J-S66011-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee
v.
STEVEN JONES
Appellant No. 613 EDA 2019
Appeal from the PCRA Order entered February 7, 2019 In the Court of Common Pleas of Philadelphia County Criminal Division at No: CP-51-CR-0010070-2015
BEFORE: STABILE, J., NICHOLS, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY STABILE, J.: FILED FEBRUARY 28, 2020
Appellant, Steven Jones, appeals pro se from the February 7, 2019 order
entered in the Court of Common Pleas of Philadelphia County, dismissing his
first petition for collateral relief filed pursuant to the Post Conviction Relief Act
(“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. Appellant contends the trial court
imposed an illegal sentence following his negotiated guilty plea for third-
degree murder, violations of the Uniform Firearms Act (“VUFA”), and
possession of instruments of crime (“PIC”).1 Upon review, we affirm.
As the PCRA court explained:
On May 12, 2015, [Appellant] was arrested and charged with murder, violation of the Uniform Firearms Act and possessing the instrument of crime. [Appellant] was bound over for court on all charges following a preliminary hearing on October 6, 2015. [He]
____________________________________________
1 18 Pa.C.S.A. §§ 2502(c), 6107 and 6108, and 907, respectively. J-S66011-19
pled guilty to murder of the third degree, carrying firearms without a license, carrying firearms in public in Philadelphia and possessing an instrument of crime on December 4, 2017. In return for his plea, [Appellant] was sentenced to eighteen to forty years’ incarceration for third degree murder, a consecutive one to seven years’ incarceration for carrying a firearm without a license, one to five years consecutive for carrying a firearm on the streets of Philadelphia and consecutive one to five years’ incarceration for possessing the instrument of a crime. No post-sentence motions or direct appeal were filed.
[Appellant] filed a [pro se] PCRA petition on August 27, 2018. New counsel was appointed who filed a Finley1 no-merit letter and motion to withdraw on January 7, 2019. After an independent review, a notice of intent to dismiss, pursuant to Pennsylvania Rule of Criminal Procedure 907 was served upon the parties. [Appellant] filed objection to the 907 notice and on February 7, 2019, after another independent review, the petition was dismissed.[2] Timely appeal was made on February 19th and on the 4th of March 2019, a 1925(b) order was issued, giving [Appellant] twenty-one days to file a statement of matters complained of on appeal with the trial court. No such statement has been forthcoming. 1 Commonwealth v. Finley, 379 Pa. Super. 390. 550 A.2d 213 (1988).
PCRA Court Opinion, 4/23/19, at 1-2.
Appellant filed a brief with this Court raising two issues:
1. Whether the court erred in denying [Appellant’s] PCRA petition due to the lack of subject matter jurisdiction.
2. Whether the federal court’s actions in similar cases have created a precedent that the state courts should follow.
Appellant’s Brief at 3 (some capitalization omitted).
2 The court’s order granted counsel’s motion to withdraw and advised Appellant that he could proceed pro se or with retained counsel, but that no new counsel would be appointed. PCRA Court Order, 2/7/19, at 1.
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We first note, as did the PCRA court, that Appellant failed to comply with
the order to file a concise statement of errors complained of on appeal. The
PCRA court suggests that Appellant’s failure to file a Rule 1925(b) statement
results in waiver of all issues on appeal. PCRA Court Opinion, 4/23/19, at 2
(citing, inter alia, Commonwealth v. Hill, 16 A.3d 484 (Pa. 2011) and
Commonwealth v. Castillo, 888 A.2d 775 (Pa. 2005)). We agree with the
PCRA court that failure to file a Rule 1925(b) statement results in waiver of all
issues. However, the waiver applies only to waivable issues. Our review of
Appellant’s brief leads us to conclude, as does the Commonwealth, that
Appellant is presenting a challenge to the legality of his sentence, which
cannot be waived, even in the absence of a Rule 1925(b) statement. See,
e.g., Commonwealth v. Henderson, 938 A.2d 1063, 1066 n. 1 (Pa. Super.
2007) (legality of sentence not waived despite not being raised in Rule
1925(b) statement); Commonwealth v. Williams, 920 A.2d 887, 888 n.3
(Pa. Super. 2007) (legality of sentence issue is not waived under Castillo for
filing an untimely concise statement). Therefore, to the extent Appellant is
asking this Court to review the legality of his sentence, we shall consider his
claim, mindful that we review the PCRA court’s ruling to determine whether it
is supported by the record and free of legal error, and that our review of the
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PCRA court’s legal conclusions is de novo. Commonwealth v. Rivera, 199
A.3d 365, 373 (Pa. 2018).3
In his brief, Appellant essentially repeats verbatim the claims included
in his PCRA petition. Both documents include conclusory legal statements,
such as an assertion that because his prior record score is zero, “it’s clear the
sentence is outside the legal authorization prescribed, making this sentence
illegal and a subject matter violation, from a defective plea agreement.”
Appellant’s Brief at 7. However, Appellant does not explain in what way his
sentence is “outside the legal authorization prescribed,” except to note that
his prior record score is zero. Id.; PCRA Petition, 8/27/18, at 2
(unnumbered).
Although Appellant contends the trial court imposed an illegal sentence,
our review disproves that assertion. As PCRA counsel explained in her Finley
letter:
Third degree murder, a felony of the third degree, carries a statutory maximum penalty of 20 to 40 years. VUFA § 6106, a felony of the third degree, carries a statutory maximum penalty of 3½ to 7 years. VUFA § 6108 and PIC, both misdemeanor crimes of the first degree, carry a statutory maximum penalty of 2½ to 5 years. Thus, the statutory maximum [Appellant] could have received had he either pleaded open or been found guilty of the ____________________________________________
3 Appellant’s claim as phrased in his first issue, i.e., lack of subject matter jurisdiction, would likewise survive the failure to file a Rule 1925(b) statement. However, in light of Appellant’s failure to develop any viable jurisdictional argument and the fact he titles the argument section of his brief, “THE TRIAL COURT ERRED BY NOT CORRECTING ILLEGAL SENTENCE,” Appellant’s Brief at 6, we limit our discussion to his claim of an illegal sentence.
-4- J-S66011-19
aforementioned offenses after a jury trial is 28½ to 57 years. [Appellant’s] sentence of 21 to 57 years is less than the statutory maximum.
...
The record shows that the court conducted an extensive oral plea colloquy and [Appellant] filled out a written plea colloquy. The Commonwealth intended to proceed to trial on the charge of murder generally. A conviction for first degree murder would have resulted in a mandatory sentence of life without parole.
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J-S66011-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee
v.
STEVEN JONES
Appellant No. 613 EDA 2019
Appeal from the PCRA Order entered February 7, 2019 In the Court of Common Pleas of Philadelphia County Criminal Division at No: CP-51-CR-0010070-2015
BEFORE: STABILE, J., NICHOLS, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY STABILE, J.: FILED FEBRUARY 28, 2020
Appellant, Steven Jones, appeals pro se from the February 7, 2019 order
entered in the Court of Common Pleas of Philadelphia County, dismissing his
first petition for collateral relief filed pursuant to the Post Conviction Relief Act
(“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. Appellant contends the trial court
imposed an illegal sentence following his negotiated guilty plea for third-
degree murder, violations of the Uniform Firearms Act (“VUFA”), and
possession of instruments of crime (“PIC”).1 Upon review, we affirm.
As the PCRA court explained:
On May 12, 2015, [Appellant] was arrested and charged with murder, violation of the Uniform Firearms Act and possessing the instrument of crime. [Appellant] was bound over for court on all charges following a preliminary hearing on October 6, 2015. [He]
____________________________________________
1 18 Pa.C.S.A. §§ 2502(c), 6107 and 6108, and 907, respectively. J-S66011-19
pled guilty to murder of the third degree, carrying firearms without a license, carrying firearms in public in Philadelphia and possessing an instrument of crime on December 4, 2017. In return for his plea, [Appellant] was sentenced to eighteen to forty years’ incarceration for third degree murder, a consecutive one to seven years’ incarceration for carrying a firearm without a license, one to five years consecutive for carrying a firearm on the streets of Philadelphia and consecutive one to five years’ incarceration for possessing the instrument of a crime. No post-sentence motions or direct appeal were filed.
[Appellant] filed a [pro se] PCRA petition on August 27, 2018. New counsel was appointed who filed a Finley1 no-merit letter and motion to withdraw on January 7, 2019. After an independent review, a notice of intent to dismiss, pursuant to Pennsylvania Rule of Criminal Procedure 907 was served upon the parties. [Appellant] filed objection to the 907 notice and on February 7, 2019, after another independent review, the petition was dismissed.[2] Timely appeal was made on February 19th and on the 4th of March 2019, a 1925(b) order was issued, giving [Appellant] twenty-one days to file a statement of matters complained of on appeal with the trial court. No such statement has been forthcoming. 1 Commonwealth v. Finley, 379 Pa. Super. 390. 550 A.2d 213 (1988).
PCRA Court Opinion, 4/23/19, at 1-2.
Appellant filed a brief with this Court raising two issues:
1. Whether the court erred in denying [Appellant’s] PCRA petition due to the lack of subject matter jurisdiction.
2. Whether the federal court’s actions in similar cases have created a precedent that the state courts should follow.
Appellant’s Brief at 3 (some capitalization omitted).
2 The court’s order granted counsel’s motion to withdraw and advised Appellant that he could proceed pro se or with retained counsel, but that no new counsel would be appointed. PCRA Court Order, 2/7/19, at 1.
-2- J-S66011-19
We first note, as did the PCRA court, that Appellant failed to comply with
the order to file a concise statement of errors complained of on appeal. The
PCRA court suggests that Appellant’s failure to file a Rule 1925(b) statement
results in waiver of all issues on appeal. PCRA Court Opinion, 4/23/19, at 2
(citing, inter alia, Commonwealth v. Hill, 16 A.3d 484 (Pa. 2011) and
Commonwealth v. Castillo, 888 A.2d 775 (Pa. 2005)). We agree with the
PCRA court that failure to file a Rule 1925(b) statement results in waiver of all
issues. However, the waiver applies only to waivable issues. Our review of
Appellant’s brief leads us to conclude, as does the Commonwealth, that
Appellant is presenting a challenge to the legality of his sentence, which
cannot be waived, even in the absence of a Rule 1925(b) statement. See,
e.g., Commonwealth v. Henderson, 938 A.2d 1063, 1066 n. 1 (Pa. Super.
2007) (legality of sentence not waived despite not being raised in Rule
1925(b) statement); Commonwealth v. Williams, 920 A.2d 887, 888 n.3
(Pa. Super. 2007) (legality of sentence issue is not waived under Castillo for
filing an untimely concise statement). Therefore, to the extent Appellant is
asking this Court to review the legality of his sentence, we shall consider his
claim, mindful that we review the PCRA court’s ruling to determine whether it
is supported by the record and free of legal error, and that our review of the
-3- J-S66011-19
PCRA court’s legal conclusions is de novo. Commonwealth v. Rivera, 199
A.3d 365, 373 (Pa. 2018).3
In his brief, Appellant essentially repeats verbatim the claims included
in his PCRA petition. Both documents include conclusory legal statements,
such as an assertion that because his prior record score is zero, “it’s clear the
sentence is outside the legal authorization prescribed, making this sentence
illegal and a subject matter violation, from a defective plea agreement.”
Appellant’s Brief at 7. However, Appellant does not explain in what way his
sentence is “outside the legal authorization prescribed,” except to note that
his prior record score is zero. Id.; PCRA Petition, 8/27/18, at 2
(unnumbered).
Although Appellant contends the trial court imposed an illegal sentence,
our review disproves that assertion. As PCRA counsel explained in her Finley
letter:
Third degree murder, a felony of the third degree, carries a statutory maximum penalty of 20 to 40 years. VUFA § 6106, a felony of the third degree, carries a statutory maximum penalty of 3½ to 7 years. VUFA § 6108 and PIC, both misdemeanor crimes of the first degree, carry a statutory maximum penalty of 2½ to 5 years. Thus, the statutory maximum [Appellant] could have received had he either pleaded open or been found guilty of the ____________________________________________
3 Appellant’s claim as phrased in his first issue, i.e., lack of subject matter jurisdiction, would likewise survive the failure to file a Rule 1925(b) statement. However, in light of Appellant’s failure to develop any viable jurisdictional argument and the fact he titles the argument section of his brief, “THE TRIAL COURT ERRED BY NOT CORRECTING ILLEGAL SENTENCE,” Appellant’s Brief at 6, we limit our discussion to his claim of an illegal sentence.
-4- J-S66011-19
aforementioned offenses after a jury trial is 28½ to 57 years. [Appellant’s] sentence of 21 to 57 years is less than the statutory maximum.
...
The record shows that the court conducted an extensive oral plea colloquy and [Appellant] filled out a written plea colloquy. The Commonwealth intended to proceed to trial on the charge of murder generally. A conviction for first degree murder would have resulted in a mandatory sentence of life without parole. By pleading guilty, [Appellant] avoided the very real possibility of a life sentence. There is no evidence that [Appellant] entered into an involuntary or unknowing plea.
Finley Letter, 9/17/18, at 3-4.
To the extent Appellant believes his sentence is illegal because his
aggregate sentence exceeds the maximum sentence for third-degree murder,
he is mistaken. Appellant also entered guilty pleas to two counts of VUFA and
one count of PIC. The trial court imposed sentences on each charge and
ordered the sentences to run consecutively. As the Commonwealth
recognizes, Appellant is not entitled to a “volume discount” by having his
sentences run concurrently rather than consecutively. Commonwealth Brief
at 6 (citing Commonwealth v. Hoag, 665 A.2d 1212, 1214 (Pa. Super.
1995)). Imposition of consecutive sentences that resulted in an aggregate
sentence “within the statutory maximums [] cannot, on that ground alone, be
considered illegal or inordinate.” Id. (citing Commonwealth v. Pollard, 832
A.2d 517, 525 (Pa. Super. 2003)).
Appellant also claims “the sentence imposed is manifestly excessive as
to constitute a severe punishment.” Appellant’s Brief at 6. Unlike legality of
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sentence claims, Appellant’s claims of excessiveness implicate the
discretionary aspects of sentence and are waived for failure to preserve them
in a Rule 1925(b) statement. See, e.g., Commonwealth v. Dodge, 77 A.3d
1263, 1268-69 (Pa. Super. 2013) (quoting Commonwealth v. Naranjo, 53
A.3d 66, 72 (Pa. 2012) (“to properly present a discretionary sentencing claim,
a defendant is required to preserve the issue in either a post-sentence motion
or at sentencing and in a court-ordered Pa.R.A.P. 1925(b) concise
statement”)). Further, any claim relating to the imposition of consecutive
rather than concurrent sentences would likewise implicate the discretionary
aspects of sentence. See Dodge, 77 A.3d at 1268. Therefore, a claim on
that basis is also waived for failure to preserve it in a concise statement.
Similarly, to the extent Appellant suggests the PCRA court erred by dismissing
his PCRA petition without an evidentiary hearing, he has not preserved the
issue. Moreover, “[i]t is well settled that there is no absolute right to an
evidentiary hearing on a PCRA petition, and if the PCRA court can determine
from the record that no genuine issues of material fact exist, then a hearing
is not necessary.” Commonwealth v. Maddrey, 205 A.3d 323, 328 (Pa.
Super. 2019) (internal quotation and alteration omitted). “The [PCRA] court’s
decision to deny a request for an evidentiary hearing . . . is within the
discretion of the PCRA court and will not be overturned absent an abuse of
discretion.” Commonwealth v. Mason, 130 A.3d 601, 617 (Pa. 2015)
(citation omitted). Here, because it was clear Appellant’s sentence was not
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an illegal sentence as asserted in his PCRA petition, the PCRA court did not
abuse its discretion in dismissing the petition without an evidentiary hearing.
Therefore, even if preserved, Appellant’s claims of PCRA court error would not
entitle him to any relief.
It is well settled that this Court may affirm on any basis.
Commonwealth v. Clouser, 998 A.2d 656, 661 n. 3 (Pa. Super. 2010).
Therefore, for the reasons stated above, we affirm the PCRA court’s February
7, 2019 order dismissing Appellant’s PCRA petition.
Order affirmed.
Judge Nichols joins the memorandum.
President Judge Emeritus Ford Elliott concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 2/28/20
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