J-S17024-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    ANTWAN WHITE                               :
                                               :
                       Appellant               :   No. 1950 EDA 2018

              Appeal from the PCRA Order Entered June 22, 2018
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                       No(s): CP-51-CR-0003484-2007,
                           CP-51-CR-0003485-2007


BEFORE: BENDER, P.J.E., OLSON, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY OLSON, J.:                                 FILED APRIL 29, 2019

       Appellant, Antwan White, appeals from the order entered on June 22,

2018, dismissing his petition filed pursuant to the Post Conviction Relief Act

(“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. We vacate the order of the PCRA court

and remand for further proceedings.

       The PCRA court summarized the relevant factual history of the case as

follows.

       While [Appellant] was on nominal bail for the charges arising out
       of [a previous] incident [on] July 23, 2004,[1] he committed
       another crime on December 29, 2006. At around 6:30 p.m. that
       day, Manh Doan (“[Mr.] Doan”) was returning a vehicle to a friend
       on the 2800 block of Bittern Place. [Mr.] Doan was approached by
       [Appellant] and another man, both armed with guns, who
       demanded his car and money. The males then took the 1994


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1   At docket number 1208511-2004.
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        Mercury Grand Marquis, two cell phones, and four dollars
        ($4[.00]) and fled the scene.

        [] Officer Michael Williams, who was off-duty, observed the
        incident and gave chase. Officer Williams followed the vehicle all
        the way to the area of 6500 Eastwick Avenue, where the males
        stopped the stolen vehicle. The male in the passenger side of the
        vehicle exited, fired multiple times at Officer Williams, and got
        back into the vehicle. As the two males fled over the Passayunk
        Avenue Bridge, they fired their guns at Officer Williams[,] who
        continued to pursue them. At that point, Officer Williams got out
        of his car and returned fire at the stolen vehicle. The males in the
        stolen vehicle turned off the bridge and into the Sunoco refinery
        across the road. Officer Williams followed the vehicle into the
        police traffic division parking lot entrance. The males in the stolen
        vehicle made a U-turn and drove toward Officer Williams[,] who
        discharged his weapon as they passed him. Officer Williams
        continued to follow them. The two males stopped the stolen
        vehicle at 6th and Ritner Streets and fled on foot. The driver of
        the stolen vehicle was later identified as [Appellant]. [Appellant]
        was arrested at 6th and Wolf Streets by Officer Williams and other
        responding police officers. The passenger escaped, but was later
        identified and apprehended. As a result of this December 29,
        2006 incident, the Commonwealth initiated two additional
        complaints against [Appellant].[2]

Trial Court Opinion, 10/5/2018, at 2-3.

        On July 7, 2007, Appellant pled guilty to attempted murder,3

conspiracy,4 robbery of a motor vehicle,5 and carrying a firearm without a
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2 The Commonwealth charged Appellant at two docket numbers; docket
number 3484-2007 charged Appellant for crimes against Mr. Doan and docket
number 3485-2007 charged him for crimes against Officer Williams.

3   18 Pa.C.S.A. § 901(a).

4   18 Pa.C.S.A. § 903(a)(1).

5   18 Pa.C.S.A. § 3702(a).




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license.6 On July 27, 2007, the trial court sentenced Appellant to an aggregate

term of 15 to 30 years’ incarceration.7 Appellant did not immediately file a

direct appeal. On March 28, 2008, Appellant filed a pro se PCRA petition,

alleging ineffective assistance of counsel for failure to file a direct appeal. The

trial court then reinstated Appellant’s direct appeal rights nunc pro tunc. On

September 28, 2010, this Court affirmed Appellant’s judgment of sentence,

stating,

        [b]ased on the deficient record at hand, we have no way of
        determining if Appellant’s challenge to the discretionary aspects
        of his sentences has been properly preserved. We decline to
        expend time, effort, and manpower scouting around chambers
        and offices for the purpose of unearthing Appellant’s
        post-sentence motion or the PCRA court’s order reinstating
        Appellant’s direct appeal rights. Consequently, we are compelled
        to consider his challenge waived without prejudice to Appellant’s
        rights under the PCRA.

Commonwealth v. White, 13 A.3d 996 (Pa. Super. 2010) (unpublished

memorandum) (internal quotation and citation omitted). On August 8, 2011,



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6   18 Pa.C.S.A. § 6106(a)(1).

7 Appellant’s aggregate sentence of 15 to 30 years’ incarceration, which the
trial court imposed on July 27, 2007, arose from offenses charged at three
separate docket numbers. Five to ten years of Appellant’s aggregate sentence
related to charges filed at docket number 1208511-2004. Although this
punishment was imposed on July 27, 2007, Appellant filed a separate PCRA
petition to challenge that sentence. Thus, the sentence challenged in the
instant PCRA petition, and which is the focus of this appeal, directed Appellant
to serve ten to 20 years in prison.




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our Supreme Court denied further review. See Commonwealth v. White,

26 A.3d 483 (Pa. 2011). Appellant did not petition the Supreme Court of the

United States for certiorari, thus, his judgment of sentence became final on

November 7, 2011. U.S. Supreme Court Rule 13.

    Appellant filed a pro se PCRA petition on February 2, 2012. The PCRA court

appointed counsel and four amended petitions were subsequently filed. The

PCRA court denied the petition on June 22, 2018. This appeal followed. 8


    Appellant presents the following issues for our review:

       1. Was counsel ineffective for failing to ensure that the [certified
          appellate record on direct appeal] was complete so that this
          Court could determine whether [] Appellant’s challenge [to] the
          discretionary aspects of the sentence were properly preserved?

       2. Was [] Appellant subjected to an illegal sentence?

Appellant’s Brief at 9.


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8Appellant filed identical notices of appeal, at docket numbers 3484-2007 and
3485-2007, on July 5, 2018. Pursuant to Pa.R.A.P. 1925(b), the PCRA court
ordered Appellant on July 9, 2018, to file a concise statement of matters
complained of on appeal. Appellant complied on July 30, 2018, and the PCRA
court filed its 1925(a) opinion on October 5, 2018.

On August 31, 2018, this Court issued an order directing Appellant to show
cause, within ten days, why his appeal should not be quashed pursuant to
Commonwealth v. Walker, 185 A.3d 969 (Pa. 2018)(holding that
Pa.R.A.P. 341 mandates that, where a single order disposes of issues arising
on multiple dockets, separate notices of appeal must be filed for each docket
number or the appeal shall be quashed). Appellant’s response to our order
included separate, time-stamped copies of the notices, at docket numbers
3484-2007 and 3485-2007. Because separate notices of appeal were filed,
quashal of this appeal is not warranted.


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      In his first issue, Appellant argues that his appellate lawyer rendered

ineffective assistance of counsel by failing to transmit a complete record to

this Court. “Our standard of review for issues arising from the denial of PCRA

relief is well-settled. We must determine whether the PCRA court’s ruling is

supported by the record and free of legal error.” Commonwealth v. Presley,

193 A.3d 436, 442 (Pa. Super. 2018) (citation omitted).

      Generally, to prevail on an ineffective assistance of counsel claim,

Appellant must plead and prove that: “(1) his underlying claim is of arguable

merit; (2) the particular course of conduct pursued by counsel did not have

some reasonable basis designed to effectuate his interests; and, (3) but for

counsel’s ineffectiveness, there is a reasonable probability that the outcome

of the challenged proceeding would have been different.” Commonwealth

v. Johnson, 179 A.3d 1153, 1158 (Pa. Super. 2018) (citation omitted). “A

petitioner’s failure to satisfy any prong of this test is fatal to the claim.”

Commonwealth v. Wholaver, 177 A.3d 136, 144 (Pa. 2018) (citation

omitted).

      We have held that, “an accused who is deprived entirely of his right of

direct appeal by counsel's failure to perfect an appeal is per se without the

effective assistance of counsel, and is entitled to reinstatement of his direct

appellate rights [nunc pro tunc].” Commonwealth v. Johnson, 889 A.2d

620, 622 (Pa. Super. 2005) (emphasis added). Reinstatement under such

circumstances is “without regard to his ability to establish the merit of the


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issues which he seeks to raise on direct appeal.”                Commonwealth v.

Franklin, 823 A.2d 906, 909 (Pa. Super. 2003) (citation omitted).

       In both Johnson and Franklin, this Court held that where appellate

counsel fails to comply with the appellate rules of procedure regarding briefs

such that this Court cannot consider the merits of appellant’s claim, appellant

is entitled to reinstatement of his appellate rights without proof that his claim

has merit. Such a failure is especially significant where it leads to waiver of

the only claim appellant sought to advance.9 Johnson, 889 A.2d at 623.

       Here, direct appeal counsel failed to transmit a complete record to this

Court.      Specifically,    appellate     counsel   did   not   include   Appellant’s

post-sentence motion in the record. As such, this Court was unable to

determine whether Appellant properly preserved his challenge to the

discretionary aspects of his sentence. Hence, Appellant’s sole challenge on

direct appeal was waived due to counsel’s failure. Therefore, Appellant has

yet to obtain a “full, fair, and counseled opportunity to present his claims,”

and he is entitled to reinstatement of his direct appeal rights. Franklin, 823

A.2d at 909 (emphasis in original). Accordingly, we must vacate the order




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9 “It is true that there is no absolute right to challenge the discretionary
aspects of a sentence. There is, however, a right to seek appellate review of
the discretionary aspects of a sentence[.]” Johnson, 889 A.2d at 623.




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denying Appellant’s PCRA petition and direct the trial court to reinstate

Appellant’s direct appeal rights nunc pro tunc.

         In his second issue, Appellant contends he is serving an illegal sentence.

Appellant claims that his sentence is illegal based on Alleyne v. United

States, 570 U.S. 99 (2013).10 Although we will not reach the merits of this

claim presently, we write briefly to clarify some uncertainty surrounding the

issue.

         In short, on June 17, 2013, the Supreme Court of the United States held

in Alleyne that any fact that increases the minimum sentence for a crime

must be treated as an element of the crime and found beyond a reasonable

doubt. Alleyne announced a new constitutional rule, and “[t]he effect was to

invalidate a range of Pennsylvania sentencing statutes predicating mandatory

minimum penalties upon non-elemental facts and requiring such facts to be

determined       by   a   preponderance        of   the   evidence   at   sentencing.”

Commonwealth v. Washington, 142 A.3d 810, 812 (Pa. 2016). Notably,

“a new [constitutional] rule is generally applicable only to cases that are still

on direct review.” Commonwealth v. Riggle, 119 A.3d 1058 (Pa. Super.




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10 A claim challenging the legality of a sentence is cognizable under the PCRA.
See Commonwealth v. Holmes, 933 A.2d 57, 60 (Pa. 2007) (finding legality
of sentence is always subject to review within the PCRA, as long as the claim
satisfies the Act’s time limitations). However, we will not reach the merits of
this claim at this time.

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2015) (citation omitted).    In Washington, our Supreme Court held that

Alleyne does not apply retroactively to cases pending on collateral review.

      In light of that, the PCRA court dismissed Appellant’s Alleyne challenge

as meritless. It reasoned that Appellant’s judgment of sentence became final

in November of 2011, more than a year before the rule in Alleyne was

announced, so he could not benefit from that rule in the instant collateral

petition. The PCRA court is correct in that regard. However, as discussed

supra, due to the per se ineffective assistance of counsel Appellant received

on direct review initially, we are remanding the case for reinstatement of

Appellant’s direct appeal rights. Given the procedural posture this case will

assume on remand, the rule announced in Alleyne would apply, assuming

Appellant can establish that he was ordered to serve a mandatory minimum

sentence that ran afoul of his constitutional rights. Based on the record before

us, it is unclear whether Appellant is actually serving an illegal mandatory

minimum sentence.

      Neither Appellant nor the PCRA court identified a mandatory minimum

sentence that was imposed in this case.      In his brief, Appellant discusses

Alleyne and its progeny at length, but he does not identify an illegal sentence

that he is serving.    Similarly, the PCRA court did not identify which of

Appellant’s charges resulted in a mandatory minimum sentence. Therefore,

we offer no opinion on the merits of Appellant’s Alleyne challenge. However,

should Appellant choose to pursue this issue once his direct appeal rights are


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reinstated, the relevant mandatory minimum sentence should be identified.

     Order vacated.   Case remanded for proceedings consistent with this

memorandum. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/29/19




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