J-S06013-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA            :   IN THE SUPERIOR COURT OF
                                         :        PENNSYLVANIA
                                         :
              v.                         :
                                         :
                                         :
 NAFEES MATHIS                           :
                                         :
                   Appellant             :   No. 571 EDA 2019

       Appeal from the Judgment of Sentence Entered July 15, 2014
 In the Court of Common Pleas of Philadelphia County Criminal Division at
                     No(s): CP-51-CR-0007947-2012

                                   *****

 COMMONWEALTH OF PENNSYLVANIA            :   IN THE SUPERIOR COURT OF
                                         :        PENNSYLVANIA
                                         :
              v.                         :
                                         :
                                         :
 NAFEES MATHIS                           :
                                         :
                   Appellant             :   No. 572 EDA 2019

       Appeal from the Judgment of Sentence Entered July 15, 2014
 In the Court of Common Pleas of Philadelphia County Criminal Division at
                     No(s): CP-51-CR-0007949-2012


BEFORE: LAZARUS, J., McLAUGHLIN, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY LAZARUS, J.:                         FILED MARCH 03, 2020

     Nafees Mathis appeals from his judgment of sentence, entered in the

Court of Common Pleas of Philadelphia County, after he entered an open guilty

plea to two counts of attempted murder, two counts of conspiracy to commit
J-S06013-20



murder, and three violations of the Uniform Firearms Act.1 Because Mathis

was illegally sentenced, we vacate the judgment of sentence and remand for

resentencing.

        On April 9, 2012, while on probation, Mathis shot Paris Coleman six

times in the arm, leg and torso.          Mathis also shot an innocent bystander,

Asiyah Devine. When police apprehended Mathis in his home on April 26,

2012, he was found to be in possession of a firearm, which he was ineligible

to possess. Mathis ultimately pled guilty to the above charges and, on July

15, 2014, the trial court sentenced him to the following: for attempted murder

as to Coleman (“Attempted Murder Count 1”), 10 to 20 years’ imprisonment;

for conspiracy to commit murder as to Coleman, 10 to 20 years’ imprisonment,

to run concurrently with the Attempted Murder Count 1 sentence; for

attempted murder as to Asiyah Devine (“Attempted Murder Count 2”), 10 to

20 years’ imprisonment, to run consecutively to the Attempted Murder Count

1 sentence; for conspiracy to commit murder as to Asiyah Devine, 10 to 20

years’ imprisonment, to run consecutively to the Attempted Murder Count 2

sentence; and for three firearms violations, an aggregate term of 11 to 22

years’ imprisonment, to run concurrently to the Attempted Murder Count 2

sentence.    Mathis sought reconsideration of his sentence, which the court

denied. He did not file a direct appeal.




____________________________________________


1   18 Pa.C.S.A. §§ 6101-6128.

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       On June 21, 2015, Mathis filed a petition pursuant to the Post Conviction

Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546, asserting that his counsel

failed to file a direct appeal despite his request to do so. After a hearing, the

PCRA court reinstated Mathis’ direct appellate rights. This appeal follows, in

which Mathis challenges the legality and discretionary aspects of his sentence.

       Mathis claims that the trial court imposed an illegal sentence when it

sentenced him on both conspiracy to commit murder and attempted murder.

In its Pa.R.A.P. 1925(a) opinion, the trial court agreed, and recommended we

remand for resentencing.2 The Commonwealth also concedes the illegality of

Mathis’ sentence. We concur that Mathis was illegally sentenced.

       Section 906 of the Crimes Code provides that “[a] person may not be

convicted of more than one of the inchoate crimes of criminal attempt, criminal

solicitation or criminal conspiracy for conduct designed to commit or to

culminate in the commission of the same crime.” 18 Pa.C.S.A. § 906. In this

context, “[w]hen the law speaks of a ‘conviction,’ it means a judgment, and

not merely a verdict, which in common parlance is called a conviction.”

Commonwealth v. Maguire, 452 A.2d 1047, 1049 (Pa. Super. 1982). When

a defendant is convicted of more than one inchoate crime, section 906 requires

that the court render a judgment of sentence for no more than one of those

crimes. See id. at 1050. “[I]nchoate crimes merge only when directed to the

____________________________________________


2 The Honorable Earl W. Trent originally imposed Mathis’ sentence. He has
since retired and the case was reassigned to the Honorable Genece Brinkley,
who issued the instant opinion recommending remand for resentencing.

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commission of the same crime, not merely because they arise out of the same

incident.”   Commonwealth v. Graves, 508 A.2d 1198, 1198 (Pa. 1986).

Section 906 “is designed to eliminate multiple . . . judgments of sentence for

conduct which constitutes preparation for a single criminal objective.”

Commonwealth v. Grekis, 601 A.2d 1284, 1295 (Pa. Super. 1992). But

see Commonwealth v. Jacobs, 39 A.3d 977 (Pa. 2012) (holding sentences

for attempt to escape and conspiracy to commit escape from prison did not

merge under section 906, where conspiracy conviction based on joint escape

plan, while attempt to escape conviction involved several distinct escape

attempts).

      “[W]here the trial court has erroneously . . . sentenced an appellant for

two inchoate crimes, the remedy has been either to amend the sentence . . .

or to remand for resentencing for either one or the other.” Maguire, 452

A.2d at 1050. See also In Interest of Mark C., 489 A.2d 887 (Pa. Super.

1985) (when trial court errs by sentencing appellant on both inchoate crimes,

appellate court has option either to remand for resentencing or to amend

sentence directly); Commonwealth v. Watts, 465 A.2d 1267 (Pa. Super.

1983) (vacating appellant’s judgment of sentence for one inchoate crime and

affirming judgment of sentence for other crime, where trial court imposed

concurrent sentences on each conviction).

      Here, the offenses of attempted murder and conspiracy to commit

murder were directed toward one objective—the (attempted) killing of the

victims. See 18 Pa.C.S.A. § 906. Despite this fact, the trial court sentenced

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Mathis on both attempted murder and conspiracy to commit murder as to each

victim.   As such, Mathis’ judgment of sentence is illegal.            See Maguire,

supra; 18 Pa.C.S.A. § 906. Accordingly, we vacate the judgment of sentence

in its entirety and remand for resentencing.                See Commonwealth v.

Bartrug, 732 A.2d 1287 (Pa. Super. 1999) (sentencing error on one count in

multi-count case generally requires all sentences for all counts to be vacated

so   court    can    restructure     entire    sentencing   scheme).      See   also

Commonwealth v. Goldhammer, 517 A.2d 1280, 1283 (Pa. 1986) (stating

generally if appellate court alters overall sentencing scheme, remand for re-

sentencing is proper).

       Judgment of sentence vacated; case remanded for resentencing in

accordance with the dictates of this memorandum. Jurisdiction relinquished.3

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/3/20




____________________________________________


3 Because we vacate Mathis’ judgment of sentence, we need not address his
claim regarding the discretionary aspects of his sentence.

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