J-A27024-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,            :      IN THE SUPERIOR COURT OF
                                         :           PENNSYLVANIA
                        Appellee         :
                                         :
            v.                           :
                                         :
MARQUELL HANSBREW,                       :
                                         :
                        Appellant        :      No. 49 WDA 2014


    Appeal from the Judgment of Sentence Entered November 26, 2013,
                In the Court of Common Pleas of Erie County,
             Criminal Division, at No. CP-25-CR-0001500-2013.


BEFORE: FORD ELLIOTT, P.J.E., SHOGAN and MUSMANNO, JJ.

MEMORANDUM BY SHOGAN, J.                       FILED SEPTEMBER 28, 2015

      Appellant, Marquell Hansbrew, appeals from the judgment of sentence

entered on November 26, 2013, in the Court of Common Pleas of Erie

County. After careful consideration, we vacate and remand.

      The trial court summarized the procedural and factual history of this

case as follows:

            On March 29, 2013, Appellant entered Candy’s Notary
      Service in the City of Erie where the victim, Catherine Miller, was
      working. Appellant grabbed the victim, threw her on the floor,
      and pushed a semi-automatic pistol to the back of her head and
      neck. Appellant yelled at her, “Where’s the money at?” and
      dragged her around the office looking for money. After taking
      $1,200.00, Appellant fled when he realized the victim had called
      911.

           After a jury trial on September 23, 2013, Appellant was
      found guilty of the following:
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      Count   1:   Robbery, 18 Pa.C.S.A. §3701(a)(1)(ii);
      Count   2:   Aggravated Assault, 18 Pa.C.S.A. §2702(a)(1);
      Count   5:   Theft by Unlawful Taking, 18 Pa.C.S.A. §3921(a);
      Count   6:   Theft by Receiving Stolen Property, 18 Pa.C.S.A.
                   §3925(a);
      Count 7:     Possessing Instruments of Crime, 18 Pa.C.S.A.
                   §907(a); and
      Count 8:     Recklessly Endangering Another Person, 18 Pa.C.S.A.
                   §2705.

           The jury also found that a deadly weapon was used to
      commit the robbery and that the value of the property taken was
      $1,200.

            Appellant waived his right to a jury trial as to Count 3,
      Persons not to Possess Firearms, 18 Pa.C.S.A. §6105(a)(1).
      Appellant was found guilty of Count 3 by [the trial court].

            On November 26, 2013, Appellant was sentenced at Count
      1, Robbery, to 60 to 120 months of incarceration; at Count 2,
      Aggravated Assault, to 60 to 120 months of incarceration
      consecutive to Count 1; and at Count 3, Persons not to Possess
      Firearms, to five years of probation consecutive to Count 2. The
      remaining counts merged with Counts 1 or 2 for sentencing
      purposes.

Trial Court Opinion, 1/9/15, at 1-2.

      The record reflects that Appellant was represented at trial and during

sentencing by Attorney Michael DeJohn from the Public Defender’s Office.

Attorney DeJohn filed a motion for post-sentence relief, which was denied on

December 9, 2013. A different attorney, Anthony Rodriques, filed a notice

of appeal on Appellant’s behalf on December 27, 2013.1      By order dated

January 2, 2014, the trial court directed that a statement pursuant to


1
  The record lacks any indication that Attorney Rodriques entered his
appearance on Appellant’s behalf prior to filing the notice of appeal.

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Pa.R.A.P. 1925(b) be filed within twenty-one days from the entry of the

order.   The order also granted Appellant the right to proceed in forma

pauperis. Order, 1/2/14, at 1.

     Subsequently, Attorney DeJohn filed both a notice of appeal and a

Pa.R.A.P. 1925(b) statement on January 8, 2014. Despite the Rule 1925(b)

statement being filed by Attorney DeJohn, Attorney Rodriques inexplicably

filed a motion for extension of time to file a Pa.R.A.P. 1925(b) statement.

By order dated January 23, 2014, the trial court granted the motion for

extension of time filed by Attorney Rodriques and directed that the

statement be filed on or before February 10, 2014.        Trial Court Order,

1/23/14, at 1. The trial court subsequently issued the following order:

           AND NOW, to-wit, this 27th day of January, 2014,
     inasmuch as Anthony Rodriques, Esquire has entered his
     appearance by the filing of a Notice of Appeal with the Superior
     Court on December 27, [2013], it is hereby ORDERED,
     ADJUDGED and DECREED Michael DeJohn, Esquire, and the
     Public Defender’s Office of Erie County are withdrawn from this
     case. Attorney Rodriques shall comply with this Court’s Order of
     January 23, 2013 and file a Concise Statement of Matters
     Complained of on Appeal on or before February 10, 2014.

Order, 1/27/14, at 1.

     On February 12, 2014, the trial court issued an order holding that,

because Appellant had failed to timely file his statement of matters

complained of on appeal pursuant to Pa.R.A.P. 1925(b), there were no

appellate issues to address, and therefore, no further opinion would be




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issued. Trial Court Opinion, 2/12/14, at 1. The case was transmitted to this

Court on February 27, 2014.

     On March 11, 2014, Attorney Rodriques filed a motion to file a

Pa.R.A.P. 1925(b) statement nunc pro tunc. Counsel asserted that his error

alone was the reason that a Pa.R.A.P. 1925(b) statement was not filed on

Appellant’s behalf. Motion to file concise statement of matters complained of

nunc pro tunc, 3/11/14, at 1-2. The trial court issued an order dated March

12, 2014, denying the motion on the basis that the record had been

forwarded to this Court.

     The failure to file a Rule 1925(b) statement, when so ordered by the

trial court, is per se ineffective assistance of counsel. Commonwealth v.

Mitchell, 986 A.2d 1241, 1244 n.4 (Pa. Super. 2009), Pa.R.A.P. 1925(c)(3).

Thus, this Court issued a memorandum remanding this matter and directing

counsel to file a Pa.R.A.P. 1925(b) statement.         Commonwealth v.

Hansbrew, 49 WDA 2014, 108 A.3d 115 (Pa. Super. filed October 15,

2014) (unpublished memorandum at 4). On remand, the trial court issued

an order entered November 24, 2014, directing counsel to file a Pa.R.A.P.

1925(b) statement within twenty days from the date of the order. Counsel

filed a Pa.R.A.P. 1925(b) statement on December 15, 2014. The trial court

issued an opinion pursuant to Pa.R.A.P. 1925(a) on January 9, 2015.

     On appeal, Appellant presents the following issues for our review:




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      (a)     Whether the Defense Counsel was ineffective for reason he
              failed to seek or request the Court to provide the jury alibi
              instructions.

      (b)     Whether the Defense Counsel was ineffective for failing to
              file a motion challenging the weight of the evidence.

Appellant’s Brief at 3 (unnumbered) (verbatim).

      We first note that the issues raised in Appellant’s brief were not issues

raised in his Pa.R.A.P. 1925(b) statement. Therefore, Appellant’s issues are

waived.     “Any issues not raised in a Pa.R.A.P. 1925(b) statement will be

deemed waived.”        Commonwealth v. Hill, 16 A.3d 484, 491 (Pa. 2011)

(quoting Commonwealth v. Lord, 719 A.2d 306, 309 (Pa. 1998)).

      Moreover,       Appellant’s   claims     involve   allegations   of   ineffective

assistance of counsel.       As noted in this Court’s previous memorandum,

ineffectiveness of counsel claims cannot be raised on direct appeal.              See

Commonwealth v. Holmes, 79 A.3d 562, 563-564 (Pa. 2013) (absent

either good cause or exceptional circumstances and a waiver of post-

conviction review, claims of ineffective assistance of counsel must await

collateral review).

      Thus, the two claims raised by Appellant in his brief are not properly

before this Court.       However, there is an issue regarding the legality of

Appellant’s    sentence     that    this     Court   may    address     sua    sponte.

Commonwealth v. Johnson, 873 A.2d 704, 708, n.1 (Pa. Super. 2005)




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(“Challenges to an illegal sentence can never be waived and may be

reviewed sua sponte by the Superior Court.”).

     We note that Appellant received a mandatory minimum sentence of

five years for the robbery conviction under 42 Pa.C.S. § 9712 (committing

crimes of violence while in visible possession of a firearm).    Sentencing

Order, 11/26/13, at 1; Guideline Sentence Form, 11/27/13, at 1.      Section

9712 has been held unconstitutional following the United States Supreme

Court’s decision in Alleyne v. United States,      U.S.     , 133 S.Ct. 2151

(2013). See Commonwealth v. Valentine, 101 A.3d 801, 812 (Pa. Super.

2014) (holding 42 Pa.C.S. § 9712, pertaining to mandatory minimum

sentencing provisions associated with the commission of certain crimes with

a firearm, unconstitutional).   “[A] challenge to a sentence premised upon

Alleyne . . . implicates the legality of the sentence and cannot be waived on

appeal.” Commonwealth v. Newman, 99 A.3d 86, 90 (Pa. Super. 2014).

     Given the foregoing, we vacate Appellant’s robbery sentence.         On

remand, the trial court is instructed to resentence Appellant on the robbery

conviction without reference to the mandatory minimum sentencing statute.

However, because we are vacating a sentence in a multiple conviction case,

which may upset the overall sentencing scheme, we vacate the entire

judgment of sentence.    Commonwealth v. Deshong, 850 A.2d 712, 714

(Pa. Super. 2004) (“When a disposition by an appellate court alters the




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sentencing scheme, the entire sentence should be vacated and the matter

remanded for resentencing.”).

      Judgment of sentence vacated.     Case remanded for resentencing.

Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 9/28/2015




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