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COMMONWEALTH OF PENNSYLVANIA

v.

KEITH FIELDS Appellant : : : : : : : : : IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 1069 WDA 2016
Appeal from the Judgment of Sentence Entered April 5, 2016, in the Court of Common Pleas of Allegheny County, Criminal Division at No(s): CP

- 02

- CR

- 0004803

- 2012,

CP

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- CR

- 0004806

- 2012.

COMMONWEALTH OF PENNSYLVANIA

v.
GERALD HOWARD DAVIS, JR.

Appellant : : : : : : : : : IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 445 WDA 2016
Appea l from the Judgment of Sentence Entered February 19, 2016,

in the Court of Common Pleas of Allegheny County, Criminal Division at No(s): CP

- 02

- CR

- 0004831

- 2012,

CP

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- CR

- 0004834

- 2012.

BEFORE: BENDER, P.J.E., PANELLA, J., SHOGAN, J., LAZARUS, J., OLSON,

J., STABILE, J., DUBOW, J., KUNSELMAN, J., and MURRAY, J. OPINION IN SUPPORT OF AFFIRMANCE BY BENDER , P.J.E. : FILED OCTOBER 17, 2018 Appellants, Keith Fields and Gerald Howard Davis, Jr., appeal f rom the judgments of sentence imposed after they were resentenced following theirJ

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original sentences being vacated on collateral review. Fields and Davis contend that the post

- conviction court lacked jurisdiction to vacate their sentences, and resentence them, at certain counts for which they had completed their sentences or received no further penalty

. After careful review, we affirm. The facts of Fields’ and Davis’ underlying convictions are not pert inent to our disposition of their appeal s . We only briefly note that both men were charged with various offenses stemming from robberies that they, and a third cohort, had committed at nine separate re staurants and convenience stores in Allegheny County, Pennsylvania. On August 29, 2012, Fields and Davis both p led guilty to all of the offenses with which they were charged

. Specifically, Fields pled guilty to twenty
- three counts of robbery, nine counts each of conspiracy and theft by unlawful taking, eight counts each of terroristic threats and recklessly endangering another person (REAP) , six counts of aggravated assault, two counts of persons not to possess a firearm, and one count each of discharging a firearm into an occupied structure, firearms not to be carried without a license, and receiving stolen property. Davis pled guilty to six counts each of robbery, aggravated assault, REAP , and terroristic threats, as well as one count each of dischargin g a firearm into an occupied structure, carrying a firearm without a license, theft by unlawful taking, receiving stolen property, and criminal conspiracy. On January 18, 2013, both men were sentenced, with Fields receiving an aggregate term of 25 to 50 ye ars’ incarceration, and Davis receiving anJ

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aggregate term of 22 to 44 years’ incarceration. This Court affirmed their judgments of sentence on direct appeal. See Commonwealth v. Fields , 104 A.3d 55 (Pa. Super. 2014) (unpublished memorandum); Commonwealth v. Davis , 105 A.3d 46 (Pa. Super. 2014) (unpublished memorandum), appeal denied , 104 A.3d 2 (Pa. 2014). Fields and Davis both then filed timely petitions under the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541

- 9546. Counsel was appointed, and ame nded petitions were filed on their behalf arguing, inter alia , that Fields and Davis had received mandatory minimum sentences for several of their robbery convictions that were rendered illegal by Alleyne v. United States , 133 S.Ct. 2151, 2163 (2013) (hold ing that “facts that increase mandatory minimum sentences must be submitted to the jury” and f ou nd beyond a reasonable doubt). On February 19, 2016, the PCRA court issued an order granting Davis’ petition, vacating his original judgment of sentence in its entirety, and scheduling his resentencing hearing for that same day. At the resentencing proceeding , the court imposed an aggregate term of 17 to 40 years’ incarceration. Davis filed a timely notice of appeal from his new judgment of sentence, and he complied with the court’s order to file a Pa.R.A.P. 1925(b)
concise statement of errors complained of on appeal . On April 11, 2016, the court filed a Rule 1925(a) opinion. In Fields’ case , the PCRA court entered an order on March 11, 2016, granting his P CRA petition in part, to the extent that he challenged the legalityJ

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of his mandatory

- minimum sentence s . T hat orde r vacated the entirety of Field s ’ original judgment of sentence, and scheduled his resentencing hearing for April 5, 2016. At the resentencin g hearing, the court imposed an aggregate term of 17 to 50 years’ incarceration. 1 Fields filed a timely notice of appeal, and he also complied with the trial court’s order to file a Rule 1925(b) statement. The trial court issued a Rule 1925(a) opinion on October 21, 2016. Ultimately, this Court consolidated Fields’ and Davis’ appeals and assigned t heir case to a three

- judge panel. Before that panel, Fields and Davis presented the following issues, respectively: Whether the sentencing court had jurisdicti on to sentence [Fields] at count 29 ([c]riminal [c]onspiracy) when the PCRA court had no jurisdiction to grant PCRA relief as to those counts because [Fields’] sentence had already been served as to [that] count[]? Fields’ Original Brief at 24. Whether the sentencing court had jurisdiction to sentence [Davis] at count 5 ( [REAP] ) and count 23 (possession of a firearm) when the PCRA court had no jurisdiction to grant PCRA relief as to those counts because [Davis’] sentence had already been served as to those counts? Davis’ Original Brief at 16. After hearing oral argument, the three

- judge panel requested that Fields’ and Davis’ case be certified for en banc review, which was unanimously granted by our C ourt. Accordingly, their case was assigned to the present, en

_________________ __________ ______ ____ _______ 1 That same da y, the PCRA court issued a second PCRA order denying the remainder of Fields’ post

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banc panel, which heard oral argument by Fields and Davis on April 24, 2018.
F ields and Davis also both filed substituted briefs, reiterating the identical, single issues set forth supra . See Fields’ Substituted Brief (hereinafter, “F ields’ Brief”) at 22; Davis’ Substituted Brief (hereinafter, “Davis’ Brief”) at 18. We will now address those claims.
Bo th Fields and Davis argue that under 42 Pa.C.S. § 9543(a)(1)(i), discussed infra , “ the PCRA court had no jurisdiction to grant PCRA rel ief as to those counts” on which their original sentences had already been served, or on which they had received no further penalty. See Fields’ Brief at 22; Davis’ Brief at 18. More specifically, Davis takes issue with the PCRA court’s vacating his no

- f urther

- p enalty sentences for one count of REAP and one count of possession of a firearm, and then resentencing him to 1 to 2 year terms of incarceration for each of those convictions. See Davis’ Brief at 30

- 31. The only sentence that Fields specifically identifies on appeal is his term of incarceration imposed for his conspiracy conviction at count 29. See Fields’ Brief at 33. Field s maintains that at the time he was resentenced in 2016, he had completed his original sentence of 1 to 2 years’ incarcerat ion for that offense. Thus, Fields asserts that “[t]he PCRA court lacked jurisdiction to vacate and impose a new sentence as to any counts where [he] had already served his sentence.” Id. at 33

- 34. We begin by recognizing that “ [j] urisdiction is purely a question of law; the appellate standard of review is de novo and the scope of review is plenary.” Commonwealth v. John , 854 A.2d 591, 593 (Pa. Super. 2004)J

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(citation omitted). Additionally, to the extent that Fields ’ and Davis’ claims involv e statutory interpretation of the PCRA, they constitute “ a question of law, and our review is plenary and non

- deferential.” A.S. v. Pennsylvania State Police , 143 A.3d 896, 903 (Pa. 2016) (citation omitted). Our Supreme Court has directed that, [i] n suc h cases, the Statutory Construction Act directs courts to ascertain and effectuate the intent of the General Assembly. [ Commonwealth v. Conklin , 897 A.2d 1168, 1175 (Pa. 2006) ] , citing 1 Pa.C.S. § 1921(a). “The statute’ s plain language generally provides the best indication of legislative intent.” See, e.g., McGrory v. Dep't of Transp. , ... 915 A.2d 1155, 1158 ( [Pa.] 2007); Commonwealth v. Gilmour Mfg. Co. , ... 822 A.2d 676, 679 ( [Pa.] 2003)

. Id. In the present case, Fields and D avis rely on 42 Pa.C.S. § 9543(a)(1)(i) to support their argument that the PCRA court lacked jurisdiction to disturb their sentences on certain counts. Section 9543, entitled “Eligibility for relief,”
states: (a) General rule. -- To be eligible for relief under this subchapter, the petitioner must plead and prove by a preponderance of the evidence all of the following: (1) That the petitioner has been convicted of a crime under the laws of this Commonwealth and is at the time relief is granted: (i) currently serving a sentence of imprisonment, probation or parole for the crime; (ii) awaiting execution of a sentence of death for the crime; or (iii) serving a sentence which must expire before the person may commence serving the disputed sentence.J

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42 Pa.C.S. § 9 543(a)(1)(i) (emphasis added). Fields and Davis essentially contend that the ‘currently serving a sentence’ requirement of section 9543(a)(1)(i) constitutes a bar that petitioner s must overcom e before the PCRA court has jurisdiction to grant them relief. We disagree. The plain language of section 9543 does not mention the jurisdiction of the PCRA court, but instead sets forth the eligibility requirements a petitioner must meet in order to obtain post

- conviction relief. Notably, the language, “to be eligi ble for relief,” implicates only the petitioner’s ability to obtain a remedy through post

- conviction proceedings, not the jurisdiction of the PCRA court to act on a petition. Moreover, reading the PCRA statute as a whole, as we must, 2 supports our interpr etation of the language of section 9543. Specifically, in drafting the PCRA, the General Assembly included 42 Pa.C.S. § 9545, a separate provision addressing “Jurisdiction and proceedings.” Had the General Assembly intended the eligibility requirements

o f section 9543 to be jurisdictional prerequisites, it would have included that provision within section 9545. Additionally, the cases on which both Davis and Fields rely do not convince us to adopt a different interpretation of section 9543 than that which

_________________ __________ ______ ____ _______ 2 See 1 Pa.C.S . § 1932(a) (“Statutes or parts of statutes are in pari materia when they relate to the same persons or things or to the same class of persons or things.”). The PCRA relates to only one thing

- namely, establishing “an action by which persons convicted of crimes they did not commit and persons serving illegal sentences may obtain collateral relief.” 42 Pa.C.S. § 9542. “Statutes in pari materia shall be construed together, if possible, as one statute.” 1 Pa.C.S. § 1932(b).J

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its plain language conveys. Each of those decisions simply clarifies that section 9543 requires that a petitioner be serving a sentence of incarceration at the time relief is granted ; if they are not, they are ineligible for post

conviction relief. See Commonwealth v. Ahlborn , 699 A.2d 718, 720 (Pa. 1997) (hereinafter, “ Ahlborn I ”) (holding that the plain language of section 9543(a)(1)(i) requires that a petitioner be serving a sentence of incarceration at the time when relief is granted ); Commonwealth v . Matin , 832 A.2d 1141, 1143 (Pa. Super. 2003) (stressing that “[a] petitioner is ineligible for relief under the PCRA once the sentence for the challenged conviction is completed”); see also Commonwealth v. Smith , 17 A.3d 873, 904 (Pa. 2011) (reiterating the holding of Ahlborn I that section 9543 “preclude[s] PCRA relief where the petitioner is no longer serving a sentence for the crime at the time the PCRA court renders a decision ” ) (citing Ahlborn I , supra ). At no point in Ahlborn I , Smith , or Matin , did our Supreme Court, or this Court, reference the jurisdiction of the PCRA court, or construe section 9543(a)(1)(i) as constituting a jurisdictional prerequisite to the court’s ability to grant post

conviction relief. Although neither Fields n or Davis d iscuss this Court’s en banc decision
in Commonwealth v. Ahlborn , 683 A.2d 632 (Pa. Super. 1996) ( en banc ) (hereinafter, “ Ahlborn II ”), aff’d by Ahlborn I, supra , we recognize that in that opinion, we stated that the ‘currently serving’ requirement of secti on 9543 “must be met in order to confer upon a court jurisdiction to hear a PCRA petition.” Ahlborn II , 683 A.2d at 637 (emphasis in original) . However, theJ

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question of whether section 9543 implicates the PCRA court’s jurisdiction to rule on a petition w as not specifically at issue in Ahlborn II . Instead, the specific issue on which we granted en banc review in Ahlborn II (and on which our Supreme Court subsequently affirmed in Ahlborn I ) was “the point in time (filing or hearing date) at which a petitio ner satisfies the ‘currently serving’ requirement of the PCRA.” Id. To th e extent that, in assessing this issue, we erroneously construed section 9543 as implicating the PCRA court’s jurisdiction to hear a petition, we hereby overrule Ahlborn II. In sum, we conclude that Fields’ and Davis’ jurisdictional argument misinterprets the plain language of section 9543, as well as the decisions in Ahlborn I , Matin , and Smith . Accordingly, we hold that the requirements set forth in section 9543 establish only a petitioner’s eligibility for post

conviction relief, and do not implicate the PCRA court’s jurisdiction to act on a petition. Based on this decision, we next conclude that Fields and Davis have waived their claim for our review. Fields and Davis specifica lly dispute the PCRA court’s ‘jurisdiction’ to grant them post

- conviction relief. See Fields’ Brief at 22; Davis’ Brief at 18. Contrary to their arguments, the relief granted by the PCRA court was not their resentencing; instead, it was the vacating of
t heir original judgments of sentence, based on the illegality of their mandatory

- m inimum terms of incarceration. The PCRA court provided Davis this relief in its February 19, 2016 order granting his petition and scheduling resentencing for that same day. Additionally, Fields was afforded his post

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conviction sentencing relief in the PCRA court’s March 11, 2016 order granting his petition, in part, and scheduling his resentencing hearing for April 5, 2016. Although it was with these orders that the PCRA co urt first acted on the
at
- issue counts by vacating them, thus exposing Fields and Davis to resentencing on those charges, neither Fields nor Davis appealed from those orders. 3 Instead, both men decided to appeal from their judgm ents of
sentence

. Because the essence of their issue is that the PCRA court lacked the ability to disturb their sentences on certain counts, which the court did in the PCRA orders vacating those sentences, we hold that Fields and Davis have waived their challenge by not appeal ing f rom those orders. See Commonwealth v. Bryant , 780 A.2d 646, 648 (Pa. 2001) (concluding that where a petitioner does not file a timely notice of appeal from the PCRA court order, he waives “future review of the decision of the PCRA court”). We also stress that , even if Fields and Davis are properly raising their claim in the present appeal s from their judgments of sentence, their argument

_________________ __________ ______ ____ _______ 3 Clearly, those PCRA orders be came final and appealable at some point, whether it was on the day they were entered, or upon the court’s resentencing of Fields and Davis (and the court’s issuing a second order denying Fields’ remaining PCRA claims). See Pa.R.Crim.P. 910 (“An order gran ting, denying, dismissing, or otherwise finally disposing of a petition for post

- conviction collateral relief shall constitute a final order for purposes of appeal.”). As this Court recently summarized in Commonwealth v. Grove , 170 A.3d 1127, 1137

- 38 (Pa. Super. 2017), our Court has disputed precisely when a PCRA order

- particularly, a hybrid order that grants resentencing and denies the petitioner’s remaining claims

- becomes final and appealable. We cannot resolve this contested issue in the present ca se, however, as neither Fi elds nor Davis have appealed from the PCRA court’s orde r ruling on their petitions.J

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is still waived . At no point during their resentencing hearings did either Fields or Davis argue that the court lacked the authority to vacate their original
sentences , and resentence them , on certain counts for which they were not ‘currently serving’ a term o f incarceration

. Moreover, Fields and Davis did not assert any such challenge in a post

- sentence motion. Rather, both men waited until the present appeal from their judgments of sentence to contend, for the first time, that the PCRA court lacked the authority to disturb their original sentences on certain convictions , framing that issue as a non

- waivable challenge to the court’s jurisdiction. Because we conclude that Fields’ and Davis’ claim does not implicate the PCRA court’s jurisdiction, we also hold that they have waived this issue by presenting it for the first time on appeal

. See Pa.R.A.P. 302(a) (“Issues not raised in the lower court are waived and cannot be raised for the first time on appeal.”). Lastly, w e recognize that where this Court has jurisdiction, we may address the legality of a sentence. See Commonwealth v. Edrington , 780 A.2d 721, 723 (Pa. Super . 2001) (citations omitted). However, the specific claim th at Fields and Davis present herein

- i.e. , that under section 9543, the PCRA court lacked ‘jurisdiction’ to vacate their sentences and resentence them

- does not, on its face, fall within any of the three categories of non - waivable, illegal sentencing claims subject to this Court’s review and correction. See Commonwealth v. Munday , 78 A.3d 661, 664 (Pa. Super. 2013) (reiterating that the three, narrow categories of cases to which the term of art, ‘illegal
sent ence,’ applies “are: (1) claims that the sentence fell ‘outside of the legalJ

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parameters prescribed by the applicable statute’; (2) claims involving merger/double jeopardy; and (3) claims implicating the rule in Apprendi v. New Jersey

, 530 U.S . 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000).”) (citation omitted). Moreover, while it might seem that Fields’ and Davis’ sentencing challenge could fall under the double jeopardy category of illegal sentencing claims, we discern no constitutional viol ation for several reasons. First, it was Fields and Davis who intentionally upset the finality of their judgments of sentence by challenging them collaterally through their PCRA petitions. In other words, “by filing a petition for collateral relief, [Fie lds and Davis] assumed the risk that [their] sentencing on the various counts would be adjusted insofar as was necessary to preserve the integrity of the original sentencing scheme.” Commonwealth v. Walker , 568 A.2d 201, 208 (Pa. Super. 1989), disapproved of on other grounds by Commonwealth v. Robinson , 931 A.2d 15, 20

- 22 (Pa. Super. 2007) ( en banc ). Second, Fields and Davis were both resentenced to lower aggregate terms of incarceration. Our Court has held that no double jeopardy violation occurs in such
circumstances. See Commonwealth v. Sutton , 583 A.2d 500, 502

– 03 (Pa. Super. 1990) (declaring that “ no double jeopardy violation is implicated where the aggregate sentence upon resentencing does not exceed the original aggregate sentence”) (citing Walker , 568 A.2d at 207 n.5); see also Commonwealth v. Adams , 504 A.2d 1264, 1268 (Pa. Super. 1986) ( en banc ) (concluding that, because there was no increase in Adams’ aggregateJ

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sentence, there was no double jeopardy violation). Third, Fields and Davis were each given credit for time served in their written sentencing orders. Therefore, practically speaking, they will not suffer “multiple punishments for the same offense.” Illinois v. Vitale , 447 U.S. 410, 415 (1980) (stating that double jeopardy “protects agai nst multiple punishments for the same offense”) (internal citations, quotation marks, and some brackets omitted). Accordingly, we perceive no double jeopardy violation that requires us to sua sponte raise such a claim and vacate Fields’ and Davis’ at

- issu e sentences based thereon

. Judgments of sentence affirmed. Judges Panella, Laza rus and Dubow join this opinion in support of affirmance. Judge Olson files an opinion in support of reversal in which Judges Shogan and Murray join. Judge Stabile files an opinion in support of affirmance in which Judge Kunselman joins. Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 10/17/2018