Com. v. Hensel, J.

• Court: Superior Court of Pennsylvania
• Decided: November 4, 2019
• Docket: 12 WDA 2019
• Status: Unpublished

Opinion

J-S55008-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : JEREMY LEE HENSEL : : Appellant : No. 12 WDA 2019

Appeal from the Judgment of Sentence Entered December 17, 2018 In the Court of Common Pleas of Allegheny County Criminal Division at No(s): CP-02-CR-0011315-2014

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : JEREMY LEE HENSEL A/K/A JEREMY : SMITH : : No. 13 WDA 2019 Appellant :

Appeal from the Judgment of Sentence Entered December 17, 2018 In the Court of Common Pleas of Allegheny County Criminal Division at No(s): CP-02-CR-0011316-2014

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : JEREMY LEE HENSEL : : Appellant : No. 14 WDA 2019

Appeal from the Judgment of Sentence Entered December 17, 2018 In the Court of Common Pleas of Allegheny County Criminal Division at No(s): CP-02-CR-0003974-2015 J-S55008-19

BEFORE: MURRAY, J., McLAUGHLIN, J., and COLINS, J.*

MEMORANDUM BY MURRAY, J.: FILED NOVEMBER 4, 2019

As reflected in the above caption, Jeremy Lee Hensel (Appellant),

purports to appeal from “the judgment of sentence” imposed on December

17, 2018.1 In addition, Appellant’s counsel (Counsel) has filed a brief and

application to withdraw as counsel pursuant to Anders v. California, and

Commonwealth v. Santiago.2 After careful review, we quash. We also

deny Counsel’s request to withdraw.

In July 2017, the Commonwealth alleged that Appellant violated his

probation, and on February 13, 2018, the trial court held a hearing, after which

it revoked Appellant’s probation. The trial court sentenced Appellant to an

aggregate 5 to 10 years of incarceration. Appellant filed an appeal. This Court

vacated Appellant’s February 13, 2018 judgment of sentence and remanded

“for the trial court to address Appellant’s RRRI eligibility only.”

Commonwealth v. Hensel, 386 WDA 2018 (Oct. 13, 2018) (unpublished

memorandum).

Following remand, the entries in the three trial court dockets, both

individually and collectively, are confusing and inconsistent. For example, the

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* Retired Senior Judge assigned to the Superior Court.

1On December 27, 2018, Appellant filed three notices of appeal, one at each docket; on February 4, 2019, this Court sua sponte entered an order consolidating the three appeals.

2 Anders v. California, 386 U.S. 738 (1967) and Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009).

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docket at CP-02-CR-0011315-2014 shows that on November 7, 2018, in

response to the Superior Court’s October 30, 2018 decision, the trial court

scheduled a hearing on Appellant’s RRRI eligibility for December 17, 2018.

The next docket entry reflects Appellant’s Motion for Faretta/Grazier Hearing

filed on December 6th; the following docket entry is the underlying notice of

appeal filed by Appellant on December 27, 2018. Significantly, no judgment

of sentence dated December 17, 2018 appears in any of the three dockets or

in the certified docket entries submitted to this Court. On January 16, 2019,

there is an entry indicating that Appellant filed a petition for allowance of

appeal with the Pennsylvania Supreme Court from this Court’s October 30,

2018 decision. We also note that there are two trial court judges: until her

retirement, the Honorable Donna Jo McDaniel presided; as evidenced by the

dockets, in mid-2019, the cases were reassigned to the Honorable Edward J.

Borkowski. Judge Borkowski summarized:

On December 17, 2018, and while [Appellant’s] Application for Reargument was still pending before the Superior Court, the Honorable Donna Jo McDaniel held a hearing which was titled “Resentencing” in which she informed Appellant she had neglected to inform him at his prior sentencing that he was not RRRI eligible. However, the [trial] court never vacated the judgment of sentence and [never] imposed a new sentence addressing the RRRI eligibility. Additionally, the Honorable Donna Jo McDaniel never issued an Amended Order of Sentence in these matters.

Trial Court Opinion, 6/28/19, at 4. Judge Borkowski added that he “awaits

further guidance from the Superior Court in these matters.” Id. at 5.

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Likewise, the Commonwealth “respectfully defers to [the Superior]

Court [as to] whether the [trial] court had jurisdiction to determine that

[A]ppellant was not RRRI eligible and correct a patent error or if the matter

should be remanded for a jurisdictionally appropriate RRRI eligibility

determination.” Commonwealth Brief at 10.

Conversely — and seeking to withdraw from representation —

Appellant’s Counsel states that “Appellant is not entitled to relief as the failure

to make a[n] RRRI determination is patent error which can be corrected by a

court of common pleas . . .” Anders Brief at 8. However, the notices of

appeal filed by Counsel on Appellant’s behalf read: NOTICE is hereby given that [Appellant], Defendant above named, appeals to the Superior Court of Pennsylvania from the December 17, 2018 judgment of sentence of the Honorable Donna Jo McDaniel, Judge of the Court of Common Pleas of Allegheny County, Criminal Division. No written order has yet been issued.

Notice of Appeal, 12/27/18 (bold in original).

Our review confirms that no written order (or judgment of sentence)

was ever entered. Accordingly, we lack jurisdiction. The Rules of Appellate

Procedure provide:

Requisites for an Appealable Order

(a) Entry upon docket below.

(1) Except as provided in paragraph (2) of this subdivision, no order of a court shall be appealable until it has been entered upon the appropriate docket in the lower court. Where under the applicable practice below an order is entered in two or more

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dockets, the order has been entered for the purposes of appeal when it has been entered in the first appropriate docket.

(2) In a criminal case in which no post-sentence motion has been filed, a judgment of sentence is appealable upon the imposition of sentence in open court.

(b) Separate document required. Every order shall be set forth on a separate document.

Pa.R.A.P. 301.

Instantly, Appellant has appealed from a nonexistent order where there

is no “separate document,” and no December 17, 2018 order was ever

docketed. Gavula v. ARA Servs., Inc., 756 A.2d 17, 19 (Pa. Super. 2000)

(“Before an order of the lower court becomes appealable, it must be entered

on the docket.”). As there is no order, there can be no appeal.

Appeal quashed. Counsel’s request to withdraw denied.3

3 In response to Judge Borkowski’s request for “further guidance,” and after reviewing the notes of testimony from the December 17, 2018 hearing where Appellant appeared with counsel and Judge McDaniel advised Appellant that he is not RRRI eligible, we direct that Judge Borkowski (or one his Criminal Division colleagues if he is unavailable) to enter an amended judgment of sentence as a “separate document” to be docketed consistent with Pa.R.A.P. 301.

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Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 11/4/2019

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