Com. v. Green, K.

• Court: Superior Court of Pennsylvania
• Decided: March 31, 2025
• Docket: 1795 EDA 2023
• Status: Unpublished

Opinion

J-S40014-24

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : KEVIN GREEN : : Appellant : No. 1795 EDA 2023

Appeal from the Judgment of Sentence Entered April 18, 2023 In the Court of Common Pleas of Philadelphia County Criminal Division at No: CP-51-CR-0011053-2013

BEFORE: STABILE, J., McLAUGHLIN, J., and LANE, J.

MEMORANDUM BY STABILE, J.: FILED MARCH 31, 2025

Appellant, Kevin Green, seeks review of the judgment of sentence

entered by the Court of Common Pleas of Philadelphia County (PCRA court).

For the reasons below, we acknowledge the PCRA court’s partial concession of

error, vacate the judgment of sentence, and remand the case for a

resentencing.

In 2014, Appellant was found guilty of several felony offenses

committed during a home invasion. He was sentenced to an aggregate prison

term of 55 to 110 years, and the judgment of sentence was upheld on direct

appeal. See Commonwealth v. Green, 149 A.3d 43, 45-47 (Pa. Super.

2016).

Appellant filed a petition for postconviction relief in 2017. See 42

Pa.C.S.A. §§ 9541-9546 (Postconviction Relief Act (PCRA)). PCRA counsel

was appointed, and amended petitions were filed on Appellant’s behalf in 2020 J-S40014-24

and 2021. In these petitions, Appellant asserted that his counsel had been

ineffective at all stages of his trial, including sentencing.

The PCRA court granted partial relief on July 15, 2022, denying

Appellant’s ineffectiveness claims and some of his post-sentence motions, but

directing that Appellant would receive a new sentencing hearing. Two of

Appellant’s prior convictions for kidnapping were also vacated. The

resentencing took place in 2023, and throughout those proceedings, Appellant

made additional new claims, which included a challenge to his prior record

score calculation. The PCRA court heard extensive argument from the parties

on these issues before ultimately sentencing Appellant to an aggregate prison

term of 30 to 60 years.

Appellant filed post-sentence motions, pro se, despite being represented

by PCRA counsel. While Appellant’s filings were still pending, his PCRA counsel

sought to withdraw from the case. Appellant also sought reconsideration of

his sentence, and to supplement his pro se motions. The PCRA court allowed

Appellant’s PCRA counsel to withdraw, and new counsel was appointed.

However, Appellant then indicated that he did not want legal representation,

preferring instead to proceed as a pro se litigant.

The PCRA court denied further relief at that stage, and Appellant

appealed from the new sentence and the denial of his PCRA claims of

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ineffective assistance of counsel.1 On August 16, 2023, this Court remanded

the case, directing the PCRA court to hold a hearing to determine whether

Appellant had knowingly and voluntarily waived his right to counsel, pursuant

to Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).

A Grazier hearing was held on November 20, 2023, and it was found

that Appellant’s waiver of the right to counsel was voluntarily. The

Commonwealth responded to Appellant’s pro se claims and disputed that any

of the issues he had raised were meritorious. However, the Commonwealth

did not oppose another resentencing in which Appellant would have the benefit

of a lower prior record score and guidelines range.

On March 6, 2024, the PCRA court sent a letter to the Office of the

Prothonotary. In the letter, the PCRA court indicated it found merit in the

claim that the prior record score used at Appellant’s sentencing held on April

18, 2023, was incorrectly calculated. The PCRA court asked this Court to

remand the case back for a resentencing on those grounds.

The parties each submitted appellate briefing after receiving multiple

extensions. Rather than consider the merits of the appellate issues before us,

some of which concern the calculation of Appellant’s prior record score, we

will defer to the request of the PCRA court to remand the case for a

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1 Appellant did not file a 1925(b) statement of issues complained of on appeal,

and the PCRA court did not enter a 1925(a) opinion giving the reasons why the judgment of sentence, and its rulings on Appellant’s PCRA claims, should be upheld.

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resentencing.2 Once Appellant has been resentenced, he will have the option

of filing a new appeal and raising any claims which he believes would entitle

him to relief. Appellant may then be directed to file a statement of issues

complained of on appeal, pursuant to Pa.R.A.P. 1925(b).

Judgment of sentence vacated. Case remanded for resentencing.

Jurisdiction relinquished.

Date: 3/31/2025

2 The Commonwealth has reiterated in its brief that it does not oppose a resentencing in which a lower prior record score may be applied. See Appellee’s Brief, at 29-30.

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