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[U] Commonwealth v. Silfies

Superior Court of Pennsylvania

February 7, 2014



Appeal from the Order entered February 26, 2013, in the Court of Common Pleas of Lehigh County, Criminal Division, at No(s): CP-39-CR-0004272-2004.




Keith Silfies ("Appellant") appeals pro se from the order denying his motion for extraordinary relief. We affirm.

The trial court summarized the pertinent facts and unusual procedural history as follows:

The procedural posture of this case is complicated due to Appellant's excessive filings. It is set forth in as concise a manner possible as follows.
On April 27, 2005, Appellant pled guilty to several burglary and theft-related offenses [at multiple docket numbers]. He was sentenced on June 8, 2005 to [an aggregate term of] 2½ to 6 years of incarceration, followed by 10 years on state-supervised special probation. The consecutive probationary sentence was only imposed [at Case No. 4272 of 2004].
Appellant served his time in prison and completed parole [as to all his other dockets], at which time the ten year probationary sentence from the within matter, Case No. 4272 of 2004, began to run.
Appellant committed technical violations of his probation on or around September 2, 2011 and/or September 3, 2011. A Gagnon II hearing was held on October 18, 2011, at which time Appellant's probation was revoked and he was sentenced to 10 years of special probation.
On or around December 12, 2011, Appellant was arrested and charged with Driving Under the Influence (DUI), which constituted a violation of his special probation. He was convicted of the DUI offense on February 15, 2012. On February 28, 2012, a Gagnon II hearing was held during which [Appellant] conceded the allegations in the petition against him. As a result of the violation, a five–to-ten year sentence was recommended. The Court postponed sentencing until April 3, 2012, in order to look into Appellant's eligibility for a County Intermediate Punishment drug offender program for purposes of obtaining treatment as requested by defense counsel.
On April 3, 2012, Appellant was resentenced to ten years of probation with the first 22 months to be served in the Lehigh County Treatment Continuum Alternative Program (TCAP) based on representations by defense counsel that he was eligible for the TCAP program.
Appellant absconded from the TCAP program's treatment house on June 6, 2012, at which time a warrant was issued for his arrest. He was subsequently arrested and a Gagnon II hearing was held on July 17, 2012. During that hearing, Appellant brought to the Court's attention that due to the nature of the underlying offenses, he is ineligible for TCAP, which rendered the April 3, 2012, sentence illegal. As a result of that, at the end of the hearing, the Court vacated the April 3, 2012 sentence and resentenced [Appellant] to five to ten years in a State Correctional Institution. This resentencing was not based on any violation incurred as a result of [Appellant] absconding from TCAP. As a procedural matter, the Court treated the TCAP sentence as a legal nullity. The five to ten year sentence was a resentencing based on the sustained violations arising from the DUI conviction. Thus, it was procedurally imposed following Appellant's concession to the violation on February 28, 2012.
Appellant filed a Petition for Reconsideration on July 25, 2012, which this Court denied by Order dated July 27, 2012. Appellant subsequently filed several pro se motions, all of which were denied.
On August 9, 2012, Appellant filed a Notice of Appeal, but filed it under an incorrect case number. The Court ordered him to file a Statement of Matters Complained of on Appeal (1925(b) Statement) within twenty-one days. On September 11, 2012, Appellant filed a second Notice of Appeal, this one captioned under the correct case number. The Court granted an extension of time to file the Concise Statement. Appellant filed his 1925(b) Statement on October 8, 2012[.] This Court filed a 1925(a) Opinion on November 13, 2012.
On November 30, 2012, the Superior Court entered an Order quashing Appellant's appeal as untimely because the Notice of Appeal was filed more than thirty days after the date he received his sentence.
On December 27, 2012, Appellant filed a pro se PCRA petition. Because at the time this Court had not yet received the official notification that the appeal was quashed, this Court stayed the PCRA proceedings.
On February 4, 2013, after having received notice of the outcome of the appeal, this Court lifted the stay on the PCRA proceedings and appointed [PCRA counsel] to represent Appellant for his PCRA.
Appellant continued his pro se letter and motion-writing campaign while the PCRA matter was stayed pending the outcome of the initial appeal. On January 29, 2013, Appellant filed a "Motion to Enter Self as Pro-Se and Remove Counsel of Record on Actions, " which was filed prior to the formal appointment of [PCRA counsel]. As a consequence of all of Appellant's filings, this Court decided, in an exercise of fairness to Appellant, to grant him a hearing at which time he could be advised of his right to waive court-appointed counsel and the ramifications thereof, [see Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998), ] along with giving him the opportunity to be heard in open court.
Appellant also filed a pro se "Motion for Extrodinary (sic) Relief Under Rule (704)" on February 8, 2013. It appeared this is in reference to Pa.R.Crim.P. 704(B), which addresses oral motions for extraordinary relief raised at the time of sentencing.
On February 26, 2013, the Court conducted a hearing for Appellant. At the hearing, Appellant chose to waive his court-appointed counsel and proceed pro se. He also withdrew his pro se PCRA petition. At the end of the hearing, the Motion for Extraordinary Relief was denied because it was inappropriate for the procedural posture of the case. The PCRA petition was also dismissed due to Appellant withdrawing it. Appellant finally requested to withdraw a pro se Motion to Withdraw Counsel/Habeas Corpus Hearing. This Court found that Appellant's request was a knowing, intelligent, and voluntary decision and granted his request to withdraw the Motion.
Appellant filed a pro se Notice of Appeal on March 6, 2013. Curiously, the appeal is from the order entered on February 26, 2013 which granted Appellant's requests to withdraw his motion and discontinue pursuit of [PCRA] relief before this Court.

Trial Court Opinion, 5/31/13, at 1-5 (citations and footnotes omitted). Both the trial court and Appellant have complied with Pa.R.A.P. 1925.

Appellant raises the following claims in his pro se brief:

5). See: 1925(B) OF APPELLANT.

Appellant's Brief at 7 (bold in original).

As detailed by the PCRA court above, Appellant's multiple pro se filings and "legal research" have caused a procedural morass. At the February 26, 2013 hearing, Appellant successfully sought to withdraw his previously filed pro se PCRA petition, successfully sought PCRA counsel's withdrawal, and was permitted to present the merits of his motion for extraordinary relief pro se. Although the trial court correctly denied Appellant's motion as an inappropriate vehicle in which to pursue post-conviction relief, Appellant's motion, despite Appellant's protestations, should have been treated under the PCRA. See generally, Commonwealth v. Peterkin, 722 A.2d 638, 639 n.1 (Pa. 1998) (stating that the PCRA subsumes other post-conviction remedies). Accordingly, we will review Appellant's claims under the PCRA.

This Court's standard of review regarding a PCRA court's order is whether the determination of the PCRA court is supported by the evidence of record and is free of legal error. Commonwealth v. Reaves, 923 A.2d 1119, 1124 (Pa. 2007). The PCRA court's findings will not be disturbed unless there is no support for the findings in the certified record. Commonwealth v. Carr, 768 A.2d 1164, 1166 (Pa.Super. 2001).

Although Appellant raises five distinct issues on appeal, the argument section of his appellate brief consists of a rambling discourse that is not separated by issue. See Pa.R.A.P. 2119(a). Nevertheless, as we can discern that each issue involves Appellant's claim that he was illegally sentenced on July 17, 2012, we will address them together.[1]

In its Pa.R.A.P. 1925(a) opinion, filed in response to Appellant's direct appeal, the court addressed Appellant's claims as follows:

[Appellant] essentially argues the violations against him were dismissed, and in the alternative, even if they were not, he was not given the chance to contest the violations or to argue for a lesser sentence than the one imposed. All of these assertions are contradicted by the record.
As noted above, the violation for which Appellant was [re]sentenced on July 17, 2012 was the DUI to which he entered a guilty plea on February 15, 2012. On February 28, 2012, [Appellant] conceded the allegations of the violation with respect to the new conviction for the DUI offense. A factual basis for the violations was put on the record and the supervising probation officer was subjected to cross-examination during that hearing. [Appellant] was therefore given every opportunity to contest the allegations of the violation and to make the Commonwealth prove that he violated the terms of his probationary sentence.
Finally, the record belies [Appellant's] allegation that he did not have a chance to argue for a lesser sentence. On February 28, 2012, the initial recommendation by the Appellant's special probation supervisor, Agent Matthew Jones was [five to ten years of imprisonment].
At the time of that initial hearing, the Court decided to see the results from the TCAP evaluation before sentencing [Appellant]. On July 17, 2012, [Appellant] had ample opportunity to argue whatever sentence he felt was appropriate, and in fact, he did just that. Even after [Appellant] was resentenced, the Court allowed him time to orally request reconsideration and make a lengthy argument on his own behalf. In addition to that, [Appellant] filed a written post-sentence motion requesting reconsideration of his sentence approximately one week later. As such, the record demonstrates [Appellant] received a lengthy opportunity to argue for a lesser sentence. The mere fact that the arguments he made were to no avail does not change the reality that he was afforded the opportunity to be heard.
[Appellant] argues the sentence imposed on July 17, 2012 was illegal. He initially contends the Court lacked jurisdiction to modify the sentence imposed on April 3, 2012 because more than thirty days passed since the imposition of that sentence. This assertion is incorrect.
There is no question that the sentence imposed on July 17, 2012 was beyond the thirty-day period for modification of an order. However, the April 3, 2012 sentence was illegal because of [Appellant's] ineligibility for the TCAP program. [Appellant] was convicted of Burglary, graded as a Felony of the First Degree. That conviction rendered him ineligible for TCAP. This was unknown to the Court and counsel at the time, and the TCAP evaluation made no reference to [Appellant's] eligibility.
In resentencing to correct the illegal sentence, the Court considered the fact that [Appellant] needs drug and alcohol treatment and counseling, and in fact recommended that he be sent to a state correctional institution capable of addressing those needs. The Court also took into consideration [Appellant's] behavior while on probation, including his failure to comply with the terms of probation and his history of drug and alcohol abuse. The sentence was technically for [Appellant's] second probation violation in less than one year since he began serving the probationary sentence, and that violation was a new arrest for DUI. To date, [Appellant] had incurred two separate violations of his ten-year special probation. Placing him on probation for a third time without any additional treatment being put in place was not a realistic option.
Therefore, under Pennsylvania law, the Court acted properly in resentencing [Appellant]. The original sentence he received was illegal insofar as he was statutorily ineligible for the TCAP program. He was resentenced within the possible range of sentences for burglary, see 18 Pa.C.S. 3502(c)(1) ("Except as [otherwise provided], burglary is a felony of the first degree."); 18 Pa.C.S. § 1103 (setting maximum sentence for felonies of the first degree at twenty years), and due consideration was given to his treatment and rehabilitative needs.
While [Appellant] is unhappy with the sentence he received, his unhappiness does not render the sentence illegal or in any way improper. No relief is due.

Trial Court Opinion, 11/13/13, 6-9 (citations and footnotes omitted).

Our review of the record supports the trial court's conclusions. The trial court never reversed its finding of a probation violation based on the new DUI conviction, and the trial court expressly did not base any violation on Appellant's leaving the TCAP program without permission. Indeed, as noted by the trial court, the record reveals that Appellant conceded his DUI conviction constituted such a violation. See N.T., 2/28/12, at 9.

Citing 42 Pa.C.S.A. § 5505, Appellant claims that the trial court lost jurisdiction to alter his April 3, 2012 sentence. It is well settled, however, that the jurisdictional time limit of section 5505 does not apply "where the court sua sponte corrects an illegal sentence originally imposed, even after the defendant has begun serving the original sentence." Commonwealth v. Baio, 898 A.2d 1095, 1099 (Pa.Super. 2006). "If no statutory authorization exists for a particular sentence, that sentence is illegal and subject to correction." Id. Here, Appellant admits that his April 3, 2012 sentence was illegal because he was ineligible for the TCAP program. Thus, the trial court clearly retained jurisdiction to correct the illegality.

Moreover, Appellant cites no pertinent authority for his assertion that the trial court was required to vacate only that portion of the April 3, 2012 sentence that placed him in the TCAP program, leaving in place the ten-year probationary term also imposed that day. See Appellant's Brief at 18-19. It is well settled that the range of sentences available to a court when resentencing after revoking probation includes all sentencing alternatives that were available at the time the original sentence was imposed. See generally, 42 Pa. § 9771; Commonwealth v. Schutzues, 54 A.3d 86 (Pa.Super. 2012). Finally, as reproduced above, the trial court fully explained that a term of incarceration was necessary for the treatment of Appellant's rehabilitative needs, and why a probationary term without treatment was not a sentencing option.

In sum, Appellant was properly resentenced to a term of incarceration on July 17, 2012, and the trial court properly denied his request for relief.

Order affirmed.

Judgment Entered.

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