J-A13004-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                        Appellee

                   v.

DORIAN PETERSON

                        Appellant                   No. 924 WDA 2015


       Appeal from the Judgment of Sentence Entered May 14, 2015
           In the Court of Common Pleas of Allegheny County
            Criminal Division at No: CP-02-CR-0001812-2008


BEFORE: OLSON, STABILE, and MUSMANNO, JJ.

DISSENTING MEMORANDUM BY STABILE, J.: FILED SEPTEMBER 09, 2016

     I respectfully dissent. In my view, when the Supreme Court vacated

Appellant’s mandatory sentence of life without the possibility of parole and

remanded the matter to the trial court for a new sentencing hearing

pursuant to Commonwealth v. Batts, 66 A.3d 286 (Pa. 2013), the trial

court had jurisdiction to resentence Appellant for both first-degree murder

and attempted murder.     The crimes were part of the same judgment of

sentence and the sentencing scheme was upset by the remand order. By

concluding that the trial court must run Appellant’s sentence for first-degree

murder concurrently with his attempted murder conviction, as opposed to

the trial court’s clear sentencing scheme to run the sentences consecutively,

the Appellant effectively has been granted immunity for his attempted
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murder conviction solely as result of what the Majority has found to be a

technical error by the trial court.

      As the Majority correctly notes, Appellant was convicted of the

foregoing crimes while he was a juvenile.            The trial court sentenced

Appellant to a mandatory term of life imprisonment on the first-degree

murder charge and a consecutive 10 to 20 years’ imprisonment on the

attempted murder charge under a single judgment of sentence on February

1, 2010. This Court affirmed. Appellant sought allocator from our Supreme

Court to review this Court’s decision.      Appellant then filed a supplemental

allocator petition seeking review of his mandatory life sentence without

parole under the then just decided case of Miller v. Alabama, 132 S. Ct.

2455 (2012).    Miller held that mandatory life without parole for juveniles

was unconstitutional.    Id.    On May 30, 2013, our Supreme Court granted

Appellant’s limited allocator petition, and in a per curiam order directed the

vacatur   of   our   decision   affirming   the   mandatory   sentence   of   life

imprisonment without possibility of parole and remanded the matter to the

trial court for a new sentencing hearing pursuant to Batts.

      Agreeing with the parties and the trial court, the Majority concludes

that the trial court erred in resentencing to the extent it ordered that

Appellant’s sentence for attempted murder run consecutively to its newly-

imposed sentence of 40 years to life on the first-degree murder charge. The

Majority reasons that, because Appellant’s petition for allocator on his

attempted murder conviction was denied, the trial court lacked jurisdiction to

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resentence Appellant on the attempted murder conviction.        I respectfully

disagree.

      In Commonwealth v. Bartrug, 732 A.2d 1287 (Pa. Super. 1999),

this Court held:

      [I]f a trial court errors in its sentence on one count in a multi-
      count case, then all sentences for all counts will be vacated so
      that the court can restructure its entire sentencing scheme.
      Commonwealth v. Vanderlin, 398 Pa. Super. 21, 580 A.2d
      820, 831 (1990) (citation and quotation omitted). This has been
      held true even where Appellant specifically limits his appeal to
      one particular illegal sentence based upon one bill of information
      and does not appeal sentences based upon other bills of
      information, where those sentences are part of a common
      sentencing scheme. Commonwealth v. Sutton, 400 Pa.
      Super. 291, 583 A.2d 156 (1991).


Id. at 1289 (emphasis added), appeal denied, 747 A.2d 896 (Pa. 1999). In

Bartrug, we rejected the appellant’s contention that since he only requested

modification of his sentence for attempted rape that the trial court did not

have authority to modify his attempted deviant sexual intercourse sentence

sua sponte. Citing Commonwealth v. Lezinsky, 400 A.2d 184 (Pa. Super.

1979), overruled on other grounds by In Interest of Rodriquez, 537 A.2d

854 (Pa. Super. 1988) (en banc), this Court held, what is now established

law, that where we cannot determine whether the declared invalidity of a

conviction on one count may affect the lower court sentencing on remaining

counts, we must remand to give the lower court an opportunity to reconsider

sentencing. See also Vosburg v. NBCD Seventh Realty Corp., 122 A.3d

393 (Pa. Super. 2015) (vacatur of sixteen of twenty-one convictions


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required vacation of entire sentence and resentencing on all counts). Here,

the trial court made clear twice, once upon initial sentencing and again upon

resentencing after remand, that it was its judgment that Appellant should

serve his sentences consecutively. As Appellant’s sentences for both crimes

were part of the same sentencing scheme, and resentencing on the first-

degree murder conviction would upset the trial court’s sentencing scheme, I

find that the trial court was well within its authority to resentence Appellant

on both the first-degree murder and attempted murder charges. Moreover,

penalizing the trial court now to run Appellant’s sentences concurrently,

assuming a technical error in coordinating sentences, would provide an

unjustified reduction in the Appellant’s sentence.     As this Court stated in

Vanderlin, 580 A.2d at 830, citing Bozza v. United States, 330 U.S. 160

(1947), “[t]he Constitution does not require that sentencing should be a

game in which a wrong move by the judge means immunity for the

prisoner.”

      I further believe the Majority’s reliance upon 42 Pa.C.S.A. § 5505 for

the proposition that the trial court lacked jurisdiction to resentence Appellant

on the attempted murder conviction is misplaced. Section 5505 limits a trial

court’s ability to modify or rescind any order within 30 days after entry, if

no appeal from such order has been taken or allowed. As an appeal was

taken from the trial court’s judgment of sentence, § 5505 is not applicable.

Rather, it is Pa.R.A.P. 1701(a) and (b)(5) that address the trial court’s

jurisdiction in this matter.   Rule 1701(a) provides that after an appeal is

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taken, a trial court may no long proceed in a matter.         Rule 1701(b)(5)

provides, however, that when an appeal has been taken, the trial court may

take any action directed by an appellate court.      Here, the trial court was

directed to conduct a new sentencing hearing pursuant to Batts upon

remand. The trial court had jurisdiction to exert its authority in this matter.

      The Majority cites Graziani v. Randolph, 887 A.2d 1244, 1248 (Pa.

Super. 2005), which in turn cites Basille v. H&R Block Inc., 777 A.2d 95,

100 (Pa. Super. 2001), and Scott v. Pennsylvania Board of Probation

and Parole, 739 A.2d 1142, 1145 (Pa. Cmwlth. 1999), in support of the

proposition the trial court had no jurisdiction to resentence Appellant on the

attempted murder charge, as a court’s review is limited only to those issues

designated by the remand order.        A closer examination of those cases

however, reveals that this limitation in a court’s authority only prohibits a

court from addressing additional issues beyond the remand order.              In

Basille, the remand order from the Supreme Court directed consideration of

an alternative argument. Appellant urged this Court to revisit other issues

from our prior determination of the matter.       We concluded we could not

consider those other issues given the scope of the question framed for

remand. Likewise, in Scott, we rejected appellant’s request that we address

new issues on remand in addition to those specified in the Supreme Court’s

remand order.

      Here, the Supreme Court directed the trial court to conduct a

resentencing hearing on the Miller issue for Appellant’s conviction on the

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first-degree murder conviction.   As a necessary adjunct to this, the trial

court had to revisit its sentencing scheme.    This did not require the trial

court to address any new issues upon remand.        Considering whether the

sentences should be served consecutively or concurrently is part and parcel

of resentencing. In fact, a trial court is obligated under Pa.R.Crim.P. 705(B)

to state whether the sentences shall run concurrently or consecutively.

Surely, the first-degree murder conviction cannot be treated in a vacuum

apart from the attempted murder conviction when both were part of the

same judgment of sentence and sentencing scheme. The per curiam order

in no manner suggests that the trial court was precluded from its mandatory

duty to fashion a sentencing scheme. Nor can I imagine that the per curiam

order intended such a result, given our well-established jurisprudence which

requires otherwise when a sentencing scheme is upset.

     I further find Commonwealth v. Holz, 397 A.2d 407 (Pa. 1979), to

be distinguishable from the instant matter. In Holz, the Supreme Court, in

interpreting Pa.R.Crim.P. 1406, the predecessor to Rule 705, held that a

sentencing court is prohibited from ordering a sentence previously imposed

to run consecutive to a sentence currently being imposed. The error in Holz

was that the trial court ordered the defendant to serve multiple concurrent

sentences from Montgomery County matters consecutive to a sentence in a

homicide case in Philadelphia County for which the appellant had been found

guilty, but not yet sentenced. Our Supreme Court held that sentencing in

this manner would sanction an unreasonable use of a trial judge’s

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discretionary sentencing authority because the judge would be acting

without knowledge of what sentence would be imposed on the other

charges. Such lack of knowledge could not be the basis of the determination

as to the length of imprisonment, which a convicted defendant must

undergo. Sentencing in such a manner also was not consistent with former

Rule 1406.    The instant matter is clearly distinguishable from Holz.       Here

the convictions for which Appellant had to be sentenced were subject to the

same judgment of sentence and sentencing scheme.                As the present

judgment of sentence had to integrate sentencing on both convictions to

produce a legal sentencing order, the issue resolved in Holz is inapposite to

the present matter.

      The trial court, in the exercise of its sentencing discretion both initially

and upon remand, made clear that Appellant had to serve his sentences

consecutively. The vacation of Appellant’s sentence for first-degree murder

by our Supreme Court necessarily upset the trial court’s sentencing scheme.

The Majority’s decision would tie the trial court’s hands and preclude it from

exercising its sentencing discretion because of a sentencing technicality that

would bestow immunity upon Appellant for his attempted murder conviction.

In light of the foregoing, I believe the trial court had the authority to order

that Appellant’s sentence for the attempted murder conviction be served

consecutively to the revised sentence for the first-degree murder conviction.

In doing so, it may be that time served while the first-degree murder

conviction was appealed, vacated, and resentenced may need to be credited

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to the conviction for attempted murder, as the reimposition of sentence

upon remand may not be made retroactive to the date of the original

sentence of February 1, 2010. See Commonwealth v. Romolini, 557 A.2d

1073, 1080 (Pa. Super. 1989) (once a sentenced is vacated it no longer is in

effect, and reimposition of a sentence may not be made retroactive to the

date of the original sentence).   I therefore would affirm the judgment of

sentence by the trial court.




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