J. A27006/14

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O. P. 65.37 COMMONWEALTH OF PENNSYLVANIA : : IN THE SUPERIOR COURT OF

PENNSYLVANIA v. : : KENNETH JACKSON, : No. 1785 WDA 2012 : Appellant :

Appeal from the Order Entered February 27, 2012, in the Court of Common Pleas of Allegheny County Criminal Division at No. CP-02-CR-0002589-2002

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

MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED JANUARY 09, 2015 Appellant appeals from the order entered pursuant to a petition brought under the Post Conviction Relief Act (“PCRA ”), 42 Pa.C.S.A. §§ 9541-9546. Finding no error, we affirm. Preliminarily, we observe that the PCRA court vaca ted appellant’s original sentence and then re-imposed an identical sentence. Appellant treats this appeal as direct from a new judgment of sentence. We do not regard it as such. The court’s purpose in entering the new sentence was simply to make an administrative correction to the original sentence which had transposed the criminal information count numbe rs for one count of forgery and one count of theft by deception. 1 We note that the trial court

1 The transposition and its correction upon collater al review were of no moment because identical sentences were imposed at each count.J. A27006/14

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may always correct obvious errors in its sentence, even after the statutorily imposed 30-day modification limit has expired:

Trial courts have the power to alter or modify a criminal sentence within thirty days after entry, i f no appeal is taken. 42 Pa.C.S.A. § 5505; Commonwealth v. Quinlan , 433 Pa.Super. 111, 639 A.2d 1235, 1238 (1994). Generally, once the thirty-day period is over, the trial court loses th e power to alter its orders. Quinlan , 639 A.2d at 1238. When an appeal is taken, the trial court has no jurisdiction to modify its sentence. Id. We note, however, that the time constraint imposed by sectio n 5505 does not affect the inherent powers of the court to modify a sentence in order to “amend records, to correct mistakes of court officers or counsel’s inadvertencies, or to supply defects or omissions in the record . . . .” Id. , at 1239. Therefore, where the mistake is patent and obvious, the court has the power to correct it even though t he 30-day appeal period has expired. Commonwealth v. Rohrer , 719 A.2d 1078, 1080 (Pa.Super.1998). Commonwealth v. Walters , 814 A.2d 253, 255-256 (Pa.Super. 2002), appeal denied , 831 A.2d 599 (Pa. 2003). Thus, the “new” sentence was merely a ministerial correction of an obvious error in the original sentence. By simply correcting the sentence and taking no further action, the PCRA court effect ively denied all of appellant’s PCRA claims. Consequently, we regard t his appeal as being taken from the order of February 27, 2012, operatin g as a denial of the PCRA petition, rather than operating as from a new judgment of sentence. The charges against appellant arose following the December 18, 2001 discovery of the remains of appellant’s uncle in a garage behind appellant’sJ. A27006/14

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house. The cause of death was blunt force injury, and appellant subsequently confessed to the homicide. Appellant also cashed his uncle’s Social Security checks and used his uncle’s identif ication papers in doing so. Charges against appellant were brought at three sep arate criminal informations. At docket number CP-02-CR 0001068-20 02, appellant was charged with criminal homicide. At docket number C P-02-CR 0002589- 2002, appellant was charged with one count of abuse of a corpse, one count of access device fraud, two counts of theft by dece ption, 16 counts of forgery, one count of theft by unlawful taking or d isposition, and five counts of identity theft. At docket number CP-02-CR 00039 68-2002, appellant was charged with one count of theft by deception. During appellant’s jury trial, appellant and the C ommonwealth came to a plea agreement. Appellant subsequently pleaded g uilty to third degree murder, one count of abuse of a corpse, two counts of theft by deception, two counts of forgery, and one count of identity th eft. The Commonwealth agreed to nolle pros all other charges. The plea agreement also requir ed that the sentence that would be imposed would be wi thin the Sentencing Guidelines: THE COURT: There is also an agreement here, as I

understand, that we would order a presentence report. [Defense Counsel]: Yes, Your Honor. THE COURT: And sentencing, any sentencing would be within the sentencing guidelines as promulgatedJ. A27006/14

- 4 - by the sentencing commission of the Commonwealth of Pennsylvania; is that right? [Defense Counsel]: Yes, Your Honor. [Assistant District Attorney]: Yes, sir. THE COURT: Do you understand that, as well, sir? THE DEFENDANT: Yes, sir. Notes of testimony, 4/19-22/04 at 371-372. 2 On July 19, 2004, the trial court imposed its sent ence. As to docket number CP-02-CR 0001068-2002, pertaining to third d egree murder, appellant was sentenced to 20 to 40 years’ imprison ment. As to docket number CP-02-CR 0002589-2002, pertaining to two cou nts of theft by deception, two counts of forgery, and one count of identity theft, appellant was sentenced to five consecutive counts of 21⁄2 to 5 years’ imprisonment, which were also imposed consecutively to the murder sentence, for an aggregate term of 321⁄2 to 65 years’ imprisonment. No sentence was imposed as to the abuse of a corpse conviction. A post-sentence motion for reconsideration of sentence was denied on December 2, 2004.

2 We note that at another point, the assistant distr ict attorney states that there is no agreement as to sentencing. (Notes of testimony, 4/19-22/04 at 367.) However, the quoted language is the only ins tance in which both parties, as well as the trial court, concur as to t he understanding as to sentencing. There is also an indication in the rec ord that a written plea agreement exists, but it has not been included in t he official record on appeal, and we are unable to use it to potentially clarify this matter.J. A27006/14

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On June 23, 2006, this court affirmed the judgment of sentence, and on January 3, 2007, our supreme court denied appeal

. Commonwealth v. Jackson , 905 A.2d 1044 (Pa.Super. 2006) (unpublished memor andum), appeal denied , 916 A.2d 631 (Pa. 2007). On May 29, 2007, appellant timely filed the instan t PCRA petition
pro se . Counsel was appointed and on October 24, 2008, a n amended petition was filed. A hearing was held on December 1, 2011. As noted, on February 27, 2012, the PCRA court vacated appellant ’s original judgment of sentence and re-imposed an identical sentence, exce pt for the administrative correction. On March 7, 2012, appellant filed a mo tion for reconsideration of sentence. On October 23, 2012, this motion was den ied. Appellant filed his notice of appeal on November 15, 2012. 3 Appellant raises the following issues on appeal:

1. WHETHER THE PCRA COURT ERRED IN RE-IMPOSING A SENTENCE WHICH IS ILLEGAL AS IT VIOLATES THE TERMS OF THE PLEA AGREEMENT REACHED BY THE PARTIES AND EXPRESSLY ACCEPTED BY THE TRIAL COURT DURING THE ORIGINAL PLEA PROCEEDING? 2. WHETHER THE PCRA COURT ERRED IN IMPOSING A SENTENCE WHICH IS AN ABUSE OF DISCRETION AND/OR MANIFESTLY EXCESSIVE BECAUSE THE RE-IMPOSED SENTENCES ON FIVE (5) COUNTS WERE

3 Although we are treating this appeal as being take n from the order of February 27, 2012, operating as a denial of PCRA re lief, we will consider the November 15, 2012 notice of appeal as timely becaus e of the confusion occasioned by the imposition of a “new” sentence an d the filing of the motion for reconsideration.J. A27006/14

- 6 - JURISDICTIONAL MAXIMUMS RUN CONSECUTIVELY, WERE ALSO RUN CONSECUTIVELY TO THE THIRD DEGREE MURDER STATUTORY MAXIMUM OF TWENTY (20) TO FORTY (40) YEARS, AND WERE OTHERWISE EXCESSIVE? 3. WHETHER THE PCRA COURT ERRED IN FINDING THAT TRIAL COUNSEL WAS EFFECTIVE DURING VOIR DIRE, TRIAL, PLEA PROCEEDINGS AND ORIGINAL SENTENCING DESPITE REPREATEDLY [sic] STATING THAT HE WAS UNABLE TO PROVIDE EFFECTIVE REPRESENTATION? 4. WHETHER THE PCRA COURT ERRED WHEN IT UPHELD ITS REFUSAL TO APPOINT COUNSEL TO REPRESENT MR. JACKSON AT THE ORIGINAL SENTENCING? Appellant’s brief at 6. Our standard of review for an order denying post-c onviction relief is whether the record supports the PCRA court’s determ ination, and whether the PCRA court’s determination is free of legal err or. Commonwealth v. Franklin , 990 A.2d 795, 797 (Pa.Super. 2010). The PCRA cou rt’s findings will not be disturbed unless there is no support fo r the findings in the certified record. Id. Moreover, as some of appellant’s issues on appeal involve ineffective assistance of counsel, we also note that appellant is required to make the following showing in order to succeed with such a c laim: (1) that the underlying claim is of arguable merit; (2) that cou nsel had no reasonable strategic basis for his or her action or inaction; and (3) that, but for theJ. A27006/14

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errors and omissions of counsel, there is a reasona ble probability that the outcome of the proceedings would have been differen t. Commonwealth v. Rivera , 10 A.3d 1276, 1279 (Pa.Super. 2010). The failure to satisfy any prong of this test will cause the entire claim to f ail. Commonwealth v. Daniels , 947 A.2d 795, 798 (Pa.Super. 2008). Finally, cou nsel is presumed to be effective, and appellant has the burden of pr oving otherwise. Commonwealth v. Pond , 846 A.2d 699, 708 (Pa.Super. 2003). In appellant’s first argument, he asserts that the sentence re-imposed by the PCRA court is illegal because it exceeds the sentence promised to appellant by his plea bargain, which was a sentence within the Sentencing Guidelines. 4 Appellant has waived this issue. We acknowledge that challenges to an illegal sente nce can never be waived. Commonwealth v. Tanner , 61 A.3d 1043, 1046 (Pa.Super. 2013). However, as the Commonwealth correctly coun ters, a claim that a defendant did not receive the sentence promised in a plea bargain does not implicate the legality of the sentence and may be w aived by failing to raise it

4 Appellant cannot challenge his sentence for third degree murder on this basis. First, although appellant’s PCRA petition w as filed as to all three of his trial court docket numbers, his notice of appea l was filed only to docket number CP-02-CR 0002589-2002, which pertained to hi s convictions other than third degree murder. Second, the sentence app ellant received for third degree murder, 20 to 40 years (240 to 480 months), was within the standard range of the Sentencing Guidelines. With appellant’s prior record score of 4, the Sentencing Guidelines indicate a mi nimum sentence in the range of 168-240 months. Appellant’s minimum sente nce was within this range.J. A27006/14

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on direct appeal. Commonwealth v. Berry , 877 A.2d 479, 482-484 (Pa.Super. 2005), appeal denied , 917 A.2d 844 (Pa. 2007). Therefore, since appellant did not raise this issue on direct appeal, it is now waived. Of course, appellant could have insulated himself from this waiver by arguing in his PCRA petition that direct appeal cou nsel was ineffective in failing to challenge the discretionary aspects of h is sentence on this basis on direct appeal. Appellant’s PCRA petition did raise a claim that direct appeal counsel was ineffective in failing to challenge the discretionary aspects of his sentence on direct appeal, but the basis stated was that appellant’s sentences were imposed beyond the Sentencing Guidel ines and imposed consecutively. However, the petition did not asser t that direct appeal counsel was ineffective in failing to raise the dis cretionary aspects of sentence on direct appeal on the basis that the sen tences were in violation of the plea bargain. 5 Consequently, appellant has waived his first argu ment. In his second argument, appellant argues that his sentence is excessive because it was imposed outside the Senten cing Guidelines, because it was imposed consecutively, and because t he court failed to

5 At the PCRA hearing, counsel obliquely approached this argument when he commented to the court that the court had stated th at it would sentence appellant within the guidelines. (Notes of testimo ny, 12/1/11 at 16.) However, counsel never argued that appellant’s sent ence violated his plea bargain.J. A27006/14

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provide a contemporaneous written statement of its reasons for deviating from the Guidelines. 6 We disagree. First, to the extent that appellant argues that th e court failed to consider various relevant sentencing factors, we fi nd no merit:

Where pre-sentence reports exist, we shall continue to presume that the sentencing judge was aware of relevant information regarding the defendant’s character and weighed those considerations along with mitigating statutory factors. A pre-sentence report constitutes the record and speaks for itself

. In order to dispel any lingering doubt as to our intention of engaging in an effort of legal purific ation, we state clearly that sentencers are under no compulsion to employ checklists or any extended or systematic definitions of their punishment procedur e. Having been fully informed by the pre-sentence report, the sentencing court’s discretion should no t be disturbed. This is particularly true, we repeat , in those circumstances where it can be demonstrated that the judge had any degree of awareness of the sentencing considerations, and there we will presume also that the weighing process took place i n a meaningful fashion. It would be foolish, indeed, to take the position that if a court is in possession of the facts, it will fail to apply them to the case a t hand.

6 Appellant directly raises the discretionary aspect s of his sentence, and his brief includes a concise statement of reasons for a llowance of appeal as to the discretionary aspects of his sentence. As prev iously noted, we do not regard the re-sentencing of appellant by the PCRA c ourt as a new sentence to be accorded another direct review; rather, we re gard that re-sentencing as an administrative correction, and the present ap peal as being from the denial of PCRA relief. Consequently, the discretio nary aspects of sentence are not presently cognizable. Commonwealth v. Wrecks , 934 A.2d 1287, 1289 (Pa.Super. 2007) (relief with respect to discr etionary aspects of sentence not cognizable in PCRA proceedings). Agai n, however, because of possible confusion as to whether a new judgment of sentence was being appealed, we will review this issue as a cognizable claim of direct appeal counsel’s ineffectiveness, as it was raised in the PCRA petition.J. A27006/14

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Commonwealth v. Devers , 546 A.2d 12, 18 (Pa. 1988). Prior to sentencing, the trial court noted on the record tha t it had the benefit of a presentence report. (Notes of testimony, 7/19/04 a t 12.) Therefore, any argument appellant raises in this regard is rebutte d by Devers

. As for the consecutive nature of appellant’s indiv idual sentences, direct appeal counsel cannot be found to be ineffective fo r failing to raise that issue on appeal. The discretionary aspects of sentence a re not automatically reviewable. Commonwealth v. Buterbaugh , 91 A.3d 1247, 1265 (Pa.Super. 2014). An appellant must first demonstr ate that his issue raises a substantial question that his sentence is not app ropriate under the Sentencing Code. Id. at 1265-1266. Generally, “the imposition of consecutive rather than concurrent sentences lies w ithin the sound discretion of the sentencing court, and a challenge to the imp osition of consecutive sentences simply does not raise a substantial quest ion.” Commonwealth v. Lloyd , 878 A.2d 867, 873 (Pa.Super. 2005), appeal denied , 887 A.2d 1240 (Pa. 2005). Although this court has recognize d that in the most extreme cases consecutive sentencing can raise a su bstantial question, the instant sentence is plainly not an extreme situatio n. 7 Thus, if direct appeal

7 See Commonwealth v. Dodge , 77 A.3d 1263, 1270-1271 (Pa.Super. 2013), appeal denied , 91 A.3d 161 (Pa. 2014). In Dodge , this court found that a substantial question existed where a virtual life sentence was created by imposing consecutive sentences on numerous non-v iolent property crimes. While appellant also argues he is effectiv ely facing a life sentence, the vast majority of that sentence is attributable to a murder conviction.J. A27006/14

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counsel had raised this matter, no substantial ques tion would have been found, and appellant would not have been granted re lief. Consequently, counsel cannot be found to have been ineffective in failing to bring this challenge to appellant’s sentence. As for appellant’s sentence being imposed beyond t he Sentencing Guidelines, appellant cites Commonwealth v. Guth , 735 A.2d 709 (Pa.Super. 1999), appeal denied , 743 A.2d 915 (Pa. 1999), for the proposition, “that an appeal from the discretionary aspects of a sentence will be allowed where a defendant alleges that his sente nce is outside the guidelines and unreasonable.” Guth , 735 A.2d at 711, citing Commonwealth v. Gibson , 716 A.2d 1275, 1276 (Pa.Super. 1998). Nonetheless, while appellant raises a substantial q uestion as to this aspect of his sentence, we find that his sentence is not a n abuse of discretion. As part of his plea bargain, the Commonwealth agreed t o nolle pros approximately two dozen similar offenses. Moreover , appellant committed a murder to effectuate these crimes. Under these cir cumstances, we find that the court below properly imposed sentences that exc eeded the Sentencing Guidelines. Counsel cannot be found ineffective in failing to pursue a meritless claim. Commonwealth v. Charleston , 94 A.3d 1012, 1024 (Pa.Super. 2014). Finally, as for appellant’s sentence being imprope r because the sentencing court failed to provide a contemporaneou s written statement ofJ. A27006/14

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its reasons for deviating from the Guidelines, we d isagree. We first note that the contemporaneous written statement requirem ent is met when the judge states his reasons for the sentence on the re cord and in the defendant’s presence. Commonwealth v. Antidormi , 84 A.3d 736, 760 (Pa.Super. 2014), appeal denied , 95 A.3d 275 (Pa. 2014). At sentencing, the court stated, “[a]ccordingly, the court having the benefit of the presentence report and the horrendous facts of this case, the following sentence is imposed.” (Notes of testimony, 7/19/04 at 30.) Additionally, for each of appellant’s sentences, on the Guideline Sen tence Forms contained in the record, in the space marked “Reasons for Senten ce,” the court wrote, “Multiple Cases including Criminal Homicide Murder in Third Degree Continues [sic] Criminal Acts.” This indicates to us that the court imposed these sentences because appellant committed multipl e offenses on a continuing basis and that they were directly facili tated by the commission of a murder. While somewhat spare in nature, we find the reasons are sufficient to support the imposition of sentences b eyond the Sentencing Guidelines. Accordingly, we find no ineffectivenes s in direct appeal counsel not raising this matter on appeal. In his third issue, appellant presents a general c laim of trial counsel’s ineffectiveness predicated upon trial counsel’s ong oing efforts to be permitted to withdraw from the case because of cont inuing conflict with appellant. In doing so, however, appellant fails t o indicate any particularJ. A27006/14

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instance or way in which his trial attorney failed him. Appellant quotes an exchange in which his trial counsel explains that a ppellant’s mother was supposed to supply him with a witness list, but rep eatedly failed to do so. If appellant is claiming that counsel’s ineffectivenes s resulted in the failure to call certain witnesses, he has failed to meet his b urden. In order to prove such a claim, the appellant must show the following :

There are two requirements for relief on an ineffectiveness claim for a failure to present witn ess testimony. The first requirement is procedural. T he PCRA requires that, to be entitled to an evidentiar y hearing, a petitioner must include in his PCRA petition “a signed certification as to each intende d witness stating the witness’s name, address, date o f birth and substance of testimony.” 42 Pa.C.S.A. § 9545(d)(1); Pa.R.Crim.P. 902(A)(15). The second requirement is substantive. Specifically, when raising a claim for the failure to call a potential witness, to obtain relief, a petitioner must establ ish that: (1) the witness existed; (2) the witness was available; (3) counsel was informed or should have known of the existence of the witness; (4) the witness was prepared to cooperate and would have testified on defendant’s behalf; and (5) the absenc e of such testimony prejudiced him and denied him a fair trial. Commonwealth v. Carson , 559 Pa. 460, 741 A.2d 686, 707 (1999) Commonwealth v. Reid , 99 A.3d 427, 438 (Pa. 2014). Appellant does not identify any witness that could have been called, n or does he indicate what, if any, potential testimony could have been adduced . Appellant has completely failed to meet his burden if he is claim ing that counsel was ineffective in failing to call certain witnesses.J. A27006/14

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Finally, in summation, appellant attributes his al legedly harsh sentence to his counsel’s ineffectiveness, but we simply do not see the connection. Appellant has presented nothing but a boilerplate c laim of counsel’s ineffectiveness that we find wholly unconvincing. Boilerplate claims will not satisfy appellant’s obligation to show ineffective assistance of counsel. Commonwealth v. Sneed , 45 A.3d 1096, 1106 (Pa. 2012). We find no ineffectiveness on this basis. In his last issue, appellant claims that the PCRA court erred in not finding that the trial court erred in permitting co unsel to withdraw immediately before appellant was sentenced and in f ailing to appoint new counsel. First, this issue could have been raised on direct appeal and is waived for failing to do so. Second, even if couch ed in terms of direct appeal counsel’s ineffectiveness, there is no merit . We see no error in permitting counsel to withdraw at that juncture. T he court was well aware of the ongoing conflict between appellant and his c ounsel. Immediately prior to trial, the court engaged in a Grazier colloquy with appellant to determine if appellant wanted to proceed pro se . 8 (Notes of testimony, 4/19-22/04 at 46-52.) At that time, appellant indi cated that he wanted to proceed with counsel. At sentencing, however, appe llant’s conflict with counsel again erupted, leading the court to properl y conclude that appellant did not wish to be represented by appointed counsel any longer. (Notes of

8 Commonwealth v. Grazier , 713 A.2d 81 (Pa. 1998).J. A27006/14

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testimony, 7/19/04 at 13-15.) Since the court had previously engaged in a Grazier

colloquy with appellant, we see no error in permit ting him to proceed pro se . Thus, there was no ineffectiveness on the part o f direct appeal counsel in failing to raise this issue. Accordingly, having found no merit in the issues r aised on appeal, we will affirm the order below. Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary Date: 1/9/2015