J-S41018-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

AKZAVIER ALI CARRINGTON

Appellant No. 225 MDA 2015

Appeal from the Judgment of Sentence January 9, 2015

In the Court of Common Pleas of Mifflin County

Criminal Division at No(s): CP-44-CR-0000168-2013

BEFORE: ALLEN, J., LAZARUS, J., and PLATT, J.*

MEMORANDUM BY LAZARUS, J.: FILED JULY 24, 2015

Akzavier Ali Carrington appeals from the judgment of sentence entered 

in the Court of Common Pleas of Mifflin County. After our review, we affirm 

the judgment of sentence and grant counsel’s petition to withdraw. 

On November 20, 2013, a jury found Carrington guilty of two counts 

each of robbery1and conspiracy,2and one count each of each of terroristic 

threats3and theft by unlawful taking.4 The court sentenced Carrington on 

____________________________________________

* Retired Senior Judge assigned to the Superior Court.

1 18 Pa.C.S.A. § 3701(a)(1)(ii) and (a)(1)(v). 

2 18 Pa.C.S.A. § 903; 18 Pa.C.S.A. § 3701(a)(1)(ii); 18 Pa.C.S.A. § 3921(a).

3 18 Pa.C.S.A. § 2706(a)(1).

4 18 Pa.C.S.A. § 3921(a).
J-S41018-15

- 2 -

January 31, 2014 to an aggregate term of five to ten years’ imprisonment. 

Carrington did not file post-sentence motions. He appealed to this Court on 

February 24, 2014. Counsel filed a petition to withdraw pursuant to 

Anders, McClendon and Santiago.

5

In an unpublished decision, this Court found Carrington’s sentence was 

illegal, and we vacated and remanded for resentencing. Commonwealth v. 

Carrington, 397 MDA 2014 (filed November 18, 2014). There, we noted 

that at trial, in an attempt to comply with Alleyne v. United States, 133 

S.Ct. 2151 (2013), the court had the jury decide, beyond a reasonable 

doubt, whether Carrington possessed a firearm and whether that fact placed 

the victim in reasonable fear of death or serious bodily injury. The jury 

found in the affirmative, and the court sentenced Carrington accordingly. 

We further noted that, like in Commonwealth v. Valentine, 101 A.3d 801 

(Pa. Super. 2014), by presenting the deadly weapon enhancement question 

to the jury, the sentencing court “performed an impermissible legislative 

function by creating a new procedure in an effort to impose the mandatory 

minimum sentence [] in compliance with Alleyne.” Carrington, supra at 

12, quoting Valentine, 101 A.3d at 811. We directed that, in re-imposing 

sentence, “the court shall not apply the mandatory minimum sentencing 

____________________________________________

5 Anders v. California, 386 U.S. 738 (1967); Commonwealth v. 

McClendon, 434 A.2d 1185 (Pa. 1981); and Commonwealth v. Santiago, 

978 A.2d 349 (Pa. 2009). 
J-S41018-15

- 3 -

provisions of section 9712.” Carrington, supra at 13. See Valentine, 

supra (“[I]t is manifestly the province of the General Assembly to determine 

what new procedures must be created in order to impose mandatory 

minimum sentences in Pennsylvania following Alleyne. See also 

Commonwealth v. Newman, 99 A.3d 86 (Pa. Super. 2014). We therefore 

vacated the judgment of sentence, remanded for resentencing and denied 

counsel’s petition to withdraw. Commonwealth v. Carrington, 397 MDA 

2014 (filed November 18, 2014). 

On January 9, 2015, the court resentenced Carrington to a term of 

imprisonment of 28 to 60 months on count 1 (robbery), and to a consecutive 

term of 28 to 60 months on count 3 (criminal conspiracy), those sentences 

to run concurrently to the sentences imposed on the remaining counts. 

Carrington filed a timely appeal and the court ordered him to file a Pa.R.A.P. 

1925(b) statement of errors complained of on appeal. Carrington filed his 

Rule 1925(b) statement on March 3, 2015, claiming the court erred in 

imposing consecutive sentences on counts 1 and 3, when the original 

sentences of January 31, 2014 on counts 1 and 3 were imposed 

concurrently. Carrington claims this results in a greater sentence as a direct 

result of having taken an appeal and violates his right to due process. 

Counsel has petitioned this Court to withdraw pursuant to Anders,

McClendon and Santiago, supra. 

In order to withdraw pursuant to Anders and McClendon, counsel 

must: 1) petition the Court for leave to withdraw, certifying that after a 
J-S41018-15

- 4 -

thorough review of the record, counsel has concluded the issues to be raised 

are wholly frivolous; 2) file a brief referring to anything in the record that 

might arguably support an appeal; and 3) furnish a copy of the brief to the 

appellant and advise him of his right to obtain new counsel or file a pro se 

brief to raise any additional points that the appellant deems worthy of 

review. Commonwealth v. Hernandez, 783 A.2d 784, 786 (Pa. Super. 

2001). In Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009), the 

Pennsylvania Supreme Court held that, in order to withdraw under Anders, 

counsel must also state his reasons for concluding his client’s appeal is 

frivolous. 

Here, counsel’s petition states that he has examined the record and 

concluded the appeal is wholly frivolous. Counsel states that he has provided 

Carrington with a copy of the brief and a letter explaining Carrington’s right 

to proceed pro se, or with newly retained counsel, and to raise any other 

issues he believes might have merit. See Petition to Withdraw, 4/17/15, at 

1. Counsel also has filed a brief in which he repeats his assertion that there 

are no non-frivolous issues to be raised. Accordingly, we find that counsel 

has substantially complied with the procedural requirements for withdrawal.6 

We now review the issues raised in the Anders brief.

____________________________________________

6 We do note that counsel has neglected to provide citations to the record, 

and, other than the case law citations regarding this Court’s standard of 

review, counsel has not indicated any case law pertaining to the issues 

raised.
J-S41018-15

- 5 -

The court’s original sentence imposed an aggregate term of five to ten 

years’ imprisonment, though counts 1 and 3 were imposed as concurrent 

sentences. At resentencing, the court stated: 

[A]s you’ll recall, this matter went up on appeal and at that time 

the Newman case was not decided yet. There’s been an 

upheaval regarding the constitutionality of mandatory sentences. 

And in light of that we’re now back for re-sentencing. And the 

re-sentence will not obviously be included in regards to any 

mandatory sentences. There are obviously guidelines and so 

forth. So, I believe we’re back to square one in regard to 

sentencing. 

N.T. Sentencing, 1/9/15, at 1. 

The court then sentenced Carrington to consecutive terms of 

imprisonment of 28 to 60 months on count 1 and count 3; on the remaining 

counts, the court imposed sentences concurrent with count 1. Carrington’s 

aggregate sentence was reduced from 5 to 10 years to 4 years and 8 

months to 10 years. 

It is clear from our review of both sentencing transcripts that the court 

intended to maintain the original sentencing scheme. Because Carrington’s 

aggregate term of imprisonment did not increase, no constitutional violation, 

whether of double jeopardy or judicial vindictiveness, is implicated. See

Commonwealth v. Kratzer, 660 A.2d 102 (Pa. Super. 1995) (where 

defendant's illegal sentence is corrected at resentencing and neither 

minimum nor maximum aggregate term of imprisonment is increased by 

virtue of new sentence, there is no constitutional violation); see also 

Commonwealth v. Taylor, 357 A.2d 562 (Pa. Super. 1976)(en banc) (no 
J-S41018-15

- 6 -

double jeopardy violation is implicated where aggregate sentence upon 

resentencing does not exceed original aggregate sentence); 

Commonwealth v. Sutton, 583 A.2d 500 (Pa. Super. 1990) (same). Cf. 

Commonwealth v. Robinson, 931 A.2d 15 (Pa. Super. 2007) (if court 

imposes harsher sentence after retrial, presumption of vindictiveness 

applies). 

Based upon the foregoing, we find Carrington’s claims meritless. We, 

therefore, affirm the judgment of sentence and grant counsel’s petition to 

withdraw. 

Judgment of sentence affirmed. Petition to withdraw granted.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 7/24/2015