Com. v. Williams, K. ( 2017 )

J-S03010-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
KEITH WILLIAMS
Appellant No. 372 WDA 2016
Appeal from the Judgment of Sentence June 11, 2015
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0002534-2015
BEFORE: OLSON, SOLANO and STRASSBURGER,* JJ.
MEMORANDUM BY OLSON, J.: FILED JANUARY 30, 2017
Appellant, Keith Williams, appeals from the judgment of sentence
entered on June 11, 2015, as made final by the denial of his post-sentence
motion on February 25, 2016. Although we affirm Appellant’s convictions,
we are constrained to vacate his judgment of sentence and remand for re-
sentencing.
The factual background and procedural history of this case are as
follows. On August 26, 2014, Appellant was apprehended while in
possession of heroin and marijuana. On April 13, 2015, the Commonwealth
charged Appellant via criminal information with possession of a controlled
* Retired Senior Judge assigned to the Superior Court
J-S03010-17
substance1 and possession of a small amount of marijuana.2 On June 11,
2015, Appellant pled guilty to both charges and was immediately sentenced
to an aggregate term of 30 days’ imprisonment. Thereafter, with the trial
court’s leave, Appellant filed a post-sentence motion nunc pro tunc. On
February 25, 2016, Appellant’s post-sentence motion was denied via
operation of law. This timely appeal followed.3
Appellant presents one issue for our review:
Was trial counsel ineffective for failing to file a motion to
suppress evidence seized from [Appellant] following a violation
of the federal and state constitutional prohibitions against
unreasonable warrantless searches and seizures?
Appellant’s Brief at 5.
Our Supreme Court has explained that, except in very limited
circumstances, “claims of ineffective assistance of counsel are to be deferred
to PCRA review; trial courts should not entertain claims of ineffectiveness
upon post-[sentence] motions; and such claims should not be reviewed upon
direct appeal.” Commonwealth v. Holmes, 79 A.3d 562, 576 (Pa. 2013).
One limited circumstance in which ineffectiveness claims can be reviewed on
direct appeal is when a defendant is serving a sentence so short that he or
she would likely be ineligible for PCRA relief. See id. at 578. For this
1
35 P.S. § 780-113(a)(16).
2
35 P.S. § 780-113(a)(31).
3
Appellant and the trial court complied with Pennsylvania Rule of Appellate
Procedure 1925.
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exception to apply, however, the trial court must determine that unitary
review is appropriate when ruling on the defendant’s post-sentence motion.
See id. In this case, Appellant’s post-sentence motion was denied via
operation of law which ipso facto means the trial court did not determine
that unitary review was appropriate in this case. Moreover, although
Appellant executed a document waiving his right to seek PCRA relief, he did
not engage in an on-the-record waiver colloquy as required by Holmes.
See id. at 580. As such, we may not consider the merits of Appellant’s
ineffectiveness claim.
Next, we sua sponte consider the legality of Appellant’s sentence. See
Commonwealth v. Mosley, 114 A.3d 1072, 1087 (Pa. Super. 2015)
(citation omitted). It is well-settled that “flat sentences are generally
illegal[.]” Commonwealth v. Stultz, 114 A.3d 865, 885 (Pa. Super. 2015),
appeal denied, 125 A.3d 1201 (Pa. 2015). A trial court must “impose a
minimum sentence of confinement which shall not exceed one-half of the
maximum sentence imposed.” 42 Pa.C.S.A. § 9756(b). In this case, the
trial court sentenced Appellant to a flat sentence of 30 days’ imprisonment
instead of sentencing him to a minimum and maximum term of
imprisonment. As such, Appellant’s sentence was illegal. See
Commonwealth v. Basinger, 982 A.2d 121, 127 (Pa. Super. 2009) (“A
‘flat’ sentence, which fails to specify the required minimum term for
purposes of parole eligibility, violates the[] requirements of the Sentencing
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Code and is therefore illegal.”). Therefore, although we affirm Appellant’s
convictions, we are constrained to vacate his judgment of sentence and
remand for re-sentencing.
Judgment of sentence affirmed in part and vacated in part. Case
remanded. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/30/2017
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