Com. v. Piner, K.

CourtSuperior Court of Pennsylvania
DecidedJanuary 17, 2023
Docket1457 WDA 2021
StatusUnpublished

This text of Com. v. Piner, K. (Com. v. Piner, K.) is published on Counsel Stack Legal Research, covering Superior Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Com. v. Piner, K., (Pa. Ct. App. 2023).

Opinion

J-S42026-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : KENNETH JON PINER : : Appellant : No. 1457 WDA 2021

Appeal from the Judgment of Sentence Entered June 1, 2021 In the Court of Common Pleas of Blair County Criminal Division at No(s): CP-07-CR-0000675-2012

BEFORE: BOWES, J., OLSON, J., and COLINS, J.*

MEMORANDUM BY OLSON, J.: FILED: JANUARY 17, 2023

Appellant, Kenneth Jon Piner, appeals from the judgment of sentence

entered on June 1, 2021, as made final by the denial of Appellant’s

post-sentence motion on October 9, 2021. We affirm.

On April 10, 2013, a jury found Appellant guilty of a number of crimes,

including: possession of a controlled substance with the intent to deliver

(“PWID”), dealing in proceeds of unlawful activities, corrupt organizations,

criminal use of a communication facility, and conspiracy.1 On June 14, 2013,

the trial court sentenced Appellant to serve an aggregate term of 36 to 72

years in prison for his convictions. We affirmed Appellant’s judgment of

____________________________________________

* Retired Senior Judge assigned to the Superior Court.

1 35 P.S. § 780-113(a)(30) and 18 Pa.C.S.A. §§ 5111(a)(1), 911(b)(3), 7512(a), and 903, respectively. J-S42026-22

sentence on February 9, 2015 and the Pennsylvania Supreme Court denied

Appellant’s petition for allowance of appeal on September 23, 2015. See

Commonwealth v. Piner, 120 A.3d 374 (Pa. Super. 2015) (unpublished

memorandum), appeal denied, 124 A.3d 309 (Pa. 2015).

On February 22, 2016, Appellant filed a timely petition under the Post

Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. The PCRA court

appointed counsel to represent Appellant during the proceedings and counsel

filed an amended petition on Appellant’s behalf. The amended petition raised

numerous claims for relief, including claims that: 1) “trial counsel was

ineffective in that he failed to properly present, argue, and preserve for

[appellate] review the argument that the Blair County District Attorney’s Office

should not have been involved in [Appellant’s] prosecution, in that it had a

conflict of interest in prosecuting [Appellant]” and 2) Appellant’s sentence was

illegal, as he was sentenced under certain mandatory minimum sentencing

statutes that the United States Supreme Court had declared unconstitutional

in Alleyne v. United States, 570 U.S. 99 (2013). See Amended PCRA

Petition, 5/1/19, at 1-4.

On May 20, 2020, the PCRA court granted, in part, and denied, in part,

Appellant’s PCRA petition. Specifically, the PCRA court granted Appellant relief

on his illegal sentencing claim and, thus, vacated Appellant’s sentence and

scheduled the matter for resentencing. See PCRA Court Order, 5/20/20, at

1. The PCRA court did so because: Appellant was sentenced under certain

mandatory minimum sentencing statutes that the United States Supreme

-2- J-S42026-22

Court had declared unconstitutional in Alleyne; Appellant’s judgment of

sentence was not final at the time Alleyne was decided; and, Appellant filed

a timely PCRA petition where he challenged the legality of his sentence. See

PCRA Court Order, 5/20/20, at 1; see also Commonwealth v. DiMatteo,

177 A.3d 182, 192 (Pa. 2018) (holding: where a petitioner’s “sentence was

rendered illegal before his judgment of sentence became final and he

presented his claim in a timely petition for post conviction relief, he is entitled

to have his illegal sentence remedied”). However, the PCRA court denied

Appellant relief on his remaining claims, including Appellant’s claim that his

trial counsel was ineffective for failing to argue that “the Blair County District

Attorney’s Office should not have been involved in [Appellant’s] prosecution,

in that it had a conflict of interest in prosecuting [Appellant].” See PCRA Court

Order, 5/20/20, at 1. Appellant did not file a notice of appeal from the PCRA

court’s order. See Commonwealth v. Watley, 153 A.3d 1034, 1039 n.3

(Pa. Super. 2016) (holding: an order granting in part and denying in part all

issues raised in a PCRA petition is a final order for purposes of appeal);

Commonwealth v. Grove, 170 A.3d 1127, 1138 (Pa. Super. 2017) (“the

PCRA court's order granting relief with regard to sentencing and denying all

other claims [is] a final appealable order”).

On June 1, 2021, the trial court resentenced Appellant to serve an

aggregate term of 18 to 36 years in prison for his convictions. After

Appellant’s timely post-sentence motion was denied by operation of law,

-3- J-S42026-22

Appellant filed a timely notice of appeal from his judgment of sentence.

Appellant raises one claim on appeal:

Whether the trial court erred in denying Appellant’s [PCRA petition,] averring that his trial counsel was ineffective in failing to object to the Blair County District Attorney’s Office assisting in his prosecution when it had a conflict of interest in prosecuting [Appellant]?

Appellant’s Brief at 4.

The action at bar is Appellant’s direct appeal from his judgment of

sentence, following resentencing. Notwithstanding this fact, Appellant’s claim

of error on appeal relates solely to the partial denial of his earlier PCRA

petition. However, the PCRA court’s May 20, 2020 order – which granted, in

part, and denied, in part, Appellant’s PCRA petition (and, specifically, denied

Appellant relief on his claim that his trial counsel was ineffective for “failing to

object to the Blair County District Attorney’s Office assisting in his prosecution

when it had a conflict of interest in prosecuting [Appellant]”) – was final when

entered. See Grove, 170 A.3d at 1138 (“the PCRA court's order granting

relief with regard to sentencing and denying all other claims [is] a final

appealable order”). Thus, Appellant had until June 19, 2020 to file a notice of

appeal pertaining to the PCRA court’s May 20, 2020 order, where he could

have raised the issue he currently brings before this Court. See id. Appellant

did not do so – and, on this direct appeal from his judgment of sentence,

Appellant cannot now challenge the denial of an ineffective assistance of

counsel claim that was only contained in Appellant’s earlier PCRA petition.

See Commonwealth v. Fantauzzi, 275 A.3d 986, 991 n.12 (Pa. Super.

-4- J-S42026-22

2022) (“[a] PCRA court's order granting a new sentencing proceeding ends

the collateral proceedings, and the new sentencing proceeding is a trial court

function not a function of the collateral proceedings”); cf. Commonwealth

v. McKeever, 947 A.2d 782, 785 (Pa. Super. 2008) (“a successful first PCRA

petition does not ‘reset the clock’ for the calculation of the finality of the

judgment of sentence for purposes of the PCRA where the relief granted in the

first petition neither restored a petitioner's direct appeal rights nor disturbed

his conviction, but, rather, affected his sentence only”); Commonwealth v.

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Related

Alleyne v. United States
133 S. Ct. 2151 (Supreme Court, 2013)
Commonwealth v. McKeever
947 A.2d 782 (Superior Court of Pennsylvania, 2008)
Commonwealth v. Anderson
801 A.2d 1264 (Superior Court of Pennsylvania, 2002)
Commonwealth v. Williams
151 A.3d 621 (Superior Court of Pennsylvania, 2016)
Commonwealth v. Watley
153 A.3d 1034 (Superior Court of Pennsylvania, 2016)
Commonwealth v. Grove
170 A.3d 1127 (Superior Court of Pennsylvania, 2017)
Commonwealth, Aplt v. Dimatteo, P.
177 A.3d 182 (Supreme Court of Pennsylvania, 2018)
Com. v. Fantauzzi, R.
2022 Pa. Super. 75 (Superior Court of Pennsylvania, 2022)

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Bluebook (online)
Com. v. Piner, K., Counsel Stack Legal Research, https://law.counselstack.com/opinion/com-v-piner-k-pasuperct-2023.