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                              2015 PA Super 230

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                         Appellee

                    v.

ROBERT DA-JUAN GAINES,

                         Appellant                   No. 1497 MDA 2013


             Appeal from the PCRA Order Entered July 15, 2013
              In the Court of Common Pleas of Franklin County
            Criminal Division at No(s): CP-28-CR-0001303-2009


BEFORE: GANTMAN, P.J., BENDER, P.J.E., PANELLA, J., DONOHUE, J.,
        SHOGAN, J., ALLEN, J., LAZARUS, J., MUNDY, J., and STABILE, J.

DISSENTING OPINION BY BENDER, P.J.E.:           FILED NOVEMBER 05, 2015

      For the reasons stated infra, I would conclude that Appellant’s appeal

is timely, as it properly lies from the court’s imposition of his new judgment

of sentence on July 17, 2013. Accordingly, I respectfully dissent.

      Initially, because the PCRA court’s July 15, 2013 order denied

Appellant’s substantive claims, yet granted his challenge to the legality of his

sentence, I consider it a hybrid order that was not final for purposes of

Pa.R.Crim.P. 910. Clearly, that hybrid order upset the finality of Appellant’s

judgment of sentence, and it was not until July 17, 2013, that Appellant was

resentenced.   Appellant then had 10 days to file a timely post-sentence

motion, which he did. See Pa.R.Crim.P. 720(A)(1). When the court issued
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its July 30, 2013 order granting that motion and correcting the RRRI Act1

eligibility component of Appellant’s sentence, the court’s action in this case

concluded. Because the lower court’s July 30, 2013 order finalized the post-

conviction proceedings, I would consider that order as the ‘final’ order for

purposes of appeal.       Accordingly, I would hold that Appellant had 30 days

from the July 30, 2013 order to file an appeal from both the denial of his

substantive PCRA claims, as well as the reimposition of his sentence. See

Pa.R.Crim.P. 720(A)(2)(a) (“If the defendant files a timely post-sentence

motion, the notice of appeal shall be filed: (a) within 30 days of the entry of

the order deciding the motion….”).2
____________________________________________


1
 Recidivism Risk Reduction Incentive Act (RRRI Act), 61 Pa.C.S. §§ 4501-
4512.
2
   The Majority disagrees that the PCRA court resentenced Appellant, instead
contending (without citation to any legal authority), that sentencing “is a
trial court function, not a collateral proceeding function.” Majority Opinion at
6. From this premise, the Majority imagines a scenario where a defendant
files a timely petition raising “one guilt-phase claim and one sentencing-
phase claim.” Id. at 8. The PCRA court affords the defendant a “partial
grant of relief” by awarding him a new trial, thereby “rendering the
sentencing issue moot.” Id. The Majority opines that, “[u]nder Appellant’s
proposed procedure, the Commonwealth would be required to wait to
appeal this PCRA order until an order is imposed following the conclusion of
the proceeding resulting from the partial grant of the relief ordered by the
PCRA court, i.e., the completion of the new trial.” Id. (emphasis in original).

I disagree with this hypothetical for two reasons. First and foremost, in this
case, the PCRA court granted Appellant’s sentencing claim and denied his
substantive claims. In the Majority’s hypothetical, however, the PCRA court
ruled only on the merits of the ‘guilt-phase claim’ and issued no ruling on
the moot sentencing issue. Thus, the PCRA court’s order in the Majority’s
hypothetical is not a ‘partial grant of relief’ - it is a total grant of relief. I
(Footnote Continued Next Page)


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      I acknowledge that in Commonwealth v. Bryant, 780 A.2d 646 (Pa.

2001), our Supreme Court reversed this Court’s attempt to apply a similar

procedure in a capital case.          Id. at 647 (“By quashing the appeal in the

instant matter, the Superior Court indicated that the trial court must first

hold a hearing and impose a new sentence before an appellate court can

consider the denial of guilt-phase relief by the PCRA court. For the reasons
                       _______________________
(Footnote Continued)

cannot conceive of a scenario where a PCRA court’s grant of a new trial
would result in a truly ‘hybrid’ order, such as the order at issue in the
present case. Accordingly, the Majority’s fear that ‘Appellant’s rule’ would
apply to an order granting a new trial is unfounded.

Secondly, the Majority’s hypothetical is premised on its unsupported
declarations that sentencing is a trial court function, id. at 6, and “[t]here is
no functional difference between a grant of resentencing and the grant of a
new trial, as they both would artificially end collateral review under
Appellant’s rule,” id. at 8.         However, the Majority correctly (and
contradictorily) acknowledges in a footnote that “[i]n appropriate
circumstances, a PCRA court may impose the new sentence….” Id. at 6 n.5;
see also Commonwealth v. Bartrug, 732 A.2d 1287, 1289 (Pa. Super.
1999) (recognizing that resentencing is not outside “the power or
jurisdiction” of the PCRA court). In my view, when a PCRA court vacates an
illegal sentence, that same court may also impose a new sentence. See
Bartrug, supra. The same is not true when a PCRA court orders a new
trial; only a trial court may preside over a criminal trial. Therefore, where a
PCRA court issues an order granting a new trial, it is clear that that order
ends the post-conviction proceedings, and is final for purposes of appeal.
The same is not definitively true for a PCRA court’s order granting a
petitioner’s challenge to the legality of his sentence and vacating his term of
incarceration in anticipation that a new sentence will be shortly imposed.

For these reasons, I disagree with the Majority that ‘Appellant’s rule’ could
apply to an order granting a petitioner a new trial. Such orders would
remain ‘final’ and immediately appealable even if we held today that hybrid
orders (denying substantive claims and granting resentencing) are not
appealable until the petitioner has been resentenced.



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that follow, we disagree.”). In doing so, the Bryant Court first relied on the

language of Rule 910 (which was at that time numbered as Pa.R.Crim.P.

1510) and Rule 341(b), to conclude that,

      [t]he Order of the PCRA court fully and finally disposed of all
      issues before it. Accordingly, it was a final order that Bryant,
      the Commonwealth or both could have appealed. Had Bryant
      not filed a notice of appeal within thirty days of the entry of the
      Order, as required by Pa.R.A.P. 903, he would have waived
      future review of the decision of the PCRA court.

Bryant, 780 A.2d at 648.

      The Court next “consider[ed] whether the Superior Court erred in

determining that review of the guilt phase issues must wait until the trial

court imposes a new sentence.” Id. at 648. In holding that this Court did

err in that determination, the Bryant Court stated:

            Bryant asserts that the procedure endorsed by the
      Superior Court prejudices a defendant because it significantly
      delays the review of the merits of his claim. Moreover, it requires
      the defendant to endure the anxiety attendant to a capital re-
      sentencing procedure, although the underlying conviction may
      be reversed because of the errors raised on appeal. Along with
      these concerns, which are unique to the defendant, there are
      also concerns regarding the efficient administration of justice. It
      would be wasteful of scarce judicial resources to empanel a new
      sentencing jury, apprise it of the facts of the underlying crime,
      hold a full hearing, instruct the jury about sentencing in a capital
      case and then allow it [to] deliberate and reach a decision, only
      to have the sentence rendered a nullity if the decision of the
      PCRA court regarding the guilt phase is reversed on appeal.

              Re-sentencing the defendant before engaging in appellate
      review of the denial of PCRA relief also results in piecemeal
      litigation, delay in the determination of guilt phase issues, and
      potential misuse of judicial resources if the new sentence is
      rendered moot by subsequent disposition of the guilt phase
      issues. For these reasons, the orderly administration of justice


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      requires that review of the PCRA court's decision denying guilt
      phase relief should precede the imposition of a new sentence by
      the trial court.

Id. at 648.

      I would interpret the Supreme Court’s decision in Bryant as applying

only to capital petitioners. Notably, the Bryant Court explicitly stated that it

was addressing “the correct procedure for a capital defendant to follow when

the PCRA court grants his request for a new sentencing hearing, but denies

his request for guilt-phase relief.”      Bryant, 780 A.2d at 647 (emphasis

added).   In both the Court’s statement of the issue, and in its analysis

thereof, the Court repeatedly used terms attendant only to death-penalty

cases, such as “guilt-phase issues,” “guilt-phase relief,” and “capital

resentencing.” I presume that when the Supreme Court renders a decision,

it chooses its wording carefully and purposefully; therefore, the plain

language of Bryant limits the holding therein to capital cases.

      Moreover, in my view, certain policy considerations emphasized by the

Bryant Court do not apply to (or at least do not weigh as heavily in favor of)

requiring non-capital petitioners to appeal prior to resentencing.          Namely,

non-capital petitioners do not have to “endure the anxiety attendant to a

capital resentencing procedure,” and resentencing in a non-capital case does

not require all of the resources necessarily utilized in resentencing a capital

defendant.    Id. at 648.     Furthermore, I believe that extending Bryant’s

procedural    rule   to   non-capital   defendants   will   hamper   “the   orderly

administration of justice….”      Bryant, 780 A.2d at 648.       For instance, I


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cannot disregard the waiver trap that will inevitably result from the

Majority’s holding today, which requires a petitioner to file a notice of appeal

from a hybrid order that denies his substantive claims, yet grants

resentencing.      A pro se petitioner, and attorneys inexperienced in the

complexities of PCRA litigation, may reasonably presume that, as with a

direct appeal, the petitioner must wait until after the court resentences him

to file a notice of appeal. Such a presumption is logical when considering

that if the petitioner files a notice of appeal prior to being resentenced, the

lower court will lose jurisdiction and the petitioner’s resentencing will be

stayed until after the appeal from the denial of his substantive claims, which

could take months, if not years.3

       Additionally, deeming the order that resentences a PCRA petitioner as

the final order for purposes of appealing from both the denial of substantive

claims and the resentencing prevents multiple appeals, which conserves the

judicial resources of this Court. Under the Majority’s holding, we will now be

faced with the possibility of two appeals: one from the PCRA court’s order
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3
   Avoiding waiver of an appeal from the disposition of a petitioner’s timely,
first PCRA petition is especially important in light of this Court’s recent
decision in Commonwealth v. Henkel, 90 A.3d 16 (Pa. Super. 2014)
(construing Pennsylvania Supreme Court precedent as holding that claims of
ineffective assistance of post-conviction counsel may not be raised for the
first time on appeal), and the general rule “that allegations of ineffective
assistance of counsel will not overcome the jurisdictional timeliness
requirements of the PCRA.” Commonwealth v. Wharton, 886 A.2d 1120,
1127 (Pa. 2005) (citations omitted).




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denying the substantive claims, and another if the petitioner chooses to

challenge the new sentence.

       The procedure mandated in Bryant is also not appropriate in non-

capital cases because, unlike capital petitioners who necessarily will be

resentenced to either life imprisonment, or the penalty of death, non-capital

petitioners have no assurance of any certain sentence.        Consequently, the

Majority’s holding that requires non-capital petitioners to file an appeal from

the denial of their substantive claims, prior to being resentenced, poses two

significant problems.      First, such a procedure could result in a petitioner’s

serving unnecessary prison time if the disposition of their appeal from the

denial of their substantive claims takes longer than the new sentence

ultimately imposed by the court.4 Second, our legislature clearly stated in
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4
  A hypothetical demonstrates this point. A defendant files a PCRA petition
challenging the legality of his sentence and raising claims of ineffective
assistance of counsel. The PCRA court grants his sentencing claim and
schedules a resentencing hearing, but denies his ineffectiveness assertions.
Before being resentenced, the defendant files an appeal from the order
denying his substantive claims and his resentencing hearing is stayed as a
result. While the defendant’s appeal is pending, he remains incarcerated. It
takes one year for this Court to consider the appeal and affirm the PCRA
court’s order denying the defendant’s petition. He then files a petition for
permission to appeal to our Supreme Court, which is denied after another
three months pass. When the lower court finally regains jurisdiction after 15
months, it resentences the defendant to a term of 6 to 12 months’
incarceration.   The petitioner is given credit for time served and is
immediately released.      However, he has been forced to serve an
unnecessary three months of incarceration, not to mention the time he
served prior to and during the course of trial and the PCRA proceedings
below.




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the PCRA that to be eligible for relief, a petitioner must plead and prove,

inter alia, that he is “currently serving a sentence of imprisonment,

probation or parole for the crime[.]”      42 Pa.C.S. § 9543(a)(1)(i).      A

petitioner who is awaiting resentencing will not be able to meet this burden.

      In sum, the considerations discussed herein compel me to conclude

that the procedure mandated in Bryant applies only to capital petitioners.

Thus, I would hold that in non-capital cases, an appeal from a hybrid PCRA

order that denies substantive claims, yet grants resentencing, must be filed

within 30 days of the order resentencing the petitioner, or within 30 days of

an order deciding a timely-filed post-sentence motion. In that appeal, the

petitioner would be permitted to challenge both the PCRA court’s denial of

his substantive claims, as well as raise any issues regarding the new

sentence imposed by the court.

      In this case, Appellant’s notice of appeal was filed within 30 days of

the PCRA court’s July 30, 2013 order granting his timely-filed post-sentence

motion.    Therefore, I would deem his appeal timely and conclude that we

have jurisdiction to review the merits of this appeal. Because the Majority

holds otherwise, I dissent.

      President Judge Gantman and Judge Shogan join this dissenting

opinion.




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