J-S38036-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                      v.

ERIC TORRES

                             Appellant                No. 1998 EDA 2016


                   Appeal from the PCRA Order May 31, 2016
     in the Court of Common Pleas of Philadelphia County Criminal Division
                       at No(s):CP-51-CR-0015063-2010

BEFORE: GANTMAN, P.J., SHOGAN, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.:                       FILED AUGUST 09, 2017

        Appellant, Eric Torres, appeals from the order of the Philadelphia

County Court of Common Pleas, dismissing his first Post Conviction Relief

Act1 (“PCRA”) petition.      Appellant alleges ineffective assistance of plea

counsel.    For the reasons that follow, we decline to address the merits of

Appellant’s PCRA claim, but are constrained to vacate the PCRA court’s order

and remand for resentencing.

        On October 26, 2011, Appellant signed a written guilty plea colloquy,

which indicated he was pleading guilty to two counts of simple assault,2




*
    Former Justice specially assigned to the Superior Court.
1
    42 Pa.C.S. §§ 9541-9546.
2
    18 Pa.C.S. § 2701(a)(1) and (3).
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graded as second-degree misdemeanors, and one count each of burglary,3 a

first-degree felony, and indecent assault―forcible compulsion,4 a first-

degree misdemeanor.         Written Guilty Plea Colloquy, 10/26/11, at 1.   The

written colloquy stated that the aggregate recommended sentence was 7½

to 15 years’ imprisonment, followed by 5 years’ probation. Id.

        That same day, Appellant appeared before the trial court, and the

following colloquy occurred:

           THE COURT: Has anyone forced or threatened you to plead
           guilty today?

           [APPELLANT]: No.

           THE COURT: Are you currently under the influence of any
           drugs or alcohol as I talk to you today?

           [APPELLANT]: No.

           THE COURT: And are you currently under the care of a
           psychiatrist or psychologist as I talk to you today?

           [APPELLANT]: No.

3
    18 Pa.C.S. § 3502(a).
4
  18 Pa.C.S. § 3126(a)(2). At the time of Appellant’s plea, a conviction for
indecent assault graded as a first-degree misdemeanor was automatically
subject to a ten-year registration period.       See 42 Pa.C.S. § 9795.1
(expired). Indecent assault under Subsection(a)(2) currently constitutes an
offense subject to a twenty-five year registration period. See 42 Pa.C.S. §
9799.14(c)(1.3).

      It is not clear from the record whether Appellant was previously
convicted of a sexually violent offense as would trigger an automatic lifetime
registration requirement. The Commonwealth, however, nol prossed a
charge of attempted rape, which carried a lifetime registration requirement
under the former and current law.



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         THE COURT: I have in front of me a written guilty plea
         colloquy. Have you viewed this document with your
         attorney?

         [APPELLANT]: Yes.

         THE COURT: Have you understood everything contained in
         the document?

         [APPELLANT]: Yes.

N.T. Guilty Plea/Sentencing, 10/26/11, at 4-5.     The trial court accepted

Appellant’s guilty plea.

      The matter immediately proceeded to a sentencing hearing:

         THE COURT: All right. I think Counsel and I have agreed
         that we’d go to sentencing today, at least.

         [PLEA COUNSEL]: Yes, ma’am, Your Honor. Your Honor,
         there is a negotiation by and between counsel on this
         matter of seven and a half to 15 years incarceration, which
         we would ask Your Honor to impose today. There’s an
         additional five-year probation tail on the indecent assault
         charge, however we must defer that sentencing until the
         Megan’s Law assessment can be completed. So we’ll need
         a 90-day date for that.

                                 *    *    *

         THE COURT: All right. I will—on the case that he just
         plead guilty on today, I will accept the recommended
         sentence of both Counsel and I’ll sentence you to seven
         and a half to 15 years incarceration.




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Id. at 9-10.5    The Commonwealth represented that it would submit a

proposed order directing Appellant undergo a sexual offender assessment.

Id. at 12-13.    Plea counsel advised Appellant of his rights to file a post-

sentence motion and direct appeal.

      The trial court thereafter entered a sentencing order imposing “a

Minimum Term of 7 years and 15 months and a Maximum Term of 15

years” on each count, including the first-degree felony burglary, the two

second-degree     misdemeanor     simple   assaults   and   the   first-degree

misdemeanor indecent assault. Guilty Plea Sentencing Order, 10/26/11, at

1 (emphasis added). The order further stated “Probation tail to be deferred

(02/07/12-90 days); awaiting Megans Law assessment.” Id. at 2. Neither

Appellant nor the Commonwealth filed post-sentence motions or took a

direct appeal.   The record does not include an order directing a sexual

offender assessment or indicate that Appellant underwent an assessment.

      The October 26, 2011 sentencing order was docketed as “penalty

assessed,” but indicated that the case was “held” and “list[ed] for jury trial

12/12/11.” Docket Entry Nos. 45 & 46. Thereafter, the docket contained

numerous entries stating that the case was “listed in error.” Id. at Nos. 47-

52.   Beginning on August 7, 2012, the docket contains various entries

indicating that the case “was incorrectly listed as ‘disposed’ per [the

5
  Appellant was also sentenced to a concurrent eleven and one half to
twenty three months’ imprisonment, plus two years’ imprisonment on an
unrelated offense. N.T. at 10-11.



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Commonwealth]. Added to list as a sentence deferred at her request . . . .”

Id. at Nos. 53-62

       Meanwhile, on October 24, 2012, Appellant filed a pro se PCRA

petition. Beginning in March 2013, the docket indicates that sentencing was

continued due to plea counsel’s unavailability.    Id. at Nos. 79-82.     On

December 10, 2013, the PCRA court appointed PCRA counsel, who filed an

amended PCRA petition on September 22, 2014, alleging plea counsel

caused Appellant to enter an invalid plea by promising him a more lenient

sentence.   On June 26, 2016, the docket indicated that sentencing was

“cancelled.” Id. at No. 97. Thereafter, the Commonwealth filed a motion to

dismiss Appellant’s PCRA petition. The PCRA court issued notice of its intent

to dismiss Appellant’s petition without a hearing pursuant to Pa.R.Crim.P.

907.   The PCRA court dismissed Appellant’s petition on May 31, 2016.6

Appellant timely filed a notice of appeal on June 29, 2016.    The presiding

judge did not order a Pa.R.A.P. 1925(b) statement and retired before filing a

Pa.R.A.P. 1925(a) opinion.




6
  A review of the docket reveals that the PCRA court initially dismissed
Appellant’s petition on April 28, 2016, prior to issuing Rule 907 notice.
However, the PCRA court subsequently issued Rule 907 notice and then
formally dismissed Appellant’s petition.




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      Preliminarily, we are constrained to observe that the October 26, 2011

sentencing order is illegal for several reasons.7 Initially, the order contains

obvious transcription errors resulting in the imposition of sentences of 7

years and 15 months (i.e., 8 years and 3 months) to 15 years’ imprisonment

on all charges, including the misdemeanors.      This violates the “minimum-

maximum” rule, see 42 Pa.C.S. § 9756(b) (requiring the minimum sentence

to not exceed one-half of the maximum sentence), and exceeds the lawful

maximum sentences for the misdemeanor offenses. See 18 Pa.C.S. § 1104.

      Moreover, the October 26, 2011 order is defective because it

purported to defer imposition of the 5-year probationary tail based on the

apparent agreement of the parties. See e.g. Commonwealth v. Mariani,

869 A.2d 484, 487 (Pa. Super. 2005) (noting “an order of restitution to be

determined later is ipso facto illegal”); see also 42 Pa.C.S. §§ 5505, 9721;

Pa.R.A.P. 903(c)(3) (“In a criminal case in which no post-sentence motion

has been filed, the notice of appeal shall be filed within 30 days of the

imposition of the judgment of sentence in open court.”). Similarly, the trial

court must generally order a sexual offender assessment              prior to

sentencing.     See Commonwealth v. Baird, 856 A.2d 114, 118 (Pa.

Super. 2004) (discussing former version of 42 Pa.C.S. § 9795.4(e)(3) and

holding “the procedure of reaching a determination of whether one is an

7
  Issues regarding legality of sentence may be raised by this Court sua
sponte. See Commonwealth v. Watley, 81 A.3d 108, 118 (Pa. Super.
2013).



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offender or an SVP, as outlined in Megan’s Law, must necessarily precede

sentencing”); see also 42 Pa.C.S. § 9799.24(a), (e)(3) (eff. Dec. 20, 2012).

      Therefore, it is apparent that the October 26, 2011 sentencing order

must be vacated as illegal.      Accordingly, we vacate the order denying

Appellant’s PCRA petition, vacate the October 26, 2011 sentencing order,

and remand this matter for resentencing. On remand, Appellant may file a

motion to withdraw his plea, or the parties may seek to renegotiate the

terms of the plea agreement.        If the trial court denies the request to

withdraw the plea, or accepts the renegotiated terms of the plea agreement,

the trial court shall order a sexual offender assessment prior to sentencing.

Upon sentencing, the trial court shall order all credit due. The parties shall

have the right to file post-sentence motions and take a direct appeal from

the judgment of sentence.

      Order vacated. October 26, 2011 order vacated. Case remanded with

instructions. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 8/9/2017




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