                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


6-7-2007

Kendrick v. DA Philadelphia
Precedential or Non-Precedential: Precedential

Docket No. 02-3158




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Recommended Citation
"Kendrick v. DA Philadelphia" (2007). 2007 Decisions. Paper 850.
http://digitalcommons.law.villanova.edu/thirdcircuit_2007/850


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                                               PRECEDENTIAL

            UNITED STATES COURT OF APPEALS
                 FOR THE THIRD CIRCUIT


                           No. 02-3158


                      KEVIN KENDRICK,
                                   Appellant
                             v.

   THE DISTRICT ATTORNEY OF THE COUNTY OF
                PHILADELPHIA;
    THE ATTORNEY GENERAL OF THE STATE OF
                PENNSYLVANIA;
 NANCY BAILEY, SUPERINTENDENT OF FBI, FORT DIX


          On Appeal from the United States District Court
              for the Eastern District of Pennsylvania
                      (D.C. No. 00-cv-03561)
          District Judge: Honorable William H. Yohn, Jr.


             Originally Argued January 13, 2004
  Before: BECKER, ALITO, and CHERTOFF, Circuit Judges

                Resubmitted May 1, 2007
      Before: SLOVITER, MCKEE, and CHAGARES,
                    Circuit Judges*




      *
        This case was argued before the panel of Judges Becker,
Alito, and Chertoff on January 13, 2004. Judge Michael Chertoff
subsequently resigned on February 15, 2005. Judge, now Justice,
Samuel A. Alito, Jr. was elevated to the United States Supreme
Court on January 31, 2006. Judge Edward R. Becker passed away
on May 19, 2006. The panel was reconstituted on June 6, 2006 to
consist of Judges Sloviter, McKee and Chagares.
                       (Filed: June 7, 2007)


Peter A. Levin (Argued)
Philadelphia, PA l9l30

       Attorney for Appellant

Thomas W. Dolgenos
J. Hunter Bennett (Argued)
Office of District Attorney
Philadelphia, PA l9l07-3499

       Attorneys for Appellees



                   OPINION OF THE COURT


SLOVITER, Circuit Judge.

       This case comes before this court once again now that the
Pennsylvania Supreme Court has answered the question of law
we certified to that Court pursuant to 204 Pa. Code § 29.451(b).
We review in brief the procedural history of this case.

       On May 2, 1991, appellant, Kevin Kendrick, as part of a
negotiated plea agreement, pled guilty in the Court of Common
Pleas in Philadelphia, Pennsylvania to two counts of possession
with intent to deliver a controlled substance, one count of rape,
and one count of violating the Pennsylvania Corrupt
Organizations Act (“PCOA”). The Commonwealth
recommended that Kendrick be sentenced to two concurrent
terms of five to ten years imprisonment for the two drug
convictions, a consecutive term of ten to twenty years
imprisonment for the rape conviction, and a term of ten to
twenty years on the PCOA conviction to run concurrently to the
rape conviction. The court sentenced Kendrick to an aggregate
sentence of fifteen to thirty years. Kendrick did not file a direct
appeal.

                                 2
        In 1994, Kendrick filed a petition under the Pennsylvania
Post Conviction Relief Act (“PCRA”), 42 Pa. Cons. Stat. §§
9541-9546, arguing that his guilty plea to a violation of the
PCOA was invalid because the PCOA applied only to
“organized crime that infiltrated a legitimate business enterprise”
and his acts were confined to a wholly illegitimate and illegal
enterprise, the distribution of narcotics. While Kendrick’s
petition was pending, the Pennsylvania Supreme Court issued its
opinion in Commonwealth v. Besch, 674 A.2d 655 (Pa. 1996),
holding that the PCOA was “intended to criminalize only
conduct involving otherwise legitimate business enterprises, and
not enterprises (such as the drug enterprise in Besch) that were
wholly illegitimate.” Kendrick, 916 A.2d at 531-532. Shortly
after the holding in Besch, the Pennsylvania Legislature
amended the PCOA to include legitimate and illegitimate
enterprises.

       Kendrick amended his PCRA petition to reflect the
holding in Besch. He asserted that his plea of guilty to violating
the PCOA was invalid pursuant to Besch because at the time he
pled guilty it was believed that the PCOA proscribed
racketeering activities by both legitimate and illegal enterprises,
such as the drug dealing enterprise with which he was involved.
Nonetheless, his petition was denied and the Pennsylvania
Superior Court affirmed the denial. Commonwealth v.
Kendrick, 704 A.2d 1118 (Pa. Super. Ct. 1997). On August 18,
1999, his petition for allocatur to the Pennsylvania Supreme
Court was denied as well. Commonwealth v. Kendrick, (Pa.
1999).

        On July 14, 2000, Kendrick filed a petition for habeas
corpus under 28 U.S.C. § 2254 in the United States District
Court for the Eastern District of Pennsylvania claiming that “his
guilty plea to [the PCOA] was not voluntary, knowing, and
intelligent because he pled guilty to conduct that was not
criminal and he contends that he should be resentenced.” App.
at 6a. The Magistrate Judge recommended denying the Petition
on the ground that Besch does not apply retroactively to cases on
collateral review. App. at 14a. The District Court adopted the
Magistrate Judge’s Report and Recommendation and denied
Kendrick’s habeas petition. App. at 2a.

                                 3
       On appeal, a motions panel of this court granted Kendrick
a Certificate of Appealability. On January 30, 2004, after
hearing oral arguments on the matter, the panel filed a Petition
for Certification of a Question of Law. The question of law that
we certified was as follows:

       Did the opinion in Commonwealth v. Besch, 674 A.2d
       655 (Pa. 1996), establish a new rule of law that cannot be
       applied retroactively to cases on collateral review?

Kendrick v. Dist. Att’y of Philadelphia County, No. 02-3158 (3d
Cir. Jan. 30, 2004) (petition for certification of question of law).

       The Pennsylvania Supreme Court provided its answer to
the certified question in the opinion it issued on February 20,
2007. See Kendrick, 916 A.2d at 531.1 The Court reviewed the
history of its interpretation of the PCOA, particularly in its
opinions in Besch and Commonwealth v. Shaffer, 696 A.2d 179
(Pa. Super. 1997) (“Shaffer I”), rev’d, 734 A.2d 840 (1999)
(“Shaffer II”), and the Pennsylvania legislature’s 1996
amendment. In response to the certified question, the Court held
that “ Besch did not establish a new rule of law.” Kendrick, 916
A.2d at 511. It explained that Besch “must be deemed to have
merely explicated the meaning and scope of the term from the
[PCOA’s] original enactment in 1973.” Id. at 538.

       Following the issuance of the Pennsylvania Supreme
Court’s decision, we asked the parties to file memoranda
regarding the effect of the Court’s decision on this case. In his


       1
           We express our appreciation to that court for accepting our
certified question. The certified question procedure is a useful
vehicle for federal courts to give the state supreme courts an
opportunity to elucidate an important issue of state law, thereby
avoiding erroneous predictions that will confuse rather than clarify
the issue. The Supreme Court has stated that certification “does
. . . in the long run save time, energy, and resources and helps build
a cooperative judicial federalism.” Lehman Bros. v. Schein, 416
U.S. 386, 391 (1974).


                                  4
response, Kendrick quotes from the statement in this court’s
petition for certification where we stated: “[i]f Your Honorable
Court decides that Besch did not establish a new rule, then Besch
represents the meaning of the PCOA at the time Kendrick
pleaded guilty, and we will be obliged to set aside his PCOA
conviction.” Accordingly, Kendrick states that his “PCOA
conviction should be set aside.” The Commonwealth agrees
with Kendrick that we should vacate Kendrick’s conviction,
which necessarily means that we should grant the writ of habeas
corpus, but argues that Kendrick’s aggregate sentence should
remain unchanged.

       Because Kendrick was convicted of a violation of the
PCOA that the Pennsylvania Supreme Court has held was
inapplicable, and therefore his conviction was “constitutionally
invalid,” see Bousley v. United States, 523 U.S. 614, 619 (1998),
we will direct the District Court to grant the writ of habeas
corpus to vacate Kendrick’s conviction on that count.

         There remains the question of the appropriate disposition
of this appeal. Although Kendrick received an aggregate
sentence of fifteen to thirty years imprisonment, that sentence
encompassed the invalid PCOA conviction. The
Commonwealth argues that there is no need to remand for
resentencing. Although it eschews reliance on the concurrent
sentence doctrine, stating explicitly in footnote 4 of its March
29, 2007, Memorandum Regarding Effect of Recent Decision by
the Supreme Court of Pennsylvania that “the Commonwealth
withdraws its ‘concurrent sentence’ argument,” it appears to us
that it is in effect arguing for the application of the concurrent
sentence doctrine without using those words. It argues that
“[w]here an appellate court vacates one conviction, but leaves
several others intact, and where the aggregate sentence is
undisturbed, a remand for resentencing is unnecessary.” In
support of that statement, the Commonwealth cites
Commonwealth v. Miller, 606 A.2d 495 (Pa. Super), appeal
denied, 611 A.2d 711 (Pa. 1992) (affirming judgment of
sentence when vacating conviction of one of the underlying
charges), and Commonwealth v. Owens, 649 A.2d 129 (Pa.
1994), appeal denied, 656 A.2d 118 (Pa. 1995) (declining to
remand for resentencing despite illegality of one sentence

                                5
because sentences were to run concurrently). See also
Commonwealth v. Goldhammer, 517 A.2d 1280 (Pa. 1986).

       When this case was originally before this court, we
rejected the District Court’s concurrent sentence doctrine ruling
and stated:

       We now reject the District Court’s reliance on the
       concurrent sentence doctrine to dispose of this claim. The
       doctrine is not jurisdictional, and is discretionary, and we
       decline to apply it on review of a federal habeas corpus
       claim. See Spencer v. Kemna, 523 U.S. 1, 8-12 (1998)
       (stating that on federal habeas review, courts presume that
       a wrongful criminal conviction has continued collateral
       consequences). This conclusion is buttressed by our lack
       of confidence that, notwithstanding the concurrent 20-
       year sentence on the (unchallenged) rape conviction, the
       (unreversed) PCOA conviction will not have collateral
       consequence (with respect to matters as effect on parole,
       possible application of recidivist statutes, potential
       impeachment in future trial and effect on pardon.)

Kendrick, No. 02-3158, n.1.

       That ruling represents the law of the case. In any event,
the cases relied on by the Commonwealth are not applicable
here. This matter is before us on Kendrick’s petition for a writ
of habeas corpus in which he contends that his guilty plea was
invalid because it was not entered knowingly. None of the
Pennsylvania cases relied upon by the Commonwealth present a
comparable issue of federal constitutional law.

        When the District Court, adopting the Magistrate Judge’s
Report and Recommendation, denied Kendrick’s petition for
writ of habeas corpus, it did not have before it the Pennsylvania
Supreme Court’s recent decision holding that the PCOA count to
which Kendrick pled guilty was inapplicable. It is certainly
possible that knowledge of that interpretation of the law would
have influenced Kendrick’s decision to plead guilty. On the
other hand, it is also possible that Kendrick would have pled
guilty to the rape charge, the sentence which was to run

                                6
concurrently with the PCOA sentence, even if there had been no
PCOA charge. Under the circumstances, we believe it prudent
to give the District Court the opportunity to make a finding as to
whether Kendrick’s plea was made knowingly and voluntarily.
We suggest no view on that matter. We note that a similar issue
arose before another panel of this court which issued an opinion
in McKeever v. Warden SCI-Graterford, No. 05-2492, on May
10, 2007. We suggest that upon remand the District Court
consider that opinion in making its determination.

       For the reasons set forth above, we will vacate the order
of the District Court denying the writ of habeas corpus and will
remand this matter to the District Court for further proceedings
consistent with this opinion.
___________________




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