Com. v. Banks, D. ( 2015 )

J-S52038-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
DEREK ADAM BANKS
Appellant No. 889 EDA 2014
Appeal from the PCRA Order February 25, 2014
In the Court of Common Pleas of Chester County
Criminal Division at No(s): CP-15-CR-0004267-2007;
CP-15-CR-0004269-2007; CP-15-CR-0004270-2007;
CP-15-CR-0004271-2007;CP-15-CR-0004272-2007
BEFORE: GANTMAN, P.J., ALLEN, J., and FITZGERALD, J.*
MEMORANDUM BY GANTMAN, P.J.: FILED APRIL 06, 2015
Appellant, Derek Adam Banks, appeals pro se from the order entered
in the Chester County Court of Common Pleas, which denied and dismissed
his petition filed under the Post Conviction Relief Act (“PCRA”). 1 We vacate
and remand for further proceedings.
The relevant facts and procedural history of this case are as follows.
In July 2007, a confidential informant (“C.I.”) assisted Embreeville State
Police with an investigation into Appellant’s drug related activities. During
the course of the investigation, the C.I. engaged in four controlled drug buys
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1
42 Pa.C.S.A. §§ 9541-9546.
_____________________________
*Former Justice specially assigned to the Superior Court.
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with Appellant. The first controlled buy took place on August 1, 2007, in
which Appellant sold the C.I. 4.1 grams of cocaine in exchange for three
hundred dollars ($300.00). On August 8, 2007, a second controlled buy
occurred in which Appellant sold the C.I. 14.2 grams of cocaine in exchange
for six hundred dollars ($600.00). A third controlled buy took place on
August 16, 2007, in which Appellant sold the C.I. 13.7 grams of cocaine in
exchange for six hundred dollars ($600.00). The fourth controlled buy
occurred on September 11, 2007, in which Appellant sold the C.I. 97.7
grams of cocaine in exchange for three thousand, six hundred dollars
($3,600.00). Immediately following the September 11, 2007 controlled buy,
police executed a search warrant on Appellant’s home and recovered, inter
alia, a digital scale with white residue, a large amount of cash, 14.2 grams
of cocaine, and drug paraphernalia.
Police arrested Appellant, and the Commonwealth charged him with
various drug-related crimes at five separate dockets.2 Specifically, the
Commonwealth charged Appellant with the following offenses: at docket no.
CP-15-CR-0004267-2007 (“docket 4267-2007”), delivery of a controlled
substance and criminal use of a communication facility, in connection with
the August 8, 2007 controlled buy; at docket no. CP-15-CR-0004269-2007
(“docket 4269-2007”), delivery of a controlled substance and criminal use of
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2
The court consolidated the cases on November 5, 2007.
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a communication facility, in connection with the August 1, 2007 controlled
buy; at docket no. CP-15-CR-0004270-2007 (“docket 4270-2007”), delivery
of a controlled substance and criminal use of a communication facility, in
connection with the September 11, 2007 controlled buy; at docket no. CP-
15-CR-0004271-2007 (“docket 4271-2007”), three counts of possession of a
controlled substance with the intent to deliver (“PWID”), and one count of
possession of drug paraphernalia, in connection with the September 11,
2007 search of Appellant’s residence; and at docket no. CP-15-CR-0004272-
2007 (“docket 4272-2007”), delivery of a controlled substance and criminal
use of a communication facility, in connection with the August 16, 2007
controlled buy.
Appellant proceeded to a jury trial on December 1, 2008. On
December 3, 2008, the jury convicted Appellant of one count of PWID, three
counts of delivery of a controlled substance, three counts of criminal use of a
communication facility, and one count of possession of drug paraphernalia.3
The court sentenced Appellant to an aggregate term of twenty-one (21) to
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3
The jury convicted Appellant on all counts, except for the two counts at
docket 4267-2007 (related to the August 8, 2007 controlled buy). The jury
was unable to reach a verdict as to the delivery of a controlled substance
charge at that docket; and found Appellant not guilty of the criminal use of a
communication facility charge at that docket. On March 5, 2009, the
Commonwealth asked the court to enter nolle prosequi on the delivery of a
controlled substance charge at docket 4267-2007.
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forty-six (46) years’ imprisonment on March 4, 2009.4 On March 18, 2009,
Appellant timely filed a notice of appeal, but this Court dismissed the appeal
on May 12, 2009, for failure to file a docketing statement.
On April 20, 2010, Appellant timely filed a pro se PCRA petition, and
the court appointed counsel the next day. Counsel filed an amended PCRA
petition on May 19, 2011, requesting a hearing to determine whether
appellate counsel failed to perfect Appellant’s direct appeal rights. On May
26, 2011, with agreement from the Commonwealth, the court reinstated
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4
Despite some references in the record that the court imposed a maximum
term of forty-two (42) years’ imprisonment, our review of the record
confirms the court imposed a maximum sentence of forty-six (46) years’
imprisonment. Specifically, at docket 4269-2007, the court sentenced
Appellant to 3-10 years’ imprisonment for the delivery of a controlled
substance conviction and 1-2 years’ imprisonment for the criminal use of a
communication facility conviction; at docket 4270-2007, the court sentenced
Appellant to 5-10 years’ imprisonment for the delivery of a controlled
substance conviction and 1-2 years’ imprisonment for the criminal use of a
communication facility conviction; at docket 4271-2007, the court sentenced
Appellant to 5-10 years’ imprisonment for the PWID conviction and imposed
no further penalty for the possession of drug paraphernalia conviction; and
at docket 4272-2007, the court sentenced Appellant to 5-10 years’
imprisonment for the delivery of a controlled substance conviction and 1-2
years’ imprisonment for the criminal use of a communication facility
conviction. The court imposed all sentences consecutively. Additionally, at
docket 4269-2007, the court imposed restitution in the amount of three
hundred dollars ($300.00) to be paid to the Commonwealth for money
expended during the August 1, 2007 controlled buy; at docket 4270-2007,
the court imposed restitution in the amount of three thousand, six hundred
dollars ($3,600.00) to be paid to the Commonwealth for money expended
during the September 11, 2007 controlled buy; and at docket 4272-2007,
the court imposed restitution in the amount of six hundred dollars ($600.00)
to be paid to the Commonwealth for money expended during the August 16,
2007 controlled buy.
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Appellant’s direct appeal rights nunc pro tunc.5 On June 20, 2011, Appellant
timely filed a nunc pro tunc notice of appeal. This Court affirmed Appellant’s
judgment of sentence on March 16, 2012, and our Supreme Court denied
allowance of appeal on September 4, 2012. See Commonwealth v.
Banks, 47 A.3d 1246 (Pa.Super. 2012), appeal denied, 616 Pa. 666, 51
A.3d 837 (2012).
Appellant timely filed a pro se PCRA petition on September 17, 2013.
The court appointed counsel (“PCRA counsel”) on October 3, 2013. On
December 30, 2013, PCRA counsel filed a petition to withdraw and a
Turner/Finley6 “no merit” letter. Appellant filed a pro se amended PCRA
petition on January 9, 2014, which the court declined to consider because
Appellant was still represented by PCRA counsel.7 On January 22, 2014, the
PCRA court determined Appellant had one meritorious issue concerning
eligibility for the Recidivism Risk Reduction Incentive (“RRRI”) program, so
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5
Appellant did not mention or request reinstatement of his post-sentence
rights nunc pro tunc in his amended petition.
6
See Commonwealth v. Turner, 518 Pa. 491, 544 A.2d 927 (1988) and
Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc).
7
The court relied on the general rule set forth in Commonwealth v. Ellis,
534 Pa. 176, 626 A.2d 1137 (1993), which held that there is no
constitutional right to hybrid representation at trial or on appeal; thus, this
Court will not review pro se briefs filed by represented appellants. (See
Rule 907 Notice Order and Opinion, filed January 22, 2014, at 3-4 n.5.) The
record is unclear whether the court forwarded Appellant’s January 9, 2014
pro se filing to PCRA counsel.
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the court modified Appellant’s sentence to include RRRI eligibility; 8 with
respect to Appellant’s remaining claims, the court issued Pa.R.Crim.P. 907
notice of intent to dismiss Appellant’s petition without a hearing. The court’s
Rule 907 notice order and opinion expressly gave Appellant twenty (20) days
to file a response. On January 27, 2014, Appellant filed a pro se response to
the court’s Rule 907 notice order and opinion. Notwithstanding the language
in the Rule 907 notice order and opinion, which allowed Appellant an
opportunity to respond, on February 7, 2014, the court dismissed Appellant’s
pro se response (because Appellant was still represented by PCRA counsel),
and directed the Clerk of Courts to forward a copy of the pro se filing to
PCRA counsel.9 On February 25, 2014, the PCRA court dismissed Appellant’s
petition and granted PCRA counsel’s request to withdraw. Appellant filed a
second pro se response to the court’s Rule 907 notice order and opinion; the
response was docketed on February 28, 2014, but dated February 18, 2014.
The PCRA court dismissed the response as moot on March 4, 2014, based on
the court’s earlier denial of PCRA relief.
Appellant timely filed a pro se notice of appeal on March 18, 2014, and
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8
The court asked PCRA counsel to calculate Appellant’s RRRI sentence, and
to submit a copy of Appellant’s RRRI sentence to the court within ten (10)
days. On February 18, 2014, the court entered an order stating Appellant’s
aggregate RRRI minimum sentence equals two hundred and twenty-seven
(227) months’ imprisonment.
9
In its February 7, 2014 order, the court again relied on Ellis, supra to
support dismissal of Appellant’s pro se filing.
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a voluntary concise statement of errors complained of on appeal pursuant to
Pa.R.A.P. 1925(b). On April 15, 2014, the PCRA court filed its opinion per
Pa.R.A.P. 1925(a) asking this Court to quash or dismiss the appeal because
Appellant erroneously listed the order appealed from as dated March 15,
2014; the PCRA court contended no court action took place on March 15,
2014. Based on the PCRA court’s suggestion to quash or dismiss the appeal,
the court declined to review any of Appellant’s issues in its opinion but
indicated it would file a supplemental opinion if this Court so directed.
On August 19, 2014, this Court determined it was obvious from the
face of the record that Appellant meant to appeal the February 25, 2014
order denying PCRA relief, and Appellant’s reference to a March 15, 2014
order was merely an inadvertent error. Because Appellant filed his notice of
appeal within thirty days of the order denying PCRA relief, this Court
declined to quash Appellant’s appeal. Instead, this Court retained
jurisdiction and remanded the case to the PCRA court to issue a
supplemental opinion addressing all properly preserved issues raised in
Appellant’s Rule 1925(b) statement. The PCRA court subsequently issued its
supplemental opinion, simply directing this Court to review its earlier opinion
in support of Rule 907 notice order.10
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10
The court’s supplemental Rule 1925(a) opinion states: “The trial court
respectfully directs the appellate court to its January 22, 2014 ‘Notice of
Intent to Dismiss PCRA Petition Pursuant to Pa.R.Crim.P. 907(1)’ for the
(Footnote Continued Next Page)
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Appellant raises the following issues for our review:
WHETHER [THE] TRIAL COURT/TRIAL COUNSEL/AND THE
COMMONWEALTH [ERRED] BY FAILING TO CHARGE THREE
OTHERS INVOLVED IN THE MATTER[?]
WHETHER THE TRIAL COURT/COUNSEL FAILED TO MERGE
[APPELLANT’S] SENTENCE[?]
WHETHER [THE] TRIAL COURT/COUNSEL [ERRED] BY
FAILING TO RECOMMEND [APPELLANT] FOR RRRI[?11]
WAS [PCRA] COUNSEL INEFFECTIVE FOR FAILING TO
MAKE AN ATTEMPT TO COMMUNICATE OR REVIEW
[APPELLANT’S] ISSUES, SHOWING NO DILIGENCE WHILE
DISPLAYING INCOMPETENCE AND/OR AN ACT OF
FRAUD[?]
(Appellant’s Brief at 4).
For purposes of disposition, we combine Appellant’s issues. Appellant
argues the Commonwealth committed “prejudicial error” by failing to charge
the other individuals present at Appellant’s residence at the time of his
arrest. Appellant maintains the presence of others at the time of his arrest
casts doubt on whether Appellant was the person in possession of the drugs,
and the court denied him a fair trial by depriving the jury of this evidence.
_______________________
(Footnote Continued)
court’s reasoning herein. For the reasons set forth in that January 22, 2014
Notice, the trial court respectfully requests that its Order of February 25,
2014 dismissing [Appellant’s] Post Conviction Relief Act claims, subject to
the modification of sentence set forth in the court’s Order of February 18,
2014, be affirmed.” (Supplemental Rule 1925(a) Opinion, filed August 29,
2014, at 1) (internal footnote omitted).
11
Notwithstanding the phrasing of this question presented, Appellant
acknowledges that the court modified his sentence to include eligibility for
the RRRI program. Appellant now challenges the court’s RRRI calculation.
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Additionally, Appellant asserts the trial court abused its discretion when it
imposed consecutive sentences at all dockets. Appellant further contends
the court should have merged Appellant’s sentences for delivery of a
controlled substance, criminal use of a communication facility, and
possession of drug paraphernalia with Appellant’s PWID sentence, because
these convictions stemmed from one continuous criminal episode, and the
former crimes constitute lesser-included offenses of PWID.
Appellant also claims the court and PCRA counsel miscalculated
Appellant’s RRRI sentences as to the convictions on which the court imposed
a term of five (5) to ten (10) years’ imprisonment. As well, Appellant
complains the court failed to award Appellant credit for time served.
Further, Appellant maintains PCRA counsel was ineffective for failing to
communicate or review any of Appellant’s issues; and PCRA counsel violated
the Pennsylvania Rules of Professional Conduct because he did not make any
effort to keep Appellant informed of the status of his case. Appellant
concludes the court’s denial of Appellant’s PCRA petition was improper, and
this Court should grant appropriate relief. For the reasons that follow,
Appellant is entitled to some relief.
Preliminarily, we observe that our ability to reach the merits of
Appellant’s issues is severely impaired for the following reasons. First,
various documents necessary to our review are missing from the certified
record. The record does not contain Appellant’s pro se PCRA petition filed on
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September 17, 2013, or PCRA counsel’s Turner/Finley “no merit” letter
filed on December 30, 2013. Thus, we are unable to review Appellant’s
claim that PCRA counsel failed to address any of Appellant’s issues presented
in his pro se PCRA petition (as alleged on appeal), or to confirm whether
Appellant preserved his claims on appeal before the PCRA court.
Second, the record shows that the PCRA court did not consider in the
first instance most of Appellant’s current claims, and the PCRA court’s
opinion provides no help. In its supplemental Rule 1925(a) opinion, the
PCRA court merely directed us to its earlier Rule 907 notice order and
opinion, which does not address any of Appellant’s issues on appeal, with
the exception of Appellant’s merger claim.12 Significantly, our remand order
filed on August 19, 2014, instructed the PCRA court to issue an opinion as to
all of Appellant’s claims raised in his Rule 1925(b) statement, to the extent
they were properly preserved. Appellant raised all claims presented on
appeal in his Rule 1925(b) statement. (See Rule 1925(b) Statement, filed
March 18, 2014, at 1.)
Further, Appellant first complained of PCRA counsel’s ineffectiveness in
his January 27, 2014 pro se response to Rule 907 notice order and opinion,
alleging PCRA counsel failed to contact Appellant after his appointment, did
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12
The court’s Rule 907 notice order and opinion disposes of Appellant’s
merger claim as lacking merit in one paragraph, without citation to any legal
authority. (See Rule 907 Notice Order and Opinion at 13.)
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not address the issues Appellant wanted to pursue in counsel’s
Turner/Finley letter, and PCRA counsel’s failure to communicate with
Appellant violated the Pennsylvania Rules of Professional Conduct. The
court’s Rule 907 notice order and opinion, which naturally predated
Appellant’s pro se response, obviously could not have addressed these
complaints. Likewise, the court’s Rule 907 notice order and opinion could
not have addressed Appellant’s current challenge to his RRRI calculation,
because the court did not award Appellant RRRI eligibility until January 22,
2014 (the same date the court issued its Rule 907 notice order and opinion),
and did not calculate Appellant’s RRRI sentence until February 18, 2014.
Therefore, the court’s supplemental Rule 1925(a) opinion (directing us to the
court’s previous Rule 907 notice order and opinion) is plainly insufficient to
aid appellate review. See Commonwealth v. Dennis, 597 Pa. 159, 950
A.2d 945 (2008) (explaining PCRA court should provide legally robust
discussion, complete with clear findings of fact where required, to facilitate
appellate review; remanding for supplemental opinion sufficiently complete
to enable meaningful appellate review). See also Commonwealth v.
Kenney, 557 Pa. 195, 203, 732 A.2d 1161, 1165 (1999) (stating this Court
cannot evaluate claims that PCRA court did not consider; if record is
insufficient to adjudicate petitioner’s allegations, this Court should remand
for further inquiry).
Third, the PCRA court’s decision, not to review Appellant’s January 9,
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2014 pro se amended PCRA petition and January 27, 2014 pro se response
to the court’s Rule 907 notice order and opinion, was erroneous. The court
dismissed these petitions based on the general rule prohibiting hybrid
representation. See Ellis, supra. See also Pa.R.A.P. 3304 (stating:
“Where a litigant is represented by an attorney before the [c]ourt and the
litigant submits for filing a petition, motion, brief or any other type of
pleading in the matter, it shall not be docketed but forwarded to counsel of
record”). Nevertheless, PCRA counsel had filed a motion to withdraw and
Turner/Finley “no-merit” letter on December 30, 2013. Thus, the rule
against hybrid representation was no longer applicable. See generally
Commonwealth v. Ford, 44 A.3d 1190, 1198 n.4 (Pa.Super. 2012)
(stating: “When counsel files a Turner/Finley no-merit letter and counsel
has not yet been permitted to withdraw, the rule against hybrid
representation is inapplicable, as the petitioner can file a pro se
response”).13
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13
Notably, the court’s Rule 907 notice order and opinion specifically stated:
“The defendant may respond to this NOTICE within twenty (20) days of the
docketing of this Order. If the defendant has not responded, a subsequent
Order will be entered permitting [c]ourt [a]ppointed [c]ounsel to withdraw,
and dismissing the defendant’s PCRA petition. The subsequent Order shall
be a final appealable Order disposing of the defendant’s PCRA petition. If
the defendant responds to this NOTICE, the [c]ourt will: either dismiss
defendant’s PCRA petition; direct, if warranted, that [c]ourt [a]ppointed
[c]ounsel review defendant’s response; or, if warranted, direct that further
proceedings be held.” (Rule 907 Notice Order and Opinion at 2).
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Fourth, the record demonstrates Appellant has at least two meritorious
issues regarding (1) the court’s calculation of Appellant’s RRRI minimum
sentence;14 and (2) the restitution portion of Appellant’s sentence. See
Commonwealth v. Miller, 102 A.3d 988 (Pa.Super. 2014) (stating this
Court can raise sua sponte issues concerning legality of sentence).
The relevant version of the RRRI statute at the time of Appellant’s
sentencing provided, in pertinent part, as follows:
§ 5305. Sentencing
(a) Generally.―At the time of sentencing, the court
shall make a determination whether the defendant is an
eligible offender.
* * *
(c) Recidivism risk reduction incentive minimum
sentence.―If the court determines that the defendant is
an eligible offender or the prosecuting attorney has waived
the eligibility requirements under subsection (b), the court
shall enter a sentencing order that does all of the
following:
(1) Imposes the minimum and maximum
sentences as required by 42 Pa.C.S. § 9752 (relating
to sentencing proceeding generally).
(2) Imposes the recidivism risk reduction
incentive minimum sentence. The recidivism risk
reduction incentive minimum sentence shall be equal
to three-fourths of the minimum sentence imposed
when the minimum sentence is three years or less.
The recidivism risk reduction incentive minimum
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14
The RRRI calculation issue we address differs from Appellant’s specific
RRRI complaint on appeal but still implicates the legality of the sentence.
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shall be equal to five-sixths of the minimum
sentence if the minimum sentence is greater than
three years. …
* * *
61 Pa.C.S.A. § 5305.15
Here, the PCRA court granted limited PCRA relief on January 22, 2014
to make Appellant RRRI-eligible. On February 18, 2014, the court calculated
Appellant’s aggregate RRRI minimum sentence as two hundred and twenty-
seven (227) months. In calculating the RRRI breakdown for each of
Appellant’s sentences, however, the court erroneously listed Appellant’s
delivery of a controlled substance sentence at docket 4269-2007 as five (5)
to ten (10) years’ imprisonment, which would call for a fifty (50) month
RRRI minimum sentence. (See Order, dated February 18, 2014, at 1.) See
also 61 Pa.C.S.A. § 5305(c)(2). Nevertheless, the record makes clear the
court sentenced Appellant at docket 4269-2007 to three (3) to ten (10)
years’ imprisonment for his delivery of a controlled substance conviction.
(See N.T. Sentencing, 3/4/09, at 19; Sentencing Order for docket 4269-
2007, 3/4/09, at 1.) As a result, the applicable RRRI minimum sentence for
this conviction is actually twenty (27) months’ imprisonment, not fifty (50)
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15
The legislature repealed this version of the RRRI statute on October 9,
2009 (effective October 13, 2009). On August 11, 2009 (effective October
13, 2009), the legislature re-codified the RRRI statute at 61 Pa.C.S.A. §
4505. Section 4505 contains the same calculation language set forth in
Section 5305 (repealed). See 61 Pa.C.S.A. § 4505(c).
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months’ imprisonment. See 61 Pa.C.S.A. § 5305(c)(2). Therefore,
Appellant’s total RRRI minimum sentence should equal two hundred and four
(204) months’ imprisonment, not two hundred and twenty-seven (227)
months.
Regarding the restitution portion of Appellant’s sentence, Section 1106
of the Crimes Code governs orders of restitution, in pertinent part, as
follows:
§ 1106. Restitution for injuries to person or property
(a) General rule.—Upon conviction for any crime
wherein property has been stolen, converted or otherwise
unlawfully obtained, or its value substantially decreased as
a direct result of the crime, or wherein the victim suffered
personal injury directly resulting from the crime, the
offender shall be sentenced to make restitution in addition
to the punishment prescribed therefor.
18 Pa.C.S.A § 1106(a). The statute refers to the Crime Victims Act for the
definition of “victim” for purposes of Section 1106.16 See 18 Pa.C.S.A. §
1106(h). The Crime Victims Act defines “victim” as:
(1) A direct victim.
(2) A parent or legal guardian of a child who is a direct
victim, except when the parent or legal guardian of the
child is the alleged offender.
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16
Section 1106(h) relies on the definition of “victim” set forth in Section
479.1 of the Act of April 9, 1929 (P.L. 177, No. 175), known as the
Administrative Code of 1929 (repealed; now codified at 18 Pa.C.S.A. §
11.101 et seq., known as the “Crime Victims Act”).
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(3) A minor child who is a material witness to any of the
following crimes and offenses under 18 Pa.C.S. (relating to
crimes and offenses) committed or attempted against a
member of the child’s family:
Chapter 25 (relating to criminal homicide).
Section 2702 (relating to aggravated assault).
Section 3121 (relating to rape).
(4) A family member of a homicide victim including
stepbrothers or stepsisters, stepchildren, stepparents or a
fiancé, one of whom is to be identified to receive
communication as provided for in this act, except where
the family member is the alleged offender.
18 Pa.C.S.A. § 11.103.
Importantly, “the Commonwealth…does not qualify as a victim as that
term is defined in [Section] 1106.” Commonwealth v. Boyd, 835 A.2d
812, 819 (Pa.Super. 2003). Thus, the Commonwealth cannot recover as
restitution from a defendant “buy money” used in a controlled drug
transaction. See id. (holding Commonwealth is not “victim” as defined in
Section 1106, so Commonwealth cannot recover as restitution any buy
money defendant obtained as result of controlled buy; vacating portion of
sentence ordering defendant to pay “restitution” for buy money to
Commonwealth).
Nevertheless, “[i]n any case where a defendant is convicted and
sentenced to pay the costs of prosecution and trial, the expenses of the
district attorney in connection with such prosecution shall be considered a
part of the costs of the case and be paid by the defendant.” 16 Pa.C.S.A. §
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1403. This Court has stated:
In that the district attorney is the chief law enforcement
officer of a county, …when a drug buy is arranged by police
officers, these officers are proceeding in accordance with
general directives from the district attorney of that county.
Consequently, we find that buy money expended by
officers in furtherance of their investigation and
apprehension of persons suspected of crime are reasonable
costs of prosecution within the purview of § 1403, if such
funds are not recovered by drug enforcement officers prior
to the time of sentencing.
Commonwealth v. Smith, 901 A.2d 1030, 1032-33 (Pa.Super. 2006),
appeal denied, 590 Pa. 667, 912 A.2d 837 (2006). Therefore, buy money
used in a controlled drug transaction cannot be recovered under a restitution
order, but it can be recovered as a reasonable cost of prosecution. Id.
Here, the court imposed restitution at dockets 4269-2007 ($300.00),
4270-2007 ($3,600.00), and 4272-2007 ($600.00), to recoup the buy
money used in the August 1, 2007, August 16, 2007, and September 11,
2007 controlled buys. The court’s imposition of restitution to recover the
buy money was improper, however, because the Commonwealth does not
qualify as a “victim” under Section 1106 and cannot recover buy money
through a restitution order. See 18 Pa.C.S.A. § 11.103; Boyd, supra.
Based on the missing documents in the certified record, the PCRA
court’s failure to address most of Appellant’s issues and improper dismissal
of Appellant’s January 9, 2014 and January 27, 2014 pro se filings (docketed
after PCRA counsel had moved to withdraw), the inadequate supplemental
Rule 1925(a) opinion, and the existence of at least two meritorious
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sentencing issues, the best resolution of this case is to vacate and remand
for further proceedings. See Kenney, supra. Upon remand, the PCRA
court must (1) correct Appellant’s RRRI calculation; (2) re-characterize the
restitution provisions of Appellant’s sentence concerning the “buy money” as
reasonable costs of prosecution;17 (3) appoint new counsel to assist
Appellant in filing an amended PCRA petition raising all non-frivolous issues
Appellant wants to pursue; if appointed counsel concludes no non-frivolous
issues exist, counsel may file a Turner/Finley “no-merit” letter identifying
why Appellant’s claims are frivolous and otherwise complying with the
dictates of Turner and Finley; and (4) complete the certified record so it
contains all relevant documents necessary to dispose of Appellant’s claims,
including Appellant’s September 17, 2013 PCRA petition and PCRA counsel’s
December 30, 2013 Turner/Finley “no-merit” letter.18 Accordingly, we
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17
If the Commonwealth recovered the $3,600.00 used in the September 11,
2007 controlled buy upon execution of the search warrant at Appellant’s
residence that day, it cannot recover those funds again as costs of
prosecution. See Smith, supra.
18
On March 6, 2015, Appellant filed a pro se petition for relief in this Court,
alleging the court imposed mandatory minimum sentences under 18
Pa.C.S.A. § 7508 (relating to imposition of mandatory minimum sentences
based on weight of drugs), which Appellant contends is now
unconstitutional. See Alleyne v. United States, ___ U.S. ___, 133 S. Ct.
2151, 186 L. Ed. 2d 314 (2013) (holding any fact increasing mandatory
minimum sentence for crime is considered element of crime to be submitted
to fact-finder and found beyond reasonable doubt); Commonwealth v.
Newman, 99 A.3d 86, 98 (Pa.Super. 2014) (en banc) (analyzing
constitutionality of 18 Pa.C.S.A. § 9712.1 (which contains language similar
(Footnote Continued Next Page)
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vacate and remand for further proceedings.
Order vacated; case remanded with instructions. Jurisdiction is
relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/6/2015
_______________________
(Footnote Continued)
to Section 7508) and holding that Section 9712.1 can no longer pass
constitutional muster under Alleyne as it permits trial court, as opposed to
jury, to increase defendant’s minimum sentence based upon preponderance
of evidence that defendant was dealing drugs and possessed firearm, or that
firearm was in close proximity to drugs). Nevertheless, this Court made
clear in Newman that Alleyne is subject to limited retroactivity; in other
words, Alleyne is applicable only to criminal cases still pending on direct
review. Id. at 90. Here, the court sentenced Appellant on March 4, 2009,
and our Supreme Court denied allowance of appeal on September 4, 2012.
Appellant’s judgment of sentence became final on December 3, 2012, upon
expiration of the time to file a petition for writ of certiorari with the United
States Supreme Court. See 42 Pa.C.S.A. § 9545(b)(3); U.S.Sup.Ct.R. 13.
The Supreme Court decided Alleyne on June 17, 2013. Thus, Appellant’s
judgment of sentence was already final before Alleyne was decided.
Accordingly, Appellant is not entitled to retroactive application of Alleyne,
and we deny Appellant’s pro se petition for relief.
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