession of a controlled substance by an inmate ("possession by an inmate").²

On April 13, 2012, the Friday before trial began, the Commonwealth filed a motion to amend the information, seeking to add two counts of controlled substance contraband to confined persons prohibited ("controlled substance to prison") and two counts of criminal attempt.³ The motion also sought to change the names of the drugs in the information from Ambien to Zolpidem and Vicodin to Oxycodone. Appellant objected to the Commonwealth adding additional charges, but she did not object to the changes in the drug names. The trial court granted the Commonwealth's motion on April 16, 2012; Appellant was ultimately charged with two counts of PWID, two counts of possession by an inmate, two counts of controlled substance to prison, and two counts of criminal attempt.

On April 16, 2012, a jury found Appellant guilty on all charges. On May 17, 2012, the trial court sentenced Appellant to consecutive terms of incarceration of one to three years for one PWID count and one and one-half years to three years for the second PWID count. The court further imposed consecutive terms of incarceration of one and one-half years to three years for each count of possession by an inmate, and a term of incarceration of two to five years for each count of controlled substance to prison. Finding that the criminal attempt convictions merged with the controlled substance to prison convictions, the sentencing court did not impose a sentence for the criminal attempt convictions. The trial court also revoked Appellant's probation on a single count of hindering apprehension at Docket CP-33-CR-605-2007 and sentenced her to an additional term of confinement of one to two years. Finally, the trial court revoked Appellant's probation at Dockets CP-33-CR-662-2008, CP-33-CR-387-2008, and CP-33-CR-388-2008, and resentenced Appellant to five years of probation at each docket, running concurrent to each other. Appellant's total period of incarceration was ten and one-half to twenty-four years of incarceration followed by five years of probation.

Appellant filed a timely direct appeal, arguing that the trial court erred when it allowed the Commonwealth to amend the charges immediately before trial. On direct appeal, she argued that the amendment did not allow her sufficient time to adjust her defense strategy and subjected her to mandatory minimum sentences that increased the severity of her penalty. This Court found that Appellant's appeal was without merit because the new charges did not arise from different facts nor would they have required her to alter her trial or defense strategy; thus, she was not prejudiced by the amendment. See Commonwealth v. Sarvey , 68 A.3d 368, 968 WDA 2012 (Pa. Super. filed February 21, 2013) (unpublished memorandum) (" Sarvey I "). Appellant sought Supreme Court review, which was denied on September 14, 2013. Commonwealth v. Sarvey , 621 Pa. 672, 74 A.3d 1031 (Pa. 2013).

Appellant sought timely collateral review, and the PCRA court appointed counsel. Counsel filed a no merit letter/petition to withdraw as counsel pursuant to Commonwealth v. Turner , 518 Pa. 491, 544 A.2d 927 (1988), and Commonwealth v. Finley , 379 Pa.Super. 390, 550 A.2d 213 (1988) (en banc ), on February 14, 2014. After receiving notice of the PCRA court's intent to dismiss the PCRA petition without a hearing, Appellant sent the court a letter in which she stated she wanted to continue the appeal. Ultimately, and after a convoluted path and a change of counsel, this Court directed the PCRA court to order Appellant to file an amended PCRA petition within thirty days from the date of our memorandum.

Appellant filed her timely amended petition, and following an extensive hearing, the PCRA court denied her petition. Both Appellant and the PCRA court have complied with Pa.R.A.P. 1925.

Appellant presents the following questions for our review, which we have reordered for purposes of our analysis:

I. Were [Appellant's] constitutional rights to due process and to a trial by jury violated when she was punished for taking her case to trial by the District Attorney filing a Motion to Amend the Information the last business day before [Appellant's] trial and two charges being added the day of trial that carried mandatory minimum sentences of two years each?

II. Did the trial court err in granting the District Attorney's Motion to Amend the Information which added four new charges to [Appellant's] Information, two of which carried mandatory minimum sentences of at least two years each?

III. Was [Appellant's] sentence illegal?

A. Was [Appellant's] sentence illegal because several of [Appellant's] charges should have merged;

B. Did the sentencing court's failure to merge the charges result in a violation of [Appellant's] rights to due process and against double jeopardy?

C. Were [Appellant's] prior counsel ineffective for failing to raise the issue of merger?

IV. Did the trial court err in imposing a sentence greater than the lawful maximum as [Appellant] was re-sentenced on a probation violation to two counts of Hindering Apprehension to docket number 605-2007, when in fact she only pled guilty to one count and the other count of Hindering Apprehension was nolle prossed?

V. [Questions raising the ineffectiveness of Appellant's counsel:]

[a.] Was [Appellant's] trial counsel ineffective in failing to object to the District Attorney's Motion to Amend the Information, which changed the controlled substances that [Appellant] is alleged to have possessed?

[b.] Was [Appellant's] trial counsel ineffective in failing to object at sentencing to [Appellant] being sentenced to consecutive sentences for offenses which should have merged?

[c.] Was trial counsel ineffective for failing to take sufficient time to discuss the consequences of the amendment of the Information with [Appellant] after the trial court granted the Motion to Amend to enable [Appellant] to make an informed decision about whether to take her case to trial?

[d.] Was trial counsel ineffective for failing to ask for a continuance of the trial after additional charges were added on the day of trial to allow him more time to discuss the consequences of the amendment with [Appellant] and to give him additional time to prepare for trial?

[e.] Was trial counsel ineffective for failing to request that Judge Foradora recuse himself from [Appellant's] case after he made derogatory statements which demonstrated the Judge's bias against the [Appellant], her family and her fiancé during [Appellant's] sentencing hearing and her PCRA hearing?

[f.] Was trial counsel ineffective for failing to point out to the Court errors in the pre-sentence investigation report, including that: (1) charges that should have been Nolle Prossed (one of 2 Hindering charges at 605-2007) were incorrectly included in the report; (2) the report included a Theft by Unlawful Taking charge which appears as dated 10-25-07 and shows that she received 5 years concurrent probation to Receiving Stolen Property (RSP), although the RSP charge would have merged for sentencing purposes?

[g.] Was trial counsel ineffective for failing to raise on appeal the discretionary aspects of the lower court's sentence?

Appellant's Brief at 6–8 (reorganized for ease of disposition).

When reviewing the propriety of the denial of a PCRA petition, we apply the following standard and scope of review: "[A]n appellate court reviews the PCRA court's findings to see if they are supported by the record and free from legal error. The court's scope of review is limited to the findings of the PCRA court viewed in the light most favorable to the prevailing party." Commonwealth v. Fitzgerald , 979 A.2d 908, 910 (Pa. Super. 2009) (quoting Commonwealth v. Hammond , 953 A.2d 544, 556 (Pa. Super. 2008) (citation omitted) ). "Because most PCRA appeals involve questions of fact and law, we employ a mixed standard of review. We defer to the PCRA court's factual findings and credibility determinations supported by the record. In contrast, we review the PCRA court's legal...