Com. v. Herrington, Q.

• Court: Superior Court of Pennsylvania
• Decided: September 11, 2017
• Docket: 2172 EDA 2016
• Status: Unpublished

Opinion

J-A17041-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v.

QURAN HERRINGTON,

Appellant No. 2172 EDA 2016

Appeal from the Order June 9, 2016 in the Court of Common Pleas of Philadelphia County Criminal Division at No.: CP-51-CR-0004001-2012

BEFORE: GANTMAN, P.J., RANSOM, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.: FILED SEPTEMBER 11, 2017

Appellant, Quran Herrington, appeals from the trial court’s order

denying his petition seeking specific performance of his plea agreement and

resentencing. We quash.

We take the relevant background of this case from this Court’s

memorandum opinion filed May 23, 2016 on direct appeal, and our

independent review of the certified record. On May 21, 2014, Appellant

entered a negotiated guilty plea to terroristic threats, simple assault, and

contempt for violation of a protection from abuse order.1 The charges

stemmed from allegations of domestic violence upon F.S., the mother of one ____________________________________________

* Retired Senior Judge assigned to the Superior Court. 1 18 Pa.C.S.A. §§ 2706(a)(1), 2701(a), and 23 Pa.C.S.A. § 6114(a), respectively. J-A17041-17

of his children. On that same date, the trial court sentenced Appellant to a

term of not less than eleven and one-half nor more than twenty-three

months’ incarceration, followed by five years of reporting probation.

Appellant received credit for time served, and was granted immediate

parole.

Appellant failed to report properly to his probation officers in

December of 2014 and January of 2015. On March 8, 2015, police arrested

him for possession of a controlled substance, after they confiscated crack

cocaine from his person during a traffic stop.

At the May 18, 2015 violation hearing, the trial court revoked

Appellant’s probation and parole and deferred sentencing pending

preparation of a pre-sentence investigation report and mental health

evaluation. On July 28, 2015, the court sentenced Appellant to an

aggregate term of not less than two nor more than five years’ incarceration,

followed by two years’ probation. Appellant filed a direct appeal, and this

Court affirmed the judgment of sentence on May 23, 2016. (See

Commonwealth v. Herrington, 2016 WL 2981622, at *1 (Pa. Super. filed

May 23, 2016) (unpublished memorandum)).2 Our Supreme Court

____________________________________________

2 In that appeal, Appellant raised two issues, challenging the sufficiency of the evidence supporting his revocation and the court’s imposition of a sentence of confinement. (See Herrington, supra at *1-2).

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ultimately denied his petition for allowance of appeal on October 25, 2016.

(See Commonwealth v. Herrington, 160 A.3d 761 (Pa. 2016)).

Despite the pendency of his direct appeal, on June 2, 2016, Appellant

filed the underlying “Petition for Specific Performance of Plea Agreement

With Regard to Time Credit and for Resentencing,” requesting “equitable

enforcement of [his] plea agreement with regard to time credit[.]” (Petition,

6/02/16 (Petition), at unnumbered page 1). He asked the trial court to

“resentenc[e] [him] to a term of incarceration of 100 days to five years, to

be followed by a two-year period of probation.” (Id. at unnumbered page

5). On June 9, 2016, the court entered an order denying the Petition

without a hearing. On June 23, 2016, Appellant filed a motion requesting

reconsideration of the court’s order and a hearing. On June 28, 2016, the

court entered an order denying the motion. On July 11, 2016, Appellant

filed a timely notice of appeal3 from the court’s June 9, 2016 order.4

Appellant raises the following issue for our review:

Did not the [trial] court abuse its discretion when it refused to hold a hearing to determine whether the terms of [Appellant’s] plea agreement had been breached with regard to time credit, and whether to equitably enforce those terms, where the terms of the plea agreement as to time credit and the existence of those terms were proven by matters not of record?

3 July 9, 2016 was a Saturday and July 11, 2016 was a Monday. 4 The trial court did not order Appellant to file a concise statement of errors complained of on appeal, nor did it file an opinion. See Pa.R.A.P. 1925.

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(Appellant’s Brief, at 3).

Preliminarily, we must consider the propriety of this appeal. The

Commonwealth maintains that the trial court lacked jurisdiction to act on

Appellant’s Petition because his case continued to be active on appeal. (See

Commonwealth’s Brief, at 6-7). Upon review, we agree.

Pennsylvania Rule of Appellate Procedure 1701(a)5 provides, in

relevant part: “[A]fter an appeal is taken . . . the trial court . . . may no

longer proceed further in the matter.” Pa.R.A.P. 1701(a). “Where only a

particular item, claim or assessment adjudged in the matter is involved in an

appeal . . . the appeal . . . shall operate to prevent the trial court . . . from

proceeding further with only such item, claim or assessment . . . .”

Pa.R.A.P. 1701(c).

Here, Appellant filed his Petition requesting resentencing while he was

seeking an allowance of appeal from our Supreme Court regarding this

Court’s affirmance of his judgment of sentence. Until that Court decided his

petition for allowance of appeal, the trial court lacked jurisdiction to consider

the merits of Appellant’s Petition. See Pa.R.A.P. 1701(a); see generally,

Commonwealth v. Bishop, 829 A.2d 1170, 1172 (Pa. Super. 2003).

Furthermore, because Appellant’s direct appeal concerned the propriety of

his revocation and sentence, we conclude that this is not a case where only ____________________________________________

5 When interpreting a procedural rule, our standard of review is de novo and our scope of review is plenary. See Commonwealth v. Noel, 53 A.3d 848, 851 (Pa. Super. 2012), aff’d, 104 A.3d 1156 (Pa. 2014).

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a discrete item, claim, or assessment was involved in the appeal. See

Pa.R.A.P. 1701(c); (see also Herrington, supra at *1-2). Therefore, we

agree with the Commonwealth that the trial court did not have jurisdiction to

act in this matter.6 Accordingly, we quash this appeal.

Appeal quashed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 9/11/2017

6 Moreover, even if the trial court had jurisdiction to act on the Petition, we would conclude that Appellant waived his sentencing claim by failing to raise it on direct appeal. (See Herrington, supra at *1-2); see also generally Commonwealth v. Williams, 151 A.3d 621, 625 (Pa. Super. 2016); Commonwealth v. Mathis, 463 A.2d 1167, 1169 (Pa. Super. 1983) (“Any [alleged trial court] errors have either been resolved against appellant in his first appeal before this [C]ourt, or have been waived by his failure to present them in his first appeal.”) (citation omitted).

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