J-S21020-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA              :   IN THE SUPERIOR COURT OF
                                           :        PENNSYLVANIA
                                           :
              v.                           :
                                           :
                                           :
 JACOB RALPH HELSEL,                       :
                                           :
                         Appellant         :   No. 1169 WDA 2019

            Appeal from the PCRA Order Entered July 22, 2019
  In the Court of Common Pleas of Blair County Criminal Division at No(s):
                        CP-07-CR-0002011-2017


BEFORE: LAZARUS, J., DUBOW, J., and MUSMANNO, J.

MEMORANDUM BY DUBOW, J.:                                FILED JUNE 22, 2020

      Appellant, Jacob Ralph Helsel, appeals from the Order denying the relief

requested in his first Petition filed pursuant to the Post-Conviction Relief Act,

42 Pa.C.S. §§ 9541-46. He challenges the legality of his sentence as well as

the stewardship of plea counsel.      After careful review, we conclude that

Appellant waived his ineffective assistance of plea counsel claim and did not

receive an illegal sentence. We, thus, affirm.

      On June 25, 2018, Appellant entered an open guilty plea to one count

each of Accidents Involving Death or Personal Injury, Simple Assault, and
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Tampering with/Fabricating Physical Evidence.1,2 On September 11, 2018, the

court sentenced Appellant for the Accidents Involving Death pursuant to 75

Pa.C.S. § 3742(b)(3)(i) to a term of four to eight years’ incarceration.3

Appellant did not appeal his Judgment of Sentence.

       On December 18, 2018, Appellant timely filed his PCRA Petition in which

he sought (1) to withdraw his guilty plea based on an assertion that it was

coerced by ineffective assistance of plea counsel; (2) a new trial or re-

sentencing based on counsel’s ineffectiveness; and (3) resentencing based on

an illegal sentence claim.

       The PCRA court held a hearing on July 11, 2019, at which Appellant’s

plea counsel and Appellant testified.4 See N.T. PCRA Hearing, 7/11/19, at 1-

10. Counsel for both parties provided extensive argument regarding which

sentencing provision of 75 Pa.C.S. §3742(b) applied. The PCRA court took the

____________________________________________


175 Pa.C.S. § 3742(a), 18 Pa.C.S. § 2701(a)(1), and 18 Pa.C.S. § 4910(a)(1),
respectively.

2 The certified record contains the written plea colloquy and the Order of the
Hon. Elizabeth Doyle indicating that she accepted Appellant’s open guilty plea
and was satisfied that the guilty plea was entered knowingly, intelligently, and
voluntarily. See Order, dated 6/25/18; Guilty Plea Colloquy Form, dated
6/25/18 and executed by Appellant. The record does not contain any notes
of testimony from the plea hearing. The Hon. Timothy M. Sullivan presided
at Appellant’s sentencing hearing.

3 The court sentenced Appellant to a term of two years’ probation on the
Tampering conviction, to be served consecutive to his incarceration.

4 At the PCRA hearing, Appellant testified that he discussed the statute with
his plea counsel and entered the guilty plea knowing that he would be subject
to a three-year minimum sentence. See PCRA Hearing, 7/11/19, 8-9.

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matter under advisement and on July 22, 2019, issued an Opinion and Order

denying relief.

        Appellant timely appealed. He filed a court-ordered Pa.R.A.P. 1925(b)

Statement stating only the following issue:

        The Trial Court erred and/or abused its discretion or misapplied
        the law when it failed to grant the Appellant’s PCRA [sic] in regards
        to the Court’s application of the mandatory three (3) year
        sentence imposed by 75 Pa.C.S.[] § 3742(3)(i). The Court did so
        even though the evidence was clear that the victim was already
        deceased by the time the Appellant’s vehicle came upon the
        scene. The Trial Court should have applied a penalty provision of
        75 Pa.C.S.[] § 3742(1) or (2) [sic] depending upon what type of
        injury the Court determines the Appellant caused to the victim.

Appellant’s Rule 1925(b) Statement of Matters Complained of on Appeal, filed

8/20/19, at 1-2.5

        In his Brief, Appellant presents the following issue for our review:

        Whether the trial court erred and/or abused its discretion in
        dismissing Appellant’s PCRA [sic] due to the ineffective assistance
        of counsel resulting in the trial court’s application of the
        mandatory sentence in 75 Pa.C.S.[] § 3742(B)(3)(i).

Appellant’s Brief at 4.6

        We review an order denying a petition for collateral relief to determine

whether the PCRA court’s decision is supported by the evidence of record and

free of legal error.     Commonwealth v. Jarosz, 152 A.3d 344, 350 (Pa.


____________________________________________


5   In response, the PCRA court relied on its July 22, 2019 Opinion.

6 PCRA counsel passed away in October 2019, approximately two months after
filing the Rule 1925(b) Statement. Appellant is now represented by

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Super. 2016) (citing Commonwealth v. Fears, 86 A.3d 795, 803 (Pa.

2014)).

       Initially, we must determine whether Appellant preserved his claim of

ineffective assistance of counsel. It is well-settled that when an appellant files

a court-ordered Pa.R.A.P. 1925(b) Statement of Matters Complained of on

Appeal, any issues not raised in the Rule 1925(b) Statement will be deemed

waived. Commonwealth v. Lord, 719 A.2d 306, 309 (Pa. 1998).

       Here, the issue raised in Appellant’s Rule 1925(b) Statement, noted

above, failed to include any challenge to the effectiveness of plea counsel’s

assistance. Accordingly, Appellant has waived his ineffective assistance of

counsel claim for appellate review.7

       Appellant has also raised a challenge to the legality of his sentence when

he argues that, based on the facts of the case, he should have been sentenced

pursuant to 75 Pa.C.S. § 3742(b)(2), and not Section 3742(b)(3)(i).

Appellant’s Br. at 6. We may sua sponte address the legality of Appellant’s

sentence. Commonwealth v. Orellana, 86 A.3d 877, 882 n.7 (Pa. Super.

2014); Commonwealth v. Fahy, 737 A.2d 214, 223 (Pa. 1999) (recognizing

that traditional appellate waiver rules do not apply so illegal sentencing claims



____________________________________________


7In addition, Appellant did not raise any issue implicating his guilty plea in his
Rule 1925(b) Statement.




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may be addressed on collateral review if they were raised in a timely-filed

PCRA petition).8

       Issues pertaining to the the legality of a sentence are questions of law.

Accordingly, our standard of review is de novo and our scope of review is

plenary. Commonwealth v. Gentry, 101 A.3d 813, 817 (Pa. Super. 2014).

       Appellant pled guilty to the offense of Accidents Involving Death or

Injury. The legislature defined the offense as follows:

       The driver of any vehicle involved in an accident resulting in
       injury or death of any person shall immediately stop the
       vehicle at the scene of the accident or as close thereto as
       possible but shall then forthwith return to and in every event shall
       remain at the scene of the accident until he has fulfilled the
       requirements of section 3744 (relating to duty to give information
       and render aid).

75 Pa.C.S. § 3742(a).

       When a defendant enters a guilty plea to 75 Pa.C.S. § 3742(a), the court

must impose sentence in accordance with the statutory mandates set forth in

Section 3742(b). This provision provides, in relevant part, as follows:

       (b) Penalties.—

       (1) Except as otherwise provided in this section, any person
       violating this section commits a misdemeanor of the first degree.


____________________________________________


8 Appellant’s counsel “suggests” that this Court may consider an Alleyne
challenge sua sponte with regard to the “sentence enhancements in this
matter.” Appellant’s Br. at 9 n.1. However, the Pennsylvania Supreme Court
has held that Alleyne does not apply retroactively to cases pending on
collateral review. See Commonwealth v. Washington, 142 A.3d 810, 820
(Pa. 2016). Accordingly, we may not consider his Alleyne challenge.


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      (2) If the victim suffers serious bodily injury, any person
      violating subsection (a) commits a felony of the third degree, and
      the sentencing court shall order the person to serve a minimum
      term of imprisonment of not less than 90 days and a mandatory
      minimum fine of $1,000, notwithstanding any other provision of
      law.

      (3)(i) If the victim dies, any person violating subsection (a)
      commits a felony of the second degree, and the sentencing court
      shall order the person to serve a minimum term of
      imprisonment of not less than three years and a mandatory
      minimum fine of $2,500, notwithstanding any other provision of
      law.

                                    ****

75 Pa.C.S. § 3742(b).

      Appellant contends that his sentence is illegal because it is based on a

violation of 75 Pa.C.S. 3742(a) and this provision applies only to a "driver of

any vehicle involved in an accident resulting in ... death of any person."

(emphasis added). Appellant argues that since the "uncontroverted evidence"

demonstrated that the victim had died before his vehicle ran her over, it was

not his vehicle that was "involved in an accident resulting in ...death."

Appellant's brief at 6. Unfortunately, Appellant agreed when he pled guilty

pursuant to this Section that he was the driver of a "vehicle involved in an

accident resulting in ...death of any person." Thus, the fact that the victim

may have already died before Appellant's vehicle ran her over does not matter

because Appellant conceded that his vehicle was "involved" in the accident.




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      Accordingly, the court had no discretion but to sentence Appellant to a

minimum of three years’ incarceration pursuant to Section 3742(b)(3)(i). We,

thus, conclude that the PCRA court did not err or abuse its discretion in

denying the relief requested in Appellant’s Petition.

       Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/22/2020




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