J-S70044-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                       Appellee                :
                                               :
                v.                             :
                                               :
    REINALDO FANTAUZZI                         :
                                               :
                       Appellant               :       No. 19 EDA 2018

                 Appeal from the PCRA Order November 8, 2017
             In the Court of Common Pleas of Northampton County
              Criminal Division at No(s): CP-48-CR-0003898-2005


BEFORE: GANTMAN, P.J., McLAUGHLIN, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY GANTMAN, P.J.:                              FILED MAY 22, 2019

        Appellant, Reinaldo Fantauzzi, appeals pro se from the order entered in

the Northampton County Court of Common Pleas, which denied his first

petition filed under the Post Conviction Relief Act (“PCRA”).1 We reverse the

order, vacate the judgment of sentence, and remand with instructions for

resentencing.

        The relevant facts and procedural history of this case are as follows. On

August 13, 2005, Appellant shot Ernesto Rivera in the leg while firing multiple

shots in the direction of four Victims, including Mr. Rivera. No other Victims

suffered injuries, and Mr. Rivera survived the attack.      The Commonwealth

charged Appellant with four counts each of attempted murder, aggravated


____________________________________________


1   42 Pa.C.S.A. §§ 9541-9546.
J-S70044-18


assault, and reckless endangerment of another person (“REAP”), and one

count each of persons not to possess a firearm and firearms not to be carried

without a license.     The Commonwealth did not charge Appellant with

attempted murder resulting in serious bodily injury or put Appellant on notice

that the Commonwealth intended to pursue serious bodily injury related to

the attempted murder charges. The criminal complaint and information did

not allege Appellant caused serious bodily injury to Mr. Rivera in connection

with that attempted murder charge.

      At trial, the parties made several stipulations at the close of the

Commonwealth’s case in chief. The court announced to the jury the parties’

stipulations, in relevant part, as follows:

         COURT:                       … The third stipulation is that
         the gunshot injuries suffered by Ernesto Rivera qualifies as
         serious bodily injury as will be defined to the jury in the
         [c]ourt’s instructions at the end of this case.

                                   *     *    *

                                      Counsel, have I properly set
         forth the stipulations in this case?

         [COMMONWEALTH]:               Yes, Your Honor.

         COURT:                        [Defense counsel]?

         [DEFENSE COUNSEL]:            Yes, Your Honor. Thank you.


(N.T. Trial, 7/12/06, at 108-109). During the jury charge, the court instructed

the jury to render a finding on serious bodily injury in relation to the

aggravated assault offense against Mr. Rivera only. The court did not instruct


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the jury to render a finding on serious bodily injury in relation to any

attempted murder charge. Additionally, the verdict sheet included no mention

of the elements of the charged offenses, including serious bodily injury.

Rather, the verdict sheet merely listed each charge and its corresponding

Victim.

      On July 12, 2006, the jury convicted Appellant of four counts each of

aggravated assault and REAP, two counts of attempted murder, and one count

each of persons not to possess firearms and possession of a firearm without

a license. Specifically, the jury convicted Appellant of one count of attempted

murder and one count of aggravated assault/serious bodily injury against Mr.

Rivera. With the benefit of a presentence investigation (“PSI”) report, the

court sentenced Appellant on September 14, 2006, to an aggregate term of

twenty-eight (28) to fifty-six (56) years’ incarceration, which included an

enhanced sentence of fifteen (15) to thirty (30) years for attempted

murder/serious bodily injury. The court stated at sentencing as follows:

          COURT:                … On the charge of criminal attempt to
          commit homicide of Ernesto Rivera where serious bodily
          injury was caused and was, in fact, stipulated to at trial, I
          am imposing a sentence of incarceration in the state
          correctional institution of a minimum of 15 years to a
          maximum of 30 years.

(N.T. Sentencing, 9/14/06, at 15).        Additionally, several of Appellant’s

convictions included mandatory minimum sentences under 42 Pa.C.S.A. §

9712(a) (requiring mandatory minimum sentences for offenses committed

with visible firearm).

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      This Court affirmed the judgment of sentence on August 15, 2007, and

our Supreme Court denied allowance of appeal on December 24, 2007. See

Commonwealth v. Fantauzzi, 935 A.2d 10 (Pa.Super. 2007) (unpublished

memorandum), appeal denied, 596 Pa. 702, 940 A.2d 362 (2007).                On

February 13, 2008, Appellant timely filed his first pro se PCRA petition. The

PCRA court appointed counsel on March 4, 2008, and denied PCRA relief on

December 1, 2008.       This Court affirmed on January 13, 2010.           See

Commonwealth v. Fantauzzi, 991 A.2d 356 (Pa.Super. 2010) (unpublished

memorandum).

      Appellant filed a second pro se PCRA petition, styled as petition for writ

of habeas corpus, subsequently retained counsel, and challenged his

mandatory minimum sentences under Alleyne v. United States, 570 U.S.

99, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013). On February 20, 2015, the trial

court vacated the original judgment of sentence, conducted a resentencing

hearing, and resentenced Appellant to the same aggregate term of twenty-

eight (28) to fifty-six (56) years’ incarceration, but without any mandatory

minimum sentences. The new sentence also included the enhanced sentence

of fifteen (15) to thirty (30) years’ incarceration for attempted murder/serious

bodily injury. The resentencing court noted it relied upon: (1) the PSI report

from the original sentencing, with minimal revisions regarding Appellant’s

contact with his child; and (2) the new sentencing guidelines forms with

corrections to the guidelines originally used.   This Court affirmed the new


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judgment of sentence on April 18, 2016. See Commonwealth v. Fantauzzi,

145 A.3d 784 (Pa.Super. 2016) (unpublished memorandum).

       On May 4, 2017, Appellant timely filed pro se this first PCRA petition

following the judgment of sentence. The same jurist, who had resentenced

Appellant in 2015, presided over the PCRA proceedings and appointed counsel

on May 16, 2017. On June 12, 2017, Appellant filed a motion to proceed pro

se. Following a Grazier2 hearing on August 4, 2017, the PCRA court permitted

Appellant to proceed pro se. On September 11, 2017, Appellant filed pro se

an amended PCRA petition. The PCRA court conducted a hearing on October

26, 2017, where the parties presented argument but no testimony.             On

November 8, 2017, the PCRA court denied relief. Appellant timely filed a pro

se notice of appeal on December 7, 2017, per the prisoner mailbox rule. 3 The

PCRA court ordered Appellant on December 21, 2017, to file a concise

statement of errors complained of on appeal per Pa.R.A.P. 1925(b); following

an extension, Appellant timely complied on January 31, 2018, per the prisoner

mailbox rule.

       Appellant raises the following issues for our review:

          WHETHER THE PCRA COURT ERRED IN DETERMINING THAT
____________________________________________


2   Commonwealth v. Grazier, 552 Pa. 9, 713 A.2d 81 (1998).

3 Appellant’s notice of appeal was postmarked December 7, 2017. See
Commonwealth v. Chambers, 35 A.3d 34 (Pa.Super. 2011), appeal denied,
616 Pa. 625, 46 A.3d 715 (2012) (explaining prisoner mailbox rule provides
that pro se prisoner’s document is deemed filed on date he delivers it to prison
authorities for mailing).

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          APPELLANT’S ISSUE, THAT RESENTENCING COUNSEL
          RENDERED INEFFECTIVE ASSISTANCE OF COUNSEL AT THE
          RESENTENCING HEARING WHEN HE FAILED TO OBJECT TO
          APPELLANT BEING RESENTENCED WITH AN INCORRECT
          PRIOR RECORD SCORE, WAS WAIVED, IN VIOLATION OF
          APPELLANT’S RIGHTS UNDER THE SIXTH AND FOURTEENTH
          AMENDMENTS TO THE UNITED STATES CONSTITUTION?

          WHETHER THE PCRA COURT COMMITTED AN ERROR OF
          LAW IN DETERMINING THAT APPELLANT’S CLAIM, THAT
          RESENTENCING    COUNSEL   RENDERED   INEFFECTIVE
          ASSISTANCE OF COUNSEL IN FAILING TO OBJECT TO
          APPELLANT BEING SENTENCED FOR ATTEMPTED MURDER
          WITH SERIOUS BODILY INJURY, IN VIOLATION OF
          APPELLANT’S RIGHTS UNDER THE SIXTH, EIGHTH, AND
          FOURTEENTH AMENDMENTS TO THE UNITED STATES
          CONSTITUTION, WAS WAIVED?

(Appellant’s Brief at ix).4

       Our standard of review of the denial of a PCRA petition is limited to

examining whether the evidence of record supports the court’s determination

and whether its decision is free of legal error. Commonwealth v. Conway,

14 A.3d 101, 109 (Pa.Super. 2011), appeal denied, 612 Pa. 687, 29 A.3d 795

(2011). This Court grants great deference to the PCRA court’s findings, if the

record contains any support for those findings. Commonwealth v. Boyd,

923 A.2d 513, 515 (Pa.Super. 2007), appeal denied, 593 Pa. 754, 932 A.2d

74 (2007).       We do not give the same deference to the court’s legal



____________________________________________


4 To the extent Appellant tries to argue ineffective assistance of PCRA counsel
regarding the current petition, those claims are waived because Appellant
raises them for the first time on appeal. See Pa.R.A.P. 302(a) (explaining
general rule that issues not raised before trial court are waived and cannot be
raised for first time on appeal).

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conclusions. Commonwealth v. Ford, 44 A.3d 1190, 1194 (Pa.Super. 2012).

      The   law   presumes   counsel   has   rendered    effective   assistance.

Commonwealth v. Gonzalez, 858 A.2d 1219 (Pa.Super. 2004), appeal

denied, 582 Pa. 695, 871 A.2d 189 (2005). In general, to prevail on a claim

of ineffective assistance of counsel, a petitioner must show, by a

preponderance of the evidence, ineffective assistance of counsel which, in the

circumstances of the particular case, so undermined the truth-determining

process that no reliable adjudication of guilt or innocence could have taken

place. Commonwealth v. Turetsky, 925 A.2d 876 (Pa.Super. 2007), appeal

denied, 596 Pa. 707, 940 A.2d 365 (2007). The petitioner must demonstrate:

(1) the underlying claim has arguable merit; (2) counsel lacked a reasonable

strategic basis for his action or inaction; and (3) but for the errors and

omissions of counsel, there is a reasonable probability that the outcome of the

proceedings would have been different. Id. at 880. “The petitioner bears the

burden of proving all three prongs of the test.” Id.

      “A claim has arguable merit where the factual averments, if accurate,

could establish cause for relief.” Commonwealth v. Stewart, 84 A.3d 701,

707 (Pa.Super. 2013) (en banc), appeal denied, 625 Pa. 664, 93 A.3d 463

(2014). “[T]he ultimate question of whether facts rise to the level of arguable

merit is a legal determination.” Commonwealth v. Saranchak, 581 Pa. 490,

511 n.14, 866 A.2d 292, 304 n.14 (2005). Regarding the second prong of the

ineffectiveness test, our Supreme Court has explained:


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         [W]e do not question whether there were other more logical
         courses of action which counsel could have pursued; rather,
         we must examine whether counsel’s decisions had any
         reasonable basis. We will conclude that counsel’s chosen
         strategy lacked a reasonable basis only if [a]ppellant proves
         that an alternative not chosen offered a potential for success
         substantially greater than the course actually pursued.

Commonwealth v. Chmiel, 612 Pa. 333, 361-62, 30 A.3d 1111, 1127

(2011) (internal citations and quotation marks omitted).         Generally, an

evidentiary hearing on counsel’s strategy is preferred before the PCRA court

decides if counsel lacked a reasonable basis for his actions, except in those

cases where the reasons for counsel’s conduct are clear and apparent from

the record. Commonwealth v. Hanible, 612 Pa. 183, 30 A.3d 426 (2011),

cert. denied, 568 U.S. 1091, 133 S.Ct. 835, 184 L.Ed.2d 662 (2013). With

respect to the prejudice prong, “a reasonable probability is a probability that

is sufficient to undermine confidence in the outcome of the proceeding.”

Commonwealth v. Ali, 608 Pa. 71, 86-87, 10 A.3d 282, 291 (2010).

         Prejudice is established when [an appellant] demonstrates
         that counsel’s chosen course of action had an adverse effect
         on the outcome of the proceedings. The [appellant] must
         show that there is a reasonable probability that, but for
         counsel’s unprofessional errors, the result of the proceeding
         would have been different. A reasonable probability is a
         probability sufficient to undermine confidence in the
         outcome.

Commonwealth v. Chambers, 570 Pa. 3, 21-22, 807 A.2d 872, 883 (2002)

(internal citations and quotation marks omitted).

      Further, “to succeed on an allegation of…counsel’s ineffectiveness…a

post-conviction petitioner must, at a minimum, present argumentation

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relative to each layer of ineffective assistance, on all three prongs of the

ineffectiveness standard….” Commonwealth v. D’Amato, 579 Pa. 490, 500,

856 A.2d 806, 812 (2004) (internal citations omitted). “[A] petitioner does

not preserve a…claim of ineffectiveness merely by focusing his attention on

whether…counsel was ineffective. Rather, the petitioner must also present

argument as to how the second and third prongs of the [ineffectiveness] test

are met with regard to the…claim.” Commonwealth v. Santiago, 579 Pa.

46, 69, 855 A.2d 682, 696 (2004).

        Appellant first argues resentencing counsel failed to object to the prior

record score the resentencing court used to impose Appellant’s new sentence.

Appellant avers the PSI report incorrectly included a 2005 conviction for

possession of a small amount of marijuana and applied a prior record score of

“4,” when the score should have been a “3.” Appellant insists he informed

resentencing counsel of the inaccuracy beforehand, but resentencing counsel

rendered ineffectiveness assistance when he failed to object to the erroneous

prior   record   score,   without   reason,   which   prejudiced   Appellant   at

resentencing. Appellant submits the incorrect prior record score of “4” led to

a greater sentence than a score of “3.”

        Appellant next argues resentencing counsel failed to protect Appellant

against the imposition of an illegal sentence for attempted murder/serious

bodily injury. Appellant avers his sentence of 15 to 30 years’ imprisonment

for attempted murder/serious bodily injury is unlawful because it exceeds the


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maximum penalty of 20 years’ imprisonment for the attempted murder

offense generally as charged, i.e., without serious bodily injury. Appellant

contends he had no notice of serious bodily injury related to the attempted

murder offense, which increases the statutory maximum penalty for that

offense and is a fact that must be proved beyond a reasonable doubt, under

Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435

(2000). Appellant asserts the Commonwealth did not charge or prosecute him

with attempted murder/serious bodily injury; the trial court did not instruct

the jury on serious bodily injury in relation to attempted murder; and the jury

did not find any of Appellant’s attempted murder convictions involved serious

bodily injury.    Appellant submits resentencing counsel was ineffective for

failing to object to the enhanced sentence for attempted murder under these

circumstances.       Appellant complains the current PCRA court incorrectly

deemed these claims of ineffectiveness of resentencing counsel were waived

or previously litigated as Appellant could not have litigated them in any earlier

proceedings.     Appellant insists his first opportunity to assert resentencing

counsel ineffectiveness was in the current PCRA petition. Appellant concludes

this Court should reverse the PCRA court order, vacate the February 2015

judgment of sentence, and remand for resentencing. We agree.5

       Preliminarily, to be eligible for relief under the PCRA, a petitioner must


____________________________________________


5 We reject outright the Commonwealth’s contention that Appellant waived
any current appellate issue as a precondition to resentencing.

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plead and prove by a preponderance of the evidence: “[t]hat the allegation of

error has not been previously litigated or waived.” 42 Pa.C.S.A. § 9543(a)(3).

The PCRA defines “previous litigation” as follows:

         § 9544. Previous litigation and waiver

            (a) Previous litigation.—For purposes of                  this
         subchapter, an issue has been previously litigated if:

                                   *     *      *

            (2) the highest appellate court in which the petitioner
         could have had review as a matter of right has ruled on
         the merits of the issue; or

            (3) it has been raised and decided in a proceeding
         collaterally attacking the conviction or sentence.

42 Pa.C.S.A. § 9544(a)(2-3) (emphasis added). “[A] reviewing court must

consider and substantively analyze an ineffectiveness claim as a distinct legal

ground for PCRA review because[,] while an ineffectiveness claim may fail for

the same reasons that the underlying claim faltered on direct review, the Sixth

Amendment basis for ineffectiveness claims technically creates a separate

issue for review under the PCRA.” Commonwealth v. Tedford, 598 Pa. 639,

662, 960 A.2d 1, 14 (2008) (internal citation and quotation marks omitted).

      “[A]s a general rule, a petitioner should wait to raise claims of ineffective

assistance of trial counsel until collateral review.” Commonwealth v. Grant,

572 Pa. 48, 67, 813 A.2d 726, 738 (2002). Our Supreme Court has recognized

two very limited exceptions to the general rule in Grant regarding when trial

courts   may   review   ineffective    assistance   of   counsel   claims:   (1)   in


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extraordinary circumstances where claims of trial counsel’s ineffectiveness are

apparent from the record and immediate consideration best serves the

interests of justice and/or (2) where there is good cause shown and review of

the claim is preceded by a waiver of the right to seek collateral review.

Commonwealth v. Holmes, 621 Pa. 595, 598-99, 79 A.3d 562, 563-64

(2013). Ineffectiveness claims may be raised on direct appeal only if: (1) the

appellant raised his claim(s) in a post-sentence motion; (2) an evidentiary

hearing was held on the claim(s); and (3) a record devoted to the claim(s)

has been developed. Commonwealth v. Leverette, 911 A.2d 998, 1004

(Pa.Super. 2006).

      Instantly, Appellant is before us on appeal from the denial of his first

and timely-filed PCRA petition following resentencing.      Appellant asserts

resentencing counsel’s ineffectiveness in both appellate issues.     Appellant

could not have raised these claims prior to the current PCRA petition or

previously made a knowing, intelligent, and voluntary waiver of his right to

claim resentencing counsel ineffectiveness in the current PCRA petition. See

Grant, supra; Holmes, supra; Leverette, supra.              To the contrary,

Appellant’s first opportunity to assert resentencing counsel’s ineffectiveness

was in the current PCRA petition.     See Grant, supra.       The PCRA court

incorrectly reasoned Appellant had either waived his ineffectiveness claims or

previously litigated them in earlier proceedings. To the contrary, Appellant’s

claims regarding resentencing counsel are distinct claims subject to


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consideration and substantive analysis as discrete legal grounds for PCRA

review “because the Sixth Amendment basis for ineffectiveness claims

technically creates a separate issue for review under the PCRA.”         See

Tedford, supra; 42 Pa.C.S.A. 9544(a)(2-3).           Therefore, we conclude

Appellant’s claims of resentencing counsel’s ineffectiveness were neither

waived nor previously litigated, they were properly before the PCRA court for

consideration on the merits, and they are correctly before us now on appeal.

     The legality of a sentence is a question of law.     Commonwealth v.

Barnes, 167 A.3d 110, 116 (Pa.Super. 2017) (en banc). Thus, our standard

of review is de novo and our scope of review is plenary. Id. This Court has

observed:

        A claim that implicates the fundamental legal authority of
        the court to impose a particular sentence constitutes a
        challenge to the legality of the sentence. If no statutory
        authorization exists for a particular sentence, that sentence
        is illegal and subject to correction. An illegal sentence must
        be vacated. Likewise, a sentence that exceeds the statutory
        maximum is illegal. If a court imposes a sentence outside
        of the legal parameters prescribed by the applicable statute,
        the sentence is illegal and should be remanded for
        correction.

Commonwealth v. Infante, 63 A.3d 358, 363 (Pa.Super. 2013) (internal

citations and quotation marks omitted).

     Pennsylvania Rule of Criminal Procedure 560 describes the content of a

criminal information and requires “a plain and concise statement of the

essential elements of the offense substantially the same as or cognate to the

offense alleged in the complaint.” Pa.R.Crim.P. 560(B)(5) (emphasis added).

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         [Informations] must be read in a common sense manner
         and are not to be construed in an overly technical sense.
         The purpose of the [information] is to provide the accused
         with sufficient notice to prepare a defense, and to [ensure]
         that he will not be tried twice for the same act.

Commonwealth v. Ohle, 503 Pa. 566, 588, 470 A.2d 61, 73 (1983) (internal

citations and quotation marks omitted).         “A criminal information is not

constitutionally infirm if it notified the defendant of the crime with which he is

charged.” Commonwealth v. Jones, 590 Pa. 202, 237, 912 A.2d 268, 289

(2006). “Variations between allegations and proof at trial are not fatal unless

a defendant could be misled at trial, prejudicially surprised in efforts to

prepare a defense, precluded from anticipating the prosecution’s proof, or

otherwise impaired with respect to a substantial right.” Commonwealth v.

Kelly, 487 Pa. 174, 178, 409 A.2d 21, 23 (1979). Accord Ohle, supra at

589, 470 A.2d at 73; Commonwealth v. Zullinger, 676 A.2d 687, 689

(Pa.Super. 1996).

      A defendant can be convicted of an uncharged lesser-included offense if

the defendant had “fair notice and an opportunity to present an adequate

defense.” Commonwealth v. Houck, 102 A.3d 443, 450 (Pa.Super. 2014)

(citing Commonwealth v. Pemberth, 489 A.2d 235, 237 (Pa.Super. 1985)).

“This end has frequently been achieved in one of two ways: either the

Commonwealth will give an accused express notice by charging him with the

less culpable offense or it will give him implicit notice through the information

where the proven, but uncharged crime is a lesser-included offense of the


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charged, but unproven, offense.” Houck, supra at 450.

      The Pennsylvania Consolidated Statutes define the sentence for

attempted murder as follows:

           § 1102. Sentence for murder, murder of unborn child
           and murder of law enforcement officer

                                   *     *      *

           (c)     Attempt,     solicitation      and    conspiracy.—
           Notwithstanding section 1103(1) (relating to sentence of
           imprisonment for felony), a person who has been convicted
           of attempt, solicitation or conspiracy to commit murder,
           murder of an unborn child or murder of a law enforcement
           officer where serious bodily injury results may be sentenced
           to a term of imprisonment which shall be fixed by the court
           at not more than 40 years. Where serious bodily injury does
           not result, the person may be sentenced to a term of
           imprisonment which shall be fixed by the court at not more
           than 20 years.

18 Pa.C.S.A. § 1102(c). In other words, “Section 1102(c) imposes a condition

precedent to the imposition of a maximum term of imprisonment of up to 40

years, specifically, that ‘serious bodily injury’ must have resulted from the

attempted murder. Otherwise, the sentence shall be not more than 20 years.”

Barnes, supra at 117 (quoting Commonwealth v. Johnson, 910 A.2d 60,

66 (Pa.Super. 2006), appeal denied, 592 Pa. 766, 923 A.2d 1173 (2007)

(stating jury has sole responsibility to find beyond reasonable doubt whether

serious bodily injury resulted from attempted murder offense)). Further, “any

finding by the jury of serious bodily injury for aggravated assault could not be

used to infer that the jury found serious bodily injury for the attempted murder

charge.”     Barnes, supra at 119.           The Commonwealth must give the

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defendant notice that it intends to prosecute and prove serious bodily injury

specifically related to the attempted murder charge before the 40-year

maximum sentence for attempted murder/serious bodily injury can apply.

Commonwealth v. Bickerstaff, ___ A.3d ___, 2019 PA Super 51 (filed

February 22, 2019).

         Instantly, the Commonwealth charged Appellant with attempted murder

generally and did not include in the criminal complaint or information the

element of serious bodily injury in relation to attempted murder.          The

Commonwealth also failed to put Appellant on notice that the Commonwealth

intended to prosecute and prove attempted murder/serious bodily injury at

trial.    The Commonwealth did not prosecute Appellant for attempted

murder/serious bodily injury. Rather, the parties stipulated that Mr. Rivera’s

injury constituted serious bodily injury “as will be defined to the jury in the

[c]ourt’s instructions at the end of this case.” (N.T. Trial, 7/12/06, at 108).

The court, however, did not instruct the jury on serious bodily injury related

to any of the attempted murder charges. Instead, the court gave the jury an

instruction on serious bodily injury only in conjunction with aggravated

assault. Furthermore, the verdict sheet did not refer to serious bodily injury

at all; it included only the charges and Victims associated with each charge.

After the jury convicted Appellant of two counts of attempted murder, the

original sentencing court sentenced Appellant on one count of attempted

murder to an enhanced sentence of 15 to 30 years’ incarceration.           The


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resentencing court again imposed the enhanced sentence of 15 to 30 years’

on the one count of attempted murder.

      Under these circumstances, the parties’ stipulation at trial did not put

Appellant on notice to defend against attempted murder/serious bodily injury

or that he would be exposed to an enhanced sentence for attempted

murder/serious bodily injury.     See Barnes, supra; Bickerstaff, supra.

Appellant’s lack of notice and resultant inability to defend is apparent on the

face of the record, and resentencing counsel should have brought this illegal

sentence to the attention of the resentencing court and/or objected when the

resentencing court re-imposed the enhanced sentence of 15 to 30 years’

incarceration for attempted murder. Resentencing counsel had no rational

basis for failing to raise a challenge to the illegal sentence, given the lack of

notice.   Further, resentencing counsel’s failure to object at resentencing

prejudiced Appellant, because it left Appellant exposed to an enhanced

maximum sentence for that offense, which he received in violation of

Apprendi, supra, instead of the 20-year maximum for attempted murder

generally. Thus, we conclude resentencing counsel was ineffective for failing

to protect Appellant from the illegal sentence enhancement he received for

attempted murder/serious bodily injury. See Turetsky, supra.

      Appellant’s remaining issue concerning the calculation of his prior record

score implicates the discretionary aspects of sentence. See Commonwealth

v. Anderson, 830 A.2d 1013 (Pa.Super. 2003) (holding contention trial court


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miscalculated prior record score raises substantial question as to discretionary

aspects of sentencing); Commonwealth v. Medley, 725 A.2d 1225

(Pa.Super. 1999), appeal denied, 561 Pa. 672, 749 A.2d 428 (2000) (finding

appellant raised substantial question where appellant alleged trial court

miscalculated   prior   record   score).       Additionally,   in   the   context   an

ineffectiveness claim, “if the court purports to sentence consistently with the

guidelines, but applies the guidelines erroneously, the defendant obviously

has been prejudiced.” Commonwealth v. Dickerson, 590 A.2d 766, 773

(Pa.Super. 1991), affirmed, 533 Pa. 294, 621 A.2d 990 (1993) (emphasis in

original).

      Instantly, the resentencing court reviewed the original PSI report, with

minor unrelated revision, and relied on it to impose Appellant’s new sentence.

At resentencing, counsel did not challenge the PSI report, the accuracy of

Appellant’s criminal history, or the purportedly incorrect prior record score.

      During the current PCRA proceedings, Appellant appeared before the

same jurist who had resentenced Appellant in 2015. Although Appellant raised

in his current PCRA petition the ineffectiveness claims regarding resentencing

counsel, and the court conducted a hearing, the court heard only argument at

the hearing. The PCRA court denied Appellant’s ineffectiveness claim on the

grounds that: (1) several appellate courts and a PCRA court previously

deemed Appellant’s sentence, and implicitly the prior record score, proper;

(2) Appellant failed to demonstrate what his sentence would have been if the


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resentencing court had applied the allegedly correct record score; and (3)

resentencing counsel did not object to the resentencing court’s application of

the prior record score of “4.”

      Here, the record establishes the resentencing court intended to

resentence Appellant consistent with the sentencing guidelines.            Thus,

Appellant suffered prejudice if the resentencing court relied upon an

inaccurate prior record score. See Turetsky, supra; Dickerson, supra. The

PCRA court, however, did not review the accuracy of the prior record score or

resentencing counsel’s basis for failing to challenge the prior record score at

resentencing. Therefore, the record is insufficient for us to determine whether

Appellant has satisfied the arguable merit and reasonable basis prongs of the

ineffective assistance of counsel test related to Appellant’s prior record score.

See Turetsky, supra.       Consequently, a remand is necessary to evaluate

evidence regarding the accuracy of Appellant’s prior record score.          See

Commonwealth v. Kenney, 557 Pa. 195, 202-03, 732 A.2d 1161, 1165

(1999) (holding Superior Court has no original jurisdiction in PCRA

proceedings; if record is insufficient to adjudicate allegations, case should be

remanded for further inquiry).

      In light of the foregoing, the best resolution of this case is to reverse,

vacate and remand for resentencing. See Infante, supra; Conway, supra.

On remand, the court shall verify Appellant’s prior record score before

imposing a new sentence.         Accordingly, we reverse the PCRA court order,


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J-S70044-18


vacate the February 2015 judgment of sentence, and remand for verification

of Appellant’s prior record score and resentencing without the enhancement

on the attempted murder conviction.

      Order reversed; judgment of sentence vacated; case remanded with

instructions for resentencing. Jurisdiction is relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/22/19




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