J-S41018-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                       IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA
                            Appellee

                       v.

AKZAVIER ALI CARRINGTON

                            Appellant                  No. 225 MDA 2015


            Appeal from the Judgment of Sentence January 9, 2015
                In the Court of Common Pleas of Mifflin County
             Criminal Division at No(s): CP-44-CR-0000168-2013


BEFORE: ALLEN, J., LAZARUS, J., and PLATT, J.*

MEMORANDUM BY LAZARUS, J.:                              FILED JULY 24, 2015

        Akzavier Ali Carrington appeals from the judgment of sentence entered

in the Court of Common Pleas of Mifflin County. After our review, we affirm

the judgment of sentence and grant counsel’s petition to withdraw.

        On November 20, 2013, a jury found Carrington guilty of two counts

each of robbery1 and conspiracy,2 and one count each of each of terroristic

threats3 and theft by unlawful taking.4 The court sentenced Carrington on

____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
    18 Pa.C.S.A. § 3701(a)(1)(ii) and (a)(1)(v).
2
    18 Pa.C.S.A. § 903; 18 Pa.C.S.A. § 3701(a)(1)(ii); 18 Pa.C.S.A. § 3921(a).
3
    18 Pa.C.S.A. § 2706(a)(1).
4
    18 Pa.C.S.A. § 3921(a).
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January 31, 2014 to an aggregate term of five to ten years’ imprisonment.

Carrington did not file post-sentence motions. He appealed to this Court on

February 24, 2014.          Counsel filed a petition to withdraw pursuant to

Anders, McClendon and Santiago.5

       In an unpublished decision, this Court found Carrington’s sentence was

illegal, and we vacated and remanded for resentencing. Commonwealth v.

Carrington, 397 MDA 2014 (filed November 18, 2014).         There, we noted

that at trial, in an attempt to comply with Alleyne v. United States, 133

S.Ct. 2151 (2013), the court had the jury decide, beyond a reasonable

doubt, whether Carrington possessed a firearm and whether that fact placed

the victim in reasonable fear of death or serious bodily injury.    The jury

found in the affirmative, and the court sentenced Carrington accordingly.

We further noted that, like in Commonwealth v. Valentine, 101 A.3d 801

(Pa. Super. 2014), by presenting the deadly weapon enhancement question

to the jury, the sentencing court “performed an impermissible legislative

function by creating a new procedure in an effort to impose the mandatory

minimum sentence [] in compliance with Alleyne.” Carrington, supra at

12, quoting Valentine, 101 A.3d at 811. We directed that, in re-imposing

sentence, “the court shall not apply the mandatory minimum sentencing
____________________________________________


5
  Anders v. California, 386 U.S. 738 (1967); Commonwealth v.
McClendon, 434 A.2d 1185 (Pa. 1981); and Commonwealth v. Santiago,
978 A.2d 349 (Pa. 2009).




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provisions of section 9712.” Carrington, supra at 13.        See Valentine,

supra (“[I]t is manifestly the province of the General Assembly to determine

what new procedures must be created in order to impose mandatory

minimum    sentences   in   Pennsylvania   following   Alleyne.    See   also

Commonwealth v. Newman, 99 A.3d 86 (Pa. Super. 2014). We therefore

vacated the judgment of sentence, remanded for resentencing and denied

counsel’s petition to withdraw. Commonwealth v. Carrington, 397 MDA

2014 (filed November 18, 2014).

      On January 9, 2015, the court resentenced Carrington to a term of

imprisonment of 28 to 60 months on count 1 (robbery), and to a consecutive

term of 28 to 60 months on count 3 (criminal conspiracy), those sentences

to run concurrently to the sentences imposed on the remaining counts.

Carrington filed a timely appeal and the court ordered him to file a Pa.R.A.P.

1925(b) statement of errors complained of on appeal.      Carrington filed his

Rule 1925(b) statement on March 3, 2015, claiming the court erred in

imposing consecutive sentences on counts 1 and 3, when the original

sentences of January 31, 2014 on counts 1 and 3 were imposed

concurrently. Carrington claims this results in a greater sentence as a direct

result of having taken an appeal and violates his right to due process.

Counsel has petitioned this Court to withdraw pursuant to Anders,

McClendon and Santiago, supra.

      In order to withdraw pursuant to Anders and McClendon, counsel

must: 1) petition the Court for leave to withdraw, certifying that after a

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thorough review of the record, counsel has concluded the issues to be raised

are wholly frivolous; 2) file a brief referring to anything in the record that

might arguably support an appeal; and 3) furnish a copy of the brief to the

appellant and advise him of his right to obtain new counsel or file a pro se

brief to raise any additional points that the appellant deems worthy of

review.      Commonwealth v. Hernandez, 783 A.2d 784, 786 (Pa. Super.

2001). In Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009), the

Pennsylvania Supreme Court held that, in order to withdraw under Anders,

counsel must also state his reasons for concluding his client’s appeal is

frivolous.

       Here, counsel’s petition states that he has examined the record and

concluded the appeal is wholly frivolous. Counsel states that he has provided

Carrington with a copy of the brief and a letter explaining Carrington’s right

to proceed pro se, or with newly retained counsel, and to raise any other

issues he believes might have merit. See Petition to Withdraw, 4/17/15, at

1. Counsel also has filed a brief in which he repeats his assertion that there

are no non-frivolous issues to be raised. Accordingly, we find that counsel

has substantially complied with the procedural requirements for withdrawal. 6

We now review the issues raised in the Anders brief.
____________________________________________


6
  We do note that counsel has neglected to provide citations to the record,
and, other than the case law citations regarding this Court’s standard of
review, counsel has not indicated any case law pertaining to the issues
raised.



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     The court’s original sentence imposed an aggregate term of five to ten

years’ imprisonment, though counts 1 and 3 were imposed as concurrent

sentences. At resentencing, the court stated:

     [A]s you’ll recall, this matter went up on appeal and at that time
     the Newman case was not decided yet. There’s been an
     upheaval regarding the constitutionality of mandatory sentences.
     And in light of that we’re now back for re-sentencing. And the
     re-sentence will not obviously be included in regards to any
     mandatory sentences. There are obviously guidelines and so
     forth. So, I believe we’re back to square one in regard to
     sentencing.

N.T. Sentencing, 1/9/15, at 1.

     The   court   then   sentenced   Carrington   to   consecutive   terms   of

imprisonment of 28 to 60 months on count 1 and count 3; on the remaining

counts, the court imposed sentences concurrent with count 1. Carrington’s

aggregate sentence was reduced from 5 to 10 years to 4 years and 8

months to 10 years.

     It is clear from our review of both sentencing transcripts that the court

intended to maintain the original sentencing scheme.      Because Carrington’s

aggregate term of imprisonment did not increase, no constitutional violation,

whether of double jeopardy or judicial vindictiveness, is implicated.     See

Commonwealth v. Kratzer, 660 A.2d 102 (Pa. Super. 1995) (where

defendant's illegal sentence is corrected at resentencing and neither

minimum nor maximum aggregate term of imprisonment is increased by

virtue of new sentence, there is no constitutional violation); see also

Commonwealth v. Taylor, 357 A.2d 562 (Pa. Super. 1976)(en banc) (no

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double jeopardy violation is implicated where aggregate sentence upon

resentencing    does      not   exceed    original   aggregate   sentence);

Commonwealth v. Sutton, 583 A.2d 500 (Pa. Super. 1990) (same). Cf.

Commonwealth v. Robinson, 931 A.2d 15 (Pa. Super. 2007) (if court

imposes harsher sentence after retrial, presumption of vindictiveness

applies).

      Based upon the foregoing, we find Carrington’s claims meritless. We,

therefore, affirm the judgment of sentence and grant counsel’s petition to

withdraw.

      Judgment of sentence affirmed. Petition to withdraw granted.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/24/2015




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