J-S45043-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    MALIK MILES                                :
                                               :
                       Appellant               :   No. 988 EDA 2018

            Appeal from the Judgment of Sentence December 1, 2017
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                        No(s): CP-51-CR-0006808-2009


BEFORE: BENDER, P.J.E., MURRAY, J., and PELLEGRINI, J.*

MEMORANDUM BY PELLEGRINI, J.:                          FILED AUGUST 09, 2019

        The Appellant, Malik Miles (Miles), appeals the judgment of sentence

entered in the Philadelphia County Court of Common Pleas (trial court)

following this Court’s remand for resentencing in Commonwealth v. Miles,

1052 EDA 2016 (Pa. Super. January 6, 2017).            At the resentencing, Miles

received a prison term of 10 to 20 years for attempted murder and a

consecutive term of 3 to 6 years for possession of firearms by a person

prohibited. Miles now argues that the sentence on the firearms’ possession

count violates the prohibition against double jeopardy. We affirm.




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*   Retired Senior Judge assigned to the Superior Court.
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                                               I.

       The pertinent case facts below are taken from the certified record. In

2010, Miles was found guilty after a jury trial of attempted murder, possession

of firearms by a person prohibited, aggravated assault, criminal conspiracy,

carrying firearms without a license, possession of an instrument of crime and

recklessly endangering another person.1             Of those counts, he was only

sentenced on the attempted murder conviction but the trial court applied a

statutory enhancement in order to impose a term of between 20 and 40 years.

See 18 Pa.C.S. § 1102(c) (increasing maximum sentence for attempted

murder from 20 years to 40 years in the event of a victim’s serious bodily

injury). Miles received no further penalty on the remaining counts.

       This Court affirmed the judgment of sentence on direct appeal in

Commonwealth v. Miles, 55 A.3d 143 (Pa. Super. 2012) (unpublished

memorandum).         Miles did not petition for an allowance of appeal to our

Supreme Court and his judgment of sentence became final in 2012.

       Miles then timely filed a pro se petition pursuant to the Post Conviction

Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. He challenged the applicability

of the sentencing enhancement, arguing that it violated Apprendi v. New


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1 A jury found Miles guilty of all offenses except for the firearms’ possession
count. As to that count, Miles waived the right to a jury and was found guilty
by the trial judge.




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Jersey, 530 U.S. 466 (2000), because the jury did not make the requisite

finding of serious bodily injury.2         The Commonwealth conceded that the

sentence was improper and we vacated the sentence and remanded for

resentencing. See Miles, 1052 EDA 2016 *2-3.

        On remand, the trial court resentenced Miles as outlined above. Miles

then filed the present appeal3 and, in his brief, he contends that “the trial

court imposed an illegal sentence for possession of a firearm when the original

penalty of no further penalties . . . had already been satisfied[.]” Appellant’s

Brief, at 5.

                                               II.

        The central question before us is whether the trial court could

resentence Miles on the firearms’ possession count even though he never

disputed that specific aspect of the original sentencing order.4 In a similar




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2 “Other than the fact of a prior conviction, any fact that increases the penalty
for a crime beyond the prescribed statutory maximum must be submitted to
a jury, and proved beyond a reasonable doubt.” Apprendi, 530 U.S. at 490.
The United States Supreme Court has stated that “the statutory maximum for
Apprendi purposes is the maximum sentence a judge may impose solely on
the bases of the facts reflected in the jury verdict or admitted by the
defendant.” Blakely v. Washington, 542 U.S. 296, 303–04 (2004).

3   Both Miles and the trial court complied with Pa.R.A.P. 1925.

4 The issue in this appeal presents a question of law, so our scope of review
is plenary and our standard of review is de novo. See Commonwealth v.
Bortz, 909 A.2d 1221, 1223 (Pa. 2006).


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case, this Court held that such circumstances do not limit a resentencing or

otherwise raise double jeopardy concerns:

      [W]e have held that if a trial court errs in its sentence on one
      count in a multi-count case, then all sentences for all counts will
      be vacated so that the court can restructure its entire sentencing
      scheme. Commonwealth v. Vanderlin, 580 A.2d 820, 831 (Pa.
      Super. 1990). This has been held true even where Appellant
      specifically limits his appeal to one particular illegal sentence
      based upon one bill of information and does not appeal sentences
      based upon other bills of information, where those sentences are
      part of a common sentencing scheme. Commonwealth v.
      Sutton, 583 A.2d 500, 502 (Pa. Super. 1991).

Commonwealth v. Bartrug, 732 A.2d 1287, 1289 (Pa. Super. 1999) (some

citations omitted).

      Our Supreme Court gave the rationale for the above rule in

Commonwealth v. Goldhammer, 517 A.2d 1280 (Pa. 1986), explaining that

“where a defendant appeals a judgment of sentence, he accepts the risk that

the Commonwealth may seek a remand for resentencing thereon if the

disposition in the appellate court upsets the original sentencing scheme of the

trial court.”   This is because by challenging one of several sentences, a

defendant “in effect, challenges the entire sentencing plan.”     Id. (quoting

United States v. Busic, 639 F.2d 940, 947 n.10 (3d Cir. 1981)). Accordingly,

by seeking PCRA relief based on an unlawful enhancement for the attempted

murder count, Miles contested the entire judgment of sentence, including the

terms relating to his remaining convictions.

      Miles counters that his sentence of “no further penalty” on the firearms’

possession count was satisfied 30 days after it was imposed, precluding the

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trial court from taking any further action as to that part of the sentence. See

Appellant’s Brief, at 9. He similarly contends that this Court’s order vacating

the judgment of sentence in the PCRA appeal could not affect a term of “no

further penalty” because other than the attempted murder count, “there was

no other sentence open to vacate.” Id.

       However, the law is clear that a defendant may be resentenced on

counts for which he originally received “no further penalty.” See Bartrug,

732 A.2d at 1289. By vacating a judgment of sentence order, all interrelated

sentencing terms are nullified. Id. at 1289-90.5 As a result of the nullification,

none of the terms in a vacated order remain “open” or “closed” as Miles

suggests, but rather have no effect at all, as if they never existed in the first

place. See Commonwealth v. Wilson, 934 A.2d 1191, 1196 (Pa. 2007)

(stressing that to “vacate” an order means to invalidate it to the extent it is

completely null and void); see also Commonwealth v. Kunish, 602 A.2d

849, 852-53 (Pa. 1992) (defendant has no expectation of finality in a sentence


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5 Miles cites Commonwealth v. Smith, 678 A.2d 1206 (Pa. Super. 1996),
for the proposition that a new term can never be imposed after a defendant
receives a no-further penalty sentence and the period to modify it has elapsed.
See Appellant’s Brief, at 9. That case is distinguishable because it concerned
a resentencing upon a violation of probation, Smith, 678 A.2d at 1206-07,
not resentencing on remand where the original judgment of sentence had
been vacated. Moreover, even in the context of a modification, this Court has
recognized that Smith is no longer good law.                  See generally
Commonwealth v. Postell, 693 A.2d 612, 615 n.3 (Pa. Super. 1997).




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he appeals). Thus, once Miles’ original judgment of sentence was vacated in

his PCRA appeal, the order became a total nullity and did not bar the trial

court from resentencing him on the firearms’ possession count.6

       Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/9/19




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6 We note that other constitutional principles such as the prohibition on
vindictive sentencing would have been applicable on remand but that Miles
has not asserted any claims beyond those already addressed here.

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