Appeal from the Judgment of Sentence of June 26, 2009, in the Court of Common Pleas of Lehigh County, Criminal Division, at No.: CP-39-CR-0003119-2008
The opinion of the court was delivered by: Bowes, J.:
BEFORE: BOWES, SHOGAN, and FREEDBERG, JJ.
David Anthony Corley appeals from the June 26, 2009 judgment of sentence of sixty-nine months to twelve years imprisonment imposed after he pled guilty to one count of criminal conspiracy to commit aggravated assault. After careful review, we affirm.
The facts giving rise to Appellant's criminal prosecution are gleaned from our review of the record. On May 6, 2008, at approximately 2:00 a.m., there was a shootout outside the Joker's Bar in Allentown. Two individuals suffered shotgun wounds and were treated at local hospitals. Witnesses identified Appellant as the driver of a vehicle in which the passenger, Anthony Royale, was observed holding a shotgun. They described the clothing Appellant and his cohort were wearing. Police arrested Appellant and, after waiving his Miranda rights, Appellant told police that the altercation started as he and Royale were exiting the bar. An unknown man pulled a handgun from his parked vehicle and threatened him. Appellant entered a vehicle with Royale and the two went to Royale's home and retrieved a twelve-gauge shotgun that they had placed in the bushes. They returned to the area of Joker's Bar where a shootout ensued and Royale shot Charles Powell and Chris Jackson. Police recovered twenty-eight shells of many different calibers from the scene.
Appellant was charged with two counts each of attempted homicide, aggravated assault, and recklessly endangering another person, and one count each of criminal conspiracy and possession of marijuana. Pursuant to an agreement with the Commonwealth, Appellant pled guilty to one count of criminal conspiracy to commit aggravated assault, a first-degree felony. On April 20, 2009, he was sentenced to seven to fourteen years incarceration.
Appellant timely moved for reconsideration of his sentence and reconsideration was granted. On June 26, 2009, the court resentenced him to sixty-nine months to twelve years in a state correctional institution. Immediately following the pronouncement of the new sentence, counsel for Appellant orally moved to withdraw and the court granted the motion. The court did not appoint counsel for a possible direct appeal and no direct appeal was filed.
Appellant timely filed a PCRA petition and counsel was appointed. Counsel filed an amended petition on Appellant's behalf alleging that as a result of counsel's withdrawal at sentencing, Appellant was denied effective assistance of counsel post-sentence and for purposes of appeal. Following an evidentiary hearing on January 20, 2010, the court denied PCRA relief. Appellant timely appealed to this Court and we held that the PCRA court failed to determine, as mandated in Pa.R.Crim.P. 120(B)(3), whether, upon granting counsel's leave to withdraw, new counsel was entering an appearance or being appointed, or whether Appellant was proceeding without counsel. Commonwealth v. Corley, 2011 Pa. Super. LEXIS 1599 (unpublished memorandum). Since Appellant did not waive counsel or indicate that he desired to proceed pro se, Appellant was denied counsel and effectively foreclosed from pursuing a direct appeal. We reversed and remanded for reinstatement of Appellant's appellate rights nunc pro tunc and appointment of counsel.
On April 19, 2011, following remand, Appellant sought reinstatement of his right to file a post-sentence motion, averring that the Superior Court's reversal included the right to file a post-sentence motion nunc pro tunc. By order dated April 20, 2011, the court denied Appellant's petition. Appellant filed the within appeal to this Court on May 5, 2011, and complied with the trial court's order to file a Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal. The trial court filed its Rule 1925(a) opinion incorporating its earlier opinion of February 9, 2010. The matter is now ready for our review.
Appellant raises two issues for our consideration:
I. Is there a substantial question for which the Superior Court should grant allowance of appeal from the discretionary aspects of the sentence?
II. Is the sentence harsh and manifestly excessive, and therefore ...