Commonwealth v. Witts

245 A.3d 1047 (Table)

COMMONWEALTH of Pennsylvania v. Rasheed WITTS, Appellant Commonwealth of Pennsylvania v. Rasheed Witts, Appellant

No. 860 EDA 2019

No. 861 EDA 2019

Superior Court of Pennsylvania.

Filed December 7, 2020

MEMORANDUM BY LAZARUS, J.:

Rasheed Witts appeals from the order, entered in the Court of Common Pleas of Philadelphia County, dismissing his petition filed pursuant to the Post-Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541 - 9546. After careful review, we vacate, remand, and reinstate Witts' direct appeal rights nunc pro tunc .

On August 26, 2005, Witts entered a negotiated guilty plea, under two separate docket numbers, to one count each of possession with intent to deliver a controlled substance (PWID) ¹ and criminal conspiracy ² (CP-51-CR-0311351-2004) and one count of PWID (CP-51-CR-0700421-2005). Witts was sentenced to 11½ to 23 months of incarceration, with immediate concurrent parole on each count, plus one year of reporting probation.

On October 19, 2005, and December 28, 2005, Witts was arrested and charged with PWID. On July 7, 2006, and July 17, 2006, Witts pled guilty to both charges, respectively, and received an Intermediate Punishment (IP) Program sentence. ³ On November 22, 2006, the court found Witts directly violated his probation, terminated his parole, revoked his probation and sentenced him to 11½ to 23 months' imprisonment, plus three years of reporting probation with immediate parole to house arrest. The probation violation sentence was ordered to run concurrent on all counts and also concurrent with his July 2006 sentence. On May 1, 2007, Witts was arrested again for PWID. Although he was ultimately found not guilty of the charge, Witts continued to test positive for various drugs while on probation. On May 8, 2008, the court held a second parole/probation violation hearing and determined that Witts had technically violated his probation. The court revoked Witts' parole and ordered him to serve back time, followed by three years of reporting probation, with immediate parole to house arrest with electronic monitoring. The court reminded Witts that he faced a maximum aggregate term of thirty years' imprisonment, and warned him that if he violated probation again, his sentence would be made consecutive to any sentence he received for a new conviction.

On November 2, 2009, Witts was arrested for and charged again with PWID. On January 21, 2010, Witts was arrested and charged with possession of a controlled substance. ⁴ After finding him guilty of the possession charge, the court sentenced Witts, on September 28, 2010, to 18 months of probation. On March 9, 2011, Witts was found guilty of PWID and sentenced to 3 to 6 years' incarceration, with credit for time served.

On February 6, 2012, the court found that Witts had directly violated his probation—for the third time. The court terminated Witts' parole, revoked his probation, and sentenced him to consecutive terms of 5 to 10 years of state incarceration on each docket number for PWID; the sentence was also ordered to run consecutive to his March 2011 sentence of 3 to 6 years' imprisonment. On the conspiracy charge, ⁵ Witts was sentenced to 10 years of reporting probation, to run consecutively to his parole. Witts asked the court to reconsider his sentence, informing the court that he had been unable to contact his attorney. On February 21, 2012, Witts filed a pro se petition to vacate and reconsider his sentence. On March 7, 2012, Witts asked the public defender to file an appeal. The public defender was removed from the case and new counsel was appointed to represent Witts. Witts filed a notice of appeal and his appellate rights were reinstated nunc pro tunc . On appeal, Witts raised two issues: (1) whether the sentence imposed was illegal where it was not based upon the gravity of the offense, the extent of Witts' prior record, the prospect of rehabilitation, and an assessment of mitigating and aggravating factors; and (2) whether the court abused its discretion by imposing a manifestly excessive sentence that because of its consecutive nature is evidence of the court's bias against Witts.

On appeal, our Court found that Witts' revocation probation sentence of two consecutive 5-10 year terms of imprisonment was "within the statutory confines and[,] thus[,] legal." Commonwealth v. Witts , 1321 EDA 2012 at *2-*3 (Pa. Super. filed June 28, 2013) (unpublished memorandum decision). The Court determined that Witts' remaining claims implicated the discretionary aspects of his sentence. Id. at *2. However, because Witts failed to include a Pa.R.A.P. 2119(f) statement in his appellate brief and the Commonwealth objected to its omission, our Court found his sentencing claims waived on appeal. Id. at *4. In a footnote, our Court alternatively noted that "[e]ven if Witts had properly preserved his sentencing challenge, we would determine that it lacks merit for the reasons set forth by the trial court in its well-reasoned [o]pinion. See Trial Court Opinion, 11/2/12, at 8-9." Id. at *4 n.1. Witts did not file a petition for allowance of appeal.

On October 10, 2013, Witts filed a timely pro se PCRA petition. On July 15, 2016, Peter A. Levin, Esquire, was appointed to represent Witts. On January 20, 2017, Attorney Levin filed an amended PCRA petition seeking, among other things, that Witts be granted the right to file a petition for allowance of appeal nunc pro tunc , alleging that "[t]rial counsel was ineffective for failing to advise [Witts] that his Superior Court appeal was denied and that he could file an Allocatur Petition to the Supreme Court of Pennsylvania." Amended PCRA Petition, 1/20/17, at 4-5. On May 18, 2017, the trial court reinstated Witts' appellate rights nunc pro tunc . On June 6, 2017, Witts filed a nunc pro tunc petition for allowance of appeal, which the Supreme Court denied on September 11, 2017.

Witts filed the instant PCRA petition pro se on January 2, 2018. On January 11, 2018, PCRA counsel was appointed; counsel filed an amended petition on November 7, 2018. On January 18, 2019, the court issued Witts Pa.R.Crim.P. 907 notice of its intent to dismiss his petition without a hearing; Witts did not file a response. On March 15, 2019, the court dismissed Witts' petition without a hearing. Witts filed a timely notice of appeal and court-ordered Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal.

On appeal, Witts raises the following issues for our consideration:

(1) Whether the PCRA court erred by dismissing the PCRA petition when evidence was presented that appellate counsel was ineffective for failing to preserve all discretionary sentencing claims by filing a Rule 2119(f) statement.

(2) Whether the PCRA court erred by failing to grant an evidentiary hearing.

Appellant's Brief, at 8.

Instantly, the March 4, 2019 order denying Witts' PCRA petition lists both underlying trial court docket numbers (Nos. 0311351-2004 & 0700421-2005). On March 15, 2019, Witts filed identical notices of appeal for each appeal (860 EDA 2019 & 861 EDA 2019); the notice lists both trial court docket numbers. On April 29, 2019, our Court issued a rule to show cause why Witts' "appeal should not be quashed in light of [ Commonwealth v. ]Walker [, 185 A.3d 969 (Pa. 2018) ]." Per Curiam Order, 4/29/19. ⁶

On September 11, 2019, this Court directed counsel to show cause why the appeal should not be quashed pursuant to Walker . On September 17, 2019, counsel filed a response to the rule to show cause, stating "Counsel has made corrections to its Case Management system, to assure to ... make adjustments to account for [t]he Rules of Appellate Procedure and [s]pecifically Com [ . ] v. Walker [.]" Response to Order to Show Cause, 9/17/19, at ¶ 32. ⁷ However, on December 9, 2019, in consideration of Witts' response, our Court referred the Walker issue to the panel assigned to decide the merits of the appeal. Per Curiam Order, 12/9/19.

Thus, before addressing Witts' claims on appeal, we must first resolve the procedural issue presented in the case. In Walker , our Supreme Court found that Pa.R.A.P. 341 and its Official Comment, stating that "[w]here ... one or more orders resolves issues arising on more than one docket or relating to more than one judgment, separate notices of appeal must be filed," constituted "a bright-line mandatory instruction to practitioners to file separate notices of appeal." Walker , 185 A.3d at 976-77. The failure to do so requires the appellate court to quash the appeal. Id. at 977.

Recently, our full Court revisited the Walker holding in Commonwealth v. Johnson , 236 A.3d 1141 (Pa. Super. 2020) (en banc) ⁸ and Commonwealth v. Larkin , 235 A.3d 350 (Pa. Super. 2020) (en banc). In those cases, our Court concluded that "in so far as Creese^{[9 ]} stated ‘a notice of appeal may contain only one docket number[,]’ ... that pronouncement is overruled." See Johnson , supra at 1148 (emphasis in original); see also Larkin , supra at 352 (recognizing that Johnson "expressly overruled Creese to the extent that Creese interpreted Walker as requiring the Superior Court to quash appeals when an appellant, who is appealing from multiple docket numbers, files notices of appeal with all of the docket numbers listed on each notice of appeal.").

Similar to the defendant in Larkin , Witts filed identical notices of appeal for his two cases below that listed both trial court docket numbers. Since it "is of no consequence" that Witts' notices of appeal contained more than one docket number, Johnson , supra at 1158; Larkin , supra at 352, and because Witts complied with Walker by "fil[ing] separate appeals from an order that resolves issues arising on more than one docket," id. at 977 (emphasis added), we decline to quash the appeal for violating Walker and its attendant requirements. Therefore, we shall proceed to address the issues Witts raises on appeal. ¹⁰

Witts claims that the PCRA court...