J-S16013-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

JEFF SCHIRONE WILLIAMS

                            Appellant                  No. 704 WDA 2016


              Appeal from the Judgment of Sentence April 12, 2016
                In the Court of Common Pleas of Allegheny County
               Criminal Division at No(s): CP-02-CR-0014658-2004


BEFORE: MOULTON, J., RANSOM, J., and PLATT, J.*

MEMORANDUM BY MOULTON, J.:                           FILED AUGUST 21, 2017

       Jeff Schirone Williams appeals, pro se,1 from the April 12, 2016

judgment of sentence entered in the Allegheny County Court of Common

Pleas. We affirm.

       We set forth the factual history of this case in a previous Post

Conviction Relief Act2 (“PCRA”) appeal, which we adopt and incorporate

herein.     See Commonwealth v. Williams, 114 WDA 2012, unpublished

mem. at 1-3 (Pa.Super. filed March 12, 2013).

____________________________________________


       *
           Retired Senior Judge assigned to the Superior Court.
       1
       Williams has acted pro se through most of the proceedings in this
matter. Grazier hearings have been conducted at each stage, pursuant to
Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).
       2
           42 Pa.C.S. §§ 9541-9546.
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       On June 25, 2007, the trial court sentenced Williams to an aggregate

term of 15 to 30 years’ incarceration following his convictions for kidnapping,

corruption of minors, possession with intent to deliver, possession of a

controlled substance, and possession of drug paraphernalia.3 Williams filed

a post-sentence motion, which the trial court denied on July 11, 2007.

Williams appealed to this Court and on May 3, 2010, we affirmed his

judgment of sentence.

       On June 20, 2011, Williams filed his first PCRA petition, which he later

amended. The PCRA court dismissed Williams’ petition and Williams

appealed.    On March 12, 2013, this Court vacated the PCRA court’s order

dismissing Williams’ petition and remanded for a hearing to determine

whether Williams should receive credit for time served. On June 26, 2013,

the trial court held a hearing at which Williams was present and modified

Williams’ sentence to reflect credit for time served. That same day, the trial

court entered a judgment of sentence. Williams appealed, and we affirmed

on February 20, 2014.         Thereafter, Williams filed a second PCRA petition,

which the PCRA court denied on March 26, 2015.            He appealed and, on

January 29, 2016, we affirmed the portion of the PCRA court’s order denying




____________________________________________


       3
        18 Pa.C.S. §§ 2901(a)(1), 6301(a)(1), 35 P.S. §§ 780-113(a)(30),
(a)(16), and (a)(32), respectively.




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relief on Williams’ Alleyne/Hopkins4 and offense gravity score (“OGS”)

claims and vacated the order to the extent it purportedly imposed fees and

costs as part of the 2013 judgment of sentence. See Commonwealth v.

Williams, 565 WDA 2015, unpublished mem. at 1-2 (Pa.Super. filed Jan.

29, 2016).        We remanded for a determination of whether Williams was

responsible for fees and costs. Id.

       Following remand, the trial court held a hearing on April 12, 2016, at

which Williams was present, and the court determined that the imposition of

fees and costs was a clerical error. That same day, the trial court entered a

judgment of sentence. Williams timely filed his notice of appeal.

       Williams raises the following issues on appeal:

           I.     Whether the sentencing court erred by imposing
                  sentence by order without [Williams] being present
                  and failing to provide [Williams] with post sentence
                  motion rights pursuant to Pa.R.Crim.P. 704(c), which
                  denied [Williams] the opportunity to preserve[] any
                  sentencing errors pertaining to the instant new
                  sentencing order rendering the instant sentence
                  illegal[.]

           II.    Whether the sentencing court erred by imposing a
                  new sentence with erroneous calculated offense
                  gravity score for an alleged attempt to deliver
                  marijuana less than a pound[.]

           III.   Whether [Williams’] sentence imposed under 42
                  Pa.C.S. § 9714 pursuant to Alleyne, Hopkins and
____________________________________________


       4
      Alleyne v. United States, 133 S.Ct. 2151 (2013); Commonwealth
v. Hopkins, 117 A.3d 247 (Pa. 2015).




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                Wolfe[5] is unconstitutional because the judge rather
                than a jury has to determine whether the “instant
                offense” is a “crime of violence” under 9714(d) and
                this preponderance of evidence standard has been
                ruled unconstitutional in every other statu[t]e with
                such language and the Pennsylvania Supreme Court
                explained in Hopkins that this proof at sentencing
                language is not severable from the statu[t]es which
                makes the entire statu[t]e unconstitutional pursuant
                to Alleyne.

Williams’ Br. at 5 (full capitalization omitted).

       Williams first claims that the trial court erred because he was not

present when it imposed the modified sentence. He further claims that the

trial court denied Williams post-sentence motion and direct appeal rights.

       This Court remanded the case to the trial court on January 29, 2016 to

determine whether Williams was responsible for fees and costs imposed as

part of his judgment of sentence.              The trial court held a hearing on this

matter on April 12, 2016, at which Williams was present.                   See N.T.,

4/12/16; see also Order, 4/4/16 (ordering that Williams be transported to

courthouse on April 12, 2016).            Thus, Williams’ claim that he was not

present when the trial court modified his sentence is belied by the record.

       Moreover, Williams does not cite any evidence in the certified record,

nor have we found any evidence, that he attempted to file post-sentence

motions regarding whether he was responsible for costs and fees.                 The

record contains a notice of appeal filed on May 13, 2016, which is his current

____________________________________________


       5
           Commonwealth v. Wolfe, 140 A.3d 651 (Pa. 2016).



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appeal.    Therefore, his claim that the trial court denied his post-sentence

and direct appeal rights also is belied by the record.

       Williams next argues that the trial court erred in calculating his OGS in

2007 and that his sentence was illegal pursuant to Alleyne, Hopkins, and

Wolfe.6 Williams raised these issues in his June 12, 2014 PCRA petition and

we thoroughly addressed them in our January 29, 2016 memorandum.7 See

Williams, 565 WDA 2016, at 7-15.

       Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/21/2017




____________________________________________


       6
        We note that the Pennsylvania Supreme Court affirmed Wolfe in
June of 2016, after our memorandum discussing this issue. 140 A.3d 651
(Pa. 2016). However, because Wolfe decided no new law and its holding
was affirmed it does not affect our previous analysis. See Williams, 565
WDA 2016, at 7-13.
       7
        We further note that our January 29, 2016 remand was for the
limited purpose of determining whether Williams was responsible for costs
and fees, and he cannot now raise issues unrelated to that purpose. See
Commonwealth v. McKeever, 947 A.2d 782, 786 (Pa.Super. 2008);
Commonwealth v. Lawson, 789 A.2d 252, 254 (Pa.Super. 2001).



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