J-E01002-18 & J-E01003-18

                              2018 PA Super 283

 COMMONWEALTH OF PENNSYLVANIA           :   IN THE SUPERIOR COURT OF
                                        :        PENNSYLVANIA
                                        :
            v.                          :
                                        :
                                        :
 KEITH FIELDS                           :
                                        :
                  Appellant             :   No. 1069 WDA 2016


       Appeal from the Judgment of Sentence Entered April 5, 2016,
           in the Court of Common Pleas of Allegheny County,
          Criminal Division at No(s): CP-02-CR-0004803-2012,
                        CP-02-CR-0004806-2012.


 COMMONWEALTH OF PENNSYLVANIA           :   IN THE SUPERIOR COURT OF
                                        :        PENNSYLVANIA
                                        :
            v.                          :
                                        :
                                        :
 GERALD HOWARD DAVIS, JR.               :
                                        :
                  Appellant             :   No. 445 WDA 2016


    Appeal from the Judgment of Sentence Entered February 19, 2016,
            in the Court of Common Pleas of Allegheny County,
          Criminal Division at No(s): CP-02-CR-0004831-2012,
                         CP-02-CR-0004834-2012.


BEFORE: BENDER, P.J.E., PANELLA, J., SHOGAN, J., LAZARUS, J., OLSON,
        J., STABILE, J., DUBOW, J., KUNSELMAN, J., and MURRAY, J.

OPINION IN SUPPORT OF AFFIRMANCE BY BENDER, P.J.E.:

                                              FILED OCTOBER 17, 2018

     Appellants, Keith Fields and Gerald Howard Davis, Jr., appeal from the

judgments of sentence imposed after they were resentenced following their
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original sentences being vacated on collateral review.        Fields and Davis

contend that the post-conviction court lacked jurisdiction to vacate their

sentences, and resentence them, at certain counts for which they had

completed their sentences or received no further penalty. After careful review,

we affirm.

      The facts of Fields’ and Davis’ underlying convictions are not pertinent

to our disposition of their appeals. We only briefly note that both men were

charged with various offenses stemming from robberies that they, and a third

cohort, had committed at nine separate restaurants and convenience stores

in Allegheny County, Pennsylvania. On August 29, 2012, Fields and Davis

both pled guilty to all of the offenses with which they were charged.

Specifically, Fields pled guilty to twenty-three counts of robbery, nine counts

each of conspiracy and theft by unlawful taking, eight counts each of terroristic

threats and recklessly endangering another person (REAP), six counts of

aggravated assault, two counts of persons not to possess a firearm, and one

count each of discharging a firearm into an occupied structure, firearms not

to be carried without a license, and receiving stolen property.      Davis pled

guilty to six counts each of robbery, aggravated assault, REAP, and terroristic

threats, as well as one count each of discharging a firearm into an occupied

structure, carrying a firearm without a license, theft by unlawful taking,

receiving stolen property, and criminal conspiracy.

      On January 18, 2013, both men were sentenced, with Fields receiving

an aggregate term of 25 to 50 years’ incarceration, and Davis receiving an

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aggregate term of 22 to 44 years’ incarceration. This Court affirmed their

judgments of sentence on direct appeal. See Commonwealth v. Fields, 104

A.3d 55 (Pa. Super. 2014) (unpublished memorandum); Commonwealth v.

Davis, 105 A.3d 46 (Pa. Super. 2014) (unpublished memorandum), appeal

denied, 104 A.3d 2 (Pa. 2014).

      Fields and Davis both then filed timely petitions under the Post

Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546.             Counsel was

appointed, and amended petitions were filed on their behalf arguing, inter alia,

that Fields and Davis had received mandatory minimum sentences for several

of their robbery convictions that were rendered illegal by Alleyne v. United

States, 133 S.Ct. 2151, 2163 (2013) (holding that “facts that increase

mandatory minimum sentences must be submitted to the jury” and found

beyond a reasonable doubt).

      On February 19, 2016, the PCRA court issued an order granting Davis’

petition, vacating his original judgment of sentence in its entirety, and

scheduling his resentencing hearing for that same day. At the resentencing

proceeding, the court imposed an aggregate term of 17 to 40 years’

incarceration. Davis filed a timely notice of appeal from his new judgment of

sentence, and he complied with the court’s order to file a Pa.R.A.P. 1925(b)

concise statement of errors complained of on appeal. On April 11, 2016, the

court filed a Rule 1925(a) opinion.

      In Fields’ case, the PCRA court entered an order on March 11, 2016,

granting his PCRA petition in part, to the extent that he challenged the legality

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of his mandatory-minimum sentences.              That order vacated the entirety of

Fields’ original judgment of sentence, and scheduled his resentencing hearing

for April 5, 2016.        At the resentencing hearing, the court imposed an

aggregate term of 17 to 50 years’ incarceration.1 Fields filed a timely notice

of appeal, and he also complied with the trial court’s order to file a Rule

1925(b) statement. The trial court issued a Rule 1925(a) opinion on October

21, 2016.

       Ultimately, this Court consolidated Fields’ and Davis’ appeals and

assigned their case to a three-judge panel. Before that panel, Fields and Davis

presented the following issues, respectively:

       Whether the sentencing court had jurisdiction to sentence [Fields]
       at count 29 ([c]riminal [c]onspiracy) when the PCRA court had no
       jurisdiction to grant PCRA relief as to those counts because
       [Fields’] sentence had already been served as to [that] count[]?

Fields’ Original Brief at 24.
       Whether the sentencing court had jurisdiction to sentence [Davis]
       at count 5 ([REAP]) and count 23 (possession of a firearm) when
       the PCRA court had no jurisdiction to grant PCRA relief as to those
       counts because [Davis’] sentence had already been served as to
       those counts?

Davis’ Original Brief at 16.

       After hearing oral argument, the three-judge panel requested that

Fields’ and Davis’ case be certified for en banc review, which was unanimously

granted by our Court. Accordingly, their case was assigned to the present, en


____________________________________________


1 That same day, the PCRA court issued a second PCRA order denying the
remainder of Fields’ post-conviction claims.

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banc panel, which heard oral argument by Fields and Davis on April 24, 2018.

Fields and Davis also both filed substituted briefs, reiterating the identical,

single issues set forth supra.     See Fields’ Substituted Brief (hereinafter,

“Fields’ Brief”) at 22; Davis’ Substituted Brief (hereinafter, “Davis’ Brief”) at

18. We will now address those claims.

      Both Fields and Davis argue that under 42 Pa.C.S. § 9543(a)(1)(i),

discussed infra, “the PCRA court had no jurisdiction to grant PCRA relief as to

those counts” on which their original sentences had already been served, or

on which they had received no further penalty. See Fields’ Brief at 22; Davis’

Brief at 18. More specifically, Davis takes issue with the PCRA court’s vacating

his no-further-penalty sentences for one count of REAP and one count of

possession of a firearm, and then resentencing him to 1 to 2 year terms of

incarceration for each of those convictions. See Davis’ Brief at 30-31. The

only sentence that Fields specifically identifies on appeal is his term of

incarceration imposed for his conspiracy conviction at count 29. See Fields’

Brief at 33. Fields maintains that at the time he was resentenced in 2016, he

had completed his original sentence of 1 to 2 years’ incarceration for that

offense.   Thus, Fields asserts that “[t]he PCRA court lacked jurisdiction to

vacate and impose a new sentence as to any counts where [he] had already

served his sentence.” Id. at 33-34.

      We begin by recognizing that “[j]urisdiction is purely a question of law;

the appellate standard of review is de novo and the scope of review is

plenary.” Commonwealth v. John, 854 A.2d 591, 593 (Pa. Super. 2004)

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(citation omitted). Additionally, to the extent that Fields’ and Davis’ claims

involve statutory interpretation of the PCRA, they constitute “a question of

law, and our review is plenary and non-deferential.” A.S. v. Pennsylvania

State Police, 143 A.3d 896, 903 (Pa. 2016) (citation omitted). Our Supreme

Court has directed that,

      [i]n such cases, the Statutory Construction Act directs courts to
      ascertain and effectuate the intent of the General Assembly.
      [Commonwealth v. Conklin, 897 A.2d 1168, 1175 (Pa. 2006)],
      citing 1 Pa.C.S. § 1921(a). “The statute’s plain language generally
      provides the best indication of legislative intent.” See, e.g.,
      McGrory v. Dep't of Transp., … 915 A.2d 1155, 1158 ([Pa.]
      2007); Commonwealth v. Gilmour Mfg. Co., … 822 A.2d 676,
      679 ([Pa.] 2003).

Id.

      In the present case, Fields and Davis rely on 42 Pa.C.S. § 9543(a)(1)(i)

to support their argument that the PCRA court lacked jurisdiction to disturb

their sentences on certain counts. Section 9543, entitled “Eligibility for relief,”

states:

      (a) General rule.--To be eligible for relief under this subchapter,
      the petitioner must plead and prove by a preponderance of the
      evidence all of the following:

          (1) That the petitioner has been convicted of a crime under
          the laws of this Commonwealth and is at the time relief is
          granted:

            (i) currently serving a sentence of imprisonment,
            probation or parole for the crime;

            (ii) awaiting execution of a sentence of death for the
            crime; or

            (iii) serving a sentence which must expire before the
            person may commence serving the disputed sentence.


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42 Pa.C.S. § 9543(a)(1)(i) (emphasis added). Fields and Davis essentially

contend that the ‘currently serving a sentence’ requirement of section

9543(a)(1)(i) constitutes a bar that petitioners must overcome before the

PCRA court has jurisdiction to grant them relief.

       We disagree. The plain language of section 9543 does not mention the

jurisdiction of the PCRA court, but instead sets forth the eligibility

requirements a petitioner must meet in order to obtain post-conviction relief.

Notably, the language, “to be eligible for relief,” implicates only the petitioner’s

ability to obtain a remedy through post-conviction proceedings, not the

jurisdiction of the PCRA court to act on a petition. Moreover, reading the PCRA

statute as a whole, as we must,2 supports our interpretation of the language

of section 9543.      Specifically, in drafting the PCRA, the General Assembly

included 42 Pa.C.S. § 9545, a separate provision addressing “Jurisdiction and

proceedings.” Had the General Assembly intended the eligibility requirements

of section 9543 to be jurisdictional prerequisites, it would have included that

provision within section 9545.

       Additionally, the cases on which both Davis and Fields rely do not

convince us to adopt a different interpretation of section 9543 than that which

____________________________________________


2 See 1 Pa.C.S. § 1932(a) (“Statutes or parts of statutes are in pari materia
when they relate to the same persons or things or to the same class of persons
or things.”). The PCRA relates to only one thing - namely, establishing “an
action by which persons convicted of crimes they did not commit and persons
serving illegal sentences may obtain collateral relief.” 42 Pa.C.S. § 9542.
“Statutes in pari materia shall be construed together, if possible, as one
statute.” 1 Pa.C.S. § 1932(b).

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its plain language conveys.      Each of those decisions simply clarifies that

section 9543 requires that a petitioner be serving a sentence of incarceration

at the time relief is granted; if they are not, they are ineligible for post-

conviction relief. See Commonwealth v. Ahlborn, 699 A.2d 718, 720 (Pa.

1997) (hereinafter, “Ahlborn I”) (holding that the plain language of section

9543(a)(1)(i) requires that a petitioner be serving a sentence of incarceration

at the time when relief is granted); Commonwealth v. Matin, 832 A.2d

1141, 1143 (Pa. Super. 2003) (stressing that “[a] petitioner is ineligible for

relief under the PCRA once the sentence for the challenged conviction is

completed”); see also Commonwealth v. Smith, 17 A.3d 873, 904 (Pa.

2011) (reiterating the holding of Ahlborn I that section 9543 “preclude[s]

PCRA relief where the petitioner is no longer serving a sentence for the crime

at the time the PCRA court renders a decision”) (citing Ahlborn I, supra). At

no point in Ahlborn I, Smith, or Matin, did our Supreme Court, or this Court,

reference the jurisdiction of the PCRA court, or construe section 9543(a)(1)(i)

as constituting a jurisdictional prerequisite to the court’s ability to grant post-

conviction relief.

      Although neither Fields nor Davis discuss this Court’s en banc decision

in Commonwealth v. Ahlborn, 683 A.2d 632 (Pa. Super. 1996) (en banc)

(hereinafter, “Ahlborn II”), aff’d by Ahlborn I, supra, we recognize that in

that opinion, we stated that the ‘currently serving’ requirement of section

9543 “must be met in order to confer upon a court jurisdiction to hear a PCRA

petition.” Ahlborn II, 683 A.2d at 637 (emphasis in original). However, the

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question of whether section 9543 implicates the PCRA court’s jurisdiction to

rule on a petition was not specifically at issue in Ahlborn II. Instead, the

specific issue on which we granted en banc review in Ahlborn II (and on

which our Supreme Court subsequently affirmed in Ahlborn I) was “the point

in time (filing or hearing date) at which a petitioner satisfies the ‘currently

serving’ requirement of the PCRA.” Id. To the extent that, in assessing this

issue, we erroneously construed section 9543 as implicating the PCRA court’s

jurisdiction to hear a petition, we hereby overrule Ahlborn II.

      In sum, we conclude that Fields’ and Davis’ jurisdictional argument

misinterprets the plain language of section 9543, as well as the decisions in

Ahlborn I, Matin, and Smith. Accordingly, we hold that the requirements

set forth in section 9543 establish only a petitioner’s eligibility for post-

conviction relief, and do not implicate the PCRA court’s jurisdiction to act on a

petition.

      Based on this decision, we next conclude that Fields and Davis have

waived their claim for our review. Fields and Davis specifically dispute the

PCRA court’s ‘jurisdiction’ to grant them post-conviction relief. See Fields’

Brief at 22; Davis’ Brief at 18. Contrary to their arguments, the relief granted

by the PCRA court was not their resentencing; instead, it was the vacating of

their original judgments of sentence, based on the illegality of their

mandatory-minimum terms of incarceration. The PCRA court provided Davis

this relief in its February 19, 2016 order granting his petition and scheduling

resentencing for that same day. Additionally, Fields was afforded his post-

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conviction sentencing relief in the PCRA court’s March 11, 2016 order granting

his petition, in part, and scheduling his resentencing hearing for April 5, 2016.

       Although it was with these orders that the PCRA court first acted on the

at-issue counts by vacating them, thus exposing Fields and Davis to

resentencing on those charges, neither Fields nor Davis appealed from those

orders.3    Instead, both men decided to appeal from their judgments of

sentence. Because the essence of their issue is that the PCRA court lacked

the ability to disturb their sentences on certain counts, which the court did in

the PCRA orders vacating those sentences, we hold that Fields and Davis have

waived their      challenge     by not appealing from     those   orders.     See

Commonwealth v. Bryant, 780 A.2d 646, 648 (Pa. 2001) (concluding that

where a petitioner does not file a timely notice of appeal from the PCRA court

order, he waives “future review of the decision of the PCRA court”).

       We also stress that, even if Fields and Davis are properly raising their

claim in the present appeals from their judgments of sentence, their argument

____________________________________________


3 Clearly, those PCRA orders became final and appealable at some point,
whether it was on the day they were entered, or upon the court’s resentencing
of Fields and Davis (and the court’s issuing a second order denying Fields’
remaining PCRA claims). See Pa.R.Crim.P. 910 (“An order granting, denying,
dismissing, or otherwise finally disposing of a petition for post-conviction
collateral relief shall constitute a final order for purposes of appeal.”). As this
Court recently summarized in Commonwealth v. Grove, 170 A.3d 1127,
1137-38 (Pa. Super. 2017), our Court has disputed precisely when a PCRA
order - particularly, a hybrid order that grants resentencing and denies the
petitioner’s remaining claims - becomes final and appealable. We cannot
resolve this contested issue in the present case, however, as neither Fields
nor Davis have appealed from the PCRA court’s order ruling on their petitions.


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is still waived. At no point during their resentencing hearings did either Fields

or Davis argue that the court lacked the authority to vacate their original

sentences, and resentence them, on certain counts for which they were not

‘currently serving’ a term of incarceration. Moreover, Fields and Davis did not

assert any such challenge in a post-sentence motion.         Rather, both men

waited until the present appeal from their judgments of sentence to contend,

for the first time, that the PCRA court lacked the authority to disturb their

original sentences on certain convictions, framing that issue as a non-waivable

challenge to the court’s jurisdiction. Because we conclude that Fields’ and

Davis’ claim does not implicate the PCRA court’s jurisdiction, we also hold that

they have waived this issue by presenting it for the first time on appeal. See

Pa.R.A.P. 302(a) (“Issues not raised in the lower court are waived and cannot

be raised for the first time on appeal.”).

      Lastly, we recognize that where this Court has jurisdiction, we may

address the legality of a sentence. See Commonwealth v. Edrington, 780

A.2d 721, 723 (Pa. Super. 2001) (citations omitted).      However, the specific

claim that Fields and Davis present herein - i.e., that under section 9543, the

PCRA court lacked ‘jurisdiction’ to vacate their sentences and resentence them

- does not, on its face, fall within any of the three categories of non-waivable,

illegal sentencing claims subject to this Court’s review and correction. See

Commonwealth v. Munday, 78 A.3d 661, 664 (Pa. Super. 2013) (reiterating

that the three, narrow categories of cases to which the term of art, ‘illegal

sentence,’ applies “are: (1) claims that the sentence fell ‘outside of the legal

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parameters prescribed by the applicable statute’; (2) claims involving

merger/double jeopardy; and (3) claims implicating the rule in Apprendi v.

New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000).”)

(citation omitted).

      Moreover, while it might seem that Fields’ and Davis’ sentencing

challenge could fall under the double jeopardy category of illegal sentencing

claims, we discern no constitutional violation for several reasons. First, it was

Fields and Davis who intentionally upset the finality of their judgments of

sentence by challenging them collaterally through their PCRA petitions. In

other words, “by filing a petition for collateral relief, [Fields and Davis]

assumed the risk that [their] sentencing on the various counts would be

adjusted insofar as was necessary to preserve the integrity of the original

sentencing scheme.” Commonwealth v. Walker, 568 A.2d 201, 208 (Pa.

Super. 1989), disapproved of on other grounds by Commonwealth v.

Robinson, 931 A.2d 15, 20-22 (Pa. Super. 2007) (en banc). Second, Fields

and Davis were both resentenced to lower aggregate terms of incarceration.

Our Court has held that no double jeopardy violation occurs in such

circumstances. See Commonwealth v. Sutton, 583 A.2d 500, 502–03 (Pa.

Super. 1990) (declaring that “no double jeopardy violation is implicated where

the aggregate sentence upon resentencing does not exceed the original

aggregate sentence”) (citing Walker, 568 A.2d at 207 n.5); see also

Commonwealth v. Adams, 504 A.2d 1264, 1268 (Pa. Super. 1986) (en

banc) (concluding that, because there was no increase in Adams’ aggregate

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sentence, there was no double jeopardy violation). Third, Fields and Davis

were each given credit for time served in their written sentencing orders.

Therefore, practically speaking, they will not suffer “multiple punishments for

the same offense.” Illinois v. Vitale, 447 U.S. 410, 415 (1980) (stating that

double jeopardy “protects against multiple punishments for the same

offense”) (internal citations, quotation marks, and some brackets omitted).

Accordingly, we perceive no double jeopardy violation that requires us to sua

sponte raise such a claim and vacate Fields’ and Davis’ at-issue sentences

based thereon.

      Judgments of sentence affirmed.

      Judges Panella, Lazarus and Dubow join this opinion in support of

affirmance.

      Judge Olson files an opinion in support of reversal in which Judges

Shogan and Murray join.

      Judge Stabile files an opinion in support of affirmance in which Judge

Kunselman joins.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/17/2018



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