J-S64006-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    LACY LAMAR COLBERT                         :
                                               :
                       Appellant               :   No. 1796 WDA 2018

            Appeal from the PCRA Order Entered November 27, 2018
     In the Court of Common Pleas of Allegheny County Criminal Division at
                       No(s): CP-02-CR-0009509-2014

BEFORE:      BOWES, J., LAZARUS, J., and PELLEGRINI, J.*

MEMORANDUM BY BOWES, J.:                              FILED JANUARY 10, 2020

        Lacy Lamar Colbert appeals from the order that denied his petition filed

pursuant to the Post Conviction Relief Act (“PCRA”). We correct Appellant’s

judgment of sentence and affirm the PCRA order.

        In 2014, Appellant committed the armed robbery of a coffee shop in

McKeesport, Pennsylvania. Specifically, Appellant entered the store, pointed

a firearm at the cashier, walked behind the counter and removed cash from

the counter drawer, and fled. The victim recognized Appellant from his regular

patronage of the store, despite his efforts to conceal his head with a scarf.

Further, after police apprehended him, Appellant gave a statement describing

his commission of the robbery and apologizing.



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*   Retired Senior Judge assigned to the Superior Court.
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       Appellant was charged with robbery, theft by unlawful taking, and

possession of a firearm prohibited, terroristic threats, and simple assault.

Count one of the information, entitled “Robbery - serious bodily injury,”

specifically alleged that Appellant violated either subsection (a)(1)(i) or

(a)(1)(ii) of the robbery statute by either inflicting serious bodily injury, or by

threatening or putting a person in fear of serious bodily injury.

      At a non-jury stipulated trial, the evidence established that Appellant

had a prior conviction for felony robbery that made him ineligible to possess

a firearm. N.T. Stipulated Non-Jury Trial, 2/16/16, at 11. The trial court also

received photographs of a firearm and clothing recovered from Appellant’s

apartment, Appellant’s signed statement, video of the robbery and stills taken

from it, and the police and incident reports. See id. at 12-13. There was no

evidence or suggestion by the Commonwealth that Appellant inflicted actual

bodily injury on anyone during the robbery. Rather, the Commonwealth

advocated that Appellant’s pointing the firearm at the victim was sufficient to

prove the robbery charge as well as a simple assault by physical menace. See

id. at 25.

      At the conclusion of closing arguments, the trial court reported its

verdict on the record as follows:

      [Appellant], . . . the terroristic threats I have dismissed. They
      haven’t proved that. I don’t believe they have proved the simple
      assault, count four, so I will find you not guilty on that. Count
      one, the robbery, two, person not to possess, and count five, I
      believe they have proved those elements beyond a reasonable
      doubt and I find you guilty on those.

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N.T. Stipulated Non-Jury Trial, 2/16/16, at 25-26.      The court immediately

proceeded to sentence Appellant to an aggregate term of ten to twenty years

of imprisonment, which included a mandatory minimum sentence as a result

of his prior conviction.   See id. at 26-29.    The written sentencing order

indicated that Appellant’s sentence for robbery was imposed under “Count 1 -

18 § 3701 §§ A1I - Robbery-Inflict Serious Bodily Injury (F1).”

      On direct appeal, Appellant challenged the trial court’s denial of his

pretrial suppression motion, as well as the sufficiency of the evidence to prove

Appellant’s identity as the perpetrator of the crimes and possession of a

firearm.    Commonwealth v. Colbert, 160 A.3d 268 (Pa.Super. 2017)

(unpublished memorandum).         This Court found no merit in Appellant’s

arguments and affirmed the judgment of sentence. See id.

      Appellant filed a timely pro se PCRA petition, counsel was appointed,

and an amended petition filed. The PCRA court held a hearing on the petition

at which trial counsel testified that he was focused upon challenging

Appellant’s identity as the perpetrator, and it did not occur to him to question

whether the conviction was entered at the wrong subsection of the robbery

statute. N.T. PCRA Hearing, 9/18/18, at 5. The Commonwealth argued that

Appellant could not establish that he suffered any prejudice because both

subsections of the robbery statute are enumerated as first-degree felonies

carrying “the same weight and period of incarceration,” and that the erroneous

designation in the written sentencing order is an obvious clerical mistake that

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can be corrected by amending the sentencing order. Id. at 9-10. The PCRA

court took the matter under advisement and ultimately entered an order

denying Appellant’s PCRA petition.

      Appellant filed a timely notice of appeal, and both he and the PCRA court

complied with Pa.R.A.P. 1925. Appellant presents one question for this Court’s

consideration:

      Did the PCRA court abuse its discretion in finding that counsel was
      not ineffective for failing to argue at trial, in a post sentence
      motion, or on direct appeal, that the evidence was insufficient to
      prove the crime of robbery - infliction of serious bodily injury, 18
      PA.C.S. §3701(a)(1)(i), as charged by the criminal information,
      for which [Appellant] was adjudged guilty and sentenced?

Appellant’s brief at 4 (unnecessary capitalization omitted).

      We begin with a review of the applicable law. “This Court’s standard of

review regarding an order denying a petition under the PCRA is whether the

determination of the PCRA court is supported by the evidence of record and is

free of legal error.” Commonwealth v. Rizvi, 166 A.3d 344, 347 (Pa.Super.

2017). Further, “[i]t is an appellant’s burden to persuade us that the PCRA

court erred and that relief is due.” Commonwealth v. Miner, 44 A.3d 684,

688 (Pa.Super. 2012).

      Counsel is presumed to be effective, and a PCRA petitioner bears the

burden of proving otherwise. Commonwealth v. Becker, 192 A.3d 106, 112

(Pa.Super. 2018). To do so, the petitioner must plead and prove (1) the legal

claim underlying his ineffectiveness claim has arguable merit; (2) counsel’s

decision to act (or not) lacked a reasonable basis designed to effectuate the

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petitioner’s interests; and (3) prejudice resulted. Id. The failure to establish

any prong is fatal to the claim. Id. at 113.

      In arguing that the PCRA court erred in denying his petition, Appellant

solely focuses upon the fact that the sentencing order reflects a conviction

under subsection (a)(1)(i) of the robbery statute, which is applicable when

serious bodily injury is actually inflicted. Appellant completely ignores that

count one of the information, under the same heading of “robbery - serious

bodily injury,” alleged violation of that subsection or subsection (a)(1)(ii),

which pertains to threatening a person with bodily injury.       Likewise, while

contending that the evidence was insufficient to sustain a subsection (a)(1)(i),

Appellant does not dispute that “the evidence was clearly sufficient to establish

that [Appellant] was guilty of robbery by threatening serious bodily injury

when he brandished the gun and pointed it at the victim during the robbery,

a felony of the first degree[,]” and that his sentence was proper for the

subsection (a)(1)(ii) conviction.   PCRA Court Opinion, 4/8/19, at 8.

      Appellant also fails to address the PCRA court’s explanation for why it

denied him PCRA relief on the issue:

            The sentencing order in this case contained a clerical error
      in that it stated an incorrect subsection of the robbery statute
      under which [Appellant] was convicted but that clerical error had
      no impact on the actual verdict and sentence, which were based
      on a proper criminal [information] and were supported by the
      evidence. Counsel was not ineffective as [Appellant] has failed to
      establish any prejudice. Had counsel raised the clerical error in
      the sentencing order it would have simply been corrected and
      [Appellant] would have received the same sentence. Therefore,
      the PCRA petition . . . was appropriately [denied]. To the extent

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       any relief is appropriate a corrected sentencing order may be
       entered as it is well-settled that a trial court has the inherent,
       common-law authority to correct “clear clerical errors” in its
       orders.

PCRA Court Opinion, 4/8/19, at 9-10.

       Accordingly, Appellant has not met his burden of convincing this Court

that the PCRA court erred in declining to vacate his sentence and reverse his

conviction, which is the relief that Appellant requested. See Amended PCRA

Petition, 7/13/18, at unnumbered 7. Instead, we agree with the PCRA court

and the Commonwealth that correction of the error in the written sentencing

order is the appropriate resolution of the issue. See Commonwealth’s brief at

16 (citing Commonwealth v. Young, 695 A.2d 414 (Pa.Super. 1997)).

       In Young, the defendant was charged with two counts of indecent

assault: one under 18 Pa.C.S. § 3126(a)(1) (count two), and another pursuant

to 18 Pa.C.S. § 3126(a)(4) (count three). “The facts elicited throughout the

proceedings below were consistent with a prosecution for indecent assault as

defined by Count 2 of the indictment, and appellee knowingly and voluntarily

admitted to acts which violated Count 2 of the indictment.” Young, supra at

419.    However, “the lower court, the prosecution and defense counsel

committed, in essence, a clerical error by permitting appellee to plead guilty

to the wrong sub-section of the indecent assault statute.” Id. The defendant

ultimately filed a PCRA petition resulting in the PCRA court’s allowing him to

withdraw his guilty plea.     The Commonwealth appealed, and this Court

reversed the award of PCRA relief. Rather, this Court ruled as follows:

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       the PCRA court should have corrected the clerical error of counsel
       and the trial court which permitted the judgment of sentence to
       indicate that appellee had been sentenced on indecent assault as
       defined by Count 3, rather than by Count 2. The power to modify
       a judgment of sentence to amend records, to correct mistakes of
       court officers or counsel’s inadvertencies is inherent in our court
       system, even after the thirty-day time limit set forth in 42
       Pa.C.S.A. § 5505, has expired. Thus, we will herein correct the
       clerical error which appears on the face of the judgment of
       sentence by setting forth the correct sub-section of the indecent
       assault statute, i.e., substituting Count 2 of the indictment for
       Count 3

Id. at 420 (internal citations and footnote omitted). Accord Commonwealth

v. Berry, 167 A.3d 100, 105 (Pa.Super. 2017) (“Although the docket and

judgment of sentence state [a]ppellant was convicted under section

3926(a)(1), these were patent and obvious clerical errors.          . . .   As we

ultimately vacate [a]ppellant’s judgment of sentence and remand for

resentencing, we decline to modify the trial court’s sentencing order.”).

       We conclude that the erroneous reference to subsection (a)(1)(i) as

opposed to (a)(1)(ii) is unambiguous and clear from the face of the

trial/sentencing transcript.1       The facts and the trial court’s verdicts were

consistent with a prosecution for the threat, rather than the actual infliction,

of bodily injury. See PCRA Court Opinion, 4/8/19, at 6 (discussing that it is

well-established that brandishing a firearm constitutes infliction of fear of


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1 Cf. Commonwealth v. Borrin, 80 A.3d 1219 (Pa. 2013) (concluding court
lacked authority to change written sentencing order to increase the
defendant’s sentence because the ambiguous nature of the statements in the
sentencing transcript did not give rise to finding a patent and obvious clerical
error).

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deadly injury).   Further, the term of incarceration originally imposed is

consistent with the (a)(1)(ii) conviction. Accordingly, we follow the Young

Court’s direction and hereby correct Appellant’s February 16, 2016 judgment

of sentence to reflect that his sentence at court one is for his conviction under

18 Pa.C.S. § 3701(a)(1)(ii), rather than (a)(1)(i). The judgment of sentence

remains the same in all other respects.

      PCRA order affirmed. Judgment of sentence corrected.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/10/2020




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