J-S17034-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                        Appellee

                   v.

CAEONNE AHTREB JOHNSON

                        Appellant                  No. 1478 WDA 2014


         Appeal from the Judgment of Sentence October 28, 2013
               In the Court of Common Pleas of Erie County
           Criminal Division at No(s): CP-25-CR-0003257-2006

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                        Appellee

                   v.

CAEONNE AHTREB JOHNSON

                        Appellant                  No. 1480 WDA 2014


         Appeal from the Judgment of Sentence October 28, 2013
               In the Court of Common Pleas of Erie County
           Criminal Division at No(s): CP-25-CR-0001667-2013


BEFORE: GANTMAN, P.J., SHOGAN, J., and FITZGERALD, J.*

MEMORANDUM BY GANTMAN, P.J.:                       FILED MARCH 18, 2015

     Appellant, Caeonne Ahtreb Johnson, appeals nunc pro tunc from the

judgments of sentence entered in the Erie County Court of Common Pleas,

(1) following his revocation of probation at docket no. CP-25-CR-0003257-

2006 (“docket 3257-2006”); and (2) his open guilty plea to simple assault

___________________________

*Former Justice specially assigned to the Superior Court.
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(18 Pa.C.S.A. § 2701(a)) at docket no. CP-25-CR-0001667-2013 (“docket

1667-2013”). We remand for further proceedings.

       The relevant facts and procedural history of this case are as follows.

On October 14, 2006, Appellant took fifty dollars ($50.00) from a victim. 1

Appellant entered an open guilty plea at docket 3257-2006 on February 8,

2007, to one count of robbery (18 Pa.C.S.A. 3701(a)(1)(v)).        The court

sentenced Appellant on March 27, 2007, to six (6) to twenty (20) months’

imprisonment, plus fifty (50) months’ probation.2

       Appellant committed a new offense, while on parole, that resulted in a

conviction for indirect criminal contempt (related to violating a protection

from abuse order).         On October 29, 2008, the court held a revocation

(“VOP”) hearing on Appellant’s underlying robbery conviction.      Based on

Appellant’s new conviction for indirect criminal contempt, the court revoked

Appellant’s parole and remanded Appellant to serve sixty (60) more days’

imprisonment in county prison, after which Appellant would again be parole-

____________________________________________


1
   Appellant stomped Victim in the head during the robbery.            The
Commonwealth initially charged Appellant with second degree robbery under
subsection (a)(1)(iv) (inflicts bodily injury upon another or threatens
another with or intentionally puts him in fear of immediate bodily injury).
Appellant was later allowed to proceed on the charge as a third degree
felony under subsection (a)(1)(v) (physically takes or removes property
from the person of another by force however slight).
2
  Despite some references to a probationary term of fifteen (15) months, the
March 27, 2007 sentencing order and transcript make clear the court
imposed a probationary term of fifty (50) months.



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eligible. The court kept in place the fifty (50) month probationary term. On

December 24, 2008, the court re-paroled Appellant, effective December 28,

2008.

        Appellant assaulted his girlfriend on February 26, 2013, while he was

still on probation.3     On September 10, 2013, Appellant entered an open

guilty plea at docket 1667-2013 to one count of simple assault. On October

28, 2013, the court held a sentencing hearing for Appellant’s simple assault

conviction and a VOP hearing on Appellant’s underlying robbery conviction.

Based on Appellant’s simple assault conviction, the court revoked Appellant’s

probation at docket 3257-2006 and resentenced Appellant to thirty (30) to

sixty-eight (68) months’ imprisonment. For the simple assault conviction at

docket 1667-2013, the court imposed eleven (11) to twenty-three (23)

months’ imprisonment, to be served consecutively to Appellant’s VOP new

sentence for the robbery conviction.           Appellant’s total aggregate sentence

was forty-one (41) to ninety-one (91) months’ imprisonment.               Appellant

received credit for the time he already served on each conviction. Appellant

did not file post-sentence motions or a direct appeal.

        On August 18, 2014, Appellant timely filed a pro se PCRA petition at

docket 3257-2006 and docket 1667-2013. In his petition, Appellant alleged,
____________________________________________


3
  The facts in the record concerning the assault indicate Appellant choked his
girlfriend to the point of almost passing out and punched her in the chest
and shoulder area several times. Victim suffered a broken collarbone and
bruising as a result of the assault.



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inter alia, VOP counsel was ineffective for failing to file post-sentence

motions and a direct appeal as requested.4 Appellant also challenged, inter

alia, the discretionary aspects of his sentence.       The next day, the court

appointed counsel and gave appointed counsel sixty (60) days to file an

amended PCRA petition. Two days after counsel’s appointment, and before

counsel could file an amended PCRA petition, the court entered an order on

August 21, 2014, stating that to the extent Appellant’s pro se PCRA petition

requested reinstatement of direct appellate rights, the petition was granted.

The court, however, did not reinstate Appellant’s post-sentence rights nunc

pro tunc. The court’s order further instructed Appellant to perfect a direct

appeal within twenty-one (21) days.5

       On September 10, 2014, Appellant timely filed counseled notices of

appeal nunc pro tunc at dockets 3257-2006 and 1667-2013, which this

Court later consolidated.         The court ordered Appellant to file a concise

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4
  Appellant’s pro se PCRA petition is largely illegible. Nevertheless, we can
discern at least three places in the petition where Appellant indicates VOP
counsel failed to file post-sentence motions and a direct appeal as
requested. See Appellant’s Pro Se PCRA Petition, filed 8/18/14, at 4 ¶6(c);
6 ¶9; 8 ¶15.
5
  Appellant actually had thirty (30) days to perfect his nunc pro tunc appeal.
See Pa.R.A.P. 903(a) (stating notice of appeal shall be filed within 30 days
after entry of order from which appeal is taken); Commonwealth v.
Wright, 846 A.2d 730 (Pa.Super. 2004) (explaining when PCRA court issues
order reinstating appellant’s direct appeal rights nunc pro tunc, appellant has
thirty (30) days from order reinstating appeal rights to file nunc pro tunc
appeal). The court’s August 21, 2014 order was erroneous in this regard.



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statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).

Appellant timely filed a Rule 1925(b) statement on September 26, 2014.

      Appellant raises one issue for our review:

         WHETHER THE SENTENCING COURT COMMITTED LEGAL
         ERROR AND ABUSED ITS DISCRETION IN IMPOSING A
         CONSECUTIVE SENTENCING SCHEME IN RUNNING THE
         SENTENCE  FOR   THE  NEW   CRIMINAL   OFFENSES
         CONSECUTIVELY  TO   EACH   OTHER    AND   THEN
         CONSECUTIVELY TO THE REVOCATION SENTENCE
         WITHOUT A LEGALLY SUFFICIENT CONTEMPORANEOUS
         STATEMENT IN SUPPORT OF THAT SENTENCING
         ELECTION?

(Appellant’s Brief at 2).

      Appellant argues the court failed to state sufficient reasons on the

record for imposition of his sentence for simple assault consecutive to his

revocation sentence.        Appellant asserts the court failed to consider

mitigating factors Appellant presented at the time of sentencing. Appellant

claims the court focused mainly on Appellant’s commission of a new crime

(simple assault) while under supervision.     Appellant concedes his simple

assault conviction justified revocation and resentencing for his robbery

conviction, but he complains the court should not have used his simple

assault conviction as a basis for imposing the revocation and simple assault

sentences consecutively.       On this basis, Appellant insists the court

essentially “double counted” his simple assault conviction at sentencing.

Appellant concludes the court abused its sentencing discretion, and this

Court must remand for resentencing.         As presented, Appellant’s issue


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challenges the discretionary aspects of his sentence.6 See Commonwealth

v.   Gonzalez-Dejusus,          994    A.2d    595   (Pa.Super.   2010)    (explaining

challenge to imposition of consecutive sentences implicates discretionary

aspects    of   sentencing);     Commonwealth         v.   Twitty,   876   A.2d   433

(Pa.Super. 2005), appeal denied, 586 Pa. 749, 892 A.2d 823 (2005) (stating

claim sentencing court failed to state adequate reasons on record for

sentence presents challenge to discretionary aspects of sentencing);

Commonwealth v. Cruz-Centeno, 668 A.2d 536 (Pa.Super. 1995), appeal

denied, 544 Pa. 653, 676 A.2d 1195 (1996) (explaining allegation court

ignored mitigating factors challenges discretionary aspects of sentencing).

Generally, objections to the discretionary aspects of a sentence are waived if

they are not raised at the sentencing hearing or in a timely filed post-

sentence motion.        Commonwealth v. Griffin, 65 A.3d 932 (Pa.Super.

2013), appeal denied, 621 Pa. 682, 76 A.3d 538 (2013).                     See also

Pa.R.Crim.P. 708(E) (stating motion to modify sentence imposed after

revocation shall be filed within 10 days of date of imposition).

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6
   When reviewing the outcome of a revocation proceeding, this Court is
limited to determining the validity of the proceeding, the legality of the
judgment of sentence imposed, and the discretionary aspects of sentencing.
Commonwealth v. Cartrette, 83 A.3d 1031, 1033-34 (Pa.Super. 2013)
(en banc) (explaining that, notwithstanding prior decisions which stated our
scope of review in revocation proceedings is limited to validity of
proceedings and legality of sentence, this Court’s scope of review on appeal
from revocation sentencing can also include discretionary sentencing
challenges).



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       As a prefatory matter, where the court reinstates direct appeal rights

nunc pro tunc, the appellant is not automatically entitled to reinstatement of

his post-sentence rights nunc pro tunc as well. Commonwealth v. Liston,

602 Pa. 10, 977 A.2d 1089 (2009).                Nevertheless, a PCRA court can

reinstate a defendant’s post-sentence rights nunc pro tunc if the defendant

successfully pleads and proves he was deprived of the right to file and

litigate post-sentence motions as a result of ineffective assistance of

counsel. Id. at 20 n.9, 977 A.2d at 1095 n.9. Compare Commonwealth

v. Fransen, 986 A.2d 154 (Pa.Super. 2009) (holding PCRA petitioner who

obtains reinstatement of direct appeal rights nunc pro tunc is not entitled to

reinstatement of post-sentence rights nunc pro tunc if he did not request

that relief with PCRA court, and if court did not hold evidentiary hearing on

that issue; appellant’s claim that he was entitled to file post-sentence

motions and to have benefit of evidentiary hearing warranted no relief where

appellant did not plead or prove in PCRA petition that he was deprived of

right to file post-sentence motions).7

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7
  In Commonwealth v. Corley, 31 A.3d 293 (Pa.Super. 2011), this Court
declined to find waiver of a defendant’s discretionary aspects of sentencing
challenge because the defendant was denied counsel entirely throughout the
post-sentence and direct appeal process, based on counsel’s withdrawal at
sentencing; and the court denied the defendant’s request to file post-
sentence motions nunc pro tunc. Corley dealt with the complete denial of
counsel, rather than the ineffectiveness of counsel.       See id. at 297
(distinguishing Liston and Fransen as inapplicable, where Corley was
denied counsel throughout entire post-sentence and direct appeal period
(Footnote Continued Next Page)


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      Instantly, the court held a sentencing hearing for Appellant’s simple

assault conviction at docket 1667-2013, and a VOP hearing with respect to

Appellant’s robbery conviction at docket 3257-2006, on October 28, 2013.

Based on Appellant’s simple assault conviction, the court revoked probation

at docket 3257-2006 and imposed an aggregate sentence of thirty (30) to

sixty-eight (68) months’ imprisonment for the robbery conviction at that

docket. At docket 1667-2013, the court sentenced Appellant to eleven (11)

to twenty-three (23) months’ imprisonment for his simple assault conviction,

to be served consecutively to Appellant’s VOP sentence.          The court gave

Appellant credit for the time he had served on each conviction.         Appellant

did not file post-sentence motions or a direct appeal.

      On August 18, 2014, Appellant timely filed a pro se PCRA petition at

both dockets alleging, inter alia, VOP counsel was ineffective for failing to file

post-sentence motions and a direct appeal as requested.           Appellant also

challenged the discretionary aspects of his sentence.        The next day, the

court appointed counsel to file an amended PCRA petition within sixty (60)

days. Before PCRA counsel filed any petition, the court entered an order on

August 21, 2014 (two days after appointing counsel), stating that to the

extent Appellant’s pro se PCRA petition requested reinstatement of direct

                       _______________________
(Footnote Continued)

when he was constitutionally entitled to counsel; reinstatement of Corley’s
appellate rights nunc pro tunc was based on complete denial of counsel, not
on ineffective assistance of counsel).



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appellate rights, that motion is granted.        The court did not reinstate

Appellant’s post-sentence rights nunc pro tunc.       Appellant subsequently

timely filed nunc pro tunc notices of appeal at each docket.

       Consistent with Liston and Fransen, Appellant pled in his PCRA

petition that VOP counsel was ineffective for failing to file a requested post-

sentence motion and a requested notice of appeal.        See Liston, supra;

Fransen, supra.          Nevertheless, the court deprived Appellant of the

opportunity to prove his claim when the court precipitously reinstated only

Appellant’s direct appeal rights nunc pro tunc, before PCRA counsel even had

an opportunity to file an amended PCRA petition, or the court could hold a

hearing on the petition. Nothing in the record demonstrates unequivocally

Appellant’s contention that he asked VOP counsel to file post-sentence

motions or a direct appeal on Appellant’s behalf.8         Consequently, per

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8
   At docket 1667-2013, the certified record contains a letter dated July 23,
2014, from Appellant to VOP counsel asking if counsel filed the modification
of sentence motion that Appellant requested. Appellant mailed the letter to
the Clerk of Courts, asking the Clerk to forward the letter to VOP counsel.
The Clerk of Courts responded on July 29, 2014. The Clerk confirmed with
the Office of the Public Defender that VOP counsel no longer represented
Appellant and suggested Appellant contact his prison counselor or the law
library if Appellant wanted to proceed with further action on his case.
Nevertheless, the docket entries do not show a motion to withdraw by VOP
counsel following the October 28, 2013 VOP/sentencing hearing. In fact, the
record contains an order entered June 10, 2014, in response to a pro se
motion for transcripts docketed on June 6, 2014, that denied Appellant’s
motion because he was represented by counsel of record and there was no
matter pending. Thus, there is at least some suggestion in the record that
Appellant asked VOP counsel to file post-sentence motions.



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Fransen, remand for an evidentiary hearing is the appropriate remedy to

afford Appellant an opportunity to show counsel failed to file post-sentence

motions and a direct appeal as requested.                 See id.     With respect to

Appellant’s claim that VOP counsel failed to file requested post-sentence

motions, the court must determine upon remand whether but for VOP

counsel’s failure, Appellant would have filed post-sentence motions, which is

the prejudice Liston anticipated.9 See Liston, supra. Therefore, the best

resolution of this appeal is to remand the matter to the PCRA court to give

Appellant sixty (60) days to file a counseled amended PCRA petition, and

give the Commonwealth sufficient time to respond. After Appellant and the

Commonwealth submit their respective filings, the court must hold an

evidentiary hearing at least concerning whether VOP counsel failed to file

requested     post-sentence      motions       and   a   direct   appeal   as   alleged.

Accordingly, we remand for further proceedings.

       Case remanded with instructions. Jurisdiction is relinquished.


____________________________________________


9
  Appellant raised a challenge to the discretionary aspects of sentencing in
his pro se PCRA petition. Issues related to the discretionary aspects of
sentencing had to be raised at sentencing or in a post-sentence motion.
See Griffin, supra. Appellant claimed VOP counsel was ineffective for
failing to file requested post-sentence motions. Therefore, restoration of
Appellant’s direct appeal rights nunc pro tunc without restoration of
Appellant’s post-sentence rights nunc pro tunc was essentially an empty
gesture. Thus, we reject the court’s contention that Appellant waived his
sentencing challenge for failure to file post-sentence motions where the
court effectively foreclosed Appellant from doing so.



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/18/2015




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