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[U] Commonwealth v. Payne

Superior Court of Pennsylvania

February 19, 2014

COMMONWEALTH OF PENNSYLVANIA, Appellee
v.
NATHAN PAYNE, Appellant

NON-PRECEDENTIAL DECISION

Appeal from the Judgment of Sentence February 23, 2011 In the Court of Common Pleas of Lebanon County Criminal Division at No(s): CP-38-CR-0000855-2010

BEFORE: MUNDY, J., WECHT, J., and FITZGERALD, J. [*]

MEMORANDUM

MUNDY, J.

Appellant, Nathan Payne, appeals nunc pro tunc from the February 23, 2011 aggregate judgment of sentence of two to 20 years' imprisonment. After careful review, we affirm.

The relevant facts and procedural history have been summarized by the trial court as follows.

[] Appellant was charged with Violation of the Controlled Substance, Drug, Device, and Cosmetic Act (2nd Offense), Criminal Conspiracy/Violation of the Controlled Substance, Drug, Device, and Cosmetic Act, Criminal Use of Communication Facility, and Criminal Conspiracy/Criminal Use of Communication Facility.1 Ultimately, [] Appellant pled guilty to the aforementioned charges. On February 23, 2011, [] Appellant was sentenced as follows, in relevant part:
Count I, Violation of the Controlled Substance, Drug, Device, and Cosmetic Act: pay the costs of prosecution, pay a fine of $1, 000, and be incarcerated in a state correctional facility for a minimum of two years and a maximum of 20 years;
Count II, Criminal Conspiracy/Violation of the Controlled Substance, Drug, Devise, and Cosmetic Act: pay the costs of prosecution, pay fine of $250, and be incarcerated in a state correctional facility for a minimum of two years and a maximum of ten years, concurrent with Count I;
Count III, Criminal Use of Communication Facility: pay the costs of prosecution, pay a fine of $1, 000, and be incarcerated in a state correctional facility for a minimum of one and one half years and a maximum of seven years, concurrent with Count I;
Count IV, Criminal Conspiracy/Criminal Use of Communication Facility: pay the costs of prosecution, pay a fine of $1, 000, and be incarcerated in a state correctional facility for a minimum of one and one half years and a maximum of seven years, concurrent with Count I.

(February 23, 2011 Sentencing Order).

[] Appellant filed a PCRA Petition on January 11, 2012. [] Appellant claimed he was eligible for relief because of Constitutional violations, ineffective assistance of counsel, an unlawfully induced guilty plea, and the imposition of a sentence greater than the lawful maximum. The law firm of Montgomery & Zimmerer was appointed to represent [] Appellant. The Commonwealth filed its Response to the PCRA Petition and a Motion to Dismiss the PCRA Petition on January 31, 2012.
On May 22, 2012, a hearing was held on the PCRA Petition, but the [PCRA c]ourt ordered a continuance for Appellant's counsel to subpoena a witness. The hearing was continued until January 24, 2013. At the conclusion of the PCRA hearing, upon the Commonwealth's request, the [PCRA c]ourt granted the parties 20 days to brief their respective positions. The Commonwealth filed a brief in support of its ...

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