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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37 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 vacated 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 numbers 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 collateral review were of no 

moment because identical sentences were imposed at each count. 
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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, if 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 the 

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 section 

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 the 

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 effectively denied all of 

appellant’s PCRA claims. Consequently, we regard this appeal as being 

taken from the order of February 27, 2012, operating 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’s 
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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 identification papers in doing so. 

Charges against appellant were brought at three separate criminal 

informations. At docket number CP-02-CR 0001068-2002, appellant was 

charged with criminal homicide. At docket number CP-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 deception, 16 counts of 

forgery, one count of theft by unlawful taking or disposition, and five counts 

of identity theft. At docket number CP-02-CR 0003968-2002, appellant was 

charged with one count of theft by deception. 

 During appellant’s jury trial, appellant and the Commonwealth came to 

a plea agreement. Appellant subsequently pleaded guilty 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 theft. The Commonwealth 

agreed to nolle pros all other charges. The plea agreement also required 

that the sentence that would be imposed would be within 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 promulgated 
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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 sentence. As to docket 

number CP-02-CR 0001068-2002, pertaining to third degree murder, 

appellant was sentenced to 20 to 40 years’ imprisonment. As to docket 

number CP-02-CR 0002589-2002, pertaining to two counts 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 district 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 instance in which both 

parties, as well as the trial court, concur as to the understanding as to 

sentencing. There is also an indication in the record that a written plea 

agreement exists, but it has not been included in the official record on 

appeal, and we are unable to use it to potentially clarify this matter. 
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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 memorandum), 

appeal denied, 916 A.2d 631 (Pa. 2007). 

 On May 29, 2007, appellant timely filed the instant PCRA petition 

pro se. Counsel was appointed and on October 24, 2008, an 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, except for the administrative 

correction. On March 7, 2012, appellant filed a motion for reconsideration of 

sentence. On October 23, 2012, this motion was denied. 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 taken from the order of 

February 27, 2012, operating as a denial of PCRA relief, we will consider the 

November 15, 2012 notice of appeal as timely because of the confusion 

occasioned by the imposition of a “new” sentence and the filing of the 

motion for reconsideration. 
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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-conviction relief is 

whether the record supports the PCRA court’s determination, and whether 

the PCRA court’s determination is free of legal error. Commonwealth v. 

Franklin, 990 A.2d 795, 797 (Pa.Super. 2010). The PCRA court’s findings 

will not be disturbed unless there is no support for 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 claim: (1) that the 

underlying claim is of arguable merit; (2) that counsel had no reasonable 

strategic basis for his or her action or inaction; and (3) that, but for the 
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errors and omissions of counsel, there is a reasonable probability that the 

outcome of the proceedings would have been different. 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 fail. Commonwealth v. 

Daniels, 947 A.2d 795, 798 (Pa.Super. 2008). Finally, counsel is presumed 

to be effective, and appellant has the burden of proving 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 sentence can never be 

waived. Commonwealth v. Tanner, 61 A.3d 1043, 1046 (Pa.Super. 

2013). However, as the Commonwealth correctly counters, 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 waived by failing to raise it 

 

4

 Appellant cannot challenge his sentence for third degree murder on this 

basis. First, although appellant’s PCRA petition was filed as to all three of 

his trial court docket numbers, his notice of appeal was filed only to docket 

number CP-02-CR 0002589-2002, which pertained to his convictions other 

than third degree murder. Second, the sentence appellant 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 minimum sentence in the 

range of 168-240 months. Appellant’s minimum sentence was within this 

range. 
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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 counsel was ineffective in 

failing to challenge the discretionary aspects of his 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 Guidelines and imposed 

consecutively. However, the petition did not assert that direct appeal 

counsel was ineffective in failing to raise the discretionary aspects of 

sentence on direct appeal on the basis that the sentences were in violation 

of the plea bargain.5 Consequently, appellant has waived his first argument. 

 In his second argument, appellant argues that his sentence is 

excessive because it was imposed outside the Sentencing Guidelines, 

because it was imposed consecutively, and because the court failed to 

 

5

 At the PCRA hearing, counsel obliquely approached this argument when he 

commented to the court that the court had stated that it would sentence 

appellant within the guidelines. (Notes of testimony, 12/1/11 at 16.) 

However, counsel never argued that appellant’s sentence violated his plea 

bargain. 
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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 the court failed to 

consider various relevant sentencing factors, we find 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 purification, 

we state clearly that sentencers are under no 

compulsion to employ checklists or any extended or 

systematic definitions of their punishment procedure. 

Having been fully informed by the pre-sentence 

report, the sentencing court’s discretion should not 

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 in 

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 at 

hand. 

 

6

 Appellant directly raises the discretionary aspects of his sentence, and his 

brief includes a concise statement of reasons for allowance of appeal as to 

the discretionary aspects of his sentence. As previously noted, we do not 

regard the re-sentencing of appellant by the PCRA court as a new sentence 

to be accorded another direct review; rather, we regard that re-sentencing 

as an administrative correction, and the present appeal as being from the 

denial of PCRA relief. Consequently, the discretionary aspects of sentence 

are not presently cognizable. Commonwealth v. Wrecks, 934 A.2d 1287, 

1289 (Pa.Super. 2007) (relief with respect to discretionary aspects of 

sentence not cognizable in PCRA proceedings). Again, 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. 
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Commonwealth v. Devers, 546 A.2d 12, 18 (Pa. 1988). Prior to 

sentencing, the trial court noted on the record that it had the benefit of a 

presentence report. (Notes of testimony, 7/19/04 at 12.) Therefore, any 

argument appellant raises in this regard is rebutted by Devers. 

 As for the consecutive nature of appellant’s individual sentences, direct 

appeal counsel cannot be found to be ineffective for failing to raise that issue 

on appeal. The discretionary aspects of sentence are not automatically 

reviewable. Commonwealth v. Buterbaugh, 91 A.3d 1247, 1265 

(Pa.Super. 2014). An appellant must first demonstrate that his issue raises 

a substantial question that his sentence is not appropriate under the 

Sentencing Code. Id. at 1265-1266. Generally, “the imposition of 

consecutive rather than concurrent sentences lies within the sound discretion 

of the sentencing court, and a challenge to the imposition of consecutive 

sentences simply does not raise a substantial question.” Commonwealth 

v. Lloyd, 878 A.2d 867, 873 (Pa.Super. 2005), appeal denied, 887 A.2d 

1240 (Pa. 2005). Although this court has recognized that in the most 

extreme cases consecutive sentencing can raise a substantial question, the 

instant sentence is plainly not an extreme situation.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-violent property 

crimes. While appellant also argues he is effectively facing a life sentence, 

the vast majority of that sentence is attributable to a murder conviction. 
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counsel had raised this matter, no substantial question would have been 

found, and appellant would not have been granted relief. 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 the 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 sentence 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 question as to this aspect 

of his sentence, we find that his sentence is not an abuse of discretion. As 

part of his plea bargain, the Commonwealth agreed to nolle pros

approximately two dozen similar offenses. Moreover, appellant committed a 

murder to effectuate these crimes. Under these circumstances, we find that 

the court below properly imposed sentences that exceeded 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 improper because the 

sentencing court failed to provide a contemporaneous written statement of 
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its reasons for deviating from the Guidelines, we disagree. We first note 

that the contemporaneous written statement requirement is met when the 

judge states his reasons for the sentence on the record 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 Sentence Forms contained in 

the record, in the space marked “Reasons for Sentence,” 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 multiple offenses on a 

continuing basis and that they were directly facilitated by the commission of 

a murder. While somewhat spare in nature, we find the reasons are 

sufficient to support the imposition of sentences beyond the Sentencing 

Guidelines. Accordingly, we find no ineffectiveness in direct appeal counsel 

not raising this matter on appeal. 

 In his third issue, appellant presents a general claim of trial counsel’s 

ineffectiveness predicated upon trial counsel’s ongoing efforts to be 

permitted to withdraw from the case because of continuing conflict with 

appellant. In doing so, however, appellant fails to indicate any particular 
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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 appellant’s mother was 

supposed to supply him with a witness list, but repeatedly failed to do so. If 

appellant is claiming that counsel’s ineffectiveness resulted in the failure to 

call certain witnesses, he has failed to meet his burden. 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 witness 

testimony. The first requirement is procedural. The 

PCRA requires that, to be entitled to an evidentiary 

hearing, a petitioner must include in his PCRA 

petition “a signed certification as to each intended 

witness stating the witness’s name, address, date of 

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 establish 

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 absence 

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, nor does he indicate what, 

if any, potential testimony could have been adduced. Appellant has 

completely failed to meet his burden if he is claiming that counsel was 

ineffective in failing to call certain witnesses. 
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 Finally, in summation, appellant attributes his allegedly harsh sentence 

to his counsel’s ineffectiveness, but we simply do not see the connection. 

Appellant has presented nothing but a boilerplate claim 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 counsel to withdraw 

immediately before appellant was sentenced and in failing 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 couched in terms of direct 

appeal counsel’s ineffectiveness, there is no merit. We see no error in 

permitting counsel to withdraw at that juncture. The court was well aware 

of the ongoing conflict between appellant and his counsel. 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 indicated that he wanted to 

proceed with counsel. At sentencing, however, appellant’s conflict with 

counsel again erupted, leading the court to properly 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). 
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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 permitting him to 

proceed pro se. Thus, there was no ineffectiveness on the part of direct 

appeal counsel in failing to raise this issue. 

 Accordingly, having found no merit in the issues raised on appeal, we 

will affirm the order below. 

 Order affirmed. 

Judgment Entered. 

Joseph D. Seletyn, Esq. 

Prothonotary 

Date: 1/9/2015