J. A27006/14

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA           :     IN THE SUPERIOR COURT OF
                                       :           PENNSYLVANIA
                     v.                :
                                       :
KENNETH JACKSON,                       :        No. 1785 WDA 2012
                                       :
                          Appellant    :


            Appeal from the Order Entered February 27, 2012,
            in the Court of Common Pleas of Allegheny County
             Criminal Division at No. CP-02-CR-0002589-2002


BEFORE: FORD ELLIOTT, P.J.E., SHOGAN AND MUSMANNO, JJ.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:             FILED JANUARY 09, 2015

     Appellant appeals from the order entered pursuant to a petition

brought under the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A.

§§ 9541-9546. Finding no error, we affirm.

     Preliminarily, we observe that the PCRA court vacated appellant’s

original sentence and then re-imposed an identical sentence.     Appellant

treats this appeal as direct from a new judgment of sentence. We do not

regard it as such.    The court’s purpose in entering the new sentence was

simply to make an administrative correction to the original sentence which

had transposed the criminal information count numbers for one count of

forgery and one count of theft by deception.1 We note that the trial court


1
 The transposition and its correction upon collateral review were of no
moment because identical sentences were imposed at each count.
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may always correct obvious errors in its sentence, even after the statutorily

imposed 30-day modification limit has expired:

                  Trial courts have the power to alter or modify a
           criminal sentence within thirty days after entry, if no
           appeal is taken.           42 Pa.C.S.A. § 5505;
           Commonwealth v. Quinlan, 433 Pa.Super. 111,
           639 A.2d 1235, 1238 (1994). Generally, once the
           thirty-day period is over, the trial court loses the
           power to alter its orders. Quinlan, 639 A.2d at
           1238. When an appeal is taken, the trial court has
           no jurisdiction to modify its sentence. Id. We note,
           however, that the time constraint imposed by section
           5505 does not affect the inherent powers of the
           court to modify a sentence in order to “amend
           records, to correct mistakes of court officers or
           counsel’s inadvertencies, or to supply defects or
           omissions in the record . . . .”       Id., at 1239.
           Therefore, where the mistake is patent and obvious,
           the court has the power to correct it even though the
           30-day appeal period has expired. Commonwealth
           v. Rohrer, 719 A.2d 1078, 1080 (Pa.Super.1998).

Commonwealth v. Walters, 814 A.2d 253, 255-256 (Pa.Super. 2002),

appeal denied, 831 A.2d 599 (Pa. 2003).

     Thus, the “new” sentence was merely a ministerial correction of an

obvious error in the original sentence.   By simply correcting the sentence

and taking no further action, the PCRA court effectively denied all of

appellant’s PCRA claims.    Consequently, we regard this appeal as being

taken from the order of February 27, 2012, operating as a denial of the

PCRA petition, rather than operating as from a new judgment of sentence.

     The charges against appellant arose following the December 18, 2001

discovery of the remains of appellant’s uncle in a garage behind appellant’s



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house.    The cause of death was blunt force injury, and appellant

subsequently confessed to the homicide. Appellant also cashed his uncle’s

Social Security checks and used his uncle’s identification papers in doing so.

Charges   against    appellant   were    brought   at   three   separate   criminal

informations.    At docket number CP-02-CR 0001068-2002, appellant was

charged with criminal homicide.         At docket number CP-02-CR 0002589-

2002, appellant was charged with one count of abuse of a corpse, one count

of access device fraud, two counts of theft by deception, 16 counts of

forgery, one count of theft by unlawful taking or disposition, and five counts

of identity theft. At docket number CP-02-CR 0003968-2002, appellant was

charged with one count of theft by deception.

      During appellant’s jury trial, appellant and the Commonwealth came to

a plea agreement.     Appellant subsequently pleaded guilty to third degree

murder, one count of abuse of a corpse, two counts of theft by deception,

two counts of forgery, and one count of identity theft. The Commonwealth

agreed to nolle pros all other charges. The plea agreement also required

that the sentence that would be imposed would be within the Sentencing

Guidelines:

              THE COURT: There is also an agreement here, as I
              understand, that we would order a presentence
              report.

              [Defense Counsel]: Yes, Your Honor.

              THE COURT: And sentencing, any sentencing would
              be within the sentencing guidelines as promulgated


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           by the sentencing commission of the Commonwealth
           of Pennsylvania; is that right?

           [Defense Counsel]: Yes, Your Honor.

           [Assistant District Attorney]: Yes, sir.

           THE COURT: Do you understand that, as well, sir?

           THE DEFENDANT: Yes, sir.

Notes of testimony, 4/19-22/04 at 371-372.2

     On July 19, 2004, the trial court imposed its sentence. As to docket

number CP-02-CR 0001068-2002, pertaining to third degree murder,

appellant was sentenced to 20 to 40 years’ imprisonment.      As to docket

number CP-02-CR 0002589-2002, pertaining to two counts of theft by

deception, two counts of forgery, and one count of identity theft, appellant

was sentenced to five consecutive counts of 2½ to 5 years’ imprisonment,

which were also imposed consecutively to the murder sentence, for an

aggregate term of 32½ to 65 years’ imprisonment.          No sentence was

imposed as to the abuse of a corpse conviction. A post-sentence motion for

reconsideration of sentence was denied on December 2, 2004.




2
  We note that at another point, the assistant district attorney states that
there is no agreement as to sentencing. (Notes of testimony, 4/19-22/04 at
367.) However, the quoted language is the only instance in which both
parties, as well as the trial court, concur as to the understanding as to
sentencing. There is also an indication in the record that a written plea
agreement exists, but it has not been included in the official record on
appeal, and we are unable to use it to potentially clarify this matter.


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     On June 23, 2006, this court affirmed the judgment of sentence, and

on January 3, 2007, our supreme court denied appeal. Commonwealth v.

Jackson, 905 A.2d 1044 (Pa.Super. 2006) (unpublished memorandum),

appeal denied, 916 A.2d 631 (Pa. 2007).

     On May 29, 2007, appellant timely filed the instant PCRA petition

pro se.   Counsel was appointed and on October 24, 2008, an amended

petition was filed. A hearing was held on December 1, 2011. As noted, on

February 27, 2012, the PCRA court vacated appellant’s original judgment of

sentence and re-imposed an identical sentence, except for the administrative

correction. On March 7, 2012, appellant filed a motion for reconsideration of

sentence. On October 23, 2012, this motion was denied. Appellant filed his

notice of appeal on November 15, 2012.3

     Appellant raises the following issues on appeal:

           1.    WHETHER THE PCRA COURT ERRED IN
                 RE-IMPOSING A SENTENCE WHICH IS ILLEGAL
                 AS IT VIOLATES THE TERMS OF THE PLEA
                 AGREEMENT REACHED BY THE PARTIES AND
                 EXPRESSLY ACCEPTED BY THE TRIAL COURT
                 DURING THE ORIGINAL PLEA PROCEEDING?

           2.    WHETHER THE PCRA COURT ERRED IN
                 IMPOSING A SENTENCE WHICH IS AN ABUSE
                 OF   DISCRETION   AND/OR   MANIFESTLY
                 EXCESSIVE   BECAUSE  THE   RE-IMPOSED
                 SENTENCES ON FIVE (5) COUNTS WERE

3
  Although we are treating this appeal as being taken from the order of
February 27, 2012, operating as a denial of PCRA relief, we will consider the
November 15, 2012 notice of appeal as timely because of the confusion
occasioned by the imposition of a “new” sentence and the filing of the
motion for reconsideration.


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                   JURISDICTIONAL     MAXIMUMS      RUN
                   CONSECUTIVELY,    WERE    ALSO   RUN
                   CONSECUTIVELY TO THE THIRD DEGREE
                   MURDER     STATUTORY   MAXIMUM    OF
                   TWENTY (20) TO FORTY (40) YEARS, AND
                   WERE OTHERWISE EXCESSIVE?

            3.     WHETHER THE PCRA COURT ERRED IN
                   FINDING   THAT  TRIAL    COUNSEL   WAS
                   EFFECTIVE DURING VOIR DIRE, TRIAL, PLEA
                   PROCEEDINGS AND ORIGINAL SENTENCING
                   DESPITE REPREATEDLY [sic] STATING THAT
                   HE WAS UNABLE TO PROVIDE EFFECTIVE
                   REPRESENTATION?

            4.     WHETHER THE PCRA COURT ERRED WHEN IT
                   UPHELD ITS REFUSAL TO APPOINT COUNSEL
                   TO REPRESENT MR. JACKSON AT THE
                   ORIGINAL SENTENCING?

Appellant’s brief at 6.

      Our standard of review for an order denying post-conviction relief is

whether the record supports the PCRA court’s determination, and whether

the PCRA court’s determination is free of legal error.   Commonwealth v.

Franklin, 990 A.2d 795, 797 (Pa.Super. 2010). The PCRA court’s findings

will not be disturbed unless there is no support for the findings in the

certified record. Id.

      Moreover, as some of appellant’s issues on appeal involve ineffective

assistance of counsel, we also note that appellant is required to make the

following showing in order to succeed with such a claim:       (1) that the

underlying claim is of arguable merit; (2) that counsel had no reasonable

strategic basis for his or her action or inaction; and (3) that, but for the



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errors and omissions of counsel, there is a reasonable probability that the

outcome of the proceedings would have been different. Commonwealth v.

Rivera, 10 A.3d 1276, 1279 (Pa.Super. 2010).        The failure to satisfy any

prong of this test will cause the entire claim to fail.   Commonwealth v.

Daniels, 947 A.2d 795, 798 (Pa.Super. 2008). Finally, counsel is presumed

to be effective, and appellant has the burden of proving otherwise.

Commonwealth v. Pond, 846 A.2d 699, 708 (Pa.Super. 2003).

      In appellant’s first argument, he asserts that the sentence re-imposed

by the PCRA court is illegal because it exceeds the sentence promised to

appellant by his plea bargain, which was a sentence within the Sentencing

Guidelines.4 Appellant has waived this issue.

      We acknowledge that challenges to an illegal sentence can never be

waived.   Commonwealth v. Tanner, 61 A.3d 1043, 1046 (Pa.Super.

2013). However, as the Commonwealth correctly counters, a claim that a

defendant did not receive the sentence promised in a plea bargain does not

implicate the legality of the sentence and may be waived by failing to raise it



4
  Appellant cannot challenge his sentence for third degree murder on this
basis. First, although appellant’s PCRA petition was filed as to all three of
his trial court docket numbers, his notice of appeal was filed only to docket
number CP-02-CR 0002589-2002, which pertained to his convictions other
than third degree murder. Second, the sentence appellant received for third
degree murder, 20 to 40 years (240 to 480 months), was within the
standard range of the Sentencing Guidelines. With appellant’s prior record
score of 4, the Sentencing Guidelines indicate a minimum sentence in the
range of 168-240 months. Appellant’s minimum sentence was within this
range.


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on direct appeal.     Commonwealth v. Berry, 877 A.2d 479, 482-484

(Pa.Super. 2005), appeal denied, 917 A.2d 844 (Pa. 2007).            Therefore,

since appellant did not raise this issue on direct appeal, it is now waived.

      Of course, appellant could have insulated himself from this waiver by

arguing in his PCRA petition that direct appeal counsel was ineffective in

failing to challenge the discretionary aspects of his sentence on this basis on

direct appeal. Appellant’s PCRA petition did raise a claim that direct appeal

counsel was ineffective in failing to challenge the discretionary aspects of his

sentence on direct appeal, but the basis stated was that appellant’s

sentences were imposed beyond the Sentencing Guidelines and imposed

consecutively.   However, the petition did not assert that direct appeal

counsel was ineffective in failing to raise the discretionary aspects of

sentence on direct appeal on the basis that the sentences were in violation

of the plea bargain.5 Consequently, appellant has waived his first argument.

      In his second argument, appellant argues that his sentence is

excessive because it was imposed outside the Sentencing Guidelines,

because it was imposed consecutively, and because the court failed to




5
 At the PCRA hearing, counsel obliquely approached this argument when he
commented to the court that the court had stated that it would sentence
appellant within the guidelines.   (Notes of testimony, 12/1/11 at 16.)
However, counsel never argued that appellant’s sentence violated his plea
bargain.


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provide a contemporaneous written statement of its reasons for deviating

from the Guidelines.6 We disagree.

     First, to the extent that appellant argues that the court failed to

consider various relevant sentencing factors, we find no merit:

           Where pre-sentence reports exist, we shall continue
           to presume that the sentencing judge was aware of
           relevant information regarding the defendant’s
           character and weighed those considerations along
           with mitigating statutory factors. A pre-sentence
           report constitutes the record and speaks for itself.
           In order to dispel any lingering doubt as to our
           intention of engaging in an effort of legal purification,
           we state clearly that sentencers are under no
           compulsion to employ checklists or any extended or
           systematic definitions of their punishment procedure.
           Having been fully informed by the pre-sentence
           report, the sentencing court’s discretion should not
           be disturbed. This is particularly true, we repeat, in
           those circumstances where it can be demonstrated
           that the judge had any degree of awareness of the
           sentencing considerations, and there we will
           presume also that the weighing process took place in
           a meaningful fashion. It would be foolish, indeed, to
           take the position that if a court is in possession of
           the facts, it will fail to apply them to the case at
           hand.

6
  Appellant directly raises the discretionary aspects of his sentence, and his
brief includes a concise statement of reasons for allowance of appeal as to
the discretionary aspects of his sentence. As previously noted, we do not
regard the re-sentencing of appellant by the PCRA court as a new sentence
to be accorded another direct review; rather, we regard that re-sentencing
as an administrative correction, and the present appeal as being from the
denial of PCRA relief. Consequently, the discretionary aspects of sentence
are not presently cognizable. Commonwealth v. Wrecks, 934 A.2d 1287,
1289 (Pa.Super. 2007) (relief with respect to discretionary aspects of
sentence not cognizable in PCRA proceedings). Again, however, because of
possible confusion as to whether a new judgment of sentence was being
appealed, we will review this issue as a cognizable claim of direct appeal
counsel’s ineffectiveness, as it was raised in the PCRA petition.


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Commonwealth v. Devers, 546 A.2d 12, 18 (Pa. 1988).                    Prior to

sentencing, the trial court noted on the record that it had the benefit of a

presentence report.   (Notes of testimony, 7/19/04 at 12.)      Therefore, any

argument appellant raises in this regard is rebutted by Devers.

      As for the consecutive nature of appellant’s individual sentences, direct

appeal counsel cannot be found to be ineffective for failing to raise that issue

on appeal.     The discretionary aspects of sentence are not automatically

reviewable.     Commonwealth v. Buterbaugh, 91 A.3d 1247, 1265

(Pa.Super. 2014). An appellant must first demonstrate that his issue raises

a substantial question that his sentence is not appropriate under the

Sentencing Code.      Id. at 1265-1266.        Generally, “the imposition of

consecutive rather than concurrent sentences lies within the sound discretion

of the sentencing court, and a challenge to the imposition of consecutive

sentences simply does not raise a substantial question.” Commonwealth

v. Lloyd, 878 A.2d 867, 873 (Pa.Super. 2005), appeal denied, 887 A.2d

1240 (Pa. 2005).      Although this court has recognized that in the most

extreme cases consecutive sentencing can raise a substantial question, the

instant sentence is plainly not an extreme situation.7 Thus, if direct appeal


7
  See Commonwealth v. Dodge, 77 A.3d 1263, 1270-1271 (Pa.Super.
2013), appeal denied, 91 A.3d 161 (Pa. 2014). In Dodge, this court found
that a substantial question existed where a virtual life sentence was created
by imposing consecutive sentences on numerous non-violent property
crimes. While appellant also argues he is effectively facing a life sentence,
the vast majority of that sentence is attributable to a murder conviction.


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counsel had raised this matter, no substantial question would have been

found, and appellant would not have been granted relief.          Consequently,

counsel cannot be found to have been ineffective in failing to bring this

challenge to appellant’s sentence.

      As for appellant’s sentence being imposed beyond the Sentencing

Guidelines, appellant cites Commonwealth v. Guth, 735 A.2d 709

(Pa.Super. 1999), appeal denied, 743 A.2d 915 (Pa. 1999), for the

proposition, “that an appeal from the discretionary aspects of a sentence will

be allowed where a defendant alleges that his sentence is outside the

guidelines    and   unreasonable.”     Guth,   735   A.2d    at    711,   citing

Commonwealth v. Gibson, 716 A.2d 1275, 1276 (Pa.Super. 1998).

Nonetheless, while appellant raises a substantial question as to this aspect

of his sentence, we find that his sentence is not an abuse of discretion. As

part of his plea bargain, the Commonwealth agreed to nolle pros

approximately two dozen similar offenses. Moreover, appellant committed a

murder to effectuate these crimes. Under these circumstances, we find that

the court below properly imposed sentences that exceeded the Sentencing

Guidelines.    Counsel cannot be found ineffective in failing to pursue a

meritless claim.    Commonwealth v. Charleston, 94 A.3d 1012, 1024

(Pa.Super. 2014).

      Finally, as for appellant’s sentence being improper because the

sentencing court failed to provide a contemporaneous written statement of



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its reasons for deviating from the Guidelines, we disagree.      We first note

that the contemporaneous written statement requirement is met when the

judge states his reasons for the sentence on the record and in the

defendant’s presence.    Commonwealth v. Antidormi, 84 A.3d 736, 760

(Pa.Super. 2014), appeal denied, 95 A.3d 275 (Pa. 2014). At sentencing,

the court stated, “[a]ccordingly, the court having the benefit of the

presentence report and the horrendous facts of this case, the following

sentence is imposed.” (Notes of testimony, 7/19/04 at 30.) Additionally, for

each of appellant’s sentences, on the Guideline Sentence Forms contained in

the record, in the space marked “Reasons for Sentence,” the court wrote,

“Multiple Cases including Criminal Homicide Murder in Third Degree

Continues [sic] Criminal Acts.” This indicates to us that the court imposed

these sentences because appellant committed multiple offenses on a

continuing basis and that they were directly facilitated by the commission of

a murder.      While somewhat spare in nature, we find the reasons are

sufficient to support the imposition of sentences beyond the Sentencing

Guidelines. Accordingly, we find no ineffectiveness in direct appeal counsel

not raising this matter on appeal.

      In his third issue, appellant presents a general claim of trial counsel’s

ineffectiveness predicated upon trial counsel’s ongoing efforts to be

permitted to withdraw from the case because of continuing conflict with

appellant.   In doing so, however, appellant fails to indicate any particular



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instance or way in which his trial attorney failed him. Appellant quotes an

exchange in which his trial counsel explains that appellant’s mother was

supposed to supply him with a witness list, but repeatedly failed to do so. If

appellant is claiming that counsel’s ineffectiveness resulted in the failure to

call certain witnesses, he has failed to meet his burden. In order to prove

such a claim, the appellant must show the following:

                    There are two requirements for relief on an
             ineffectiveness claim for a failure to present witness
             testimony. The first requirement is procedural. The
             PCRA requires that, to be entitled to an evidentiary
             hearing, a petitioner must include in his PCRA
             petition “a signed certification as to each intended
             witness stating the witness’s name, address, date of
             birth and substance of testimony.” 42 Pa.C.S.A.
             § 9545(d)(1); Pa.R.Crim.P. 902(A)(15). The second
             requirement is substantive.         Specifically, when
             raising a claim for the failure to call a potential
             witness, to obtain relief, a petitioner must establish
             that: (1) the witness existed; (2) the witness was
             available; (3) counsel was informed or should have
             known of the existence of the witness; (4) the
             witness was prepared to cooperate and would have
             testified on defendant’s behalf; and (5) the absence
             of such testimony prejudiced him and denied him a
             fair trial. Commonwealth v. Carson, 559 Pa. 460,
             741 A.2d 686, 707 (1999)

Commonwealth v. Reid, 99 A.3d 427, 438 (Pa. 2014). Appellant does not

identify any witness that could have been called, nor does he indicate what,

if any, potential testimony could have been adduced.            Appellant has

completely failed to meet his burden if he is claiming that counsel was

ineffective in failing to call certain witnesses.




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       Finally, in summation, appellant attributes his allegedly harsh sentence

to his counsel’s ineffectiveness, but we simply do not see the connection.

Appellant has presented nothing but a boilerplate claim of counsel’s

ineffectiveness that we find wholly unconvincing. Boilerplate claims will not

satisfy appellant’s obligation to show ineffective assistance of counsel.

Commonwealth v. Sneed, 45 A.3d 1096, 1106 (Pa. 2012).              We find no

ineffectiveness on this basis.

       In his last issue, appellant claims that the PCRA court erred in not

finding that the trial court erred in permitting counsel to withdraw

immediately before appellant was sentenced and in failing to appoint new

counsel.   First, this issue could have been raised on direct appeal and is

waived for failing to do so.     Second, even if couched in terms of direct

appeal counsel’s ineffectiveness, there is no merit.      We see no error in

permitting counsel to withdraw at that juncture. The court was well aware

of the ongoing conflict between appellant and his counsel.        Immediately

prior to trial, the court engaged in a Grazier colloquy with appellant to

determine if appellant wanted to proceed pro se.8        (Notes of testimony,

4/19-22/04 at 46-52.) At that time, appellant indicated that he wanted to

proceed with counsel.     At sentencing, however, appellant’s conflict with

counsel again erupted, leading the court to properly conclude that appellant

did not wish to be represented by appointed counsel any longer. (Notes of


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


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testimony, 7/19/04 at 13-15.) Since the court had previously engaged in a

Grazier colloquy with appellant, we see no error in permitting him to

proceed pro se.     Thus, there was no ineffectiveness on the part of direct

appeal counsel in failing to raise this issue.

      Accordingly, having found no merit in the issues raised on appeal, we

will affirm the order below.

      Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 1/9/2015




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