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[U] Commonwealth v. Cieniawa

Superior Court of Pennsylvania

August 1, 2013

COMMONWEALTH OF PENNSYLVANIA, Appellee
v.
JASON JOSEPH CIENIAWA, Appellant

NON-PRECEDENTIAL DECISION

Appeal from the Order entered April 11, 2012, in the Court of Common Pleas of Luzerne County, Criminal Division, at Nos. CP-40-CR-0002248-2008, CP-40-CR-0002256-2008.

BEFORE: MUNDY, OTT, and STRASSBURGER, [*] JJ.

MEMORANDUM

STRASSBURGER, J.

Jason Joseph Cieniawa (Appellant) appeals from the April 11, 2012 order which granted him relief pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. Appellant's counsel has filed a petition for leave to withdraw as counsel and a no-merit brief pursuant to Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988) and Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc). In response, Appellant has filed a pro se brief in which he requests that new counsel be appointed. We deny counsel's petition to withdraw; deny Appellant's request for new counsel; and affirm in part and vacate in part the PCRA court's order.

We summarize the complicated history of this case as follows. On January 20, 2009, Appellant entered negotiated pleas to receiving stolen property at docket number[1] 2248 and to burglary at number 2256, [2] as well as to other charges filed at ten other docket numbers not relevant to this appeal. Appellant received an aggregate sentence of 30 to 60 months of imprisonment. The lead sentence in the whole scheme was the sentence of 12 to 24 months for receiving stolen property at 2248; all other sentences were concurrent or consecutive to it, [3] including the burglary sentence of 12 to 24 months at docket number 2256. Appellant filed no direct appeal; thus, his judgment of sentence became final on February 19, 2009.

The court docket reflects that Appellant filed a timely pro se PCRA petition on November 17, 2009, but the file does not contain the document and it appears no action on the petition was taken by the court. Appellant filed another pro se PCRA petition on May 11, 2010, and counsel was appointed. Despite having counsel, Appellant proceeded to file a number of pro se motions, one of which was considered by the Commonwealth Court. The PCRA court rescheduled a previously-scheduled PCRA hearing for April 11, 2012. At the hearing, the PCRA court allowed Appellant to amend his petition orally. Appellant presented claims that he was not given the proper amount of credit for time served and that his sentence for receiving stolen property at 2248 merged with his burglary sentence at 2256, as the stolen vehicle he possessed on March 22, 2008 was obtained in the March 21, 2008 burglary.

The PCRA court agreed with Appellant as to both issues. It therefore entered an order on April 11, 2012 which (1) granted Appellant 51 days of credit time instead of the 25 days initially ordered; (2) provided that the sentence at 2248 merged into the sentence at 2256; and (3) imposed a new sentence at 2256 of 12 to 24 months, "consecutive to the others." N.T., 4/11/2012, at 44.

Appellant's counsel filed a timely notice of appeal on May 10, 2012.[4]Counsel filed with this Court a petition to withdraw as counsel and a "No Merit/Turner-Finley Brief." Appellant, in his only appropriate and allowable pro se filing, filed a response raising additional issues, including the allegation that he had already served the entirety of his sentence at 2256, rendering his new sentence for the same crime illegal.

By order of February 1, 2013, this Court remanded the case to the PCRA court for a factual determination whether Appellant was serving sentences for case number 2248 or 2256 at the time the PCRA court granted Appellant's petition for relief, and whether he was still serving sentences at either docket. Accordingly, the PCRA court held a hearing on February 8, 2013 at which Melody Henderson, supervisor of records at SCI Greensburg, testified. Ms. Henderson had nothing in her file to reflect the PCRA court's April 11, 2012 sentence and award of credit time; her testimony was based upon the original 2009 sentencing order. N.T., 2/8/2013, at 11. Regarding case 2256, Ms. Henderson testified that the sentence expired or maxed out on December 26, 2010. Id. According to Ms. Henderson, in April 2012, Appellant was serving an aggregation of "2248 and 2252 which did max out on December 26th of 2012." Id. at 10. Appellant was at the time of her testimony "serving 2248, 2250, and 2254 of an aggregation that currently has a max date of December 26, 2013." Id. Appellant, and then his counsel, inquired how he could be resentenced on a case for which he completely served his maximum sentence. Id. at 12, 13. The PCRA court declined to address any issue beyond what this Court ordered. Id. at 14.

On February 15, 2013, the PCRA court filed an order containing its factual findings. The PCRA court found that on April 11, 2012, Appellant "was serving the original sentence imposed by Judge Michael Toole on January 20, 2009, that is, an aggregate of thirty (30) to (60) months." Order, 2/15/2013, at 1. Regarding Appellant's current status, the PCRA court found that Appellant was "serving an aggregate sentence identical to the sentencing scheme imposed by Judge Toole with regard to Cases 2248, 2250 and 2254 of 2008. The aggregate sentence is thirty (30) to sixty (60) months." Id. at 1-2. The PCRA court also noted that Appellant's claim that his resentencing was illegal was not raised before it prior to the appeal, and that it "fail[s] to understand" the allegation of illegality. Id. at 2.

On March 5, 2013, the court transmitted the supplemental record to this Court. The remainder of the certified record made its way back to us in early May 2013.[5] We are now finally able to consider the issues presented by this appeal.

Our first task is to address counsel's petition to withdraw. The requirements counsel faces in seeking to withdraw from representing a PCRA petitioner are governed by Turner, supra and Finley, supra, as follows.

…Turner/Finley counsel must review the case zealously. Turner/Finley counsel must then submit a "no-merit" letter to the trial court, or brief on appeal to this Court, detailing the nature and extent of counsel's diligent review of the case, listing the issues which the petitioner wants to have reviewed, explaining ...

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