Com. v. Willis, S.

• Court: Superior Court of Pennsylvania
• Decided: January 9, 2023
• Docket: 1621 EDA 2021
• Status: Unpublished

Opinion

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : SHAHEEM WILLIS : : Appellant : No. 1621 EDA 2021

Appeal from the Judgment of Sentence Entered April 9, 2018 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0005238-2009

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : SHAHEEM WILLIS : : Appellant : No. 2034 EDA 2021

Appeal from the PCRA Order Entered August 26, 2021 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0005238-2009

BEFORE: BOWES, J., McCAFFERY, J., and SULLIVAN, J.

MEMORANDUM BY McCAFFERY, J.: FILED JANUARY 9, 2023

Following a jury trial in the Philadelphia County Court of Common Pleas

in July of 2010, Shaheem Willis (Appellant) was convicted of attempted

murder1 and related charges for his role in the March 2009, shooting of

thirteen-year-old J.S., and sentenced to an aggregate term of 20 to 40 years’

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1 18 Pa.C.S. §§ 901, 2502(a). J-S22023-22 J-S22024-22

imprisonment. He was later granted partial post-conviction collateral relief as

to his sentence and resentenced to the same term on April 9, 2018. The pro

se appeal at Docket No. 1621 EDA 2021 is from the judgement of sentence

imposed upon resentencing. Appellant contends: (1) the trial court lacked

authority to sentence him pursuant to 18 Pa.C.S. § 1102(c) (attempted

murder causing serious bodily injury) and lacked subject matter jurisdiction

over that offense; and (2) his sentence is illegal because the court did not

consider his juvenile status in imposing a statutory maximum sentence and

failed to comply with 18 Pa.C.S. § 1106 when ordering restitution.

The pro se appeal at Docket No. 2034 EDA 2021 is from the August 26,

2021, order entered in the Philadelphia County Court of Common Pleas

dismissing Appellant’s second petition filed pursuant to the Post Conviction

Relief Act2 (PCRA) as untimely. Appellant argues the petition was not

untimely, but rather, prematurely filed before his April 2018 judgment of

sentence was final. He nevertheless asserts the ineffective assistance of trial

counsel for failing to protect him from an aggravated sentence.

For ease of disposition, we address these related appeals in a single

memorandum. At Docket No. 1621 EDA 2021, for the reasons discussed

below, we vacate, in part, the judgment of sentence imposed at Appellant’s

April 2018 resentencing, and remand for resentencing limited to the issue of

restitution; in all other respects, we affirm. At Docket No. 2034 EDA 2021, ____________________________________________

2 42 Pa.C.S. §§ 9541-9546.

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we conclude the trial court had no jurisdiction to consider Appellant’s

premature PCRA petition, and, consequently, we quash the appeal.

I. FACTS & PROCEDURAL HISTORY

The relevant facts underlying Appellant’s conviction were summarized

by this Court in a prior appeal as follows:

At 3:30 p.m. on February 25, 2009, [then 17-year-old] Appellant, Christian Williams, and Deshaoun Williams were standing near 6100 Spruce Street in Philadelphia.1 The victim in this case, thirteen-year-old J.S., arrived in a car driven by his mother, Tamika Anderson. As they circled the block looking for a parking place, J.S. noticed that either Appellant or one of the Williams brothers was pointing at the car. Once the car was parked, J.S. waited in the front passenger seat while his mother entered the school to pick up her daughter. __________ 1 Appellant was tried with co-defendant Christian Williams (Williams). __________

Soon after his mother exited, J.S. observed Appellant and the Williams brothers approaching in the rearview mirror. A shot was fired, causing the passenger window to shatter, and striking J.S. in the chest. Appellant then ran up to the car, firing a second shot at J.S. from only two feet away. The second shot struck J.S. in the hand.2 Appellant and Williams fled. __________ 2 Crime scene investigators ultimately recovered five 9-mm bullet casings at the scene of the shooting. They determined that all five casings had been ejected from the same gun.

__________

J.S. spent two and a half weeks in the hospital, after sustaining what the sentencing court described as “grave, life threatening injuries that required extensive surgery to all of his vital organs, including removal of part of his lung.” He had

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multiple scars from the surgeries and bullet wounds. After being discharged from the hospital, J.S. then spent several months recovering from his injuries before he could resume some of his normal activities.

When given a photo array on March 3, 2009, J.S. identified Appellant as the shooter and Williams as one of his companions. Tamika Anderson also observed Appellant placing a gun in his pocket as he fled. She gave chase but lost Appellant in a crowd. A nearby bus driver, Jonathan McGill, heard the gunshots and then observed Appellant running from the scene of the crime. McGill called police and gave them a physical description of Appellant.

Acting pursuant to a warrant, police arrested Deshaoun Williams at his home, recovering from Deshaoun a cell phone that contained a photo of him brandishing two firearms. One of those firearms was the same type used to shoot J.S. The cell phone also had Appellant listed as one of Deshaoun’s contacts, under Appellant’s nickname in the neighborhood, “Shy”. In a room shared by the Williams brothers, shown to police by Williams’ mother, a live bullet was found that matched the bullet casings found at the crime scene.

Commonwealth v. Willis, 470 EDA 2011 (unpub. memo. at 1-3) (Pa. Super.

Jun. 12, 2012), appeal denied, 331 EAL 2012 (Pa. Mar. 12, 2013), cert.

denied, 571 U.S. 866 (Oct. 7, 2013).

Appellant was subsequently arrested and charged with attempted

murder, aggravated assault, criminal conspiracy, firearms not to be carried

without a license, carrying a firearm on a public street in Philadelphia, and

possession of an instrument of crime (PIC).3 His criminal information did not

3 18 Pa.C.S. §§ 2702(a), 903(a)(1), 6106(a)(1), 6108, and 907, respectively.

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specify that the victim of Appellant’s attempted murder suffered serious bodily

injury.4

As noted above, Appellant proceeded to a joint jury trial with Christian

Williams and was convicted of the above-stated charges. Furthermore, on the

verdict sheet, the jury responded, “Yes” to the question of whether the victim

suffered “serious bodily injury.” See Verdict Report, 7/20/10.

On October 8, 2010, the trial court sentenced Appellant to an aggregate

term of 20 to 40 years’ imprisonment for attempted murder, followed by an

aggregate 12 years’ probation for the firearms offenses.5 He was also ordered

to pay $34,637.79 in restitution. Appellant’s aggravated assault and

conspiracy convictions merged for sentencing purposes, and the court

imposed no further penalty for PIC.

Appellant filed a direct appeal challenging the discretionary aspects of

his sentence, specifically, asserting the trial court did not “adequately consider

4 See 18 Pa.C.S. § 1102(c) (permitting a court to impose a sentence of up to 40 years; imprisonment when serious bodily injury results from an attempted murder; otherwise the maximum sentence permissible is 20 years’ imprisonment).

5The trial court noted that it had ordered a presentence investigation report, mental health evaluation, and a drug and alcohol evaluation, which were completed prior to sentencing and provided to the parties. See N.T., 10/8/10, at 5.

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that Appellant was only 17 years old at the time of the offense.”6 Willis, 470

EDA 2011 (unpub. memo. at 8). This Court affirmed the judgment of

sentence, and both the Pennsylvania Supreme Court and United States

Supreme Court denied review.7

Appellant filed a timely PCRA petition, pro se, on March 10, 2014, in

which he asserted numerous trial court errors, as well as the ineffective

assistance of preliminary hearing, trial, and direct appeal counsel. See

Appellant’s Petition for Post-Conviction Collateral Relief, 3/10/14, at 6(A)-

6(D). Although counsel was appointed, Appellant, acting pro se, filed both a

supplemental and amended petition. On September 15, 2014, Appellant filed

a motion to remove counsel and proceed pro se. Following a Grazier8 hearing

on February 9, 2016, the court granted Appellant’s request.

Appellant filed an amended pro se PCRA petition on April 28, 2016,

followed by a supplemental petition on May 6. In the supplemental petition,

Appellant asserted for the first time that he was improperly sentenced to

mandatory minimum terms pursuant to 42 Pa.C.S. §§ 9712 (offenses

committed with firearms) and 9718 (offenses against infant persons), which ____________________________________________

6 At the April 2018 resentencing hearing, the court noted that Appellant was “in fact, 17 years and ten months” at the time of the shooting. N.T., 4/9/18, at 30.

7For purposes of PCRA review, Appellant’s judgment of sentence was final on October 7, 2013, the date the United States Supreme Court denied Appellant’s petition for writ of certiorari. See 42 Pa.C.S. § 9545(b)(3).

8 Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).

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have been deemed unconstitutional pursuant to Alleyne v. United States,

570 U.S. 99, 116 (2013) (any fact that increases mandatory minimum

sentence must be submitted to jury and found beyond reasonable doubt).

At some point thereafter, the trial court granted Appellant relief on his

sentencing claim.9 On April 9, 2018, the court conducted a hearing to

“resentence [Appellant] pursuant to” Alleyne. See N.T., 4/9/18, at 11.

Appellant continued to represent himself. At the resentencing hearing, the

trial court stated that it “wanted to make sure that it was absolutely clear [it]

was not sentencing [Appellant] to a mandatory minimum sentence[.]” Id.

After hearing argument from both the Commonwealth and Appellant, the court

imposed the same sentence as it did at the original hearing — a standard

range sentence of 20 to 40 years’ imprisonment for attempted murder causing

serious bodily injury, followed by an aggregate term of 12 years’ probation for

the firearms offenses. See N.T., 4/9/18, at 29-30. The court also reimposed

the restitution order in the amount of $34,637.79. Id. at 31.

Relevant to the claims before us, the trial court made the following

comments regarding the sentence it imposed:

[This] is a guideline range sentence. It is appropriate under the circumstances given the Commonwealth incorporating by reference the testimony from the [October 8, 2010,] sentencing which included the testimony of the mother and impact on the

9There is no order in the certified record or notation on the docket indicating when the court granted this relief.

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victim, and the original determination by the jury that they found serious bodily injury caused on the verdict sheet.

The Commonwealth’s memo underlying the fact that the victim was shot in the chest injuring his heart, lung, kidneys and liver and was shot a second time on the left hand. His injuries were severe, numerous, and life altering. The sentence of 20 to 40 years accurately reflects the seriousness of the offense. It will promote respect for the law and provide just punishment for the offense.

[Appellant] argues that he should be treated like the juveniles who have been sentenced to life imprisonment and who are now having their sentences reviewed. [Appellant] was not sentenced on a homicide case, this was not a life sentence where [his] juvenile status would be taken into consideration. I have read [Appellant’s] document called motion for court to take judicial notice of mitigating sentencing factors. [Appellant] was, in fact, 17 years and ten months. He was very close to being 18 years old and . . . this was a crime that [Appellant] deliberately participated in and was the person who shot the victim numerous times.

So I’m reimposing the same sentence of 20 to 40 years on the charge of attempted murder. . . .

N.T., 4/9/18, at 29-30.

On April 17, 2018, Appellant filed a timely pro se post-sentence motion,

requesting reconsideration of his sentence on the following bases: (1) recent

United States Supreme Court decisions regarding juvenile brain development

confirm his sentence was manifestly excessive; (2) the court failed to properly

consider mitigating factors and paid “lip service” to the “illegality of the

mandatory minimums that were initially” imposed, as well as the fact that his

co-defendant received a lenient sentence; (3) the court failed to provide

adequate reasons on the record for the sentence imposed; (4) the court failed

to consider his testimony that he was “extremely remorseful” and “had

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matured and rehabilitated[;]” and (5) the court failed to order an updated

presentence investigation report. See Appellant’s Post Sentence Motion for

Reconsideration of Sentence, 4/17/18, at 2-3 (unpaginated). The trial court

did not promptly rule upon Appellant’s post-sentence motion. Although the

motion should have been denied by operation of law on August 15, 2018,

there was no order entered on the docket or served on the parties. See

Pa.R.Crim.P. 720(B)(3)(a), (c).

Meanwhile, on April 10, 2018, the trial court issued Appellant

Pa.R.Crim.P. 907 notice of its intent to dismiss the remaining claims in his

PCRA petition without conducting an evidentiary hearing. Appellant promptly

filed an objection; however, on May 4, 2018, the court entered an order

dismissing Appellant's petition as meritless. See Order, 5/4/18. Appellant

timely appealed.

On November 15, 2019, a panel of this Court affirmed the order denying

PCRA relief.10 See Commonwealth v. Willis, 1555 EDA 2018 (unpub.

memo. at 1) (Pa. Super. Nov. 15, 2019), appeal denied, 103 EAL 2020 (Pa.

Aug. 18, 2020). The Pennsylvania Supreme Court denied Appellant’s petition

for allowance of appeal on August 18, 2020.

10 We note that Appellant’s first claim challenged the discretionary aspects of his April 2018 resentencing. See Willis, 1555 EDA 2018 (unpub. memo. at 6). However, the panel concluded that issue was not before it because Appellant did not appeal from the new judgment of sentence; rather, the appeal was from the May 4, 2018 order denying his prior PCRA petition. See id. (unpub. memo. at 6-7).

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On August 25, 2020, Appellant filed the present PCRA petition, pro se.

He sought relief from his April 9, 2018, resentencing, and asserted the petition

was timely filed. See Appellant’s Petition for Post-Conviction Relief Pursuant

to 42 Pa.C.S. § 9541, et. seq., 8/25/20 (2020 PCRA Petition), at 2. Appellant

raised the following two claims: (1) his sentence was illegal because the

Commonwealth failed to provide notice that it intended to prove the victim of

his attempted murder suffered serious bodily, thus permitting the court to

impose a lengthier sentence; and, relatedly, (2) trial counsel was ineffective

for failing to object to a special interrogatory verdict sheet, which asked the

jury to determine if the victim suffered serious bodily injury. See id. at 3.

The Commonwealth filed a motion to dismiss on May 12, 2021,

asserting: (1) Appellant’s claims regarding his April 2018 resentencing were

premature because the clerk of courts never entered an order denying

Appellant’s post-sentence motion by operation of law; and (2) Appellant’s

challenge to trial counsel’s ineffective assistance was time-barred. See

Commonwealth’s Motion to Dismiss Appellant’s PCRA Petition, 5/12/21, at 7-

8. In his pro se response, Appellant “agree[d] with the Commonwealth that

his sentencing claim [was] prematurely filed because his post-sentence

motion from his resentencing [had] yet to be formally disposed.” Appellant’s

Response to Commonwealth’s Motion to Dismiss, 5/24/21, at 2 (capitalization

omitted). However, relying on the unpublished decision of this Court in

Commonwealth v. Fantauzzi, 19 EDA 2018 (Pa. Super. May 22, 2019),

appeal denied, 480 MAL 2019 (Pa. Feb. 3, 2020), Appellant insisted he could

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raise counsel’s ineffectiveness for failing to “protect [him] from the imposition

of an illegal sentence.” Appellant’s Response to Commonwealth’s Motion to

Dismiss at 3-4.

On July 27, 2021, the trial court entered an order denying Appellant’s

April 17, 2018, post-sentence motion by operation of law. See Order,

7/27/21. Appellant filed a timely notice of appeal on August 3, 2021, 11 and

complied with the trial court’s order directing him to file a Pa.R.A.P. 1925(b)

statement of errors complained of on appeal. The appeal from the April 9,

2018, judgment of sentence is docketed at 1621 EDA 2021.

Meanwhile, also on July 27, 2021, the court notified Appellant of its

intent to dismiss his 2020 PCRA Petition without conducting an evidentiary

hearing pursuant to Pa.R.Crim.P. 907. See Notice Pursuant to Pennsylvania

Rule of Criminal Procedure 907, 7/27/21. Appellant did not file a reply, and

11 “If post-sentencing motions are timely filed, . . . the judgment of sentence does not become final for purposes of appeal until the trial court disposes of the motion, or the motion is denied by operation of law.” Commonwealth v. Borrero, 692 A.2d 158, 159 (Pa. Super. 1997). Pursuant to Pa.R.Crim.P. 720, a trial court “shall decide [a timely filed] post-sentence motion . . . within 120 days of the filing of the motion[,]” otherwise the clerk of courts “shall forthwith enter an order” denying the motion by operation of law. Pa.R.Crim.P. 720(B)(3)(a), (c). However, “where the clerk of courts does not enter an order indicating that the post-sentence motion is denied by operation of law and notify the defendant of same, a breakdown in the court system has occurred and we will not find an appeal untimely under these circumstances.” Commonwealth v. Perry, 820 A.2d 734, 735 (Pa. Super. 2003). Thus, Appellant’s notice of appeal, filed within 30 days of the date the trial court belatedly entered an order denying his post-sentence motion by operation of law, was timely filed.

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on August 26, 2021, the court dismissed Appellant’s 2020 PCRA Petition as

untimely. Order, 8/26/21. Appellant filed a timely appeal,12 which is docketed

at 2034 EDA 2021.

II. RESENTENCING APPEAL (DOCKET NO. 1621 EDA 2021)

At Docket No. 1621 EDA 2021, Appellant raises the following claims

concerning his April 9, 2018, resentencing:

A. Did not the sentencing court lack statutory authorization to impose a 40 year sentence on Appellant for an attempted murder charge where the element of serious bodily injury in relation to attempted murder was not included in the information as required by 42 Pa.C.S. § 8931(e), and Pa.R.Crim.P. 560(B)(5) and 560(D), in violation of 1 Pa.C.S. § 1504?

B. Is not Appellant’s sentence illegal because he was ambushed with the verdict sheet’s special interrogatory about serious bodily injury in connection with attempted murder and Appellant had no de jure nor de facto notice to defend against attempted murder with serious bodily injury, and this surprise interrogatory was not enough to put Appellant on notice?

C. Did not the trial court lack jurisdiction over the subject matter of attempted murder with serious bodily injury, under the current law and the law at the time of trial where the Commonwealth failed to make the necessary formal accusation in Appellant’s criminal information?

D. Did not the sentencing court illegally impose restitution when it failed to order the “method of restitution”; where the order for restitution is to those who do not statutorily qualify as a ____________________________________________

12Although the notice of appeal was docketed on September 27, 2021, the 30th day after the entry of the court’s order — September 25th — fell on a Saturday. Therefore, Appellant had until the following Monday, September 27th, to file a timely appeal. See 1 Pa.C.S. § 1908.

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victim; and where the Commonwealth’s recommendation was not based upon information received from the victim and committed a fraud upon the court?

E. Is not Appellant’s sentence illegal where the sentencing court stated, on the record, that Appellant’s juvenile status should not come into consideration because he was not facing a life sentence before imposing the harshest possible penalty for an attempted murder [charge], in violation of the United States’ and Pennsylvania’s cruel and unusual punishment clauses?

F. Is not Appellant’s sentence illegal because the sentencing court failed to give credit for time served in “custody” and the applicable statute did not exclude, by any statutory definition, strict confinement to a home with electronic monitoring and probationary officers virtually present at all times, with law enforcement officers on standby from the statutory term “custody”?

Appellant’s Brief (1621 EDA 2021) (Appellant’s Resentencing Brief) at 4-6

(some capitalization omitted).13

(A)(1) REVIEW FOLLOWING RESENTENCING

Preliminarily, we note that Appellant has filed this appeal from the

judgment of sentence imposed following his resentencing, which was the

result of a successful PCRA claim challenging the possible unconstitutionality

of his original sentence. Because he has already had the benefit of a direct

appeal following his conviction, his claims in this appeal are limited to those

challenging the sentence imposed following remand. See Commonwealth

v. Williams, 151 A.3d 621, 625 (Pa. Super. 2016); Commonwealth v.

Anderson, 801 A.2d 1264, 1266 (Pa. Super. 2002) (“Having succeeded on ____________________________________________

13 We have reordered Appellant’s claims for purposes of disposition.

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[challenges to his sentence] and having been re-sentenced following remand,

appellant could not file another direct appeal attacking his conviction: the only

issues reviewable in a direct appeal would be challenges to the sentence

imposed following remand.”).

(A)(2) ATTEMPTED MURDER WITH SERIOUS BODILY INJURY

Appellant’s first three claims, which we address together, challenge the

trial court’s authority to impose a maximum 40-year term of imprisonment for

his conviction of attempted murder.

By way of background, Section 1102 of the Crimes Code governs

sentencing for a conviction of, inter alia, murder and attempted murder. See

18 Pa.C.S. § 1102. Subsection (c) provides, in relevant part:

(c) . . . Notwithstanding section 1103(1) (relating to sentence of imprisonment for felony), a person who has been convicted of attempt . . . to commit murder . . . where serious bodily injury results may be sentenced to a term of imprisonment which shall be fixed by the court at not more than 40 years. Where serious bodily injury does not result, the person may be sentenced to a term of imprisonment which shall be fixed by the court at not more than 20 years.

18 Pa.C.S. § 1102(c)(emphases added). Therefore, as an en banc panel of

this Court explained:

Section 1102(c) imposes a condition precedent to the imposition of a maximum term of imprisonment of up to 40 years, specifically, that serious bodily injury must have resulted from the attempted murder. Otherwise, the sentence shall be not more than 20 years. Serious bodily injury is a fact that must be proven before a maximum sentence of [40] years may be imposed for attempted homicide. Moreover, a defendant must be put on

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notice when the Commonwealth is seeking a 40–year maximum sentence for attempted murder.

Commonwealth v. Barnes, 167 A.3d 110, 117 (Pa. Super. 2017) (en banc)

(citations & quotation marks omitted).

Furthermore, pursuant to the dictates of Apprendi v. New Jersey, 530

U.S. 466 (2000), “[o]ther than the fact of a prior conviction, any fact that

increases the penalty for a crime beyond the prescribed statutory maximum

must be submitted to a jury, and proved beyond a reasonable doubt.” Id. at

490. Thus, we have held that in order to comport with Apprendi and its

progeny, a trial court may not impose an aggravated sentence of more than

20 years’ imprisonment for attempted murder unless the jury finds, beyond a

reasonable doubt, that the victim suffered serious bodily injury as a result of

the attempted murder. See Commonwealth v. Johnson, 910 A.2d 60, 67

(Pa. Super. 2006); see also Barnes, 167 A.3d at 118-19. With this

background in mind, we consider Appellant’s arguments on appeal.

Appellant first argues the trial court “lacked statutory authorization” to

impose a 40-year maximum sentence when he was “not charged, via

information” with the offense of attempted murder with serious bodily

injury.14 See Appellant’s Resentencing Brief at 12-14. He emphasizes that

under Pennsylvania Rules of Criminal Procedure 561(B), “any charge not listed

14 Appellant’s criminal information charged only that he committed “Criminal Attempt” by “attempting to cause the death of another human being.” Information, 5/11/09, at 1.

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on the information shall be deemed withdrawn by . . . the Commonwealth.”

Id. at 12-13, citing Pa.R.Crim.P. 561(B) (emphasis omitted).

Appellant further maintains that he was “ambushed” by the special

interrogatory on the jury’s verdict sheet which, he claims, “for the first time,

[raised] a question about [serious bodily injury] in connection with attempted

murder[.]” Appellant’s Resentencing Brief at 19. He insists the facts of this

case are “completely identical” to those in Commonwealth v. Bickerstaff,

204 A.3d 988, 997-98 (Pa. Super. 2019) (vacating 40-year maximum

sentence for attempted murder and remanding for resentencing; finding trial

counsel was ineffective for failing to object to special interrogatory asking jury

to determine if victim sustained serious bodily injury when there was no notice

of serious bodily injury claim prior to jury deliberations). Appellant’s

Resentencing Brief at 19-20. In a related claim, Appellant argues that because

of the Commonwealth’s failure to include the charge of attempted murder with

serious bodily injury in his information, the trial court lacked subject matter

jurisdiction, and he must be discharged. Id. at 30.

Preliminarily, we emphasize that, contrary to Appellant’s argument, the

trial court had the “statutory authority” to impose a sentence of up to 40 years’

imprisonment pursuant to Section 1102(c) after the jury found the victim

suffered serious bodily injury as a result of the attempted murder. See 18

Pa.C.S. § 1102(c). Nevertheless, Appellant’s claims implicate the legality of

his sentence — he, inarticulately, invokes a due process challenge by arguing

he had no notice that the Commonwealth intended to prove the victim suffered

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serious bodily injury as a result of the attempted murder. Thus, our “standard

of review is de novo and the scope of review is plenary.” Commonwealth v.

King, 234 A.3d 549, 559-60 (Pa. 2020).

The Supreme Court’s recent decision in King, supra, is instructive. In

that case, as here, the defendant was charged with attempted murder, but

the criminal information “made no reference” to the fact that the

Commonwealth intended to prosecute him for attempted murder causing

serious bodily injury pursuant to Section 1106(c). King, 234 A.3d at 552-53.

However, the jury verdict sheet included an interrogatory question, which

asked the jury to determine if the victim suffered serious bodily injury, in the

event it found the defendant guilty of attempted murder. Id. at 553. The

jury responded that the victim did suffer serious bodily injury, and the trial

court later sentenced the defendant to an aggravated term of 20 to 40 years’

imprisonment for his conviction of attempted murder. Id.

Both the trial court and a panel of this Court rejected the defendant’s

claim that his attempted murder sentence was illegal because he was not

properly charged with attempted murder causing serious bodily injury. See

King, 234 A.3d at 553-54. The Supreme Court granted allowance of appeal

to consider, inter alia, whether a defendant’s due process and Sixth

Amendment rights are denied when the Commonwealth is not required to

“provide formal notice to a defendant when seeking to prosecute him for an

aggravated offense, specifically the 40-year maximum sentence authorized

under 18 Pa.C.S.A. § 1102(c)?” Id. at 556.

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The Supreme Court concluded that formal notice was required:

[W]hen the Commonwealth intends to seek an enhanced sentence for attempted murder resulting in serious bodily injury under Section 1102(c), the Commonwealth must include a citation to the statutory provision as well as its language in the charging documents.

King, 234 A.3d at 562. However, while the Court concluded that formal notice

was lacking in that case, it, nevertheless, declined to find the defendant’s

sentence illegal because it concluded the error was harmless. See id. at 563,

566.

The King Court noted that the defendant relied on caselaw striking down

mandatory minimum sentencing statutes in the wake of Alleyne, supra,15

which rejected a harmless error analysis. See King, 234 A.3d at 565.

However, the Supreme Court held those cases were inapplicable to the present

facts. Id. Indeed, in the Alleyne cases, the mandatory minimum statutes

were determined to be “facially unconstitutional” and incapable of severance,

so that the Commonwealth could not cure the unconstitutionality of the statute

absent legislative authority. Id. at 565-66. However, the King Court

explained that, in the case before it, “a proper notice would permit the

sentence” imposed by the trial court; thus, it concluded the “error [was]

amenable to harmless error review.” Id. at 566. The Court further found:

15 In Alleyne, the United States Supreme Court expanded Apprendi to apply to mandatory minimum sentences, and held that “any fact that increases the mandatory minimum is an ‘element’ that must be submitted to the jury.” Alleyne, 570 U.S. at 103.

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[T]he Commonwealth has met its burden of establishing that the error was harmless beyond a reasonable doubt. [T]he evidence of serious bodily injury in this case was overwhelming and uncontroverted. Moreover, this is not a case where the judge made the requisite finding, . . . but rather it was stipulated to and found by the jury beyond a reasonable doubt. [The defendant] never contested the severity of [the victim’s] injuries, but rather stipulated that, as a result of two gunshot wounds, [the victim] suffered a shattered hipbone and anklebone, requiring multiple surgeries and high intensity inpatient occupational and physical therapy. While [the defendant] did not receive formal notice of the Commonwealth’s intent to seek the enhancement, [he] received de facto notice, at various points before trial, that the Commonwealth was seeking the enhancement. For example, the factual summaries in the charging documents made clear that [the victim] suffered serious bodily injury. Moreover, the Commonwealth advised [the defendant] that the minimum penalty for attempted murder if convicted was seventeen and one- half years, signaling that the Commonwealth intended to seek the enhancement. Finally, the Commonwealth and [the defendant’s] attorney reviewed and agreed to the content and form of the verdict sheet prior to jury deliberations, which included a special interrogatory regarding whether [the victim] suffered serious bodily injury as a result of the attempted murder.

We also find persuasive the Commonwealth’s point that its failure to provide formal notice of its intent to seek the enhanced sentence did not affect [the defendant’s] choice of defense or execution of that defense, considering [he] stipulated to [the victim’s] injuries and instead sought to demonstrate that another unknown individual committed the crime. Therefore, the harmless nature of the error precludes a finding that the sentence was illegally imposed.

Id. (citations omitted).

We conclude the same is true here. It is undisputed the Commonwealth

failed to provide Appellant with formal notice in the charging documents of its

intent to prove the victim suffered serious bodily injury as a result of the

attempted murder. See Information at 1. Nevertheless, Appellant’s claim

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that he was “ambushed” by the jury interrogatory at the time of deliberations

is specious.

First, the affidavit of probable cause averred that the victim was shot in

the “chest and hand,” transported to the hospital “where he underwent

surgery[,]” and was in “critical condition.” Affidavit of Probable Cause 3/4/09

at 2. Moreover, on the first day of trial, before testimony began, the court

asked the Commonwealth’s attorney if the aggravated assault charge involved

serious bodily injury. See N.T. 7/13/10 at 34. The Commonwealth’s attorney

responded, “Yes,” and further stated: “I would just request at the end of trial

that there be a separate interrogatory on the serious bodily injury in

regards to the attempted murder . . . because it does change the

maximum penalty.” Id. at 35 (emphasis added). Appellant did not object.

Thus, before he even presented his defense, Appellant was well aware the

Commonwealth intended to prove the victim suffered serious bodily injury as

a result of the attempted murder.

Additionally, Appellant did not question the victim concerning the extent

of his injuries, nor did he object when the Commonwealth moved to admit the

victim’s medical records into evidence. See N.T., 7/14/10, at 191-205

(Appellant’s cross-examination of the victim); N.T., 7/16/10 at 86-87

(Commonwealth moved medical records into evidence). Although Appellant’s

trial counsel — Geoffrey Kilroy, Esquire — did object when the jury requested

a copy of the victim’s medical records during deliberations, he did so only to

the extent that the records “contain numerous amounts of hearsay about who

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said what about what[.]” N.T., 7/19/10 at 85. However, Attorney Kilroy

agreed that there was “really [no] doubt that” the victim suffered serious

bodily injury. Id. at 86. Thus, counsel for all parties agreed to provide the

jury with a summary of the medical records. See id. at 89.

Lastly, the trial court instructed the jury there would “be one question

that [it would] have to answer in connection with the charge of attempted

murder” — that is, “Do you find that serious bodily injury was caused to [the

victim]?” N.T., 7/19/10, at 81-82. Attorney Kilroy did not object to either the

instruction or the verdict sheet. As noted supra, the jury responded, “Yes,”

to that special interrogatory question.

Accordingly, we conclude the facts of this case are nearly identical to

those presented in King. Although the Commonwealth should have notified

Appellant in the charging documents that it intended to prove he committed

attempted murder with serious bodily injury, we conclude the failure to do so

was harmless error. Significantly, the jury, itself, specifically found the victim

suffered serious bodily injury. Moreover, the Commonwealth stated on the

record before trial that it intended to request a special interrogatory on that

exact issue, and Appellant did not challenge the victim’s injuries or medical

records. Thus, under King, Appellant is entitled to no relief on this claim.

Nor do we find that this Court’s decision in Bickerstaff, supra, compels

a different result. Appellant maintains that the facts of his case are

“completely identical” to those in Bickerstaff, such that he is “entitled to the

same relief[,]” namely, remand for resentencing. See Appellant’s

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Resentencing Brief at 19. What Appellant fails to acknowledge, however, is

the procedural posture of Bickerstaff — an appeal from an order denying

PCRA relief on a claim on ineffective assistance of counsel. This Court

opined:

[T]he Commonwealth charged [the defendant] with only attempted murder generally and did not include the element of serious bodily injury in the criminal complaint or information. The Commonwealth also failed to put [the defendant] on notice that the Commonwealth intended to prove attempted murder/serious bodily injury at trial. The Commonwealth did not prosecute [the defendant] for attempted murder/serious bodily injury. Furthermore, the court did not instruct the jury on serious bodily injury related to the attempted murder offense. Instead, the court gave a jury instruction only on serious bodily injury related to aggravated assault. Here, [the defendant] was essentially ambushed with the verdict sheet’s special interrogatory that raised for the first time a question about serious bodily injury in connection with attempted murder. Prior to the interrogatory, [he] had no warning that there was even an issue of serious bodily injury associated with attempted murder. The charges, complaint, information, and jury instructions for attempted murder made no mention of associated serious bodily injury. Absent more, this surprise interrogatory was not enough to put [the defendant] on notice to defend against attempted murder/serious bodily injury.

Due to this lack of notice and [the defendant’s] resultant inability to defend, counsel should have objected to the interrogatory before the jury deliberated. Counsel had no rational basis for failing to object to the interrogatory, given the lack of notice, and counsel’s failure to object prejudiced [the defendant], because it caused [him] to endure a conviction for attempted murder with serious bodily injury and set [him] up to face a maximum sentence of 40 years for that offense, rather than 20 years for attempted murder generally. Moreover, when the court imposed the enhanced sentence for attempted murder/serious bodily injury, based solely on the jury’s response to the interrogatory, counsel again failed to object. Thus, we agree with [the defendant’s] contention that trial counsel was ineffective for failing to protect [him]

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from the sentence enhancement for attempted murder/serious bodily injury.

Id. at 997–98 (emphases & paragraph break added; citations omitted).

Here, Appellant raises his claim on direct appeal following his

resentencing hearing — not as an allegation of trial counsel’s ineffectiveness

on PCRA review. Thus, at this juncture, trial counsel’s failure to object to the

interrogatory waives the claim for our review. See Pa.R.A.P. 302(a) (“Issues

not raised in the trial court are waived and cannot be raised for the first time

on appeal.”). Moreover, as explained above, the de facto notice Appellant

received in the present case is similar to the notice the defendant received in

King, and more than that provided to the defendant in Bickerstaff. Thus,

we find King controlling.

With regard to Appellant’s assertion that he should be discharged

because the trial court lacked subject matter jurisdiction when the

Commonwealth did not include the charge of attempted murder causing

serious bodily injury in his information,16 the King Court rejected that same

argument. See King, 234 A.3d at 557 n.9. The Supreme Court explained:

[T]he Apprendi violation herein would, at most, deprive the court of the ability to sentence [the defendant] to an enhanced sentence. It would not divest the trial court of the jurisdiction to sentence [the defendant] for the unenhanced attempted murder charge of which he plainly had formal notice. . . .

Id.

16 Appellant’s Resentencing Brief at 30.

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Thus, Appellant’s challenges to the trial court’s authority to sentence

him pursuant to Section 1102(c) fail.

(A)(3) RESTITUTION

In his next issue, Appellant insists the trial court illegally imposed

restitution. See Appellant’s Resentencing Brief at 15. He contends the trial

court failed to “order the ‘Method’ of payment” as required by 18 Pa.C.S. §

1106(c)(2)(ii), and “ordered payment to entities who are not ‘victims[.]’” Id.

at 15-16. Appellant also maintains the Assistant District Attorney “personally

increased the victim’s medical costs” without supporting documentation. Id.

at 16-17.

Restitution is governed by Section 1106 of the Crimes Code. Section

1106(c) requires the trial court to order “full restitution” to “the victim” or

victims, “[r]egardless of the current financial recourses of the defendant,” so

that they are provided with “the fullest compensation for the loss.” 18 Pa.C.S.

§ 1106(c)(1)(i). A “victim” is defined as, inter alia, “[a] direct victim[, and a]

parent . . . of a child who is a direct victim[.]” See 18 Pa.C.S. §§ 11.103,

1106(h). A “direct victim” is defined as “[a]n individual against whom a crime

has been committed or attempted and who as a direct result of the criminal

act or attempt suffers physical or mental injury . . . .” 18 P.S. § 11.103. In

addition, the statute mandates that “[a]t the time of sentencing, the court

shall specify the amount and method of restitution.” 18 Pa.C.S. § 1106(c)(2)

(emphasis added). The court may order restitution to be paid “in a lump sum,

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by monthly installments or according to such other schedule as it deems just.”

18 Pa.C.S. § 1106(c)(2)(ii).

We note that a challenge to an order of restitution may raise either a

legality or discretionary sentencing claim:

[A] challenge to the legality of sentence is presented when the defendant claims that the trial court lacked statutory authority to impose restitution because the Commonwealth failed to establish one or more of the requirements of section 1106(a). Conversely, where the Commonwealth has established each element of § 1106(a), i.e., the victim suffered loss to person or property directly caused by the specific crime committed by the defendant, a claim that the restitution order is excessive implicates the discretionary aspects of sentencing.

Commonwealth v. Muhammed, 219 A.3d 1207, 1212 (Pa. Super. 2019)

Here, Appellant’s argument consists of both a legality and discretionary

challenge. His assertion that the court awarded restitution to entities that

were not proper “victims” and failed to order the “method” of payment raise

legality of sentencing issues pertaining to the court’s statutory authority to

impose restitution. See Muhammed, 219 A.3d at 1212. Although he raises

these illegal sentencing claims for the first time in this appeal, they are not

waived. See id. at 1211 (challenge to legality of sentence can never be

waived).

However, his assertion that the costs of the victim’s medical expenses

presented by the Commonwealth were excessive implicates the discretionary

aspects of his restitution sentence. Because Appellant failed to challenge the

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restitution amount at his resentencing hearing or in in his post-sentence

motion, that claim is waived for our review. See Pa.R.Crim.P. 720.

Nevertheless, we are constrained to conclude that the order of

restitution imposed by the trial court at Appellant’s 2018 resentencing hearing

was illegal. First, as Appellant maintains, the restitution amount requested

by the Commonwealth included payment to the “Firearms Identification Unit”

for “a laboratory fee” ($135) and the cost for “the T-Mobile custodian of

records” for their testimony regarding “phone records in this case” ($15.45).

See N.T., 10/8/10, at 39. Neither of these entities constitute a “victim” as

defined in the Crimes Code. Thus, the order awarding “restitution” to these

entities was illegal.17

Moreover, we are also constrained to agree with Appellant that the trial

court’s failure to specify the “method of restitution” at the resentencing

hearing, renders his restitution sentence illegal. The text of the statute is

clear: “At the time of sentencing the court shall specify the amount and

method of restitution.” 18 Pa.C.S. § 1106(2) (emphasis added). This

“method” may include a lump sum payment or monthly installments. See 18

Pa.C.S. § 1106(2)(ii). Although we recognize Appellant’s lengthy term of

17 We note the trial court did not provide any further discussion of the restitution sentence at the 2018 resentencing hearing. It simply “reorder[ed] restitution” in the same amount as the original sentence. See N.T., 4/9/18, at 31.

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imprisonment renders the restitution order superfluous at the present time,

the trial court is required by statute to specify how restitution is to be paid.

Therefore, we vacate Appellant’s April 2018 judgment of sentence with

respect to the restitution order, and remand to permit the trial court to impose

a new restitution order which complies with Section 1106. See

Commonwealth v. Gentry, 101 A.3d 813, 819 (Pa. Super. 2014) (holding

proper remedy following determination that restitution award was not to

discharge defendant from restitution, but to provide trial court with

opportunity “to impose a new restitution order”).

(A)(4) CONSIDERATION OF JUVENILE STATUS

In his penultimate issue concerning his resentencing, Appellant argues

his sentence is illegal because the trial court stated that it need not consider

his “juvenile status” because he was not facing a life sentence. Appellant’s

Resentencing Brief at 22. He insists the court ignored the holdings of Miller

v. Alabama, 567 U.S. 460 (2012),18 and Jones v. Mississippi, 141 S.Ct.

1307 (U.S. 2021),19 that “youth matters” and “must be considered as a

mitigating sentencing factor.” Appellant’s Resentencing Brief at 22-23 ____________________________________________

18See Miller, 567 U.S. at 465 (holding “mandatory life without parole for those under the age of 18 at the time of their crimes violates the Eighth Amendment's prohibition on ‘cruel and unusual punishments.’”) (emphasis added).

19 See Jones, 141 S.Ct. at 1318-19 (holding “a separate factual finding of permanent incorrigibility is not required before a sentencer imposes a life- without-parole sentence on a murderer under 18”) (emphasis added).

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(citations omitted). He insists the court’s statement at his resentencing

hearing that his “juvenile status did not come into it’s [sic] consideration

makes [his] sentence . . . illegal[.]” Id. at 25.

Although Appellant frames his issue as a challenge to the legality of his

sentence, he is, in fact, challenging the discretionary aspects of his sentence

— namely, the trial court’s purported failure to consider the mitigating factor

of his youth. See Jones, 141 S.Ct. at 1315, 1316 (explaining Miller, supra,

“repeatedly described youth as a sentencing factor akin to a mitigating

circumstance” and “did not require the sentencer to make a separate finding

of permanent incorrigibility before imposing” a sentence of life-without-parole

on a juvenile defendant). It is well-settled that before we may consider a

discretionary aspects of sentencing claim,

we must first determine whether [the defendant] has done four things: (1) filed a timely notice of appeal, see Pa.R.A.P. 902 and 903; (2) preserved the issue at sentencing or in a motion to reconsider and modify sentence, see Pa.R.Crim.P. 720; (3) included a Pa.R.A.P. 2119(f) statement in his brief; and (4) set forth a substantial question that his sentence is not appropriate under the Sentencing Code.

Commonwealth v. Lynch, 242 A.3d 339, 346 (Pa. Super. 2020), appeal

denied, 252 A.3d 1072 (Pa. 2021).

In the present case, Appellant properly filed both a timely post-sentence

motion and a timely notice of appeal. See id. Although his brief does not

include the requisite Pa.R.A.P. 2119(f) concise statement of reasons relied

upon for allowance of appeal, the Commonwealth did not object to the

omission; accordingly, we decline to find the claim waived. See

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Commonwealth v. Cramer, 195 A.3d 594, 610 n.7 (Pa. Super. 2018).

Therefore, we must determine whether Appellant has raised a substantial

question for our review.

An appellant “presents a substantial question when he sets forth a

plausible argument that the sentence violates a provision of the sentencing

code or is contrary to the fundamental norms of the sentencing process.”

Commonwealth v. Conte, 198 A.3d 1169, 1174 (Pa. Super. 2018) (citation

omitted). However, “this Court repeatedly has held that a claim of inadequate

consideration of mitigating factors does not raise a substantial question for

our review.” Commonwealth v. Crawford, 257 A.3d 75, 79 (Pa. Super.

2021) (citation omitted). See also Commonwealth v. Cruz-Centeno, 668

A.2d 536, 545 (Pa. Super. 1995) (“[A]n allegation that a sentencing court

failed to consider or did not adequately consider certain factors does not raise

a substantial question that the sentence was inappropriate.”) (citation &

quotation marks omitted). Therefore, Appellant’s claim that the trial court

failed to properly consider his youth as a mitigating factor does not present a

substantial question for our review.

Nevertheless, we note that Appellant’s claim is premised upon a

misapprehension of the trial court’s comments at the resentencing hearing.20

20 “Sentencing is a matter vested in the sound discretion of the sentencing judge” which an appellate court will not disturb “absent an abuse of discretion.” Commonwealth v. Caldwell, 117 A.3d 763, 770 (Pa. Super. 2015) (en banc) (citation omitted).

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Representing himself pro se at the hearing, Appellant argued that the trial

court should take into consideration the fact that he was a juvenile when he

committed the shooting and cited United States Supreme Court decisions

involving challenges to sentences for juvenile offenders convicted of first-

degree murder. See N.T., 4/9/18, at 21-24. He emphasized that those

decisions discussed how juvenile offenders are “highly vulnerable to peer

pressure and negative influence” but have “greater prospects for reform

making them less deserving of the most severe punishments.” Id. at 23.

In re-imposing the standard range sentence21 of 20 to 40 years’

imprisonment, the trial court “incorporate[ed] by reference the testimony

from the [October 2010] sentencing hearing which included the testimony of

the mother and impact on the victim[.]” N.T., 4/9/18, at 29. The court also

noted the victim’s injuries were “severe, numerous, and life-altering[,]”

emphasizing the sentence imposed “reflects the seriousness of the offense[,]

will promote respect for the law and provide just punishment for the offense.”

Id. Regarding Appellant’s juvenile status, the trial court commented:

[Appellant] argues that he should be treated like the juveniles who have been sentenced to life imprisonment and who are now having their sentences reviewed. [Appellant] was not sentenced on a homicide case, this was not a life sentence where [his] juvenile status would be taken into consideration. I have read [Appellant’s] document called motion for court to take judicial notice of mitigating sentencing factors. [Appellant] was, in fact, 17 years and ten months [old at the time of the crime]. He was very close to being 18 years old and . . . this was a crime ____________________________________________

21 See N.T., 10/8/10, at 46; N.T. 4/9/18, at 29.

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that [he] deliberately participated in and was the person who shot [V]ictim numerous times.

So I’m reimposing the same sentence of 20 to 40 years on the charge of attempted murder. . . .

Id. at 29-30.

Therefore, the trial court did not refuse to consider Appellant’s juvenile

status as Appellant now claims on appeal. Rather, the court rejected

Appellant’s argument that he should be treated like those juvenile offenders

who were convicted of first-degree murder and sentenced to either death or

life imprisonment without the possibility of parole. Appellant raised a similar

claim in the direct appeal from his October 2010 sentencing, which a panel of

this Court rejected. Indeed, we explained that the United States Supreme

Court decisions concerning the sentencing of juvenile offenders did not

“suggest[ ] that a . . . sentence of 20 – 40 years’ incarceration is an

inappropriate penalty for a 17 year old who formed the intent to kill, acted on

that intent, and then only fell short of committing first degree murder by the

miracle of modern medicine[.]” Willis, 470 EDA 2011 (unpub. memo. at 9).

Accordingly, Appellant’s challenge to the discretionary aspects of his sentence

fails.

(A)(5) CREDIT FOR TIME SERVED

In his final claim on direct appeal from resentencing, Appellant insists

he should receive credit for time served on house arrest pursuant to 42 Pa.C.S.

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§ 9760 (“Credit for Time Served”).22 See Appellant’s Resentencing Brief at

26. Although he acknowledges that the Pennsylvania Supreme Court, in

Commonwealth v. Kyle, 874 A.2d 12 (Pa. 2005), “excluded all forms of

house arrest from the statutory definition of custody” for purposes of time

credit, Appellant insists that “holding violates the law.” Appellant’s

Resentencing Brief at 26.

In Kyle, our Supreme Court explicitly held: “Today, we make clear that

time spent on bail release, subject to electronic monitoring, does not qualify

as custody for purposes of Section 9760 credit against a sentence of

incarceration.” Kyle, 874 A.2d at 20 (emphasis added). The Court further

explained: “Incarceration in an institutional setting is different in kind, not

in mere degree, from ‘confinement’ to the comforts of one’s home. Id. at 22.

While Appellant would have us determine that Kyle was wrongly

decided, we emphasize:

As an intermediate appellate court, we generally lack[ ] the authority to determine that [the Supreme] Court’s decisions are no longer controlling. Instead, we are duty-bound to effectuate [the Supreme] Court’s decisional law. . . .

Commonwealth v. Brensinger, 218 A.3d 440, 457 (Pa. Super. 2019) (en

banc) (citations & quotation marks omitted). See also Bell v. Willis, 80 A.3d

476, 479 (Pa. Super. 2013) (“As an intermediate appellate court, this Court is ____________________________________________

22 An “issue regarding credit for time served involves the legality of sentence[;]” therefore, “our standard of review is de novo, and our scope of review is plenary.” Commonwealth v. Nobles, 198 A.3d 1101, 1106 (Pa. Super. 2018).

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obligated to follow the precedent set down by our Supreme Court.”) (citation

omitted). Therefore, even if we agreed with Appellant’s contention — which

we do not — we would be precluded from granting relief.

(A)(6) CONCLUSION ─ RESENTENCING APPEAL

Accordingly, at Docket No. 1621 EDA 2021, we vacate the April 9, 2018,

judgment of sentence with respect to the order of restitution, and remand for

further proceedings. In all other respects, we affirm.23

III. PCRA APPEAL (DOCKET NO. 2034 EDA 2021)

At Docket No. 2034 EDA 2021, Appellant raises the following claims

concerning the trial court’s denial of his 2020 PCRA Petition:

A. Did not the [trial] court violate statutory law when it deemed Appellant’s PCRA petition untimely instead of premature, although Appellant’s judgment of sentence was not yet final, and one year had not expired as required by 42 Pa.C.S. § 9545(b)(1), (3)?

B. Did not the [trial] court err when it held that Appellant’s ineffective assistance of counsel claim, after resentencing, did not amount to a challenge to an illegal sentence where Appellant’s counsel failed to protect Appellant from an illegal sentence?

Appellant’s Brief (2034 EDA 2021) (Appellant’s PCRA Brief) at 4.24 ____________________________________________

23We decline Appellant’s request to publish the disposition of the appeal at Docket No. 1621 EDA 2021. See Appellant’s Resentencing Brief at iii-iv.

24 We have reordered Appellant’s claims for ease of disposition.

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(B)(1) PCRA REVIEW

Our review of an order denying PCRA relief is well-settled. “[W]e

examine whether the PCRA court’s determination is supported by the

record and free of legal error.” Commonwealth v. Mitchell, 141 A.3d 1277,

1283–84 (Pa. 2016) (citation and quotation marks omitted). Moreover, we

note that the statutory requirement that a PCRA petition be filed within one

year of the date the judgment of sentence becomes final is a “jurisdictional

deadline” and a PCRA court may not ignore the untimeliness of a petition to

address the merits of the issues raised therein. Commonwealth v.

Whiteman, 204 A.3d 448, 450 (Pa. Super. 2019), appeal denied, 216 A.3d

1028 (Pa. 2019). See also 42 Pa.C.S. § 9545(b)(1).

(B)(2) TIMELINESS OF PETITION

Appellant argues the PCRA court erred in dismissing his 2020 PCRA

Petition as untimely filed, rather than dismissing it as premature. Appellant’s

PCRA Brief at 13. He acknowledges that he was “statutorily barred” from filing

a timely PCRA petition following his April 2018 resentencing until that

judgment of sentence was final. See id. at 13-14. We agree.

Appellant’s original judgment of sentence was final on October 7, 2013,

the date the United States Supreme Court denied Appellant’s petition for writ

of certiorari following his direct appeal. As noted supra, he filed a timely

PCRA petition, and was granted relief in part — that is, a new sentencing

hearing. However, the court denied relief on Appellant’s remaining collateral

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claims, and this Court affirmed that ruling on appeal. See Willis, 155 EDA

2018. Therefore, for purposes of PCRA review, any trial-based claims

Appellant seeks to pursue are now untimely. See 42 Pa.C.S. § 9545(b)(1)

(any PCRA petition “shall be filed within one year of the date the judgment

becomes final”). The fact that Appellant received relief limited to resentencing

does not provide him with the opportunity to collaterally challenge his

underlying convictions for a second time. As this Court explained in

Commonwealth v. McKeever, 947 A.2d 782 (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. We reached this conclusion because the purpose of the PCRA is to prevent an unfair conviction.

Id. at 785.

However, to the extent Appellant challenges his 2018 resentencing,

he is statutorily ineligible for PCRA relief until that judgment of sentence is

final. See Commonwealth v. Smith, 244 A.3d 13 (Pa. Super. 2020) (“[A]

PCRA petition may only be filed after an appellant has waived or exhausted

his direct appeal rights.”) (citation omitted). Although we address Appellant’s

direct appeal from resentencing in this memorandum, his judgment of

sentence will not be final until “the conclusion of direct review, including

discretionary review in the Supreme Court of the United States and the

Supreme Court of Pennsylvania, or at the expiration of time for seeking the

review.” See 42 Pa.C.S. § 9545(b)(3). Thus, because this petition was filed

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while his direct appeal from resentencing is still pending, we quash this appeal

without prejudice to Appellant to file a timely PCRA petition when his direct

appeal is final, limited solely to claims related to his 2018 resentencing. See

Commonwealth v. Lesko, 15 A.3d 345, 366 (Pa. 2011) (petitioner who

received federal habeas relief on sentencing was not permitted to “revive the

claims that expired once the . . . verdict of guilt became final[;]” petitioner’s

“‘right’ to first petition PCRA review [was] necessarily confined to that part of

the final Pennsylvania judgment that was disturbed by the federal habeas

proceedings.”).

(B)(3) INEFFECTIVE ASSISTANCE OF COUNSEL CLAIM

Although Appellant concedes his PCRA petition is premature, he

nonetheless argues that the trial court erred in determining his ineffective

assistance of counsel claim — related to the failure of counsel to object to the

imposition of a 20 to 40 year sentence for attempted murder causing serious

bodily injury when he was not charged with that crime — is a “trial error,”

rather than a sentencing error. See Appellant’s PCRA Brief at 11. He

maintains that this Court’s unpublished decision in Fantauzzi25 is controlling.

Id. at 10-11. We disagree.

25 Non-precedential decisions of this Court filed after May 1, 2019, “may be cite for their persuasive value.” Pa.R.A.P. 126(1)-(2). Fantauzzi was filed on May 22, 2019.

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In Fantauzzi, the defendant was charged with, inter alia, attempted

murder following a shooting. See Fantauzzi, 19 EDA 2018 (unpub. memo.

at 1-2). Neither the criminal complaint nor the information notified the

defendant that the Commonwealth intended to prove that the victim suffered

serious bodily injury. Id. at 2. Although trial counsel entered into a stipulation

that the victim suffered serious bodily injury, the court did not instruct the

jury to render a finding on that issue, or include a relevant interrogatory on

the verdict sheet. See id. at 2-3. Following his conviction, the defendant was

sentenced to a term of 15 to 30 years’ for attempted murder causing serious

bodily injury. Id. at 3. He also received mandatory minimum sentences for

several of his other convictions. Id.

Following the United States Supreme Court’s decision in Alleyne, the

defendant sought, and was granted collateral relief in the form of a new

sentencing hearing. Fantauzzi, 19 EDA 2018 (unpub. memo. at 4). Relevant

herein, the trial court reimposed the same term of 15 to 30 years’

imprisonment for attempted murder causing serious bodily injury. Id. The

defendant subsequently filed a timely PCRA petition following the

resentencing, alleging, inter alia, that resentencing counsel was ineffective

for failing to object to the imposition of his illegal sentence for attempted

murder causing serious bodily injury. Id. at 9. The PCRA court denied relief.

On appeal, a panel of this Court concluded that the Commonwealth

failed to properly notify the defendant of its intent to prosecute him for

attempted murder with serious bodily injury, and trial counsel’s stipulation

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was insufficient to “put [the defendant] on notice . . . that he would be exposed

to an enhanced sentence[.]” See Fantauzzi, 19 EDA 2018 (unpub. memo.

at 16-17). Accordingly, the panel found:

[The defendant’s] lack of notice and resultant inability to defend is apparent on the face of the record, and resentencing counsel should have brought this illegal sentence to the attention of the resentencing court and/or objected when the resentencing court re-imposed the enhanced sentence of 15 to 30 years’ incarceration for attempted murder. Resentencing counsel had no rational basis for failing to raise a challenge to the illegal sentence, given the lack of notice. Further, resentencing counsel’s failure to object at resentencing prejudiced [the defendant], because it left [him] exposed to an enhanced maximum sentence for that offense, which he received in violation of Apprendi, supra, instead of the 20-year maximum for attempted murder generally. Thus, we conclude resentencing counsel was ineffective for failing to protect [the defendant] from the illegal sentence enhancement he received for attempted murder/serious bodily injury.

Id. at 17 (citation omitted & emphases added). Thus, this Court reversed the

order denying PCRA relief, vacated the judgment of sentence, and remanded

for resentencing without the attempted murder enhancement. See id. at 20.

Appellant fails to acknowledge that the Fantauzzi Court granted the

defendant relief based upon resentencing counsel’s ineffectiveness for

failing to object to the enhanced sentence. In the present case, Appellant

represented himself, pro se, at the April 2018 resentencing hearing. Although

he had a constitutional right to do so, when he so chooses, he cannot “revive

defaulted trial claims by alleging his own ineffectiveness[.]” See

Commonwealth v. Blakeney, 108 A.3d 739, 749 (Pa. 2014). Accordingly,

while Appellant still has the right to file a PCRA petition after his judgment of

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sentence following resentencing is final, he cannot assert his own

ineffectiveness for failing to object to the imposition of an enhanced

sentence for attempted murder causing serious bodily injury.26

(B)(4) CONCLUSION ─ PCRA APPEAL

Accordingly, we conclude the trial court had no jurisdiction to entertain

Appellant’s 2020 PCRA Petition filed while his judgment of sentence following

resentencing was not final. Thus, we quash the appeal at Docket No. 2034

EDA 2021.

At Docket No. 1621 EDA 2021, judgment of sentence vacated, in part,

and remanded for resentencing limited to restitution. Jurisdiction

relinquished.

At Docket No. 2034 EDA 2021, appeal quashed. Jurisdiction

26 Moreover, as noted above, any challenges to trial counsel’s ineffective assistance are now untimely. See Williams, 151 A.3d at 625.

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Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 1/9/2023

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