Com. v. Bellon, C.

• Court: Superior Court of Pennsylvania
• Decided: February 23, 2021
• Docket: 137 WDA 2020
• Status: Unpublished

Opinion

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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

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). J-A24033-20

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 Super. 2004) (unpublished memorandum[ at 1-2]).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.

____________________________________________

2 See 42 Pa.C.S.A. §§ 9541-9546.

-2- J-A24033-20

[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

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.

-3- J-A24033-20

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

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.

-4- J-A24033-20

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.

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).

-5- J-A24033-20

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

-6- J-A24033-20

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).

-7- J-A24033-20

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.

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.

-8- J-A24033-20

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

-9-