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[U] Commonwealth v. Everett

Superior Court of Pennsylvania

March 5, 2014

COMMONWEALTH OF PENNSYLVANIA Appellee
v.
ERNEST EVERETT Appellant

NON-PRECEDENTIAL DECISION

Appeal from the Judgment of Sentence January 17, 2012 In the Court of Common Pleas of Allegheny County Criminal Division at No(s): CP-02-CR-0003113-2009 CP-02-CR-0004862-2009

BEFORE: GANTMAN, J., OTT, J., and FITZGERALD, J. [*]

MEMORANDUM

GANTMAN, J.

Appellant, Ernest Everett, appeals from the new judgment of sentence, entered in the Allegheny County Court of Common Pleas, following a hearing on Appellant's timely-filed petition under the Post-Conviction Relief Act ("PCRA"), at 42 Pa.C.S.A. §§ 9542-9546.

The relevant facts and procedural history of this case are as follows. The Commonwealth charged Appellant at CC 200903113 with (count 1) delivery, (count 2) PWI D, and (count 3) simple possession for selling 0.93 grams of cocaine to undercover officers. The Commonwealth charged Appellant at CC200904862 with (count 1) delivery of a controlled substance, (count 2) possession with intent to deliver (" PWI D"), (count 3) simple possession, and (count 4) criminal conspiracy for selling 0.14 gram s of cocaine to undercover officers.

On November 23, 2009, Appellant entered into one counseled plea bargain with the Commonwealth for both docket numbers. In exchange for Appellant's guilty plea, the Commonwealth agreed to withdraw charges for counts 1, 2, and 4 of CC 200904862, leaving only a simple possession count at that docket number. During the plea/ sentencing proceeding, the Commonwealth stated: "In exchange for that we would ask for a period of incarceration of 18 to 36 months with 5 years' probation. That would be concurrent." Notwithstanding that language, counsel for Appellant and the Commonwealth have written notes about the plea bargain indicating probation would be consecutive to the incarceration. I n discussing the agreement with the Commonwealth, the plea/ sentencing court asked, "Want to put the 18 to 36 on the first count and 5 years on the second count?" The court later pronounced the sentence for CC 200903113 as follows: "All right. So we will sentence you on the first count, 18 to 36 months. On the second, we'll put 5 years' probation which will run concurrent to the 36 months." The written sentencing orders, however, placed the incarceration sentence at CC 200903113 and the 5 years' probation at CC 200904862, with the notation that the CC 200904862 sentence was to be served consecutive to the sentence at CC 200903113 . Appellant did not file a direct appeal from the judgment of sentence.

On March 25, 2010, Appellant filed a timely pro se PCRA petition. The court initially appointed counsel, who subsequently withdrew. The court then appointed substitute counsel, who filed an amended petition on July 23, 2010, and a supplemental petition on December 12, 2011, raising challenges to prior counsel's effectiveness and the legality of the sentence imposed. The PCRA court held a hearing on December 16, 2011. During this hearing, Appellant's plea counsel testified and produced written notes indicating the term s of the plea bargain included a period of incarceration to be followed by a period of probation. On January 17, 2012, the PCRA court granted Appellant relief in the form of resentencing Appellant and reinstating his right to file post-sentence motions and a direct appeal, which is now before us. The court resentenced Appellant to 18 to 36 months' incarceration for count 1 at CC 200903113 and to 5 years' probation at count 2 of the same docket number, to run consecutive to the incarceration imposed. Additionally, the court imposed 3 years' probation for the sole remaining count at CC 200904862, to run concurrent with the 5-year probation at CC 200903113 .

Appellant timely filed a post sentence motion on January 18, 2012, and an amended post-sentence motion on January 20, 2012. By an order filed January 25, 2012, the court denied Appellant's post-sentence motions. Appellant timely filed a notice of appeal on January 26, 2012, accompanied by a concise statement of errors complained of on appeal, per Pa.R.A.P. 1925(b).

Appellant raises these issues on appeal:
WHETHER THE SENTENCE AT COUNT 2 AT CC200903113 IS ILLEGAL-IN VIOLATION OF 42 Pa.C.S. § 9765, THE DOUBLE JEOPARDY CLAUSES OF ARTICLE I, SECTION 10 OF THE PENNSYLVANIA CONSTITUTION AND/OR THE FIFTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION, AND/OR OTHER LAW--WHERE A SEPARATE SENTENCE WAS IMPOSED AT COUNT 1 AT CC200903113 AND WHERE COUNTS 1, 2 AND 3 AT CC200903113 CHARGED DELIVERY, POSSESSION WITH INTENT TO DELIVER, AND POSSESSION OF A CONTROLLED SUBSTANCE, RESPECTIVELY, ARISING FROM THE SAME SINGLE SALE OF A DISCRETE AMOUNT OF COCAINE TO AN UNDERCOVER POLICE OFFICER?
WHETHER THE COURT OF COMMON PLEAS ERRED IN HOLDING THE PLEA AGREEMENT PROVIDED FOR A SENTENCE OTHER THAN 18 TO 36 MONTHS' INCARCERATION AND A CONCURRENT TERM OF 5 YEARS' PROBATION?
WHETHER [APPELLANT] IS ENTITLED TO HAVE THE 3-YEAR SENTENCE OF PROBATION MADE EFFECTIVE FROM THE DATE OF THE ORIGINAL SENTENCING IN THIS MATTER (NOVEMBER 23, 2009)?
WHETHER THE FACTUAL BASIS PRESENTED IN SUPPORT OF THE CHARGES AT CC200903113 IS INSUFFICIENT TO SUPPORT CONVICTION FOR TWO SEPARATE COUNTS OF POSSESSION WITH INTENT TO DELIVER AND, CONSEQUENTLY, WHETHER IMPOSITION OF SENTENCE AT COUNTS 1 AND 2 AT CC200903113 IS ILLEGAL IN VIOLATION OF 42 Pa.C.S. ยง 9765, THE DOUBLE JEOPARDY CLAUSES OF ARTICLE I, SECTION 10 OF THE PENNSYLVANIA ...

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