Commonwealth v. Carter

J-S44002-15

2015 PA Super 182

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

GENE DONTA CARTER

Appellant Nos. 489 WDA 2014

Appeal from the Judgment of Sentence February 26, 2014

In the Court of Common Pleas of Blair County

Criminal Division at No(s): CP-07-CR-0000245-2011

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

GENE DONTA CARTER

Appellant Nos. 918 WDA 2014

Appeal from the Order May 5, 2014

In the Court of Common Pleas of Blair County

Criminal Division at No(s): CP-07-CR-0000245-2011

BEFORE: LAZARUS, J., STABILE, J., and JENKINS, J.

OPINION BY JENKINS, J.: FILED September 1, 2015

A jury found Gene Donta Carter guilty of sixteen counts of delivery of a

controlled substance,1 two counts of possession with intent to deliver a

____________________________________________

1

35 P.S. § 780-113(a)(30).

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controlled substance,2 and one count each of criminal conspiracy,3 criminal

use of communication facility,4 and dealing in proceeds of unlawful activity.5

The trial court imposed an aggregate sentence of 104½ - 215 years’

imprisonment, including sixteen mandatory minimum sentences for sales of

cocaine and heroin under 18 Pa.C.S. § 7508.6 In this direct appeal, Carter

contends, inter alia, that (1) the trial court violated his Sixth Amendment

rights by denying his request to have an attorney from court-appointed

counsel’s office participate as co-counsel during trial; and (2) his sentence is

unconstitutional under Alleyne v. United States, -- U.S. --, 133 S.Ct. 2151

(2013). We affirm Carter’s convictions, but we vacate his sentence and

remand for resentencing.

This case arose from an investigation by the Office of Attorney General

which revealed that co-defendant Michael Serrano, a Philadelphia source,

provided drugs to Carter, who sold them in Blair County between September

2009 and April 2010. Following a four-day trial, the jury convicted Carter of

____________________________________________

2

35 P.S. § 780-113(a)(30).

3

18 Pa.C.S. § 903.

4

18 Pa.C.S. § 7512(a).

5

18 Pa.C.S. § 5111(a)(1).

6

The specific subsections under which the court sentenced Carter were

section 7508 (a)(3)(i) and (ii) (cocaine) and section 7508 (7)(i) and (iii)

(heroin).

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the aforementioned offenses, and on January 12, 2013, the court imposed

sentence. The trial judge subsequently passed away.

Post-sentencing and appellate proceedings have been protracted. On

January 23, 2013, Carter filed timely post-sentence motions, but the court

did not hold a hearing until August 22, 2013. On November 22, 2013,

Carter filed a pro se motion seeking a copy of the audio recording of his trial.

On February 26, 2014, the court entered an order denying Carter’s

post-sentence motions. On March 25, 2014, Carter filed a notice of appeal

from this order at 489 WDA 2014.

On May 5, 2014, the court denied Carter’s motion for a copy of the

audio recording of trial. On the same date, the court ordered Carter to file a

Pa.R.A.P. 1925(b) statement relating to his appeal at 489 WDA 2014.

Through counsel, Carter filed a timely Pa.R.A.P. 1925(b) statement on May

23, 2014, but the court never issued a Pa.R.A.P. 1925(a) opinion.

On May 28, 2014, Carter appealed at 918 WDA 2014 from the May 5,

2014 order denying his motion for a copy of the audio recording at trial. The

court did not order Carter to file a Pa.R.A.P. 1925(b) statement in

connection with this appeal.

Before proceeding to Carter’s arguments on appeal, we must examine

whether both appeals are timely. Due to multiple errors by the Clerk of

Court below, and through no fault of Carter, Carter’s appeal periods

technically have never begun running. Nevertheless, we will treat both

appeals as timely filed.

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To explain, we begin by summarizing the relevant rules of post-

sentence procedure. With one exception not relevant here, trial courts must

decide post-sentence motions within 120 days after the filing of the motion.

Pa.R.Crim.P. 720(B)(3)(a). If the trial court fails to decide the motion within

120 days, the motion “shall be deemed denied by operation of law,” id., and

“the clerk of courts shall forthwith enter an order on behalf of the court, and,

as provided in [Pa.R.Crim.P. 114], forthwith shall serve a copy of the order

on the attorney for the Commonwealth, the defendant’s attorney, or the

defendant if unrepresented, that the post-sentence motion is deemed

denied.” Pa.R.Crim.P. 720(B)(3)(c). Rule 114 provides in turn that docket

entries shall contain: “(a) the date of receipt in the clerk’s office of the order

or court notice; (b) the date appearing on the order or court notice; and (c)

the date of service of the order or court notice.” Pa.R.Crim.P. 114(C)(2).

The date of entry of an order denying post-sentence motions, and the date

the appeal period begins to run, “shall be the day the clerk of the

court…mails or delivers copies of the order to the parties.” Pa.R.A.P.

108(a)(1), (d)(2).

We now apply these rules to Carter’s direct appeal at 489 WDA 2014.

Carter filed post-sentence motions on January 23, 2013, but the Clerk did

not enter an order denying his motions until February 26, 2014. Under

Pa.R.Crim.P. 720(B)(3)(a), Carter’s post-sentence motions should have been

denied by operation of law on May 23, 2013, and on that date, the Clerk

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should have served the order on Carter and noted the date of service on the

docket, thereby triggering Carter’s appeal period. The Clerk failed to carry

out these steps. Consequently, the appeal period did not begin running on

May 23, 2013.

Nor did the appeal period at 489 WDA 2014 begin running on February

26, 2014, the date the Clerk docketed the order denying post-sentence

motions. Although the Clerk certified on the back of the order that it served

the order on all parties, it failed to state the date of service on the docket.

See Pa.R.Crim.P. 114(C)(2)(c) (docket entries “shall contain” the “date of

service of the order”); Pa.R.A.P. 108(a)(1), (d)(1) (appeal period only

begins running on the date the Clerk “mails or delivers copies of the order to

the parties”).

Despite the Clerk’s failure to note service on the docket, Carter

obviously received the February 26, 2014 order, because he filed his appeal

on March 25, 2014, less than thirty days later. Accordingly, “[we] will

regard as done that which ought to have been done” and treat the appeal at

489 WDA 2014 as timely, i.e., treat this appeal as if the Clerk inscribed the

date of service on the docket on February 26, 2014. Commonwealth v.

Howard, 659 A.2d 1018, 1021 n. 12 (Pa.Super.1995) (Clerk of Court failed

to enter order denying post-sentence motions by operation of law on July

13, 1994, 120 days after defendant filed post-sentence motions, but

defendant filed notice of appeal within 30 days after July 13th; held that “we

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shall regard as done that which ought to have been done and proceed to

review the defendant’s claims”).

Similarly, the appeal period for Carter’s appeal at 918 WDA 2014 has

never begun running. Although the Clerk certified on the back of the May 5,

2014 order denying Carter’s motion for a copy of the audio recording of trial

that it served the order on all parties, the Clerk again failed to state the date

of service on the docket. Carter, however, obviously received the May 5,

2014 order, because he appealed it on May 28, 2014, less than thirty days

later. Therefore, once again, “we will regard as done that which should have

been done” and treat the appeal at 918 WDA 2014 as timely. Howard,

supra.

Having found both appeals timely, we consolidate them sua sponte

pursuant to Pa.R.A.P. 513.

Carter raises four issues in this appeal, which we have re-ordered for

the sake of convenience:

Whether the [trial] [c]ourt erred and abused its discretion by

refusing to allow [Carter’s] second-chair attorney to participate

in his trial?

Whether the trial court committed an error of law and abused its

discretion when it denied [Carter’s] request to obtain a copy of

the recording of his jury trial?

Whether the trial court imposed an illegal sentence in imposing

mandatory minimum sentences in violation of the holding in

[Alleyne]?

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Whether the trial court imposed a manifestly unreasonable,

excessive, and harsh sentence in imposing consecutive

sentences clearly calculated to be a de facto life sentence?

We first consider Carter’s argument that the trial court abused its

discretion by refusing to permit his second-chair attorney, Eric Rutkowski,

Esquire, to cross-examine several witnesses during trial. Carter’s first-chair

attorney, Scott Pletcher, Esquire, was court-appointed. Mr. Rutkowski was

another attorney at Mr. Pletcher’s office.

The right to counsel is guaranteed under both the Sixth Amendment

and Article I, § 9 of the Pennsylvania Constitution, and erroneous preclusion

of the defendant’s lone attorney is a constitutional violation that is not

subject to harmless error review. United States v. Gonzalez-Lopez, 548

U.S. 140, 150 (2006). Appointment of additional counsel, on the other

hand,

is not a matter of right; it is a request addressed to the

discretion of the trial court. A trial court possesses broad

discretionary powers, necessary to effectively dispose of the

multitude of issues that require its attention within the arena of

litigation … An appellate court will not reverse a discretionary

ruling of a trial court absent an abuse of that discretion.

Commonwealth v. Champney, 832 A.2d 413 (Pa.2003). “The mere fact

that the accused and/or his counsel would prefer multiple lawyers in no way

proves an abuse of discretion in denying multiple representation.” Id.

(emphasis in original).

The trial court acted within its discretion by denying Carter’s request

for second-chair counsel. Carter failed to file any pre-trial motion seeking

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the appointment of second-chair counsel. N.T., 10/24/11, at 7-8.

Moreover, Carter was on trial with co-defendant Michael Serrano, and the

trial court explained that each party in the case, including the

Commonwealth, was limited to one attorney. Id. at 39-40. Finally, Carter

fails to identify any prejudice resulting from Mr. Rutkowski’s exclusion.

In his second argument, Carter asserts that the trial court abused its

discretion by denying his request for a copy of the audio recording of trial.

According to Carter, the trial transcript has been “intentionally altered,” and

“there are at least twenty instances of missing or altered testimony.” Brief

For Appellant, p. 18. Carter has waived this issue by failing to identify any

part of the transcript in which testimony is omitted or altered. See

Commonwealth v. Fransen, 42 A.3d 1100, 1116 n. 14 (Pa.Super.2012),

(claim of trial court error relative to jury instruction waived for failure to cite

place in certified record where instruction requested); Commonwealth v.

Eline, 940 A.2d 421, 434 (Pa.Super.2007) (claims of error relative to denial

of continuance and jury charge waived where defendant failed to indicate

where in record he requested continuance and preserved jury charge

objection).

In his third argument, Carter contends that his sentence is

unconstitutional under Alleyne. We agree. Alleyne held that “facts that

increase mandatory minimum sentences must be submitted to a jury” and

must be found “beyond a reasonable doubt.” Alleyne, 133 S.Ct. at 2163.

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Moreover, this Court has held that 18 Pa.C.S. § 7508, in its entirety, is

unconstitutional. Commonwealth v. Cardwell, 105 A.3d 748, 755

(Pa.Super.2014); Commonwealth v. Newman, 99 A.3d 86

(Pa.Super.2014) (en banc); see also Commonwealth v. Hopkins, -- A.3d

--, 2015 WL 3949099 (Pa., June 15, 2015) (18 Pa.C.S. § 6317, which

requires imposition of mandatory minimum sentence if certain controlled

substance crimes occur within 1,000 feet of, inter alia, a school, held

unconstitutional; statute was inconsistent with Alleyne because it required

sentencing court to impose mandatory minimum sentence based on facts

which were not submitted to jury and not found beyond reasonable doubt).

The trial court imposed mandatory minimum sentences under section

7508 on sixteen of Carter’s twenty-one convictions. Brief For

Commonwealth, at 27-28. Because the court’s reliance on section 7508 was

error, and because vacatur of his mandatory minimum sentences may affect

the entire sentencing scheme, we must vacate Carter’s entire sentence and

remand for resentencing on all counts. See Commonwealth v. Ferguson,

107 A.3d 206, 213-14, 216 (Pa.Super.2015) (vacating entire sentence

pursuant to Alleyne and remanding for resentencing on all counts, where

sentence encompassed both counts subject to mandatory minimum

sentencing provisions and counts not subject to mandatory minimum

sentencing provisions).

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In Carter’s fourth argument, he contends that his sentence was

manifestly unreasonable and excessive. Because we are vacating his entire

sentence and remanding for resentencing, this argument is moot.

Appeals at 489 WDA 2014 and 918 WDA 2014 consolidated.

Convictions affirmed. Case remanded for resentencing on all convictions.

Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 9/1/2015

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