J-S37003-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

CLARENCE JOHNSON

                            Appellant                  No. 2306 EDA 2014


            Appeal from the Judgment of Sentence March 10, 2014
             In the Court of Common Pleas of Philadelphia County
             Criminal Division at No(s): CP-51-CR-1103371-1988


BEFORE: GANTMAN, P.J., SHOGAN, J., and LAZARUS, J.

MEMORANDUM BY GANTMAN, P.J.:                            FILED JUNE 16, 2015

        Appellant, Clarence Johnson, appeals from the judgment of sentence

entered in the Philadelphia County Court of Common Pleas, following remand

from the federal court with instructions to vacate only his conviction and

sentence for corrupt organizations. We dismiss the appeal.

        The relevant facts and procedural history of this case are as follows.

On May 25, 1990, a jury convicted Appellant of first-degree murder, corrupt

organizations, and conspiracy,1 in connection with the shooting death of

Victim in retaliation for Victim’s robbery of a gambling operation run by

Appellant’s co-defendant.         The court sentenced Appellant on March 22,

1991, to life imprisonment for murder, and five (5) to ten (10) years’
____________________________________________


1
    18 Pa.C.S.A. §§ 2502(a); 911; 903, respectively.
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imprisonment for each of the remaining convictions, concurrent to each

other but consecutive to the murder sentence. On October 22, 1992, this

Court affirmed the judgment of sentence, and our Supreme Court denied

allowance of appeal on March 3, 1993. See Commonwealth v. Johnson,

615 A.2d 1322 (Pa.Super. 1992), appeal denied, 533 Pa. 657, 625 A.2d

1191 (1993).       Thereafter, Appellant unsuccessfully litigated two post-

conviction collateral relief petitions in state court.

      In 1999, Appellant filed a petition for writ of habeas corpus in federal

court, which the court denied on February 16, 2000. On October 3, 2006,

Appellant filed another petition for writ of habeas corpus in federal court,

claiming his conviction and sentence for corrupt organizations were unlawful,

based on the Supreme Court’s decision in Commonwealth v. Besch, 544

Pa. 1, 674 A.2d 655 (1996) (holding corrupt organizations statute does not

encompass prosecution of wholly illegitimate enterprise), superseded by

statute at 18 Pa.C.S.A. § 911(h)(3) (as amended June 19, 1996).           The

federal district court initially dismissed the petition as successive; but on

December 1, 2010, the Third Circuit reversed and remanded, permitting

Appellant to file the second habeas corpus petition based on his claim under

Besch.    See Johnson v. Wynder, 408 Fed.Appx. 616 (3d Cir. 2010).

Appellant subsequently filed an amended and supplemental amended

petition in federal court. On November 12, 2013, the federal district court

granted habeas corpus relief with respect to only Appellant’s claim that his


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conviction for corrupt organizations was unlawful. The federal court stayed

execution of the writ for 180 days to permit the Commonwealth of

Pennsylvania to vacate Appellant’s corrupt organizations conviction and to

resentence him accordingly. The federal court denied habeas corpus relief in

all other respects. See Johnson v. Wingard, 2013 WL 5988918 (E.D.Pa.

November 12, 2013) (slip copy).

      On March 10, 2014, in accordance with the federal court’s directive,

the trial court vacated only Appellant’s conviction and sentence for corrupt

organizations.    The trial court did not alter Appellant’s convictions or

sentences for murder or conspiracy. On March 18, 2014, Appellant filed a

post-sentence motion, which the court denied by operation of law on July

17, 2014. Appellant timely filed a notice of appeal on July 29, 2014. On

August 4, 2014, the court ordered Appellant to file a concise statement of

errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).        Appellant

timely filed his Rule 1925(b) statement on August 15, 2014.

      Appellant raises one issue for our review:

         WAS THE CONSECUTIVE SENTENCE IMPOSED BY THE
         TRIAL COURT ON THE CONSPIRACY OFFENSE UNJUST,
         IMPROPER, MANIFESTLY UNREASONABLE, IRRATIONAL,
         AND AN ABUSE OF DISCRETION WHEN THE TRIAL COURT
         IMPOSED A CONSECUTIVE PRISON SENTENCE FOR THE
         CONSPIRACY OFFENSE TO A SENTENCE FOR THE OFFENSE
         OF FIRST DEGREE MURDER WHICH REQUIRED THE
         IMPOSITION OF A LIFE SENTENCE WITHOUT PAROLE?

(Appellant’s Brief at 2).

      Preliminarily, we observe that a limited grant of relief for resentencing

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does not entitle a defendant to litigate on appeal claims unrelated to the

resentencing.    See Commonwealth v. Anderson, 801 A.2d 1264, 1266

(Pa.Super. 2002) (stating “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”; dismissing appeal following remand

for resentencing where appellant raised new issues on appeal challenging his

conviction).    In Commonwealth v. McKeever, 947 A.2d 782 (Pa.Super.

2008), this Court explained:

         Although [a]ppellant successfully challenged his corrupt
         organizations convictions and sentences…in federal court,
         the remainder of his convictions, each having a distinct
         sentence, were not disturbed by the Eastern District
         Court’s grant of habeas corpus relief or by the trial court
         when it vacated the corrupt organizations sentences in its
         resentencing order. Further, while it is correct that
         [a]ppellant had an absolute constitutional right to
         appeal his judgment of sentence entered after the
         Eastern District Court’s grant of habeas corpus
         relief…in that direct appeal, he was permitted to
         raise issues pertaining only to the resentencing
         procedure itself; his underlying claims of trial court error
         regarding his non-vacated convictions could not be
         addressed on direct appeal from re-sentencing.

Id. at 785-86 (internal footnote and citation omitted) (emphasis added)

(holding appellant’s non-vacated sentences became final on October 2,

1995, when appellant discontinued his direct appeal; federal court’s

subsequent grant of limited habeas corpus relief did not “reset clock” of

finality of non-vacated sentences).


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        Instantly, the federal district court granted Appellant limited habeas

corpus relief on November 12, 2013, and directed the trial court to vacate

only Appellant’s conviction and sentence for corrupt organizations.             The

federal district court denied habeas corpus relief in all other respects.        In

accordance with the federal court’s directive, on March 10, 2014, the trial

court    vacated   only    Appellant’s   conviction   and   sentence   for   corrupt

organizations.     The trial court did not disturb Appellant’s convictions or

sentences for murder or conspiracy. Nevertheless, Appellant complains on

appeal that the trial court’s imposition of a consecutive sentence for

conspiracy was unjust, improper, manifestly unreasonable, irrational, and an

abuse of discretion. Because the trial court did not resentence Appellant on

his conspiracy conviction following the federal court’s remand, Appellant is

precluded from challenging his conspiracy sentence in this appeal.              See

McKeever, supra.          Accordingly, we dismiss the appeal.     See Anderson,

supra.

        Appeal dismissed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/16/2015




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