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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    VERNON HAWKINS                             :
                                               :
                       Appellant               :   No. 2288 EDA 2017

             Appeal from the Judgment of Sentence March 23, 2017
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                       No(s): CP-51-CR-0509221-1991

BEFORE:      BOWES, J., KUNSELMAN, J., and STRASSBURGER, J.*

MEMORANDUM BY BOWES, J.:                                   FILED MAY 12, 2020

        Vernon Hawkins appeals from the aggregate judgment of sentence of

ten to twenty years of incarceration imposed in the above-captioned case

(“the Tobin Inn case”). We affirm.

        Appellant, a juvenile member of Philadelphia’s Haynes Gang drug cartel,

participated in a violent, drug-related gang war against the Junior Black Mafia

(“JBM”) in 1989. Appellant’s actions in this conflict led to the filing of three

separate criminal actions against him. The first, filed at CP-51-CR-0927621-

1989 (“the Cab Driver case”), was based upon Appellant’s shooting of a cab

driver on July 27, 1989. The second, filed at CP-51-CR-0438781-1990 (“the

Chalmers Street case”), involved the earlier events of February 3, 1989, when

Appellant and fellow gang members opened fire on a car they mistakenly

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*   Retired Senior Judge assigned to the Superior Court.
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believed to be owned by a member of the JBM, resulting in the death of one

man and the wounding of two others.              The above-captioned case was the

third, and it stemmed from Appellant’s informing his comrades that JBM

members were at the Tobin Inn Restaurant and planning with them to conduct

the armed assault that resulted in another death and severe injuries to two

other men.1

       Appellant entered separate guilty pleas in the three cases on separate

dates.    First, in June 1990, Appellant entered an open guilty plea to

aggravated and simple assault in the Cab Driver case.             Sentencing was

deferred pending plea negotiations in the Chalmers Street case. In July 1990,

the parties reached a plea agreement in the Chalmers Street case pursuant to

which (1) Appellant pled guilty to two counts of aggravated assault and one

count each of third-degree murder, conspiracy, and possessing an instrument

of crime, for an aggregate sentence of thirty to sixty years of imprisonment;

(2) Appellant pledged to cooperate with prosecutors in the cases against his

fellow gang members; and (3) the Commonwealth nolle prossed the first-

degree murder charge and agreed that Appellant’s sentences in Appellant’s

other cases would run concurrent with, and not exceed, the thirty-to-sixty-

year term.




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1Appellant had intended to participate in the assault, but his cohorts ran off
and perpetrated the shooting without him.

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       In 1991, after Appellant had fulfilled the cooperation component of the

plea agreement in the Chalmers Street case, charges were filed in the Tobin

Inn case and Appellant agreed to plead guilty to conspiracy, possessing an

instrument of a crime, corrupt organizations, and two counts of aggravated

assault. Consistent with the terms of the plea in the Chalmers Street case,

the Commonwealth agreed that Appellant’s sentence in the instant case would

be concurrent with the Chalmers Street case sentence.

       Appellant was sentenced in the Cab Driver case in September 1993 to a

term of ten to twenty years of imprisonment to be served concurrently with

the sentences that were yet to be imposed in the other two cases. Appellant

appeared for sentencing in the Chalmers Street case and the instant Tobin Inn

case in August 1994. Appellant made an oral motion to withdraw his pleas on

the basis that his thirty-to-sixty-year sentence was unfair because “all of the

co-defendants against whom he testified received sentences of half that

amount or less.”2 N.T. Sentencing, 8/9/94, at 6. The court denied the motion

and proceeded to sentence Appellant.

       In the Chalmers Street case, the court imposed consecutive terms of

ten to twenty years each on the murder and two aggravated assault

convictions, for the agreed-upon aggregate of thirty to sixty years. Id. at 49.


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2 The Commonwealth indicated that Appellant’s representation was “not even
close to accurate,” as many of the defendants involved in the two murder
cases in fact received life sentences, while other actors less culpable than
Appellant did receive lesser sentences. N.T. Sentencing, 8/9/94, at 7-8.

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In the case sub judice, the trial court imposed ten-to-twenty-year terms for

each of the three convictions—corrupt organizations and two counts of

aggravated assault, with no further penalty on the other counts. Each of these

sentences ran concurrent with the other Tobin Inn case sentences, as well as

concurrent with those imposed in the Chalmers Street and Cab Driver cases,

for an aggregate term of ten to twenty years of imprisonment. Id. at 51.

       In 1996, our Supreme Court ruled that the corrupt organizations statute

under which Appellant had been convicted in the instant case was inapplicable

to wholly illegitimate        enterprises such as illicit drug cartels.    See

Commonwealth v. Besch, 674 A.2d 655, 661 (Pa. 1996) (holding

Pennsylvania’s corrupt organizations law applied only to the criminal

infiltration of legitimate businesses).          Based upon our Supreme Court’s

determination that Besch did not announce a new rule, but rather offered an

explanation of the meaning of a term that dates back to its original

enactment,3 the United States Court of Appeals for the Third Circuit held that

convictions based upon participation in wholly illicit enterprises were

constitutionally invalid and warranted habeas corpus relief in the form of

vacating the conviction.         See Kendrick v. Dist. Attorney of Cty. of

Philadelphia, 488 F.3d 217, 219 (3d Cir. 2007). The Third Circuit also held

that, when such relief involved vacating fewer than all convictions entered


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3See Kendrick v. District Attorney of Philadelphia County, 916 A.2d 529
(Pa.2007).

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upon a guilty plea, the whole plea is not necessarily rendered invalid—if the

corrupt organization charges “were not an essential part of the agreed

exchange, rescission of the plea is not necessary” and the state court may

vacate the invalid convictions and resentence the defendant “based upon the

remainder of the plea agreement.” McKeever v. Warden SCI-Graterford,

486 F.3d 81, 89 (3d Cir. 2007).

       Relying upon these rulings, Appellant pursued a petition for writ of

habeas corpus in the United States District Court for the Eastern District of

Pennsylvania. He requested not only that his corrupt organizations conviction

in the Tobin Inn case be vacated, but that the court “vacate all of [Appellant’s]

plea agreements on the grounds that they were not knowing and voluntary[.]”

Hawkins v. Wetzel, 14-CV-03057-BMS, 2015 WL 11143390, at *1 (E.D.Pa.

December 29, 2015). The federal magistrate judge recommended that the

instant case should be remanded to the trial court for Appellant’s corrupt

organizations conviction and sentence to be vacated and for the court to

determine whether to rescind the Tobin Inn case plea agreement in its

entirety.4    Id. at *3.      The magistrate judge recommended rejection of




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4 Although acknowledging that the decision was for the state court to make,
the magistrate noted that “[u]nder the particular circumstances of this case,
vacating the plea agreement to the other charges in the Tobin’s Inn case
seems unnecessary.” Hawkins v. Wetzel, 14-CV-03057-BMS, 2015 WL
11143390, at *3 (E.D.Pa. December 29, 2015).

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Appellant’s claims as to the Cab Driver and Chalmers Street cases, explaining

as follows:

            The Tobin’s Inn shooting is the only one of the three cases
      containing the problematic [corrupt organizations] charge. Other
      than to say the cases are “related,” [Appellant] has not adequately
      explained why the [corrupt organizations] charge in the Tobin’s
      Inn shooting vitiates the plea agreements and guilty pleas in the
      cab driver and Chalmers Street shooting cases, both of which
      occurred before the Tobin’s Inn guilty plea.

            It is clear that the Tobin’s Inn case was not an “essential
      part” of the plea agreements in the Chalmers Street and cab driver
      shooting cases. See [the decision in the case of Appellant’s Tobin
      Inn shooting co-defendant in] Hayman[ v. Pennsylvania, 624
      F.Supp.2d 378, 387 (E.D.Pa. 2009)] (because the [corrupt
      organizations] charge was not an “essential part” of the plea
      agreement, there was no need to vacate the plea agreement in its
      entirety).    The Chalmers Street murder resulted in a plea
      agreement to a 30-60 year sentence in 1990. At the time Hawkins
      had already been charged with the cab driver shooting and knew
      he likely faced charges in the Tobin’s Inn shooting. The parties
      agreed that sentences in the other shooting cases would run
      concurrent with the Chalmers Street sentence and would not
      exceed the 30-60 year sentence to be imposed in the Chalmers
      Street murder.      The Chalmers Street murder case was the
      locomotive that drove the train. The Tobin’s Inn shooting was the
      caboose.

             While [Appellant]’s cooperation in various matters on behalf
      of state and federal agencies appears to have been significant, the
      fact remains that he was involved in at least three shootings, two
      of which ended in the deaths of innocent people. [Appellant] was
      not even charged in the Tobin’s Inn shooting case until April,
      1991, long after he pled guilty to the cab driver shooting (in June,
      1990) and the Chalmers Street shooting (in July, 1990). In
      September, 1993, [Appellant] was sentenced by Judge Jackson to
      10-20 years’ incarceration in the cab driver shooting. The case
      did not involve a [corrupt organizations] charge. The sentence
      was to run concurrently with any sentence imposed in the
      Chalmers Street shooting. In August of 1994, Judge Maier
      sentenced [Appellant], in the Tobin’s Inn shooting, to 10-20 years’


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     incarceration, to run concurrent with the Chalmers Street
     sentence of 30-60 years, imposed at the same hearing.

            The [corrupt organizations] charge was not a part of, much
     less an “essential part” of, the guilty plea agreement in either the
     Chalmers Street or the cab driver shootings. In Hayman the
     court remanded for resentencing, while deciding that the [corrupt
     organizations] charge was not “sufficiently central to the [plea]
     agreement to render the agreement invalid.” In Hayman[,
     Appellant’s co-]defendant pled guilty to a [corrupt organizations]
     charge, for which he received a sentence of 2½ to 5 years
     imprisonment, to be served concurrent with a 10 to 20 year
     sentence for murder. Hayman involved one plea agreement to a
     set of charges arising out of one criminal episode–the Tobin’s Inn
     murder.      Nevertheless, the court found that the [corrupt
     organizations] charge did not vitiate the voluntariness of the guilty
     pleas to other counts.        [Appellant’s] argument is far more
     attenuated than Hayman’s. [Appellant] seeks to rescind plea
     agreements in other, unrelated shootings as a result of the
     invalidity of the [corrupt organizations] charge in the Tobin’s Inn
     shooting. [Appellant’s] argument is meritless. The plea to the
     [corrupt organizations] charge in the Tobin’s Inn shooting was not
     an “essential part” of [Appellant’s] guilty pleas in the Chalmers
     Street and cab driver shootings.

Id. at *4 (footnotes and some citations omitted).

     The    district   court   approved    and   adopted    the    magistrate’s

recommendation, conditionally granting Appellant’s petition as to the corrupt

organizations conviction in the Tobin Inn Case at issue in this appeal, but

staying execution of the writ to allow the trial court to vacate only that

conviction and resentence Appellant on the other counts in the Tobin Inn case.

See Hawkins v. Wetzel, 14-CV-03057-BMS, 2016 WL 3769368, at *1

(E.D.Pa. July 11, 2016). The court ordered no remand or other action in the

Chalmers Street case or the Cab Driver case.




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      Pursuant to the remand from federal court, the trial court held a hearing

on March 23, 2017. Now omitting the Cab Driver case from his arguments,

Appellant persisted with his contention that all of the sentences imposed on

August 9, 1994, i.e., the sentences in the Tobin Inn case and the Chalmers

Street case, needed to be vacated because the negotiated plea agreement

was “a package deal.”     N.T. Sentencing, 3/23/17, at 10.     The trial court

disagreed, both approving the federal magistrate judge’s conclusion that the

corrupt organizations charge was not an essential part of the plea agreement

and noting that the federal court only granted habeas relief in the Tobin Inn

case, and remanded only that case to state court. See Trial Court Opinion,

11/9/17, at 7-8. As such, the Chalmers Street case was not before it. Id. at

2.   Accordingly, the trial court vacated Appellant’s corrupt organizations

conviction and re-entered the concurrent ten-to-twenty-year sentences on the

aggravated assault convictions, giving him credit for time served. See N.T.

Sentencing, 3/23/17, at 40.

      Appellant filed neither a post-sentence motion nor an appeal. After a

grant of leave to appeal nunc pro tunc and a substitution of counsel, Appellant

timely filed the instant appeal. Both Appellant and the trial court complied

with Pa.R.A.P. 1925. After multiple delays, including a remand for a Grazier




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hearing at which Appellant elected to proceed with counsel,5 the case is ready

for our review.

       Appellant presents the following question:

       Did the trial court err when it re-sentenced Appellant . . . in the
       instant matter, as [this case] was part of a “package deal” along
       with [the Chalmers Street case] . . . therefore, the trial court
       should have resentenced [Appellant] on all counts of both of these
       matters, as this “package deal” was “unbundled” due to the
       granting of a writ of habeas corpus wherein the corrupt
       organizations count . . . was found to be illegal/unconstitutional,
       whereupon this matter was remanded for re-sentencing?

Appellant’s brief at 2 (unnecessary capitalization omitted).

       We begin by observing that, upon entering his guilty pleas, Appellant

waived “all claims and defenses other than those sounding in the jurisdiction

of the court, the validity of the plea, and what has been termed the ‘legality’

of the sentence imposed.” Commonwealth v. Eisenberg, 98 A.3d 1268,

1275 (Pa. 2014). Additionally, in this appeal from resentencing following the

grant of federal habeas corpus relief, Appellant is “permitted to raise issues

pertaining only to the re-sentencing procedure itself; his underlying claims of

trial error regarding his non-vacated convictions c[an] not be addressed on

direct appeal from re-sentencing.” Commonwealth v. McKeever, 947 A.2d

782, 786 (Pa.Super. 2008).             Furthermore, judgments of sentence not



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5 See Commonwealth v. Grazier, 713 A.2d 81, 82 (Pa. 1998) (“When a
waiver of the right to counsel is sought at the post-conviction and appellate
stages, an on-the-record determination should be made that the waiver is a
knowing, intelligent, and voluntary one.”).

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disturbed by the federal habeas court remain final and impervious to collateral

attack in the courts of this Commonwealth outside of the strictures of the Post

Conviction Relief Act. See id. at 786.

       Applying the above law to the circumstances of this case, we have no

hesitation in concluding that Appellant is entitled to no relief from this Court.

He makes no argument, preserved or otherwise,6 to disturb his aggravated

assault convictions or the aggregate sentence of ten to twenty years of

imprisonment imposed thereupon in the Tobin Inn case. Instead, Appellant

attacks the trial court’s refusal to resentence him in the Chalmers Street case,

a case over which neither the trial court nor this Court has jurisdiction.

Appellant’s dissatisfaction with the federal district court’s refusal to grant him

habeas corpus relief in the Chalmers Street case would have been an

appropriate subject of an appeal to the Third Circuit.       See McKeever v.

Warden SCI-Graterford, 486 F.3d 81, 85 (3d Cir. 2007) (reviewing district

court’s refusal to rescind in its entirety plea agreement involving corrupt

organizations charges and other drug crimes). However, this Court cannot

address in this direct appeal Appellant’s challenges to a long-final judgment

of sentence in a case that is not before us.

       Judgment of sentence affirmed.


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6 As the Commonwealth notes, Appellant’s failure to file a post-sentence
motion resulted in waiver of any claims implicating the discretionary aspects
of his sentence. See Commonwealth’s brief at 15. Nor did Appellant file a
motion to withdraw his guilty plea.

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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 05/12/2020




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