J-S50016-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    JOHN R. MAJOR, JR.                         :
                                               :
                       Appellant               :   No. 1800 WDA 2017

               Appeal from the Order Entered November 15, 2017
               In the Court of Common Pleas of Allegheny County
              Criminal Division at No(s): CP-02-CR-0005251-2011

BEFORE: BOWES, J., OTT, J., and KUNSELMAN, J.

MEMORANDUM BY OTT, J.:                               FILED OCTOBER 15, 2018

       John R. Major, Jr., pro se, appeals from the order entered November 15,

2017, denying his November 1, 2017 post-sentence motion. Major filed the

post-sentence motion from his August 25, 2017, resentencing.1 Based on the

following, we vacate the November 15, 2017 order and remand to the trial

court to treat Major’s untimely post-sentence motion, filed November 1, 2017,

as a first PCRA2 petition for collateral relief from the August 25, 2017 judgment

of sentence.


____________________________________________


1 The trial court resentenced Major to 26 to 52 years’ imprisonment, after it
granted partial relief on Major’s PCRA petition from the original sentence
entered on June 11, 2012. The court granted this partial relief in an order
dated July 17, 2017. The court denied Major’s remaining PCRA claims from
the original sentence in a separate order dated August 28, 2017. Major did
not appeal this order.

2   Post Conviction Relief Act, 42 Pa.C.S. §§ 9541–9546.
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       The parties are well acquainted with the underlying facts of this case,

and, therefore, we have no reason to restate them. See Commonwealth v.

Major, 102 A.3d 540 (Pa. Super. 2014) (unpublished memorandum)

(affirming Major’s judgment of sentence on the basis of the trial court

opinion); Trial Court Opinion, 7/15/2013, at 4-7.

       On March 6, 2012, a jury found Major guilty of: involuntary deviate

sexual intercourse (“IDSI”) with a person less than 16 years old; incest;

aggravated indecent assault with complainant less than 16 years old;

statutory sexual assault; endangering welfare of children where a parent,

guardian, or other commits the offense, charged as a felony of the third

degree; endangering welfare of children where a parent, guardian, or other

commits the offense, charged as a misdemeanor of the first degree; corruption

of minors; indecent exposure; terroristic threats causing serious public

inconvenience; indecent assault against a person less than 16 years old;

resisting arrest; simple assault; recklessly endangering another person; and

disorderly conduct engaging in fighting.3 On June 11, 2012, Major received

an aggregate sentence of 26 to 52 years of confinement.

       Major filed a direct appeal, challenging the sufficiency of the evidence

for his conviction for resisting arrest and challenging the discretionary aspects


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3 18 Pa.C.S. §§ 3123(a)(7), 4302, 3125(a)(8), 3122.1, 4304(a)(1) [F3],
4304(a)(1) [M1], 6301(a)(1), 3127(a), 2706(a)(3), 3126(a)(8), 5104,
2701(a)(3), 2705, and 5503(a)(1), respectively.


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of his sentences for incest and simple assault.      This Court affirmed the

judgment of sentence on April 23, 2014. Major, 102 A.3d 540. Major did not

file a petition for allowance of appeal to the Supreme Court of Pennsylvania.

       On April 3, 2015, Major filed pro se a timely PCRA petition. On April 8,

2015, the PCRA court appointed counsel to represent Major and ordered

counsel to file an amended PCRA petition. On January 20, 2016, PCRA counsel

filed an amended PCRA petition, contending that Major’s sentence for IDSI

was illegal because it included an unconstitutional mandatory minimum

sentence. On February 4, 2016, Major filed a pro se motion for removal of

counsel. On September 30, 2016, the PCRA court held a Grazier4 hearing

and granted Major’s request to represent himself. The PCRA court ordered

Major to file a second amended PCRA petition, and Major complied on

February 8, 2017.

       By order dated July 14, 2017, and entered July 17, 2017, the PCRA court

granted PCRA relief in the form of a resentencing hearing, and notified Major

pursuant to Pa.R.Crim.P. 907 of its intent to dismiss Major’s remaining PCRA

claims without a hearing (“July 17th Order”). On August 2, 2017, Major filed

objections to the PCRA court’s Rule 907 notice.




____________________________________________


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




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       On August 24 and 25, 2017, the trial court held a resentencing hearing.5

During the hearing, upon questioning by the trial court, Major reaffirmed he

was waiving court-appointed counsel to represent him and also waiving

standby counsel to assist him. See N.T. 8/24-25/2017, at 3-4; 122-123.

       On August 25, 2017, the trial court resentenced Major to 26 to 52 years

of confinement. At the resentencing hearing, the trial court advised Major

that “you do have, once again, your post-sentence and appellate rights.” Id.

at 154. The trial judge asked Major if he would like her to review those rights,

or whether he recalled them from before. Major replied he did recall them

from before. The trial judge asked again, because Major was unrepresented,

was he certain he did not want her to review them with him. Major answered

he was aware of what they were. See id. at 154-155. See also id. at 164.

Additionally, the trial judge reminded Major that those rights “are contained

within the transcript of the original sentence, which you have.” Id. at 155.

       By order dated August 25, 2017, and entered August 28, 2017, the

PCRA court dismissed the remaining PCRA claims (“August 28th Order”). The

August 28th Order advised Major he had the right to appeal the dismissal of

the PCRA order within 30 days of the date of the order.


____________________________________________


5 We note that sentencing “is a trial function, not a collateral proceeding
function.” Commonwealth v. Gaines, 127 A.3d 15, 17 (Pa. Super. 2015)
(en banc) (plurality).




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       Thereafter, on November 1, 2017, Major filed a post-sentence motion.6

In the post-sentence motion, Major contended the trial court showed bias

toward him by issuing an unreasonable and excessive sentence, and the trial

court erred in resentencing him to registration under Megan’s Law III. See

Major’s Post-Sentence Motion, 11/1/2017.         By order dated November 13,

2017, and entered November 15, 2017, the trial court denied the post-

sentence motion. On November 30, 2017, Major filed this appeal.7,       8



       Preliminarily, it is important to point out the hybrid nature of the claims

raised in this appeal. In this appeal, Major raises both sentencing and PCRA

claims, as follows:

       I.    Did the prosecution in this case engage[] in systematic
       prosecutorial misconduct that violated [Major]’s Fifth and
       Fourteenth Amendments of the United States Constitution, in
____________________________________________


6  The filing was entitled “Amended Post-Sentence Motions in Accordance with
Pa.R.Crim.P. Rule 720(b).” However, no prior post-sentence motion is
entered on the docket and this Court’s Prothonotary confirmed with the
Allegheny County Clerk of Courts that no post-sentence motion was filed prior
to this “amended” one. Therefore, despite its title, this filing constitutes the
first and only post-sentence motion following Major’s resentencing.
Additionally, we note that while the post-sentence motion was entered on the
docket and timestamped on November 1, 2017, the handwritten date on the
accompanying certificate of service is October 29, 2017.
7 The notice of appeal was docketed November 30, 2017; the proof of service
for the notice of appeal was hand-dated November 22, 2017.

8  On November 30, 2017, the trial court ordered Major to file a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b)
within 21 days of the date of the order, and Major complied on December 19,
2017.




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       which its sole purpose was to deny [Major] due process and a fair
       trial? [9]

       II.    Was trial counsel in this case ineffective for refusing to
       provide an adequate defense that violate[d] the Cronic[10]
       standard for effective assistance of counsel, as counsel failed to
       function in any meaningful sense as the government’s adversary
       and that there was a breakdown of the adversarial process during
       trial?

       III. Was trial counsel ineffective due to an actual conflict of
       interest that led to an obvious lack of advocacy as [Major]’s co-
       counsel represented a key prosecution witness in a prior
       proceeding that was directly related to [Major]’s criminal case?

       IV.   Was trial counsel ineffective for failing to investigate,
       interview and call character and fact witnesses at trial?

       V.   Did the trial court show bias and prejudice at trial,
       sentencing and resentencing when it sentenced [Major] to a
       sentence that was unreasonable, excessive, violated the Eighth
       Amendment prohibition against cruel and unusual punishment,
       and was tantamount to a life sentence?

       VI.   Did the trial court err[] when it resentenced [Major] to
       Megan’s Law III after Megan’s Law III and SORNA were deemed
       to be unconstitutional?

Major’s Brief at 4.

       Based on our review of the record in this case, we conclude the trial

court improperly denied Major’s post-sentence motion, as the trial court

should have treated the motion as a timely, first PCRA petition for collateral


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9  We note Major could have challenged alleged prosecutorial misconduct in
his direct appeal, but he failed to do so. See 42 Pa.C.S. § 9544(b) (“For
purposes of [the PCRA], an issue is waived if the petitioner could have raised
it but failed to do so before trial, at trial, during unitary review, on appeal or
in a prior state postconviction proceeding.”).
10   United States v. Cronic, 466 U.S. 648 (1984).


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relief from the August 25, 2017 resentencing. We further conclude Major’s

non-sentencing/PCRA claims are not properly before us in this appeal.

       As discussed above, on August 25, 2017, the trial court held a

resentencing hearing and resentenced Major. That same day, the trial court

also entered a written sentencing order. However, Major did not file a post-

sentence motion until November 1, 2017 (or October 29, 2017, giving Major

the benefit of the handwritten date on the accompanying certificate of

service).

       Our Rules of Criminal Procedure require that “[a] written post-sentence

motion shall be filed no later than 10 days after imposition of sentence.”

Pa.R.Crim.P. 720(A)(1). As such, Major’s post-sentence motion was due by

September 5, 2017.11 Consequently, his November 1, 2017, post-sentence

motion was untimely by almost two months.12

       Major, however, states in the post-sentence motion that his motion is

timely filed because he was not transferred back to SCI-Greene until October

2, 2017, and he did not receive the sentencing transcript until October 23,

2017. We find, however, that this argument is unavailing since the record




____________________________________________


11Ten days after August 25, 2017 was September 4, 2017, which was Labor
Day. The next business day was September 5, 2017. See 1 Pa.C.S. § 1908.
12 Neither the trial court nor the Commonwealth addressed the untimeliness
of Major’s post-sentence motion.



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evidences no request by Major for any extension of time to file a post-sentence

motion when he was returned to SCI – Greene.13

       Because Major’s post-sentence motion was untimely, his motion should

have been treated as a PCRA petition. In Commonwealth v. Jackson, 30

A.3d 516 (Pa. Super. 2011), this Court stated “the PCRA is the ‘sole means of

obtaining collateral relief and encompasses all other common law and

statutory remedies for the same purpose[.]’” Id. at 518, quoting 42 Pa.C.S.

§ 9542. Further, this Court reiterated well-settled law that “any petition [or

motion] filed after the judgment of sentence becomes final will be treated as

a PCRA petition.” Id. at 521, quoting Commonwealth v. Johnson, 803 A.2d

1291, 1293 (Pa. Super. 2002).14

____________________________________________


13 At the August 24-25, 2017 sentencing hearing, the trial judge twice offered
to review Major’s post-sentence and appellate rights, and Major told the trial
judge he was aware of his rights. See N.T., 8/24-25/2017, at 154-155. Later
in the hearing, Major requested the trial judge to order copies of transcripts
of the resentencing proceeding and the September 30, 2016 Grazier hearing
for him, as he was indigent. The trial judge granted that request. See id. at
163-164. The trial judge then asked Major, “Again, you understand you post-
sentence and appellate rights?” and Major responded “Yes, Your Honor.” Id.
Major also asked the trial judge to issue a transportation order to return him
to SCI-Greene. Major stated, “I have to start on, obviously, my appellate
procedures, and I cannot do so from here, and I only have a limited amount
of time to do so.” Id. at 165. The trial judge granted Major’s request for a
transportation order but advised Major, “when they transport I can’t promise.”
Id. As stated above, Major made no request for an extension of time to file
a post-sentence motion following the resentencing hearing.


14 See also Commonwealth v. Taylor, 65 A.3d 462 (Pa. Super. 2013)
(indicating the court erred in treating the appellant’s habeas corpus motion as



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        Here, Major was resentenced on August 25, 2017, and his judgment of

sentence became final 30 days later when the time for filing an appeal to this

Court expired. See Pa.R.A.P. 903(a); 42 Pa.C.S. § 9545(b)(3). Therefore,

his judgment of sentence became final on Monday, September 25, 2017.15

Because Major’s motion was filed within one year of the date the judgment of

sentence became final, it should have been treated as a timely, first PCRA

petition for collateral relief from the August 25, 2017 resentencing.

        Moreover, because Major’s pro se motion was the first request for PCRA

relief following his resentencing, he is entitled to appointment of counsel. See

Commonwealth v. Evans, 866 A.2d 442, 446 (Pa. Super. 2005) (“[A]n

indigent petitioner seeking relief under the PCRA is entitled to the mandatory

appointment of counsel. While this entitlement may be waived, petitioner may

do so only after addressing his entitlement to appointed counsel with the PCRA

court.”).

        Finally, we address the PCRA issues raised in this appeal. In this regard,

it bears emphasis that a “PCRA court’s order granting relief with regard to

sentencing and denying all other claims [is] a final appealable order” even if


____________________________________________


a motion to modify sentence under Pa.R.Crim.P. 720 rather than a PCRA
petition); Commonwealth v. Grafton, 928 A.2d 1112 (Pa. Super. 2007)
(treating motion to modify sentence under extraordinary circumstances as a
PCRA petition); Commonwealth v. Kutnyak, 781 A.2d 1259, 1261 (Pa.
Super. 2001) (treating pro se motion as post-conviction relief petition
“regardless of the manner in which the petition is titled”).

15   See 1 Pa.C.S. § 1908.

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resentencing has not yet occurred.    Commonwealth v. Grove, 170 A.3d

1127, 1138 (Pa. Super. 2017), appeal denied, 185 A.3d 967 (Pa. 2018).

      Here, there were two separate PCRA orders, one granting PCRA relief as

to sentencing (July 17th Order), and one denying relief on the remaining PCRA

claims (August 28th Order). As such, all of the requirements for a final

appealable order according to Grove were fulfilled when the PCRA court

entered the August 28th Order, which disposed of all the remaining claims in

Major’s PCRA petition. Moreover, resentencing had occurred by the time the

August 28th Order was entered by the PCRA court.

      As mentioned above, the August 28th Order advised Major he had 30

days within which to file an appeal. Major did not appeal this order. As such,

any non-sentencing/PCRA issues related to the August 28th Order have been

waived. The only viable issues are sentencing issues related to the August

25, 2017 resentencing which, as we have explained, are subject to the PCRA.

      Accordingly, we vacate the order denying Major’s post-sentence motion

and remand for the appointment of counsel (should Major desire) and further

proceedings under the PCRA consistent with this memorandum.

      Order vacated. Case remanded. Jurisdiction relinquished.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/15/2018




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