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J-S47014-11 2011 PA Super 227 COMMONWEALTH OF PENNSYLVANIA, Appellee v. DAVID ANTHONY CORLEY, Appellant No. 1224 EDA 2011 IN THE SUPERIOR COURT OF PENNSYLVANIA

Appeal from the Judgment of Sentence of June 26, 2009, in the Court of Common Pleas of Lehigh County, Criminal Division, at No.: CP-39-CR-0003119-2008 BEFORE: BOWES, SHOGAN, and FREEDBERG, JJ. OPINION BY BOWES, J.: Filed: October 25, 2011

David Anthony Corley appeals from the June 26, 2009 judgment of sentence of sixty-nine months to twelve years imprisonment imposed after he pled guilty to one count of criminal conspiracy to commit aggravated assault. After careful review, we affirm. The facts giving rise to Appellant's criminal prosecution are gleaned from our review of the record. On May 6, 2008, at approximately 2:00 a.m., there was a shootout outside the Joker's Bar in Allentown. Two individuals suffered shotgun wounds and were treated at local hospitals. Witnesses

identified Appellant as the driver of a vehicle in which the passenger, Anthony Royale, was observed holding a shotgun. clothing Appellant and his cohort were wearing. They described the

Police arrested Appellant

and, after waiving his Miranda rights, Appellant told police that the

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altercation started as he and Royale were exiting the bar. An unknown man pulled a handgun from his parked vehicle and threatened him. Appellant

entered a vehicle with Royale and the two went to Royale's home and retrieved a twelve-gauge shotgun that they had placed in the bushes. They returned to the area of Joker's Bar where a shootout ensued and Royale shot Charles Powell and Chris Jackson. Police recovered twenty-eight shells of

many different calibers from the scene. Appellant was charged with two counts each of attempted homicide, aggravated assault, and recklessly endangering another person, and one count each of criminal conspiracy and possession of marijuana. Pursuant to an agreement with the Commonwealth, Appellant pled guilty to one count of criminal conspiracy to commit aggravated assault, a first-degree felony. On April 20, 2009, he was sentenced to seven to fourteen years incarceration. Appellant timely moved for reconsideration of his sentence and reconsideration was granted. On June 26, 2009, the court resentenced him to sixty-nine months to twelve years in a state correctional institution. Immediately following the pronouncement of the new sentence, counsel for Appellant orally moved to withdraw and the court granted the motion. The court did not appoint counsel for a possible direct appeal and no direct appeal was filed.

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Appellant timely filed a PCRA petition and counsel was appointed. Counsel filed an amended petition on Appellant's behalf alleging that as a result of counsel's withdrawal at sentencing, Appellant was denied effective assistance of counsel post-sentence and for purposes of appeal. Following an evidentiary hearing on January 20, 2010, the court denied PCRA relief. Appellant timely appealed to this Court and we held that the PCRA court failed to determine, as mandated in Pa.R.Crim.P. 120(B)(3), whether, upon granting counsel's leave to withdraw, new counsel was entering an appearance or being appointed, or whether Appellant was proceeding without counsel. Commonwealth v. Corley, 2011 Pa. Super. LEXIS 1599 (unpublished memorandum). Since Appellant did not waive counsel or

indicate that he desired to proceed pro se, Appellant was denied counsel and effectively foreclosed from pursuing a direct appeal. We reversed and

remanded for reinstatement of Appellant's appellate rights nunc pro tunc and appointment of counsel. On April 19, 2011, following remand, Appellant sought reinstatement of his right to file a post-sentence motion, averring that the Superior Court's reversal included the right to file a post-sentence motion nunc pro tunc. By order dated April 20, 2011, the court denied Appellant's petition. Appellant filed the within appeal to this Court on May 5, 2011, and complied with the trial court's order to file a Pa.R.A.P. 1925(b) concise statement of errors

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complained of on appeal.

The trial court filed its Rule 1925(a) opinion The matter is now

incorporating its earlier opinion of February 9, 2010. ready for our review. Appellant raises two issues for our consideration: I.

Is there a substantial question for which the Superior Court should grant allowance of appeal from the discretionary aspects of the sentence? Is the sentence harsh and manifestly excessive, and therefore unjust and unreasonable?

II.

Appellant's brief at 4. Appellant's issues on appeal challenge discretionary aspects of his sentence. We held in Commonwealth v. Malovich, 903 A.2d 1247, 1250 (Pa.Super. 2006) that before we reach the merits of such a claim, we must engage in a four part analysis to determine: (1) whether the appeal is timely; (2) whether Appellant preserved his issues; (3) whether Appellant's brief includes a concise statement of the reasons relied upon for allowance of appeal with respect to the discretionary aspects of sentence; and (4) whether the concise statement raises a substantial question that the sentence is inappropriate under the sentencing code. Commonwealth v. Hyland, 2005 PA Super 199, 875 A.2d 1175, 1183 (Pa. Super. 2005). The third and fourth of these requirements arise because Appellant's attack on his sentence is not an appeal as of right. Id. Rather, he must petition this Court, in his concise statement of reasons, to grant consideration of his appeal on the grounds that there is a substantial question. Id. Finally, if the appeal satisfies each of these four requirements, we will then proceed to decide the substantive merits of the case. Id.

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Appellant's appeal is timely.

We turn next to determine whether

Appellant has preserved his challenge that his sentence is manifestly excessive. Upon remand, Appellant sought permission to file a postIn its

sentence motion nunc pro tunc in order to preserve this claim.

April 20, 2011 order, the trial court denied his petition, reasoning that this Court's reinstatement of Appellant's appellate rights did not include the right to file a post-sentence motion because Appellant had previously filed such a motion and was granted relief. Order, 4/20/11, at 1 n.1. Appellant asks

that this Court treat his petition for reinstatement of his right to file a postsentence motion as a post-sentence motion. Appellant's brief at 14. The

Commonwealth counters that the issue is waived as Appellant did not raise it at sentencing or by post-sentence motion, citing Commonwealth v. Mann, 820 A.2d 788 (Pa.Super. 2003). The Commonwealth insists that by failing to file such a motion, Appellant deprived the sentencing judge of the opportunity to reconsider or modify its sentence. Appellant's brief at 7. We disagree for the following reasons. At first blush it would appear that our Supreme Court's decision in Commonwealth v. Liston (Liston II), 977 A.2d 1089 (Pa. 2009) governs this issue. Therein, the court held that the reinstatement of the appellant's direct appeal rights nunc pro tunc where his counsel neglected to file a requested appeal did not include the reinstatement of his right to file post-

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sentence motions nunc pro tunc.

The Court relied upon the rule in

Commonwealth v. Grant, 813 A.2d 726 (Pa. 2002), that generally a defendant should wait to raise claims of ineffective assistance of trial counsel until collateral review. While an exception to that rule was carved out in

Commonwealth v. Bomar, 826 A.2d 831, 854-55 (Pa. 2003) for ineffective assistance of counsel claims that were raised below, developed in the certified record, and definitively determined by the trial court, the Court declined to extend the Bomar exceptions permitting a defendant to obtain what it characterized as collateral review even before a direct appeal was filed. The Court held that counsel's failure to file post-sentence motions did not fall within the narrow ambit of ineffectiveness claims requiring no finding of prejudice. Id. at 1092 (citing Commonwealth v. Reaves, 923 A.2d

1119 (Pa. 2007)). This Court subsequently relied upon Liston II in Commonwealth v. Fransen, 986 A.2d 154 (Pa.Super. 2009), holding that a PCRA petitioner who is granted reinstatement of his direct appeal rights nunc pro tunc is not entitled to a subsequent order reinstating his right to file post-sentence motions nunc pro tunc if he did not request such relief from the PCRA court, and if the court did not hold an evidentiary hearing on that issue. We find Liston II and Fransen to be distinguishable on the facts. Therein, the issues involved the ineffectiveness of counsel and Grant's

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prohibition against the review of such claims on direct appeal.

Instantly,

Appellant was granted PCRA relief because he was denied counsel entirely throughout the post-sentence and direct appeal period when he was constitutionally entitled to counsel. As relief was not based on the

ineffective assistance of counsel, but instead the denial of counsel, Grant is not directly implicated and the rationale underlying Liston II and Fransen is inapplicable.1 We also note that Appellant, in his first PCRA appeal, specifically alleged that he was denied his Sixth Amendment right to counsel at both the post-sentence and direct appeal stages. This Court agreed, finding a

violation of Pa.R.Crim.P. 120(B)(2)(b), and reinstated Appellant's appellate rights. We find that our prior holding implicitly countenanced the filing of a post-sentence motion upon remand since Appellant was without counsel at the time such motion was due. Furthermore, the purpose behind a post-sentence motion has been satisfied herein. The trial court already had an opportunity to modify

Appellant's sentence prior to the first appeal and did so. Moreover, we have the benefit of the trial court's reasoning in imposing Appellant's sentence as

Despite our finding that Liston II and Fransen are inapplicable on the facts herein, we note that evidence that Appellant was denied counsel during both the post-sentence and appeal stages was adduced at the PCRA hearing.

1

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the court addressed this at length in its Rule 1925(b) opinions. foregoing reasons, we decline to find waiver.

For the

Appellant has filed a concise statement pursuant to Pa.R.A.P. 2119(f) setting forth the reasons why an appeal should be allowed on the discretionary aspects of his sentence. our review is whether the issue The only remaining prerequisite to raises a substantial question.

Commonwealth v. Fiascki, 886 A.2d 261, 263 (Pa.Super. 2005). In order to establish a substantial question, an appellant must show actions by the sentencing court inconsistent with the Sentencing Code or contrary to the fundamental norms underlying the sentencing process. We determine

whether a particular case raises a substantial question on a case-by-case basis. Id. Appellant claims that the sentence imposed at resentencing is excessive and was motivated by bias. In support of that proposition,

Appellant points to the original sentence, which exceeded the sentencing guidelines and which the trial court failed to justify by stating its reasons on the record or in a separate written statement. Furthermore, Appellant

alleges that the court expressed its displeasure on the record with the guidelines and imposed a modified sentence that was in excess of the sentence agreed to by the Commonwealth and the victim. Finally, Appellant

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complains that the sentence was excessive given his cooperation with the authorities and his good behavior while incarcerated. While a claim that the court failed to consider certain mitigating factors does not present a substantial question, see Commonwealth v. Johnson, 961 A.2d 877 (Pa.Super. 2008), an allegation of bias in sentencing implicates the fundamental norms underlying sentencing and hence, we find that it raises a substantial question. Thus, we will proceed to the merits of Appellant's claim that his sentence was unduly harsh and excessive. The sentence subject to review is a standard range sentence imposed after the trial court reconsidered and modified its earlier sentence, which exceeded the aggravated range. The court had a pre-sentence report and acknowledged reviewing it. As we indicated in Commonwealth v. Moury, 992 A.2d 162, 171 (Pa.Super. 2010), where the sentencing court imposed a standard-range sentence with the benefit of a pre-sentence report, we will not consider the sentence excessive. In those circumstances, we can

assume the sentencing court "was aware of relevant information regarding the defendant's character and weighed those considerations along with mitigating statutory factors." Commonwealth v. Devers, 546 A.2d 12, 18 (Pa. 1988); see also Commonwealth v. Tirado, 870 A.2d 362, 368 (Pa.Super. 2005) (if sentencing court has benefit of pre-sentence

investigation, law expects court was aware of relevant information regarding

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defendant's character and weighed those considerations along with any mitigating factors). Moreover, we can reverse a standard-range sentence

only if the sentence is clearly unreasonable when viewed in light of the four statutory factors outlined in 42 Pa.C.S.

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