Com. v. Taylor, R.

• Court: Superior Court of Pennsylvania
• Decided: May 21, 2018
• Docket: 565 EDA 2017
• Status: Unpublished

Opinion

J-S19022-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : RAYNARD TAYLOR : : Appellant : No. 565 EDA 2017

Appeal from the Judgment of Sentence January 24, 2017 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0706561-2006

BEFORE: SHOGAN, J., NICHOLS, J., and PLATT, J.*

MEMORANDUM BY NICHOLS, J.: FILED MAY 21, 2018

Appellant Raynard Taylor appeals from the judgment of sentence

imposed following his successful merger claim under the Post Conviction Relief

Act (PCRA).1 Because the PCRA court did not enter a final order dismissing

the PCRA claims upon which this appeal is based, we quash.

The facts underlying Appellant’s convictions are not pertinent to our

disposition. On September 11, 2008, following a bench trial, Appellant was

sentenced to fifteen to thirty years’ incarceration for attempted murder and

ten years’ probation for aggravated assault. See Trial Ct. Op., 7/18/17, at 1.

Appellant filed a direct appeal, and on January 31, 2011, this Court affirmed

the trial court’s judgment of sentence. Commonwealth v. Taylor, 2821 EDA ____________________________________________

* Retired Senior Judge assigned to the Superior Court.

1 42 Pa.C.S. §§ 9541-9546. J-S19022-18

2008 (Pa. Super. Jan. 31, 2011) (unpublished mem.). On July 31, 2012, our

Supreme Court denied Appellant’s petition for allowance of appeal.

On December 14, 2012, the PCRA court docketed Appellant’s pro se

PCRA petition challenging the legality of his sentence and the effectiveness of

his trial counsel. Thereafter, the court appointed PCRA counsel, who filed an

amended PCRA petition on March 2, 2015. The Commonwealth filed a motion

to dismiss Appellant’s PCRA petition on March 17, 2016.

On September 13, 2016, the PCRA court filed a Pa.R.Crim.P. 907 notice

of intent to dismiss the petition without a hearing. Appellant filed a response

on September 20, 2016. The Commonwealth filed its response on October

19, 2016. On October 20, 2016, Appellant submitted a supplemental response

to the Rule 907 notice that focused on Appellant’s sentencing claim and the

merger doctrine.

On November 2, 2016, the PCRA court convened a conference with

counsel at which it found that Appellant’s sentence for aggravated assault

should have merged with the sentence for attempted murder. N.T., 11/2/16,

at 13. That same day, the PCRA court entered an order, stating in relevant

part: “after consideration of the [m]otion to [g]rant PCRA by the [a]ttorney

for the [d]efendant it is ORDERED that the [m]otion to [g]rant PCRA is

GRANTED. Commonwealth motion to dismiss is denied.” Order, 11/2/16.

Thereafter, on January 24, 2017, the court held a resentencing hearing

and vacated Appellant’s ten-year probation sentence for aggravated assault.

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See Trial Ct. Order, 1/24/17. The sentence remained unchanged in all other

respects. Id.

On February 10, 2017, Appellant filed a notice of appeal and

subsequently complied with the PCRA court’s order to file a concise statement

pursuant to Pa.R.A.P. 1925(b), in which he claimed that the PCRA court

erroneously dismissed his claim of ineffective assistance of counsel.2 On July

18, 2017, the PCRA court issued a Rule 1925(a) opinion stating that it denied

Appellant’s ineffective assistance of counsel claims on November 2, 2016, and

thoroughly addressed the merits of those claims.

Appellant raises one issue for our review:

Whether the PCRA Court erred by denying [Appellant] post- conviction relief because trial counsel was ineffective for failing to file a post-sentence and preserve the claim that the verdict was against the weight of the evidence.

Appellant’s Brief at 2.3

As a prefatory matter, we must address whether this appeal is properly

before us. We may raise issues concerning our jurisdiction sua sponte.

Commonwealth v. Baio, 898 A.2d 1095, 1098 (Pa. Super. 2006).

____________________________________________

2Appellant’s notice of appeal specifically refers to “the order of the Honorable Glynnis Hill, dated January 24, 2017, resentencing [Appellant].” Notice of Appeal, 2/10/17.

3 We also note that on April 3, 2017, Appellant sought relief from this Court for the PCRA court’s entry of a final order denying Appellant’s PCRA claims, which he claimed were denied on January 24, 2017. This Court denied Appellant’s motion.

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In general, appeals are properly taken from final orders.

Commonwealth v. Scarborough, 64 A.3d 602, 608 (Pa. 2013) (citation

omitted). “An order granting, denying, dismissing, or otherwise finally

disposing of a petition for post-conviction collateral relief shall constitute a

final order for purposes of appeal.” See Pa.R.Crim.P. 910.

Here, Appellant purports to appeal from the PCRA court’s January 24,

2017 judgment of sentence. However, he focuses solely on the PCRA court’s

denial of his ineffective assistance claim. Recognizing this fact, the

Commonwealth argues that Appellant’s appeal is not properly before us, as

Appellant is ultimately appealing the disposition of his PCRA petition, not the

new sentence imposed on resentencing.

An order granting a new sentencing hearing and denying all other claims

in a PCRA petition is a final order. Commonwealth v. Watley, 153 A.3d

1034, 1039 n.3 (Pa. Super. 2016) (citing Commonwealth v. Gaines, 127

A.3d 15 (Pa. Super. 2015) (en banc) (plurality)). Accordingly, where an

appellant appeals the denial of his PCRA claims, the appealable order is not

the resentencing order, but the order that fully disposes of the PCRA claims.

See Gaines, 127 A.3d at 16-19.

The present case is distinguishable from both Gaines and Watley, as

our review of the record reveals that the PCRA court did not issue any order

dismissing Appellant’s ineffectiveness claims. In fact, the only order

pertaining to the disposition of Appellant’s PCRA petition is the November 2,

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2016 order,4 which grants Appellant’s “motion for PCRA” and denies the

Commonwealth’s motion to dismiss. See Trial Ct. Order, 11/2/16. While the

PCRA court may have intended to dismiss Appellant’s ineffectiveness claims,

that is not what the order reflects.5 Moreover, we have thoroughly reviewed

the record and have found no subsequent orders dismissing Appellant’s

remaining PCRA claims.6

Accordingly, we conclude that the PCRA court has yet to enter a final

order disposing of all claims raised in the underlying PCRA petition. Therefore,

we must quash this appeal.7

Appeal quashed.

4 Notably, the PCRA court, Appellant, and the Commonwealth each assert that Appellant’s PCRA claims were denied on November 2, 2016. However, the resulting order does not reflect that disposition.

5 Pa.R.Crim.P. 908(D)(2) provides, in pertinent part, that if a PCRA petition is granted, the court “promptly shall issue an order granting a specific form of relief, and issue any supplementary orders appropriate to the proper disposition of the case.” See Pa.R.Crim.P. 908(D)(2) (emphasis added). 6 Additionally, our review of the transcript of the November 2, 2016 conference indicates that although the PCRA court did not address Appellant’s ineffective assistance of counsel claims, it did not expressly dismiss them before granting resentencing.

7We note that Appellant may file a notice of appeal within thirty days of the date on which the PCRA court enters its final order disposing of Appellant’s PCRA petition.

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Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 5/21/18

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